Over the past two decades, numerous Resolutions of the Central Committee of the Communist Party of Vietnam, National Assembly, and policy implementation documents of the Vietnamese Government regarding land issues with ethnic minority communities have been issued and implemented. The Land Law 2024 serves as a significant legal framework to institutionalize the orientations and directions of Communist Party of Vietnam, contributing to the implementation of land policies for ethnic minority communities. This article focuses on analyzing some prominent points related to land policies for ethnic minority communities as under the Land Law 2024 and some issues that need further clarification to ensure the practical implementation of these provisions in daily life.
Many aspects of land policies for ethnic minority communities have been institutionalized.
Compared to the Land Law 2013, Article 16 of the Land Law 2024 has specified many policies regarding land for ethnic minority communities. Among those, provisions including leasing non-agricultural land that is not residential land for production and business purposes, with exemptions or reductions in land rental fees; allowing the change of land use purpose to residential land within certain limits, with exemptions or reductions in land use fees for ethnic minorities who are lack of land, in addition to land allocation policies has been more clearly stipulated, and communal land, agricultural land for individuals and ethnic minority communities,
Article 16 of the Land Law 2024 also specifically stipulates the beneficiaries and policies for initial land support and land allocation for residential and production purposes in cases where land has been allocated but there is still a shortage of residential or production land.
Specific provisions outline the mechanism for creating land reserves to implement land policies for ethnic minority communities.
The legalization of mechanisms for creating land reserves to implement land policies for ethnic minority communities is a crucial new aspect compared to the Land Law of 2013 and previous guiding documents related to land policies for ethnic minority communities. Specifically, Article 16 of the Land Law of 2024 clearly states that land allocated for implementing land policies for ethnic minority communities is sourced from land reserves managed by state agencies or organizations or from land reserves reclaimed by the state. Particularly, Article 79 of the Land Law of 2024 stipulates that projects reclaiming land to implement land policies for ethnic minority communities fall under cases of land reclamation for socio-economic development for national interests. This provision serves as an important legal basis for localities to address difficulties in establishing mechanisms to create land reserves for implementing land policies for ethnic minority communities.
The Land Law of 2024 was passed with the expectation of resolving many challenges in implementing land policies for ethnic minority communities.
The Land Law 2024 clarifies the responsibilities and resources for implementing land policies for ethnic minority communities
Article 16 of the Land Law 2024 clearly defines the responsibilities of Provincial People’s Committees and the corresponding People’s Councils to propose to issuing local supporting policies on land for ethnic minority communities living in the area, in accordance with the local conditions and organizational implementation; assigning District People’s Committees to annually review and report to the Provincial People’s Committees on cases where there is unavailable, shortage, or absence of land for allocation or lease, thereby providing a basis for building annual land use plans at the district level (Clause 3, Point b, Article 67 specifies the content of the district-level land use plan, including “Projects allocating residential and production land for ethnic minority communities (if any)”. The inclusion of projects allocating residential and production land for ethnic minority communities in the annual district-level land use plan is a completely new provision and will significantly help alleviate difficulties for localities in systematically implementing land policies for ethnic minority communities which lack of land. Moreover, the Land Law 2024 also specifies that the funds for implementing land policies for ethnic minority communities are allocated from the state budget and other legitimate sources as stipulated by law.
In addition to the significant changes outlined above, the Land Law 2024 also specifies many aspects related to the procedures, regulations on land surveys, conditions for land allocation, leasing, and issuance of land use rights certificates (LURCs) concerning ethnic minority communities. Furthermore, it includes provisions on issuing LURCs in cases where there is no land documentation available. These provisions serve as important guidelines to overcome the obstacles that localities face when implementing land policies for ethnic minority communities.
