Analysis of Articles and Implementation Concerns over the Protected Area Draft Law
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About Indigenous Community and Local Communities
The Law on Protected Areas, 2008, contains the words indigenous peoples and indigenous communities in Article 4, Article 6, Article 11, Article 18, Article 21, Article 21, Article 22, Article 25, Article 26, Article 27 and Article 31. The law also uses the term local community. The words indigenous peoples and indigenous communities are not found in the new draft law on protected lands. Articles that used to include the terms indigenous peoples and indigenous communities have been removed or no longer used in this law, whereas the terms indigenous communities have been retained and drafted. According to a presentation by the Ministry of Environment’s technical team, the word community refers to a group of people, including indigenous peoples. The word “local community” refers to people who live in or near protected areas and are recognized by local authorities, according to the Glossary of the Draft Law on Protected Areas.
The term local community is unobtrusive to indigenous peoples, but it cannot be defined, integrated, or joined with the term indigenous communities because indigenous communities and local communities are clearly different because indigenous communities have different origins, ethnicities, languages, societies, cultures, and traditions. The practice of subsistence with direct interaction with land and natural resources, in particular, differs from that of other local groups that are not indigenous cultures. Indigenous communities are a group of people who have lived on Cambodian territory since their ancestors were born, with all members expressing ethnic, social, cultural, economic, and traditional practices on the property that it occupies in accordance with the communal use rules. As a result, local and indigenous communities are extremely different. All members express ethnic unity, traditional rules, language, knowledge, beliefs, traditions, and faiths that are strongly tied to forests, land, natural resources, and permanency.
About agricultural practices, shifting plantations or rotational plantations:
Article 24 of the 2008 Law on Protected Areas forbids rotational plantations in the core zones and protected areas, the same as point 9 of Article 7 of this draft law.
The draft amendment to the Law on Protected Areas clearly states that the operation of plantations in the core zone of the protected area is not allowed (point 9, article 7). As a result, neither of these two laws contains an article that explicitly recognizes or permits the operation of shifting or rotational plantations in the context of sustainable use.
Article 37 forbids the release of animals and the hunting of dogs, among other rights, and Article 64 makes it a level 1 natural resource infraction. The right to use fire or cause wildfires, as well as other rights, is prohibited under Article 37 and is punishable as a level 2 natural resource offense under Article 66. This demonstrates that this law does not respect, recognize, or guarantee the protection of family and traditional occupations, as set forth in Convention No. 111 on Discrimination in Labor and Occupation and International Human Rights Standards, as well as others that the Kingdom of Cambodia has ratified and voted for.
Article 22 (Effective) The State recognizes and guarantees the right of local communities and indigenous peoples living in protected areas to use their traditions, customs, and religious beliefs. Article 23 (Draft) The State recognizes and guarantees the right to traditional use, customs, and religious beliefs of local communities living in protected areas. The word indigenous appears at least once in the current article, but not once in the draft article. In addition, these two paragraphs and other articles do not provide for the regulation of the right to utilize the traditional practices, religious beliefs of indigenous and local communities, such as the granting of title rights to these sites. This draft law also lacks procedures and measures to address accountability principles in good governance. When the right to enjoy, beliefs and religions of any indigenous people is affected. Example: Article 22 (in force) or Article 23 (draft) states that ” the State recognizes and guarantees the right to use in the form of ” traditions, customs, religious beliefs of local communities and indigenous peoples living in protected areas. ” Unfortunately, this law does not provide for the mandate of any level of state organization to control those rights (non-ownership) in any level of administrative system, notably at the commune, sangkat or district level that is close to the people and indigenous peoples.
This draft law contains no articles that recognize the claims or indications of actual location, size, type of use, enjoyment, religion, and worship for the registration of collective land ownership (ownership rights) and other registrations that do not belong to immovable properties.
The existing law and draft also do not include any sections that recognize indigenous peoples’ traditional judicial management systems or dispute resolution procedures, as required by paragraphs 34 and 40 of the United Nations Declaration on the Rights of Indigenous Peoples. In accordance with this right, this law makes no provision for the right of indigenous communities to act as judicial police to oversee the management of their natural resources, economy, society, and culture, as well as to prevent sub-national administration officials from being corrupted.
Not only that the law is still in force and the draft does not have any article on the right to self-determination, the right and the consultation mechanism to provide accurate and sufficient information in advance, have enough time and get free collective consensus. According to the United Nations Declaration on the Rights of Indigenous Peoples, there are three articles on the right to self-determination, ten articles, eleven articles, nineteen articles, and twenty-eight articles on free consent and prior notice.
Article 25 (Draft) does not grant indigenous peoples the right to self-determination as a community protected area, and Article 28 does not grant the community the right to self-determination in the management, use, and enjoyment of natural resources by themselves, but does require community planning in accordance with the provisions of this law and the national plan, in violation of Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples.
Because the proposed law on protected areas does not acknowledge and defend indigenous peoples’ customary rights, as evidenced in Article 55 and this conclusion, the consultation opted to elevate the input as outlined above.
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