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The position of ethnic minorities and mountainous areas in the Land Law (Amendment) in 2013

In recent times, in the course of recommendation to the amended law on land 2013, many forums related to this issue have been opened with the participation of numerous organizations, agencies and social class. In these forums, one of the emerging issues concerned by public opinion relates to forest and forestland, including in particular the matter of residential land and productive land for ethnic minorities in mountainous areas. The undeniable reality insofar, that is, the lack of productive land in mountainous and ethnic minority areas was alarming. This not only affects the lives of people in communities, the socio-economic development in each locality, but more profoundly, it also distresses the cultural foundation, and which is the security and stability in many aspects of human and society in above locations.
Onset from the fact that has existed for generations in ethnic and mountainous communities, has become one of the deciding factors to the formation of a diverse and rich culture, and very bold philosophy and nature of existence, it is the attitude of human behavior with nature, especially forest and land. At these locations, forests are considered as living space to sustain life and spiritual values ​​of the community. Therefore, it is necessary to have a policy with clear provisions, in which forest and land are basic needs of families and communities in mountainous areas. The attention of whole society to the issue of productive land of ethnic minorities in the comments to the Land Law (Amendment) 2013 so far is also reflected no less a fact relevant to the issue of land in the plains, with pressing both inside and outside that sometimes became heated controversy in the social life.
It can be seen that most of the forums for comment on the Draft Land Law 2013 (Admended) consents the view of land as an ownership of the entire people whose representative is the State which allocates land use rights to land users in accordance with the Law (Article 4). The basis of this consensus is from the perception that, the original land is not created by man, but that is, before hman appearance, a product of nature; so the primitive land collectively owned by the people. Therefore, the primative land owned by the whole people is realistic. But in the process of use, land has been accumulated the crystallization of human labor in which man has turned unusable land into land usable, the lower value of land into the higher values of use, which means the land through human labor has become more valuable. So, the land must now be considered a property; so it needs to have a multi-property regime for land. This point of vew partly explains the urgent situation caused long lasting appeals against decisions relating to land acquisition around the country. That's because the differences in price of land, or further, part of the human labor in the process of land’s value accumulation have not been recognixed adequately.
Given that context, the question regarding the rights and responsibilities of the State on land management has not been fully defined. Many opinions expressed that, the Bill only provides for the rights of the State as the representative owner of the entire people, but not yet specifies obligations of the State assigned by the people the representative right as well as  a land user. Furthermore, the Bill not yet specifies the rights of land owners as the people. It is still not clear about the real land ‘owner’, but only just the representative body. Organizations and individuals who are land users, but do not have any right to the people’s land ownership is clearly not adequately.
The incomplete responsibility of the Stated on land management has led to unadequacies expressed quite evident in some provisions of the policy on residential and productive land for ethnic minorities. In these provisions, it may not be difficult to recognize that the view and understanding of law makers seem only targeting to the lowlands and plains, but not cover all the specific problems of mountainous areas.
There are some examples:
Artile 27 - Responsibilities of the State on residential and agricultural production land for ethnic minorities stipulates:
  1. Issuing policies for ethnic minorities in accordance with the customs, practices, cultural identities and actual conditions of each region.
  2. Issuing policies which ensure land for ethnic minorities to directly involve in agricultural production in rural areas.
If so, it means the Bill ignores an important factor with the ethnic communities entrenched in mountainous and forest areas, where over generations the forest has been still considered as living space associated with socio-cultural traditions, as well very crucial natural resources for the maintenance of cultural background of communities. Where over hundreds of years, the minority groups have close relationships with the forest, and these connections have formed a system of beliefs, traditional cultural values, and customary laws for forest protection. Not only that the reality shows that, with such spaces, forests are being protected very strictly and more efficiency in accordance with the self-discipline and voluntary than with the administrative measures, even the other systems of sanctions.
Therefore, many ideas from different forums strongly recommend that there is a need for the additional provisions in Article 27, which relate to responsibilities of the State to ensure land for ethnic minority communities to maintain traditional activities. These provisions must clearly specify in the contents of residential and productive land use planning to ensure the availability and accessibility of land for ethnic minorities.
The limit of responsibility and obligation of the State as a legitimate body assigned by the peoples the representative right, as well a land user, the Land Law (Amendment) 2013 can be seen as a shortcoming in terms of content which could be completely adjusted. The simplification in thinking of law makers would inadvertently makes the law, if it is passed, to be hardly excepted by the reality, if possibly it could greatly undermine the little values somewhere, but extremely important in the forest areas which is always a measure of ecological safety of a region, a nation and the world, the security of livelihood and stability of the local communities as well as nationwide.
