Expropriation Context Following from the goal of the National Land Policy, to promote and ensure a secure land tenure system that is transparent, effective, non-discriminative, equitable and just ; it is the policy of the Government of Laos to protect the land use rights of individuals and organizations, including by ensuring that the expropriation of land and land use rights by the Government is only done for purposes that directly and primarily benefit the general public and assuring that individuals and organizations deprived of their land or land use rights receive fair compensation. Promoting land tenure security has the important function of encouraging investment and sustainable management by individuals and organizations in the land they use, as well as investment in the international context. Policy The State is allowed to expropriate [or overturn] customary or titled land or land use rights (each a Land Expropriation ) (whether for transfer to government actors, private actors or public-private actors), only if the proposed use (including in the case of development projects or concessions) satisfies the Standard of Public Purpose set forth below; any such expropriated land or land use rights may only be subsequently transferred to any private or public-private actors if for a use that satisfies the Standard of Public Purpose, unless 25 years have elapsed since such Land Expropriation. As used herein, any references to land use rights shall include customary and formal land use rights. If the proposed use does not satisfy the Standard of Public Purpose, then the Free Prior and Informed Consent standard set forth below shall apply. The provisions set forth in this entire sub-section [_Procedures ] shall apply with respect to all Land Expropriations and proposed uses therefore, including as contemplated under any existing laws, decrees, regulations or directives ( Existing Laws ), and shall prevail over any inconsistent provisions of Existing Laws. Efforts shall be undertaken to inform and educate members of the public of the provisions of this Section [ ], in accordance with [a cross-reference should be made to the applicable sections regarding education and outreach efforts]. Standard of Public Purpose A proposed Land Expropriation must be directly and primarily for a public purpose (the Standard of Public Purpose ), which it shall be deemed to be if the value of the public interest to be advanced by it outweighs the interests of the Affected Parties (as defined below) and is either: (i) included within the specified list of examples below, or (ii) approved by the National Assembly. For such an approval, the request must be accompanied by a publicly accessible document confirming that the proposed Land Expropriation is directly and primarily for public (and not private) purposes 1 and describing the means by which it will create this public benefit (as well as the indicators by which to monitor implementation). Where the means is through raising public funds this document should clarify how those funds are planned to be spent. 1 See Congressional Roundtable, Schwarzwalder et al, 46, for a variation of this approach proposed by a group of legal commentators with respect to China. 1 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
List of Public Purpose Below is a list of purposes that shall satisfy the Standard of Public Purpose. Transportation uses including roads, airports and bridges; Public utilities such as for water, sewage, electricity grid; Public buildings such as schools, libraries and hospitals; Public parks, sports facilities and cemeteries; <More purposes could be added here if necessary> Procedures Prior to undertaking any Land Expropriation, it (A) it will be necessary to first identify the affected persons, entities or organizations (including, where applicable, a communal or collective group) (collectively, the Affected Parties, including determining which persons have a right to ownership based on customary laws as per Section X.X on Customary Tenure, and (B) such Affected Parties must be provided procedural protections (and informed by the applicable district government of their entitlement to such protections), including (i) notice and information regarding the proposed Land Expropriation and proposed use, (ii) a meaningful opportunity to be heard and contest whether the Standard of Public Use and standard of fair compensation set forth below have been satisfied, and (iii) an appeal mechanism with respect to such decisions (to which any concerned persons are entitled to make an appeal if they wish) [An agency outside of involved government offices needs to be established in order to receive and resolve complaints from affected parties.] Compensation Recognizing the significant negative impact that the loss of land or land use rights can have on Affected Parties, it shall be a priority that Affected Parties receive full and fair compensation for their losses (which shall be provided prior to the Land Expropriation), and, where necessary, adequate assistance in resettling. Compensation shall not be considered fair unless (i) the Affected Parties are consulted in the determination of compensation, and are provided a meaningful opportunity to comment, and (ii) the following elements, as applicable, are included in the compensation package: 2 Where the land of Affected Parties is significantly affected by a project, the Affected Parties shall receive replacement land of equivalent size and productivity, and in a location acceptable to the Affected Parties. Where suitable replacement land is not available, or is not equivalent in size or productivity to the affected land, fair monetary compensation shall be provided (in addition to or in lieu of such replacement land) to the full market value of the land or land use