Enhancing the Efficiency of Land Dispute Mediation for Ethnic Minorities in Van Canh district Binh of land dispute reconciliation and studying customary laws and aspirations of local eth
Trang 1Enhancing the Efficiency of Land Dispute Mediation for Ethnic Minorities in Van Canh district (Binh
of land dispute reconciliation and studying customary laws and aspirations of local ethnic minorities are intergral parts for local official proposing solutions to improve the efficiency of land dispute settlement which relates to ethnic minorities in the direction of effectively combining between the law and the customary law in the study area
Keywords: Land dispute; mediation; ethnic minority; Van Canh District; Vietnam
1 Introduction
Van Canh is a mountainous district, located in the southwest of Binh Dinh province The total land area is 77,310.3 ha, the population of Van Canh district is 28,168 people The poptulation density of Van Canh is over 36 per square kilometer Ethnic minorities make up 40% of the Van Canh population, concentrated in communes such as Canh Lien, Canh Hoa, Canh Thuan, Canh Hiep and Van Canh town The impact of low levels of education of ethnic minorities, the lack of legal awareness, adding traditional religious and cultural beliefs, customs and traditions of each ethnic minority have the important influences on their lives That is leading to facing many bottlenecks of land use adminitrastion
The study shows that land use process of ethnic minorities arises land use conflicts which causes some of political and social instability Unresolved conflicts have led to land disputes between ethnic minorities and state-owned agriculture, forestry farms, between ethnic minorities and Kinh and within ethnic groups If good land dispute conciliation at the grassroots will contribute to decrease the number of letters to courts and district-level People's Committees at least and to ensure political stability and people's lives At the same time, that will help to convert and persuade the people, to guarantee the strictness of the law and to confor with the customs of the ethnic, to maintain the national solidarity and social, political stability
The survey results show that the effective land dispute mediation in Van Canh district, Binh Dinh province is not high due to the influence of some customary laws of the Cham and Ba Na ethnic groups In order to contribute to improve the efficiency of land
Trang 2dispute conciliation in Van Canh district in particular and provinces throughout the country
in general, where have a large number of ethnic minorities living, the authors has implemented the project "Enhancing the efficiency of land dispute mediation for ethnic minorities in Van Canh district, Binh Dinh province"
2 Methodology
2.1 Data colletion
2.1.1 Secondary data collection
Secondary information was collected and processed by document research
methods, sources of information including: Legal documents and law policies on land, customary laws of the Cham, Ba Na ethnic minorities, Statistical data, papers, research documents This data sources is collected from state agencies, libraries and the internet Secondary data is exploited for generalizing research-related to issues such as the influence
of customary law, the role of village elders and village heads in land use management of the Cham and Ba Na ethnic minorities, grassroots land conciliation process Secondary data helps support to design researches and analysis in the during of the research process
2.1.2 Primary data collection
The study was conducted in Van Canh town and communes (Canh Hoa, Canh
Hiep, Canh Thuan, Canh Lien) The authors designed the questionnaire for two groups of officials, including cadres and residents As follows:
Investigation Officers:
This study conducted a survey of 50 interviews, include the following components:
- The Head of the Department of Natural Resources and Environment of Van Canh district, the expert in charge of resolving land disputes
- Chairperson, Vice Chairperson, Judicial Officer, Cadastral Officer, President of Women's Union, Farmer's Union, People's Committee of Van Canh Town, People's Committee of Canh Thuan, Canh Hiep, Canh Hoa, Canh Lien
- Specialist of the People's Court of Van Canh district
- Van Canh Protection Forest Management Board
- Ha Thanh Forestry Limited Company
- Van Canh District Ethnic Minority Office, etc
The quality of data collection is high and reliable because the people surveyed play
an important role and take part directly in mediation, land disputes resolution Moreover, most of them have professional qualifications
The questionnaire is designed as a semi-structured form, mainly focusing on qualitative information The collected information plays a key role, helping the analysis process to be comprehensive and close to reality in the study area
Trang 3Contents of investigation: Focusing on the issues of customary law, the situation of disputes, conciliation of land disputes, the cooperation of ethnic minorities when mediating and handling land disputes
Household survey