Only a small aspect of the content of a concept also illustrates very clearly about that.
Specifically, the religious land stated in the Article 156 of Amended Land Law specifies community houses, temples, pagoda and ancestral temples. Clearly, these concepts are only familiar to the lowland Kinh peoples. However, it is very strange to ethnic minorities. The population of our country is more than 70% of farmers, of which over 12% are ethnic minorities, equivalent to approximately 15 million people who have been living for about thousands of years in the hilly and mountainous areas. The concepts such as community households, temples, pagoda and ancestral temples are not existed in the lives of ethnic minorities. With ethnic minorities, the most sacred spaces are the forest, big trees and rocks, etc. Thank to those simple spiritual symbols with the profound meaning and harmony, every man, every family and community with their land, mountain and forest have exist peacefully and friendly through the generations. The entire community eternal covenant is formed from those places to become the symbols "legalized", protected, respected in earnest and self-conscious ways by every community members with different names such as spirit forest, religious forest, etc. So if the Bill considers the religious land only as community households, temples, pagoda and ancestral temples, it is clearly incomplete and incompatible with the perception and practices of religion existed of the ethnic minority and mountainous areas. Therefore, it fully reflects the reality if the concept on religious land includes the sacred forestland, spirit forestland and ghost forestland.  Just such a little change, but it requires a moral behavior!
In a forum on comment the Draft Land Law (Revised) 2013, some opinions mentioned about expansion of the scope of special use forest concept which not only includes national forests, nature reserves, forest nurseries, historical forests and forests for scientific studies, but also the watershed forests and spirit forests of ethnic minority communities. These forests are allocated directly to local communities and families with specific strict regulations on protection and regeneration in which the State will subsidy all management and development costs. Thus, it is clear that the concept of sacred and spirit forests would have new added values, not simply confined in the provisions in Article 156.
Nor is the blame if they do not know every concept. However, in the position of policy makers, ones need to know the cautious and thoughtful known to avoid small gaps that make potentially significant consequences. Related to this, some points in the content of the Bill which clearly reveals the thinking and lawmaking process are really necessary to discuss.
Law enactment is to regulate social relations. Therefore, at first, when the new law is developed, it needs to understand the needs and characteristics of the objects affected by the law. To understand this, the law makers must have as many angles of view as possible, but an indispensable angle is the perspective from the object being adjusted. With the Land Law, that is the legitimate rights of the people.
Land is always associated with the planning. At each administrative level, planning is an ordinance to implement economic development activities within such area.
The constitution of Vietnam defines the system of state administration including commune-level People’s Committee, commune-level People's Councils which represents local peoples on land ownership and competent implementation of land ownership land in the commune. Thus, in order to have basis for the competent representation and implementation of land ownership in the commune, planning and land use planning at commune level must be recognized.
Besides, the land allocation in short or long-term stability of use, land users will have a right to know, participate in discussions of the State’s future activities related to their land. Land users are ones to directly make land use planning and planning. So, if the lowest level land use planning and planning is at district level, it does not show the full details and enough information related to the land parcels of land users as well as types of land within within the village / hamlet in the commune.
Regarding the philosophy, land owned by the whole people, the land user are co-owners. Thus, the owner representative must listen to the opinions of land users in the process of planning and land use planning. If the commune-level land use plans and planning is not officially recognized, the land users will not directly participate in discussions and comments during the preparation and implementation of planning and land use and planning. This will lead to bureaucracy, undemocracy and non-transparency which cause grievances, conflicts and corruption. In reality, the communal administration is responsible to directly implment land use planning and planning, but it is not officially recognized as a planning unit. This would lead to the unfeasibility and deviations in the district-level planning and land use planning. Thus, the commune-level planning and land use planning should be considered most central in the system of land use planning in the country.
Thus the removal of land-use planning at commune level in the Bill is unrealistic and inconsistent with Clause 6 of Article 34 (principles of planning and land use plans must ensure democracy and open), and not in accordance with the 1992 Constitution and the draft Constitution in 2013. The removal also does not reflect the people's point of view, the objects of law adjustment. In many forums, when referring to the Chapter IV on planning and land use plans in the Bill, many recommendations were raised to remain the commune-level planning and land use plan into into land-use planning at district level as before to ensure the spirit that Land belongs to the entire people’s ownership. Not only that, some comments also suggest additional provisions regarding the authority of People's Councils at all levels for planning and land-use plans in local areas. The law also needs to provide clearly contents and forms related to local participation and consultation as well as acquisition and responding responsibilities of state agencies to people’s opinions  in the process of planning and land use plans at all levels. With such clear requirements and provisions, the planning and land use plans truly become realistic, public, democratic and transparent and in compliance with the spirit of Constitution and Law. In the same time, it would help to avoid bureaucracy and superficiality - the causes of overlapping in forestland allocation sofar in many localities.

