recognition of indigeneity has been relevant in relation to cultural protection and language-use rights issues, but it has also been particularly significant for gaining access to, or excluding others from, land and other natural resources (Hall 2013; Hall, Hirsch, and Murray Li 2011). That is, the recognition of indigeneity has had important implications in relation to nature–society relations, including land and resource tenure. For example, in the Philippines the designation of “ancestral domain” for indigenous peoples has given them significant rights over land and resources (Bertrand 2011; Bryant 2000; Theriault 2011, 2013), and in Taiwan increased rights over particular lands and resources have been granted to indigenous peoples since their indigenous status was recognized (IWGIA 2009).
In this chapter, however, I focus on just three countries in mainland Southeast Asia—Cambodia, Thailand, and Laos—and the role that the newly developing concept of indigenous peoples has had, and is having, on land and resource access and tenure issues over the last couple of decades. Indeed, despite the governments of all three countries having signed the UNDRIP, the concept of indigenous peoples has been accepted to varying degrees, with differing impacts in each country. In Cambodia, the legal designation of indigenous peoples was first established in the 2001 Land Law and 2002 Forestry Law, which have had significant impacts on land and resource tenure issues (see Baird 2011b, 2013; Keating 2013; Milne 2013; Padwe 2013; Swift 2013). In Thailand, however, “indigeneity” has not been officially recognized by the government, but is nevertheless becoming increasingly utilized among academics, non-government organizations (NGOs), and some government officials and rural peoples (Morton and Baird forthcoming). Due to a lack of official recognition, though, the concept has so far had limited influence on natural resource management, although it has been evoked during some contentious debates and claims regarding land and natural resources over the last couple of decades. There have been attempts to employ the concept of indigeneity to protect land and resource rights of indigenous peoples, albeit sometimes with limited impact (Baird 2015, 2016; Milne 2013). Still, indigenous leaders are increasingly conceptualizing and articulating their concerns within an indigenous peoples framework (Morton and Baird forthcoming). In Laos, the government has recently shown increased resistance to the idea of indigeneity, despite earlier efforts by NGOs, multilateral banks, and the United Nations to introduce the concept, often in the context of natural resource management (Baird 2015). Here we examine in further depth the varying ways that the concept of indigeneity is impacting land and natural resource management in these three countries.
Cambodia
When the present constitution of Cambodia was adopted in 1993, there was no mention of indigenous peoples, “ethnic minorities,” or even more generally “ethnic nationalities.” It referred only to “Khmer people” and the “Khmer nation.” However, by the end of the 1990s, international NGOs working in Cambodia were able to effectively introduce the concept of “indigenous peoples” (chunchiet doeum pheak tech in Khmer) to the country, and through advocacy efforts which I have described in detail elsewhere (Baird 2011b) successfully had the concept inserted into Land Law in 2001 and Forestry Law in 2002.4
The most significant aspect of the 2001 Land Law for Indigenous Peoples was the establishment of precedent for recognizing indigeneity at the community level. Indeed, Article 23 of the law explicitly defined the term “indigenous community,” a first for Cambodia, as “a group of people that resides in the territory of the Kingdom of Cambodia whose members manifest ethnic, social, cultural and economic unity and who practice a traditional lifestyle, and who cultivate the lands in their possession according to customary rules of collective use.” The spatiality of the term and its link to customary forms of land and natural resource use is clearly evident.
The most important practical aspect of the 2001 Land Law has been the provision of the right for those defined as indigenous peoples to obtain communal land titles.5 Article 25 states: “The lands of indigenous communities are those lands where the said communities have established their residences and where they carry out traditional agriculture … The lands of indigenous communities include not only lands actually cultivated but also includes reserved land necessary for the shifting of cultivation…” Critically, the law does not allow ethnic Khmer people to obtain communal land titles. This distinction has been crucial in legally separating people in Cambodia based on ethnic background, and providing these different groups with different rights by law. At the time the 2001 Land Law was enacted, there were no standards for how to legally distinguish between indigenous and non-indigenous peoples. Thus, in 2009, the Government of Cambodia (GoC) adopted a sub-decree regarding communal land titling for indigenous peoples that includes steps for registering communities as indigenous, making them eligible to receive communal land titles (Baird 2013).
Since the adoption of the 2009 sub-decree, various communities have made efforts to navigate the sometimes frustrating multi-step process for registering indigenous communities. Because of the complex and expensive nature of the process, communities engaged in this registration process receive support from NGOs and international donor agencies. While few communal land titles have been granted so far, as of January 2012 there were 153 villages at various stages of either being registered as an indigenous entity or receiving a communal land title as a registered indigenous community (Baird 2013).
It might actually be more advantageous to allow all Cambodians—not just the 1–1.4 percent of the population who are classed as “indigenous”—to obtain communal land titles, as this could lead to greater societal support for communal land titles in the country (Baird 2013). In Laos, for example, communal land titling has also been introduced, but is permitted for all citizens regardless of ethnicity (Bounmany, Phommasane, and Greijmans 2012). In addition, while in Cambodia communal land titles cover only agricultural lands and land being reserved for agriculture, and not areas of forest, in Laos communal land titles can encompass significant areas of forest as well, an option that would appear to fit the actual needs and desires of local people much better (Baird 2013).
While only a small number of communities (villages) in Cambodia have so far been granted communal land titles, many are expected to receive them in the near future (Baird 2013). Still, the process has been frustratingly slow, and heavily dependent on foreign donor support to pay for the implementation of the legal process. Thus, one could say that the biggest impact of the introduction of communal land titling for indigenous peoples in Cambodia has not been any great practical gains in the ensuring of land security, but rather the adoption of the concept of indigenous peoples. This concept has been ontologically significant by creating a legally recognized boundary between indigenous and non-indigenous peoples, a designation with the potential to benefit the population of Cambodia believed to be indigenous, but also to create divisions and incite conflict between indigenous and non-indigenous peoples, through the granting of different legal rights (see Baird 2016). Moreover, in the minds of many Khmers, the concept of indigenous peoples serves to reify them as “primitive relics of the past,” who due to racialized differences require particular attention and support from the majority Khmer population. Illustrative of this sort of Khmer mindset, Prime Minister Hun Sen stated that those designated as indigenous peoples would lose their “indigenous” status once they had become “developed” up to the level of the majority Khmer population (see Baird 2011b). In another more recent case in 2012, the prime minister visited the indigenous peoples’-dominated northeastern province of Ratanakiri to hand out land titles. During his visit, four indigenous ethnic Jarai people from the Bokeo District tried to present him with a petition related to a land dispute they were having with an outside Cambodian company, on which he commented: “I was so angry. Do you want to have development or do you want to have the indigenous people collecting stuff in the forest?” (Ratha 2012). He later contradictorily qualified that he would protect the land and natural resources of indigenous peoples (Ratha 2012). These comments indicate that for Prime Minister Hun Sen (and presumably many other Khmers), the concept of indigeneity is fundamentally linked to being primitive and undeveloped, and remains contested and confusing to most. Kuper
