This document discusses pathways for recognizing customary tenure in the Mekong region. It describes customary tenure as the rules and norms that govern a community's relationship to and use of forest and land resources. There are three main pathways for recognizing customary tenure: self-recognition by communities, co-recognition between communities and external actors, and legal/statutory recognition by the state. Both informal pathways like community mapping and formal agreements, and formal pathways like community forestry programs and land titling, have challenges and opportunities to secure communities' tenure rights and livelihoods. Formal recognition of customary tenure is still limited in providing full rights and can be complex, but opportunities exist to better support self- and co-recognition and increase statutory recognition

1. Nathalie Faure, RECOFTC
26 May 2021
Pathways for customary tenure recognition
in the Mekong

2. Senior Program Officer
Governance, Institutions and Conflict
Transformation
RECOFTC
Nathalie Faure

3. • Rules and norms that govern a community's relationship and use of forest, land and other natural
resources
• Socially legitimate, informal and de facto rules. They regulate community allocation, use, access
and transfer of these natural resources
• Although based in tradition, they are dynamic and flexible, often evolving over time
• Not restricted to Indigenous Peoples and ethnic communities
• They embody people’s relationships with land and natural resources, which they depend on for
their livelihoods, culture and well-being.
• Customary systems vary in scale but often encompass communal management of individual and
family claims, grazing land, water resources and fisheries management
Source: FAO
Customary tenure

4. • Increasing threats and pressure on land (large-scale investments, climate-related threats)
• Lack of formal recognition of customary tenure rights of communities (only 6% of the total land area
held by Indigenous Peoples and local communities (152 m ha) is legally recognized in Asia,
excluding China)
• State ownership over large portions of the land territory
• Women, Indigenous Peoples, the poor and marginalised people are particularly affected
• Contribution of secure tenure to livelihoods and well being, ecosystems protection, climate change
mitigation, gender justice and peace building
• Various pathways for the recognition of customary tenure
Source: FAO
Setting the scene

5. Recognition by whom?
• Self-recognition: communities
• Co-recognition: communities and external actors
• Legal/statutory recognition: state
→ Different levels of formality
→ Different rights can be recognised (bundle of rights)

6. Photo credits:

7. 1. Quality and appropriateness:
• Level of rights recognition: What rights do communities have according
to this mechanism (bundle of rights)? How are they recognized?
• Livelihoods: Does this pathway contribute to improved community
livelihoods/well-being?
• Governance: Does this pathway promote good governance (participation
in decision-making, clear roles and responsibilities)?
• Gender equity and social inclusion: Does it address potential power
imbalances and allow for the inclusion of all community members,
including women and minorities?
• Customary/traditional practices: Does it recognize these practices? How?
• Dispute resolution: Does it offer a tool to resolve tenure conflicts?
Elements to consider

8. 2. Implementation and accessibility
• Is this pathway easily accessible to communities? Is it
effectively implemented?
3. Security of tenure
• How strong is the tenure arrangement? (link with level of
formality) How secure do communities feel?
→ Context is key to determine and assess the most
effective pathway(s)
Elements to consider

9. Self-recognition
and co-recognition
of customary
tenure: challenges
and opportunities

10. Community or self-recognition (informal)
• Documentation of rights and practices such as oral tradition, community mapping, GIS data
collection
Co-recognition (informal)
• Agreements between the community and other stakeholders such as FPIC, benefit-sharing
agreements with operators, corporate due diligence requirements
• Models of community resources management (informal)
• Private dispute resolution such as complaint mechanism of certification bodies
Self and co-recognition pathways

11. Photo credits:
Brainstorm:
Do you know some examples of
self and co-recognition in the
region?

12. Statutory
recognition in the
Mekong region:
challenges and
opportunities

13. Statutory recognition
pathway
Statutory recognition (formal)
• Models of community resources management (formal)
such as community forestry in Myanmar, community
protected areas in Cambodia
• Community land titling such as Cambodia communal land
registration
• Judicial dispute resolution through courts and tribunals

14. Examples of formal recognition
Community management of forest and land resources Community ownership of land
Cambodia Community forestry and community protected areas Collective land ownership for indigenous communities
Lao PDR Village forestry, communal tree plantations and spiritual
forests, land use plans, forest management and conservation
contract
Not on forestland. No community land titling but land use
certificates to individuals or families
Myanmar Community forestry No recognition of customary land
Thailand Community forestry No recognition of customary forestland
Viet Nam Community forest management Communities can be forest owners

15. Statutory recognition of customary tenure has some limitations:
• Lack of recognition of ‘full’ customary tenure rights, can exclude parts of land traditionally managed by a
community
• Lack of clarity about the evidence required and complex and costly procedures
• Complex, incomplete (lack of implementing regulations), incoherent or unclear legal framework
• Lack of information around the process and communities’ rights
• Legal instruments may not be equitable or appropriate and could replicate power imbalances
• Types of instrument used → little constitutional protection of rights
• Lack of implementation because of lack of land data information and record keeping, complexity of land
planning process, insufficient resources
• Coordination between different ministries such as natural resources, environment, land, and forestry
Challenges

16. Photo credits:
Brainstorm:
What are current opportunities
to increase statutory tenure
recognition?

17. • Formal and informal pathways both have challenges and opportunities to secure tenure → need to clearly
identify best pathway according to the context
• What matters is the level of security offered to communities, including their quality, appropriateness and
accessibility
• Close the formal recognition gap → simplify procedures, legal reforms and implementation, increase
customary tenure recognition targets in the context of climate and biodiversity commitments
• Support self and co-recognition pathways → capacity-building for communities, collaboration with local
authorities, better recognition by private sector
• Understand and support the complementarity between pathways, such as the use of customary tenure
community maps or online data portals for legal or co-recognition
• Address challenges to recognize women, Indigenous Peoples’ and marginalised groups’ rights
Reflections