Basis for selecting sample size: According to Hatcher (1994), the sample should be 5 times larger than the number of observed variables As a social research topic on land dispute mediation, so Hatcher sampling method is used with 200 samples have been surveyed in 5 study areas including Van Canh town and communes (Canh Hoa, Canh Thuan, Canh Hiep and Canh Lien) Based on properties and relevances of land users to land dispute conciliation, it is possible to divide the household survey into four main groups, specifically as follows:
Group 1: the village elder, village head and deputy head of the village, the head of family
Group 2: Cham and Ba Na people have arisen land disputes in the study area
Group 3: Cham and Ba Na people is living in dispute areas in the study area
3 Results
3.1 Customary law in land management and use
"Ethnic minorities" is a scientific concept commonly used in the world Western scholars say that this is an ethnic ethnography that refers to ethnic minorities In some cases, people equate the meaning of "ethnic minorities" with "underdeveloped people", "backward people" There are many causes, including those governed by the political views of the ruling class in each nation (CEMMA, 2001) Customary law (Thai people called Ho khong, Ede people called Khkkad, M'nong people called Khkkau, Ma people called N'Ri, Gia Rai called Oiphiphian, Ba Na people called kroni nid string, etc.), basically this is a treasure of indigenous knowledge, local knowledge (Indigenous Knowlledge, Local Knowledge) of ethnic groups (CEMMA, 2017)
Customary law has both legal content and sanctions (stipulating criminal acts, types and severity of crimes, adjudication and criminals), and the nature of customs and traditions (conventions, commandments, moral advice, behavioral guidance for each individual, social opinion to regulate human behaviors) In the Customary Law, the Cham consists of 8 chapters covering the contents of customs, community relations, leadership relations, inheritance, etc The things in the chapters and roles of the village elders are considered to be the leader: The greatest where the flat land has sea water, the largest in the sky has the sun, and the largest in the village has a leader (the village elder)
The customary laws of ethnic minorities contribute to protect traditions and customs, natural resources (protect of perennial forests, watershed forests, sacred forests, and protect water sources .) Van Canh ethnic minorities consider the forest to be an invaluable resource of the village; the forest has a close relationship with the community so Customary laws clearly specify the importance of forest protection They respect the rules
Trang 4of the community about establishing sovereignty over forests and forest land of each family and clan
Van Canh district has 10 ethnic groups living in: Kinh, Bana, Cham, Thai, Muong, Nung, K’ho, E De, Nguoi, Tay with 28 ethnic minority villages In which, there are 2 main ethnic minorities, accounting for nearly 20% of the district's population That is the Cham ethnic group living mainly in Canh Hoa commune, Van Canh town and the Bana ethnic group mainly in Canh Lien, Canh Hiep and Canh Thuan Specific data on the number and distribution of ethnic minority habitats in Van Canh are shown in detail (Table 1)
The Bana in Van Canh are called Bơhna - Chamroi, or Bana Bang huon In the study area, Cham people lives accompany with Bana and Kinh people Cham people in Van Canh district, Binh Dinh province have many different names and self-names: Cham Hroi, Hroi,
A roi, Cham Dac Ray, Cham Hoang, Cham Deo According to the Cham in Van Canh, Cham Hroi (or Hroi, A roi) are Cham in the highlands, Cham people in the mountains Cham ĐacRay or Cham Ho is being Cham towards the sunrise Currently, the Cham in Van Canh are very proud to associate the meaning of Cham with the meaning "Cham sunrise"
As for Cham Deo (it does not mean only Cham people are on the other side of the pass), the Cham name in Phu Yen calls Cham people in Van Canh
Table 1: Total number of ethnic minorities in VanCanh district
Number
of people
Number of households
Number
of people
Number of households
Number
of people
Trang 5Different 3 13 3 13 3 15
(Source: Ethnic Minority Office of Van Canh district, 2019)
Table 1 shows that the largest number of people concentrated in Canh Thuan commune (27.8% of the total percentage of ethnic minority households in Van Canh district), Van Canh town, Canh Lien commune, are evenly distributed in the remaining communes
3.2 Types of land disputes and the causes of disputes related to Cham and Ba Na people
In the study area, common types of land disputes include: In the study area, common types of land disputes include: Disputes over land use boundaries; disputes related
to land use right transfer; disputes related to land acquisition, compensation, assistance, and resettlement; disputes over subjects being granted land use right certificates The main type
of dispute are the land disputes of "Ca Than" (In the terminology of the Cham people, Ba
Na, the land of Ca Than is forest land originated from grandparents of the people who have been declared for a long time, leaving for descendants in the family)
The above land disputes arise between the following entities:
Firstly, land disputes arise between land users: Disputes between ethnic minorities; Disputes between ethnic minorities and the Kinh ethnic group Secondly, disputes between ethnic minorities and state-owned agriculture, forestry farms (mostly taking place in Canh Lien commune) The specific causes of land disputes related to ethnic minorities are based