Another fact which is going pretty strong in mountainous and ethnic minority areas is the matter of land acquisition, support, compensation and resettlement. The socio-economic development whether at local or national level is also always connected with land, from which the land acquisition, support, compensation and resettlement are issues often faced by local authorities which have yet to be a thorough and appropriate system of policies. Around the provisions of the Bill, many comments are also sincerily indicated inconsistent issues for adjustment and further studies. One of such comments, quite interesting, is still about the concept.

Regarding land acquisition, although unanimously agreed that land is an ownership of the entire people whose representative is the State which allocates land use rights to land users in accordance with the Law. The State will also have rights to withdraw land for the purposes of defense, security, national and public interests. However, many other argued that although the land owned by the entire people, but when the "right to land use" entitled by the State to individuals, that land will be owned by individuals. Therefore, when the land is withdrawn, it needs to refer to the term "compulsory purchase" the "right to land use" instead of using the term of "land acquisition" as the right to use land is an asset to be protected by the law and ensure accordance with the provisions of the Constitution of compulsory purchase or requisition. Land acquisition should only apply to violations of the land legislation. Some other ideas are proposed regulations to clarify the circumstances including important socio-economic development projects, in which the State withdraws land for the purposes of defense, security, national and public interests and pays proper compensation for land users. In cases of other socio-economic development projects, project owners must discuss with land users for the proper compensations. These are really matters that should be scrutinized, considered in scientific ways before deciding. Besides, a problem directly related to the lack of productive land in the mountainous areas and ethnic groups has so far made "hot" controversy in the several forums and society as a whole, which is about allocation of forestland and renovation of state-owned forestry enterprises – the unsolved problem for over the decades.
Forestland allocation for local peoples, especially the village communities is considered an important strategy of the Vietnam to manage and protect effectively forest and land resources, contributing to support upland ethnic minority communities to stabilize their lives, economic development and create incentives for sustainable development. Accordingly, village communities are one of the owners of forest and forestland and forestland users who have the fully or incompletely legal status depending on the conditions of each area and to whom are allocated or contracted for forestland management and use. The village communities are allocated or contracted on forestland management and use in long-term; from which they shall be entitled to participate in management, protection and use of forests and forestland. In so far, the implementation of forestland allocation has achieved some significant results which have important contribution to changing the face of rural mountain areas, partly improving living conditions of the peoples, reducing poverty situation, creating consensus in areas inhabited by ethnic minorities, and reinforcing the confidence of the people in the State and Party. However, besides the results, in many locations, and the irrational allocation and management of land between State Forestry Enterprises and ethnic minority households is still causing imperative problems. This causes some mountainous areas where have abundant forest and land, are facing with the highest poverty rate in the country.
The shift of management mechanisms in market trend in the State Agro-Forestry Enterprises over the past 10 years has caused many local peoples to become forest and forestland contractors. The provisions on compensation and assistance to acquisition for the forestland managed by State Agro-Forestry Enterprises in the Land Law (revised) in 2013 have caused many reactions. In a discussion on the draft Land Law (Revised) held in Ho Chi Minh City recently, the delegates agreed completely with the regulations: "In case, agricultural land of the State Agro-Forestry Enterprises has been allocated to households and individuals for the purpose of agriculture and forestry (excluding special use forestland, protection forestland, production forestland with natural forests), aquaculture fisheries, when the State conducts land acquisition, land users shall not compensated for land, but investment costs under the provisions of Land Law), for two reasons:
First, under Decree 170-CP and Decree 200-CP of the Government in 2004, all State Agro-Forestry Enterprises have been arranged and converted to Agro-Forestry Companies, Management Board of Protection Forest and Management Board of Special Use Forest, etc; therefore the name on ‘State Agro-Forestry Enterprises’ used in the draft Land Law in out of date.
Second, the contract on forestland are forms of producdtion organization which reflect the relations between State Agro-Forestry Enterprises and  allocators (individuals and households) is completely different in nature from the State’s forestland allocation to organizations and individuals. Land of the agro-forestry companies is currently under the use rights of State Agro-Forestry Enterprises assigned by the State. If so, it is inconsistent and contrary to the provisions of the land acquisition when the State withdraws land of organizations and individuals.