rights lost by the Affected Parties. Affected Parties shall also receive fair monetary compensation for the lost value of their crops, trees or structures on their land (to the extent not replaced or included in equivalent form on replacement land). The incomes and living standards of Affected Parties shall be improved, or at least not made worse off, as a result of the project, and to ensure this, Affected Parties shall receive, as necessary, assistance in relocation, transportation, training and obtaining basic services. In determining compensation, due consideration shall be given to any special or unique circumstances (such as extreme hardship; loss of livelihood; difficulty of relocation or finding comparable replacement land, buildings or other assets; as well for ethnic minorities or other vulnerable groups or parties, the risk of marginalization and disproportionate suffering), and additional compensation or forms of assistance provided as appropriate. 2 See the Existing Resettlement Rules, which provide guidance regarding required compensation. Where the Existing Resettlement Rules or other Existing Laws provide greater rights regarding compensation than in this sub-section then those existing rules shall prevail. 2 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
Affected Parties who do not hold formal land title certificates but satisfy the criterion for customary rights as detailed in section X.X [Customary Tenure] shall receive the same level of compensation as if they did hold land title certificates. Standard of Consent (where the Proposed Use does not meet the Standard of Public Purpose) If a proposed Land Expropriation does not satisfy the Standard of Public Purpose, then land or land use rights cannot be transferred to any other parties without the consent of the holders of each individual land proposed and the consent (through a vote) of a [ %] 3 majority of the community members, for each communal land proposed, which shall only be valid if provided through the principles of Free Prior and Informed Consent as described below: Free from force, intimidation, manipulation, coercion or pressure by any government or company. Prior to government allocating land for particular land uses and prior to approval of specific projects. Affected parties must be given enough time to consider all the information and make a decision. Informed - Affected Parties must be given all the relevant information to make a decision about whether to agree to the project or not. Also: - This information must be in a language that Affected Parties can easily understand, and persons who are illiterate must be given an opportunity to have such information read aloud to them. - Affected Parties must have access to independent information, not just information from the project developers or the government. - Affected Parties must also have access to experts on law and technical issues, if requested, to help make a decision. - Affected Parties must also be provided a summary of the compensation and assistance to which they would be entitled to under this policy and any Existing Laws. 4 Consent requires that the people involved in the project allow affected people to say Yes or No to the project and at each stage of the project, according to the decision-making process of the affected people s choice. For a community, provision of consent requires a vote with a [ %] 5 majority. 3 4 5 What percentage qualifies as a sufficient majority vote needs to be discussed and defined. The regulation used for the communal land titles issued in Nakai, Khammouane, set the majority vote at 80% (Regulation No. 0212/GNK on Collective Land Titles of the Nam Theun 2 Project, Khammouane Province (2012). The provisions on compensation in this policy and in Existing Laws (including the Existing Resettlement Rules) would not apply where the consent of Affected Parties is required. Still, they may provide guidance on the forms of compensation that should be provided, and help ensure that Affected Par ties (if they do consent to the proposed project) do not accept compensation less than that to which they would be entitled under this policy and Existing Laws. See footnote 3. 3 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
Customary Land Tenure Rights Context Lands and forest lands play an important role in the economic, social and spiritual well being of rural people and belong to all generations. Lands and forest lands provide rural communities with important resources that are utilized by villagers for not only food security but in all facets of their livelihoods. However, land adjudication, registration and titling does not exist in most of the rural and remote areas, and may not be undertaken in the near future, and so the State needs a policy to legally acknowledge the customary rights of tenure over lands and forest lands for the Lao people, especially for people of ethnic groups and people in rural and remote areas. Policy Criteria for customary land tenure Customary land includes ancestral land, forests, pasture, residential lands, permanent fallow agricultural lands, rotational fallow agricultural lands, hunting grounds, burial grounds, worship areas, bodies of water, and other land and natural resources which are individually or communally used. The State recognizes and will uphold the individual and communal customary land or natural resources rights of an individual, groups of individuals, or a community when an individual or such groups or community have continuously used the area of land or natural resources for at least 10 years, or if there is testimony by the village head or his/her nominee and at least three neighbors stating that the person is in fact the true owner of the land (or for the case where a community has been resettled within the last 10 years