With the prominent policy provisions as mentioned above, the Land Law 2024 has established an important legal framework and provided relatively clear directions and resources for the implementation of policies related to land for ethnic minority communities. Additionally, to complete the system of implementing documents related to land policies for ethnic minority communities, the law assigns responsibilities to the Government and provincial authorities to develop specific policies and detailed regulations to actualize these policies. In order to address practical challenges and ensure that ethnic minority communities can fully benefit from these policies and maintain stable livelihoods, several issues below need attention during the process of drafting related implementing documents:
Firstly, it is necessary to specify regulations regarding policies and specialized public services to protect land in a stable manner for ethnic minority communities
The Land Law 2024 has outlined many provisions regarding land allocation policies for residential and agricultural purposes for ethnic minorities, but there are no detailed regulations to protect the land use rights for them. In reality, the situation where many ethnic minority households previously owned land but then sold it, thus becoming landless, is quite common, especially among the Khmer people and some areas in the Central Highlands. Statistics from the Ministry of Natural Resources and Environment show that one of the main reasons leading to landlessness or land scarcity is the previous sale of land, accounting for a high proportion of 12.56%. The re-emergence of land scarcity due to land sales is increasing in ethnic minority areas. In the context of increasingly limited land resources, relying solely on policies prioritizing agricultural land allocation (initial allocation and re-allocation) as proposed in the current draft is impractical in reality and does not effectively address the issue of recurring land scarcity among ethnic minorities. Additionally, there is a phenomenon in some areas where ethnic minorities, after being allocated land for production according to supportive policies, transfer land to other people. Particularly notable is the practice of using land in ethnic minority communities as collateral for production or consumption loans. Although there are no official statistics, this phenomenon has been mentioned by some media agents. For example, according to Binh Phuoc Newspaper on March 7, 2012, in Bu Gia Map commune, Bu Dang district, there were 105 households using land as collateral, covering an area of 166.8 hectares, with a total value of 16.952 billion VND. The Ethnic Minority and Development Newspaper, reported on March 7, 2022 that in Binh Thuan, the total area of land bought, sold, or transferred in the area was 720.84 hectares involving 650 households, etc. It is noteworthy that the Land Law 2024 has expanded the limit for land transfer and broadened the scope of recipients who are eligible to receive land use rights transfer for production forest land and agricultural land. Relaxing these restrictions further will create additional pressure on land resources in ethnic minority areas and pose a risk of land loss for ethnic minority people.
Among many causes and consequences of the “recurring land scarcity” situation as described above, a very notable fact is that ethnic minorities often do not fully understand all the regulations concerning land use rights and transferring of land use rights, leading to be disadvantaged during the transfer process. According to the community survey results, only over 50% of respondents answered correctly regarding land use rights. The lack of information about legal provisions, understanding of the rights and obligations of land users, and the absence of legal counseling services for ethnic minority communities lead to risks for ethnic minorities in land conversion and transaction processes. Furthermore, access to information and legal knowledge about land among ethnic minorities is limited in many areas. According to statistics from 2019, nearly 20% of ethnic minorities are not proficient in reading or writing Vietnamese, especially among certain ethnic groups such as the Hmong, with a rate of 45.7%, and the Lu people, with a rate of 50.1%. In reality, these figures may be even higher in economically and socially disadvantaged regions, particularly challenging areas. In this context, providing information related to laws and land only in Kinh will limit the participation of some ethnic minority groups with high rates of illiteracy.
With the constraints on access to information and legal awareness among ethnic minorities as analyzed above, ensuring stable access to and use of land for ethnic minorities requires specific and comprehensive solutions to both help them “obtain land” and “retain land”. Many good practices in protecting land use rights for vulnerable groups have been summarized and recommended for application by the United Nations. According to guidance from the UN Food Security Commission and the Food and Agriculture Organization (FAO), to protect the land of ethnic minorities, the state needs to ensure “… providing services to all citizens, including those in remote areas. Services must be provided timely and effectively, using appropriate technologies and methods for the locality; at the same time, the state and other relevant parties should consider additional measures to support vulnerable groups, ensuring their full access to administrative and legal services regarding land.”.