on the survey data of 50 officials and 200 households, the specific figures are shown in Table
The belief about the land of “Ca Than” of the Grandparents 96
Poverty, intentional violations 10 Failure to understand the laws on land in land use 68 Lack of exemplary and legal violations when conducting land management
of cadres and civil servants
4
Lack of accuracy of cadastral map measurement 20 The unreason ability of process, procedure in land acquisition 16 Low efficiency of propagation and dissemination of land law education 80
(Source: Survey results, 2019)
Survey results show that the main cause of land disputes is the customary law, poverty, lack of productive land Despite having many preferential policies on production land for the Cham, the BaNa follows the State's land and forest allocation policies, but many ethnic minorities have not been able to access them yet A number of cases stemming from land management violations, both in terms of people and management systems, such as the
Trang 6lack of digital cadastral maps, lack of up-to-date information and the improperness of the land change monitoring book lead to many disputes and irregularities in land use
In many cases, many ethnic minority people have been granted with land use right certificates with the same number of parcels and maps, leading to many people being issued with use right certificates at the same land location, causing to disputes Equally important, many ethnic minority households fail to grasp the state's policies on land legislation leading
to land disputes According to Point h, Clause 1, Article 64 "Annual crop land must not be used
for 12 consecutive months; land for perennial crops must not be used for 18 consecutive months; Afforestation land is not used for 24 consecutive months” shall be recovered without
compensation for land by the State
According to the survey results, 100% of ethnic minority households do not know the above regulations so the ethnic minorities often do not use the land continuously After reclamation, they often go away in the form of shifting cultivation and nomadic life, so that area will be recovered by the state Although the local land management officials say that the awareness of land laws of ethnic minorities is increasing However, according to the survey of the authors: Customary law on the origin of exploitation and ownership land is deeply imprinted in the life of the Cham and Ba Na ethnic people They said that the forest land that their ancestors had reclaimed, marked the territory by using machetes, knives and slitting of large trunks belonged to their family or clan Even after the reclamation of land, they left for 20-30 years later returned, believing that the "Ca Than forest" under the use of the family It is the above thought that causes the dispute between the children and grandchildren who have reclaimed the land and the people who are currently cultivating
on this land (the State has recovered, no compensation for households to exploit and allocate land for other households) For ethnic minorities who do not understand the state's legal policies, the authors think that officials need to explain gently to ethnic minorities to understand the state's legal policies, each land users only have the right to use land for a period of time prescribed by law, and otherwise they will be revoked continuously by the State
About the time of assignment of land use rights of ethnic minorities who are assigned land by the State is 10 years from the date of issuance of the land allocation decision
as prescribed in Clause 3, Article 192 of the 2013 Land Law In fact, there are 2 different opinions: 55% of the interviewed households do not transfer, because they do not understand the law, partly they implement the wills of grandparents: keeping the land for subsistence production and not for selling The other group, accounting for 45%, believes that their land which the Sate granted land use right certificate, they have the right to sell and decide whenever we want Thus, according to the provisions of law, if ethnic minorities have transferred land for less than 10 years, it will lead to petitions and complaints
Regarding land and forest ownership: 80% of the ethnic households do not distinguish between "forest ownership" and "forest use rights", which also causes land disputes with state officials This number of households stated that the forest belongs to them, including all rights, the right to dispose of the forest land being cultivated This
Trang 7awareness is not legal because according to the current law, users only have the right to use, not to own the land and forest resources as prescribed in Clause 10, 11, Article 2, Forest Law
2017 This means that ethnic minority are still not fully aware of their rights to use land and forests The serious consequence of unawareness of their rights to forest land is the land disputes between the people and the official and agencies state Therefore, the propaganda and dissemination of the law for the Cham and Ba Na people needs to be done more often,
in order to raise awareness of them