then land use must be since the time of resettlement) and where this utilization is recognized by the community. Customary land use rights will also be recognized where demarcated classified forests reserves overlay customary lands. Due separation is made between customary land rights and the protection status of those forest reserves so that these claims co-exist in a sustainable manner. A person qualifies to belong to a community if they are resident in the village and are recognized by all the members of the community to be part of that community. During negotiation of a community dispute on ownership of customary tenure rights, such rights are considered to be held by all disputing parties together. Tenure Rights on Customary Land Holders of individual or communal customary land tenure possess the same rights as holders of individual or communal land titles; except that the customary land cannot be sold or leased to persons outside of the village nor can the land be used as collateral for a mortgage. Customary land tenure holders can title their land in order to gain the full rights of titled land holders. Customary lands play an important role in the social and spiritual well being of rural people and belong to present and future generations and therefore cannot be sold outside of the community (whether village or ethnic group or clan), disposed or destroyed. Holders of customary land have the following rights, to be used according to their own determination (through internal rules); to access the land, to extract resources from the land, to manage the land; to exclude outsiders from access to the land; to lease the land (while ensuring environmental protection and conservation measures), and to negotiate the conditions of such a lease. 4 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
The State has the duty to uphold these rights and prevent other parties from undermining these rights. Upon receiving a claim to customary land tenure, district officials have the duty to assess the claim according to the Criterion for Customary Land Tenure and recognize all legitimate claims. The State can only expropriate customary land tenure for a public purpose, under the criterion, and procedures defined under the clause on Expropriation. In such a case, the State must first carry out a process to determine the customary ownership of that land, based on the above-mentioned criterion., and then it must provide full and fair compensation to the customary tenure holders (as defined under clause on Expropriation) for all losses incurred due to that expropriation. Aside from public purposes, customary land can only be given on lease or concession if approved by a [ %] 6 majority vote of all customary land holders. Once formal land adjudication or titling is undertaken this will include and recognize customary rights, thereby formalizing these customary land tenure rights. 6 What percentage qualifies as a sufficient majority vote needs to be discussed and defined (see footnote 3). 5 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
Communal Land Titles Eligible holders of communal land titles Communal Land Title can either be registered in the name of a village for which all village members share equal rights, (though the use rights can be given to specific groups, as detailed in the communal title rules) or registered in the name of collectives, farmers or other business operations groups, villages cluster groups or associations. All adults who have been registered and have lived in the village for over three years or with recognizable customary rights to the land (as defined by the village themselves and stated in the communal title plan), are legally incorporated as a legal entity in whose name the title is issued and transferred to the cadastre. Members of this legally recognized body are considered rights-holders in the Communal Land Title's of that village. A village is a legal entity and therefore requires no further registration in order to be eligible for a communal land title. The communal land is administered by a Communal Land Management Committee. Eligible types of land All land areas delineated during land use planning are eligible to be registered as communal land except zones subject to exclusions falling under individual and state lands. As examples, the following types of land are eligible to be registered as communal land: Village common land, collective pond of the village, cemetery, sacred forest, sport ground of the village, land of a production group, village market, livestock grazing field of the village, land of village s cluster groups (Kumban), or land of different ethnic groups for using to perform the traditional ceremony, village public park, land for agricultural production in each village having no individual to be the owner of land utilization rights, rotational fallow cropping agricultural land and all forest types (covering village conservation forests, village utilization forests, village protection forests, production forests and degraded forests), islands and water bodies; and other land which is jointly used. Where a village is located within a state forest area, the village area is eligible to be registered as Communal Land, under a non-permanent collaborative/delegated management plan. This is the only case under which a communal land title can be non-permanent. Procedure for registering communal land Upon receiving a request from a village for registering communal land, the District Office of Natural Resources and Environment must implement the following process. The communal land shall be subjected to land survey and land use planning. This land use planning shall follow the policies in section X.X on Land Use Planning; where the first step shall be an assessment and formalization of traditional land