The Land Law 2024 has addressed the role of the Government in providing public services related to land (Article 20: State Land administration), legal aid regarding land (Article 15: State responsibilities towards land users), and providing information in appropriate forms to the customs, practices, and traditional cultures of each ethnic group and region (Article 18: State responsibilities in providing land information). These principles need to be specified in guidelines and regulations regarding land-related public services with appropriate and specific mechanisms to local conditions, including providing land information in local languages and appropriate forms for ethnic minorities in areas with difficult conditions; measures to regulate land transactions, restricting the acceptance of land transfers for production from ethnic minorities. These regulations aim to protect the land use rights of ethnic minorities. This will demonstrate the comprehensiveness and feasibility of the policies outlined in Article 16 of the Land Law 2024, ensuring access to and stable retention of land for ethnic minorities.
Secondly, detailed guidelines and regulations are needed to update the information system and database on land and forests in a uniform manner and accurately reflect the current land use situation.
In most areas where ethnic minorities locate, their agricultural land and livelihoods are largely associated with forest land. Currently, there are differences in standards and planning methods between the Ministry of Natural Resources and Environment and the Ministry of Agriculture and Rural Development regarding land use planning and forest use planning. Additionally, coordination in the policies implementation is limited, leading to discrepancies in data between the two sectors. In many regions, especially in ethnic minority areas, there are significant discrepancies between land statistics from the Ministry of Natural Resources and Environment and forest records from the Ministry of Agriculture and Rural Development. These differences in data, and discrepancies between records and actual land use, pose significant challenges when synchronizing land allocation with forest allocation for ethnic minorities..
One of the significant land resources for implementing land policies for ethnic minorities is the forest land currently allocated to forestry companies and forest management boards. In most areas, overlaps and discrepancies in boundaries between land and forests managed by forestry companies and the agricultural land cultivated by local residents are common, but they are not adequately reflected in the review documents. The Land Law 2024 has added Article 181, which regulates the use of land managed by agricultural and forestry companies, including provisions for land recovery from agricultural and forestry areas allocated to local authorities and prioritizing allocation to ethnic minorities. These regulations inherit, adjust, and elevate many contents stipulated in Government Decree No. 118/2014/ND-CP on the rearrangement, renewal, and development to enhance the efficiency of agricultural and forestry companies towards stricter and more effective enforcement. However, there are still no specific requirements for the participation of communities and stakeholders in the consultation and review process of land managed by forestry companies. Additionally, Article 181 of the Land Law of 2024 does not address specific criteria or principles for guiding the selection and determination of the land area to be transferred back to communes for redistribution to the people. To ensure that the review and handover process of land and forests managed by forestry companies and forest management boards to local authorities are carried out effectively and substantively, and to put an end to the prolonged issue of overlapping land use, specific criteria and principles should be established.
Therefore, one of the solutions to untangle the “knot” in implementing land policies with ethnic minorities is to specify the requirements for community participation in adjacent areas and local authorities in the process of reviewing the current management and use of land, and forest protection by forestry companies. Specifically, in decrees and circulars guiding the process, specific requirements for the participation of local residents and authorities in bordering areas need to be included in the land review process managed by agricultural and forestry companies. Moreover, clear criteria and specific principles related to historical, cultural, and ownership aspects, overlapping situations, location, and significance to the community should be addressed to determine which land areas should be returned to communes for redistribution to the community and other stakeholders.
Thirdly, specific and standardized and agreed guidelines are needed for the procedures of land allocation together with forest allocation.