From the survey results on land disputes of the Cham and Ba Na ethnic minorities with Forestry Corporation show that: While the Cham and Ba Na ethnic minorities in the locality lack land to use, the land of Van Canh District Protection Forest Management Board and Ha Thanh forestry corporation has a high rate of unused land Ha Thanh Forestry Co., Ltd is managing and using 18,778 ha of forests, including: 13,074.7 ha of natural forest land, 2,196.4 ha of planted forest land and 3,471.3 ha of non-forested land In total 3,471.3 ha of forest (nearly 46%) has been occupied and claimed by local people In total 232.4 ha (including 84.6 ha of non-forest land and 147.8 ha of shifting land) managed by Van Canh District Protection Forest Management in 11 lots in plot 2, sub-zone 341 and plot 1, plot 3, sub-area 349 Canh Lien commune has not yet been put into use, while the Cham and Ba Na people lack land for cultivation According to the survey results, since the State has allocated the land so far, Van Canh District Protection Forest Management Board and Ha Thanh Forestry Company Limited have not planted forests on large areas and are not tight in management and use of forest land but no timely remedy Besides, the process of allocating the State to Ha Thanh Forestry Limited Company is not strict: not yet complete land acquisition of people but the competent state agency has implemented the decision allocation This led to the situation that ethnic minorities did not agree to hand over 260 hectares of land in Canh Lien commune to Ha Thanh Forestry Company Limited The cause
of this problem is think of the local people about the land of their grandparents who have been cultivating for a long time, "Ca Than", adding difficult life, lack of productive land and
no stable job Moreover, 80% of people in Canh Lien commune are ethnic minorities of Cham and Ba Na So these are the causes leading to the illegal logging, encroachment and common dispute of forest land in Canh Lien commune Up to now, more than 17 ha of forest for production function planning and protection forest have been destroyed; over 13 ha of forestry land planned for production and protection functions are illegally encroached
Overall, the issue of land dispute conciliation is affected by many groups of natural factors, land - production means, economic issues, people's livelihoods, social factors and legal factors (policies on land and forest allocation) More importantly, the customary law should be taken seriously when resolving disputes for ethnic minorities
In Van Canh district, the number of poor households is 1,663 households In which the number of households lacking residential land is 334 households/6.68 ha; Households lacking land for production are 312 households/40.56 ha; households without land for production are 277 households and 112 households have neither residential land nor productive land, accounting for 6.73% of the total ethnic minority households in Van Canh
In order to improve people's lives, reducing encroachment, land disputes, the State have
Trang 8issued many preferential policies to help ethnic minorities to obtain production materials (land), at the same time support the people to settle down, support loans for production and employment However, Cham and Ba Na in Van Canh town, Canh Hoa commune, Canh Hiep commune, Canh Thuan commune, Canh Lien commune have not been able to fully access these policies from the state (Specific results in Table 3)
Table 3: The level of access to preferential policies on residential land and productive land for
ethnic minorities who lack productive land
(%)
No Access (%)
1 Specific policies to support socio-economic development in ethnic minority
and mountainous areas on resolving productive land and changing jobs
under Decision No 2085/QD-TTg
45.0 55.0
2 Circular No.02/2017/TT-UBDT Solving production land, changing
occupations and preferential credits for poor ethnic minorities and poor
households in areas meeting with exceptional difficulties and lacking
productive land
60.0 40.0
3 The project of concentrated sedentary farming according to the approved
plan to continue arranging the population arrangement in order to stabilize
the life and develop production for ethnic minority households nomadic and
nomadic in accordance with Decision No.1342/QD-TTg dated August 25,
2009
10.0 90.0
4 Policies on support of residential land, productive land, daily-life water and
preferential credit incentives and policies to arrange and stabilize population
for ethnic minority households who still practice shifting cultivation
5.0 95.0
5 Supporting policy on forest protection and development according to Decree
No.75/2015/ND-CP (Example: Planting production forests: The support level
is from 5,000,000 to 10,000,000 VND/ha for buying seedlings, fertilizer;
Support for forest protection is VND 400,000/ha/year )
40.0 60.0
(Source: Survey results, 2019)
There are 3 reasons why policies are not implemented for poor ethnic minority households who are difficulties, lack of residential land and productive land: First, the difficult about the local budget; Second, bottleneck regarding the land fund; Third, there are still many illegal issues in supporting production land for poor ethnic minority households