ownership rights as defined in section X.X on Traditional Rights. The land planning map must clearly show the boundaries of communal land to be used as the basis for land registration, land titling and land records in accordance with the law and regulations. Boundaries can be shown by either GPS points or with reference to permanent and clearly defined natural or man-made features or boundaries, such as rivers, hill ridge lines, roads etc For each parcel of the communal land, it is required to determine the category, boundaries and target of land use clearly in order to avoid the falsification of communal land use right; facilitate the management, protection, development of the land and ensuring maximum benefit to the collectivity. Thereafter land registration and issuance of communal land titles to the villages shall be carried out. 6 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
Tenure rights on communal land State: The state shall only hold the right to carry out compulsory acquisition of communally titled land under the conditions and procedures specified in the section on Expropriation. Communal Land Management Committee: This committee consists of atleast 8 members with atleast 40% females, this committee has the right to administer on behalf of the Communal Land Title holders, within the conditions laid out in the communal title rules. The committee does not hold the land in trust and does not hold decision making powers. Communal Land Title Holders: Communal land title holders equally hold the following rights on the land and the resources on the land: - Access: The right to enter the physical area and enjoy non-subtractive benefits. - Withdrawal: The right to obtain resources or products from the area. - Management: The right to regulate internal use patterns and transform the area by making improvements. - Exclusion: The right to determine who will have access rights and withdrawal rights, and how those rights may be transferred. The implementation of these rights shall be supported by: - Communal Land Title rules: These rules clarify management, sharing and dispute resolution. All Communal Land Title holders have the right to participate in the creation and revision of this set of rules. The Communal Land Title rules can only be created or changed through a [ %] 7 majority vote of all the Communal Land Title holders. - All members of a right-holding body pertaining to communal tenure will define Internal Rules for sharing and management of the land. The Internal Rules will be signed by competent authorities at village and kumban level. The Internal Rules will specify mechanisms for solving grievances at village level. - A Communal Land Management Committee: This committee is elected through a vote of all the Communal Land Title holders every 2 years. All Communal Land Title holders are eligible to nominate for this committee. And the committee can be dissolved by the general assembly. - General Assembly Meetings: The general assembly is the entire set of Communal Land Title Holders, the General Assembly has the decision making power (by quorum). It is prohibited to take communal land for purchase and sale, assignment and transfer, use as collateral; but if approved by a [ %] majority vote of all the Communal Land Title holders, it is allowed to lease or give for concession. Communal Land Titles and the areas and boundaries they represent are permanent unless a change is approved by a [ %] majority vote of all the title holders and the relevant lands office. 8 7 What percentage qualifies as a sufficient majority vote needs to be discussed and defined (see footnote 3). 8 What percentage qualifies as a sufficient majority vote needs to be discussed and defined (see footnote 3). 7 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation
Implementation The following strategies are necessary to enhance implementation of the land policy: Grievance Mechanism An agency will be assigned or established with the responsibility to receive and resolve grievance related to land conflicts and the authority to enforce implementation of the resolutions and relevant law. In order to prevent a conflict of interest, this agency should not be under the same ministry that is responsible for approving land concessions (for example the agency could be under the Ministry for Labour and Social Welfare, Ministry of Justice, or the National Assembly). Land Information database To enhance oversight, effective management and transparency, a publicly accessible database should be established that discloses all documents underlying approved and proposed land concession and lease contracts (including map, name of company, purposes and lease details, terms and conditions of lease etc.). The land register should also be publicly accessible. Dissemination Ongoing awareness raising should be carried out by a wide variety of stakeholders in order to enhance the understanding of citizens and all government officials regarding all land-related policies and laws; this should include awareness of citizens rights to land and government duties to uphold these rights. Media materials should be produced to support this. Monitoring The State shall conduct its own research on the implementation of land policy, particularly with associated environmental and social perspectives (both positive and negative) resulting from the implementation of the policy. In addition to its own research, the State encourages various stakeholders (including institutions, researchers and other organisations) to conduct independent research which MONRE can then consider with a view to gaining knowledge so as to effectively improve laws, regulations and practices relating to land and natural resource management. 8 Expropriation - Customary Land Tenure Rights - Communal Land Titles - Implementation