Currently, the procedures for land allocation associated with forest allocation are regulated in two legal frameworks concerning land management (Regarding the procedures for land allocation to communities, guidance is provided in Articles 7, 9, 33, 68, 70 of Decree No. 43/2014/ND-CP and Circular No. 30/2014/TT-BTNMT regulating land allocation, leasing, land use change, land recovery) and forest management and protection (Regarding the procedures for forest allocation, guidance is provided in Articles 35, 36, 37, 38 of Decree No. 156/2018/ND-CP). However, there are still some inconsistencies between these two systems in terms of linking forest allocation with land allocation. Currently, there is no unified document between the Ministry of Natural Resources and Environment and the Ministry of Agriculture and Rural Development for both parties to agree on forest allocation with land allocation. Furthermore, the procedural regulations of both sectors mainly focus on the rights and roles of authorities from commune level upwards, and the participation of village and community levels in the land and forest allocation process is not adequately concerned. Regulations regarding issuing Land Use Rights Certificates to communities are also not detailed and comprehensive enough. The Land Law 2024 has supplemented some provisions regarding the conditions and procedures for land allocation in various cases, depending on different land use periods. However, detailed guidance on issuing Land Use Rights Certificates to communities is still lacking.
To ensure the effective implementation of these provisions for ethnic minorities, it is necessary to review the land allocation guidelines of the Ministry of Natural Resources and Environment and the forest allocation guidelines of the Ministry of Agriculture and Rural Development. From this review, adjustments, amendments, and specifications of the contents should be made to provide unified, detailed guidance on the steps for land allocation linked with forest allocation. In this guidance, it is crucial to incorporate principles and regulations to ensure community participation in all stages of the land and forest allocation process. Regarding cases where land is allocated to communities or household groups, specific guidance on documentation, procedures, responsibility assignment, community representation mechanisms, and accountability mechanisms for community representatives are needed. This ensures effective forest management and protection, fostering a strong and harmonious connection between the individual responsibilities of representatives and the collective commitments of the community.
Fourthly, it is necessary to have a large-scale policy from the central government with specific regulations and substantial investment to encourage mechanisms for land restructuring in ethnic minority areas based on community consensus
Article 219 is a new provision in the Land Law 2024, defining the contribution of land use rights and land adjustment, including cases of consolidating agricultural land for production, rural residential area development projects, rural road upgrades, urban renovation and development projects, etc. Article 219 also stipulates the procedures, approval authorities for adjustment plans, and the authority to issue certificates and amend documents after implementing the land use rights contribution plan and land adjustment. In addition to the cases mentioned in Article 219, due to technical limitations in previous land and forest allocations during different periods, discrepancies between documents and actual usage, encroachments, and undefined land boundaries among land users are common in areas with ethnic minorities. Therefore, the need to adjust and reorganize land in ethnic minority areas is currently significant and urgent.
With the new provisions outlined in Article 219, their implementation in practice will contribute to resolving the difficulties and challenges currently encountered in land use, particularly in addressing the effectiveness of land utilization. Specifically, in some localities, the authorities have mobilized communities to voluntarily agree and carry out land rearrangement, including adjusting boundaries and landmarks to ensure consistency between actual land use and land records. Some localities have also applied this method to create land reserves to address land shortages for ethnic minorities. This form of land adjustment has received relatively high community consensus and is considered feasible by local authorities. However, due to the lack of specific regulations, guidance, and a common direction, most localities have not boldly applied these measures but have only implemented them on a very small scale, resulting in inconsistency.
To address the challenges arising from discrepancies between land records and actual land use, including encroachment and disputes over boundary markers, a series of different procedural steps are required. At the grassroots level, redefining boundaries involves multiple households in proximity to each other. At the administrative level, handling documentation and procedures also involves coordination across various sectors and levels of government, requiring significant investment in terms of finances, manpower, and technical resources. Therefore, resolving this issue comprehensively cannot be done on a case-by-case basis but requires a unified approach. Additionally, detailed guidelines and monitoring mechanisms are needed to ensure the accuracy and prevent exploitation for illicit gain or abuse of policies.
Truong Quoc Can
Consultative Institute for Socio-Economic Development of Rural and Mountainous Areas – CISDOMA
(Source: Article in Environmental Magazine, Issue 2/2024)