Also relevant to the forestland allocation, on a number of forums and media agencies, delegates also expressed its disagreement with Clause 1 of Articles 132, 133 and 134 which have provisions to allocate production forestland with natural forests, protection forestland and special use forestland to only organizations for the purpose of management, protection and development of forest. Such provisions are not consistent with current practice and a number of other provisions in the Bill, by the fact that the local ethnic minority communities have their own perceptions and practices regarding forestland classification such as forest for preserving water sources, herbal plant forests, sacred and spirit forests, etc.  However, when considering the purpose of use, such areas are watershed forestland, special use forestland, etc. according to the State’s classification and criteria. Such areas are furthermore belonging to the use rights of different communities, clans, families and individuals. These overlaps are caused due to the legacy, but basically, is a corollary of the biased and central-down planning process. The remedy for this will not easily overnight. To avoid the situation that the law would inadvertently create the deepened unresolved conflicts in the communities, the first priority is to have proper assessments of the current status of land use in different locations. Then, the appropriate plans and methods in terms of redistribution and reallocation, in which production forestland with natural forests, protected forestland and special use forestland are allocated to organizations, communities and individual households depending on the size and the convenience in management and protection. The fact shows that special use forests, protected forests near residential areas where most of them are spirit spaces of the communities are more effectively managed and used by communities and households than other entities. This is also the recommendation of not only the National Council of the National Assembly, but before that, many other forums raised.
So once again, through the story of forestland allocation, we see more clearly the role of paramount importance in planning at commune level planning system as a whole. The lack of the role of the people, through their representatives that are commune authorities during the planning, classification and distribution of different forest types has caused lots of many shortcomings, inconsistencies and impasses. Fortunately, these are only the inadequacies of the implementation process, but have not yet been "legalized".
Forests and forestland are not only the means of production, but also the living space associated with socio-cultural traditions and crucial natural resources to maintain the livelihood of ethnic communities in mountainous areas. The history of country development proves that ensuring the lives for mountain residents plays a particularly important role for social stability, economic development, national security and defense as well as protecting the ecological environment. Community of ethnic minorities has always been firm foundation for the course of national liberation in Vietnam. Thus, the Party and State always identify primary priority of agriculture, rural and mountainous ethnicities in policies on socio-economic development of the country. Many policies on social and economic development, many programs aim to reduce poverty have been issued through the stages of development of the country, of which the most important is the policies on land for ethnic minorities in upland areas.
However despite with great potential of the land, especially forestland, mountainous areas currently have more pressures on lack of land to allocate for poor ethnic minority families. In fact, the implementation of policies on socio-economic development in mountainous and ethnic minority areas has revealed many critical issues in the management and use of land and forest resources. This has caused the lack of land for production of ethnic minorities. This issue is becoming barriers in the process of ensuring livelihood and social stability in these regions inhabited by ethnic minorities in Vietnam.
Given such above reason, the Bill is developed in specific details in accordance with the reality and practical needs of the adjusted stakeholders, in which ethnic and mountainous minorities are considered equally, it would actually become a tool to remove existing difficulties which hinder the peace and development of a part of the population living in the most political, social and ecological environment sensitive areas. This is seen as a key to the sustainable development strategy of the country. Moreover, a set of laws which is developed on the basis of scientific, transparency and consensus will be easy to go into society, actually become motivation for the development of society toward civilizing and transformation. To do so, it takes time, along with the participation of numerous strata of society since the very beginning of legislation making process.
In recent years, the synthesis of forums’ comments, one can clearly see that, basically, it needs to appreciate the Drafting Committee of the Bill in receiving and editing the comments of the National Assembly and People's opinion. The Draft has basically met the needs and requirements of the revision of the Law on Land in 2003. However, it must be recognized that the Bill has remained inconsistencies and overlaps. One of the reasons is due to articles and clauses in the Bill made and issued by the Government, Ministries and Departments. These led to the situation of ‘frame laws’ in which ‘laws wait decrees’ and ‘degrees wait circulars’, etc. This will lead to the situation of delay or slow implementation of the law after enacted. Therefore, the Drafting Committee needs consider the suggestion that the Bill should not be adopted at the 5th Session of the National Assembly XIII. The Bill should be issued after the revised Constitution is adopted. If so, we not only have the time to complete such an important Bill for the process of national development and international integration, but also the work in accordance with the legislative order as the Constitution is the foundation and basic for adjusting the amended Land Law. As the revised 1992 Constitution is currently still being discussed for amendments and supplements. Thus, if the Land Law (Revised) is approved in the following session of the National Assembly, after the new revised Constitution took effect, it is clear that the adjustments which are appropriate to the provisions of the new Constitution will be based convincingly.
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