It is noticeable that stemming from official in the study area, causing loss of confidence for the local people with the guidelines and policies of the State, leading to loss of State budget revenues
According to the authors' group, in order for the land fund support to ethnic, Van Canh District People's Committee needs to organize meetings and direct the specialized Natural Resources and Environment Office to directly guide the communes in detail The town shall review, make statistics, make a general list of ethnic minority households lacking residential land and productive landand send them to the provincial People's Committee for approval Ethnic Minorities Committee should coordinate closely with departments,
Trang 9branches and People's Committees of communes and districts in settling residential land and production land for people, regularly organize cross-sectoral inspection teams, review and allocate land funds appropriately and with the right subjects It is necessary to strictly handle those who intentionally violate the law, causing loss of confidence in the government, the Party and the State
3.3 Conciliation of Land Disputes
Conciliation in land dispute resolution is significantly The characteristics of land disputes are sensitivity and complexity, if land disputes do not handle promptly, they will increase the risk of socio-political instability So land dispute conciliation is the best way to support and help reduce the pressure on competent state agencies in land dispute resolution Land dispute conciliation at the grassroots level is only conducted for land disputes over rights and obligations between land users
For land disputes arising between land users and public authorities in land management (land disputes of an administrative nature), under current law, conciliation is not required, under the authority of competent state agencies In the study area, land disputes between households in Canh Lien commune and the Protection Forest Management Board, Ha Thanh Forestry Co., Ltd are one of these types of disputes
3.3.1 The process of land dispute conciliation for Cham and Ba Na
The process of land dispute conciliation for the Cham and Ba Na people in the study area is in accordance with the Land Law 2013, Decree 43/2014/ND-CP and the Law on grassroots conciliation in 2013, including 3 main steps As follows:
Figure 1: Procedures for land dispute conciliation
Step 1: Encouraging disputing parties to self-mediate land disputes
or through grassroots conciliation
Step 2: Sending the application to the communal People's
Committee for conciliation (in case of unsuccessful mediation)
Step 3: Making a record of mediation, certified, signed by both
parties (successful or unsuccessful mediation)
Trang 10Under the current land law, the state encourages the parties to resolve disputes through self-conciliation or grassroots conciliation If the conciliation is unsuccessful, the party will continue to be mediated at the communal level under the coordination of social organizations at the commune However, the procedure for conducting a grassroots conciliation is not specified by law
According to research results, the process of conducting a mediation process includes
4 main steps:
Figure 2: The processing of Grassroots land dispute conciliation
When preparing for conciliation, the mediator must find out the contents of the case, the causes of conflicts, disputes and interests that each party is seeking At the same time, it
is necessary for mediator to understand the land law provisions that help analyze the case and make the parties understand the issue At the study sites, the conciliators in the villages are the elders, the heads of the villages, the deputy heads, and the ones who receive the trust
of the villagers According to Clause 2, Article 20 of the Law on grassroots conciliation, the time for conciliators to reach agreement with the parties to the conflict is 03 days from the date of being assigned to mediate The time prescribed by law is very difficult to be done because the study area is mountainous and rugged, the study subjects are mainly co-workers So communication and meeting removing as well as imparting information to people facing many obstacles Places for mediation of the Cham and BaNa ethnic people in the locality often mediate at communal houses and cultural houses
The mediation process is based on experience with people after stating the purpose and meaning of the mediation; agree with the parties on a number of conventions, ways of working, and conciliators try to create an atmosphere of intimacy, openness and sincerity, fairness between the parties, helping the parties to easily exchange and negotiate After the mediator invites each party to present the incident, the parties have the right to supplement their opinions, present their arguments and views Persons with related rights and obligations (chiefs, prestigious people in the village, in their clan) express their views on the issue in dispute or conflict The mediator sums up the dispute issues, case analysis; Application of legal provisions on land and civil to each disputing party; Analysis of
Step 1: Prepare mediation
(Mediator learns the case, meets, discusses )
Step 2: Conduct mediation
(Application of laws, regulations on residential areas )
Step 3: Offer a resolution of the mediator
Step 4: End of mediation