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COMMONPLACES AND COMPARISONS

VIEWS: 51 PAGES: 272

Available in the National Library of Australia collection. Author: International Conference 'Politics of the Commons : Articulating Development and Strengthening

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									COMMONPLACES AND COMPARISONS
  REMAKING ECO-POLITICAL SPACES
       IN SOUTHEAST ASIA




                             Rural Development in Lao PDR:
                  Managing Projects for Sustainable Livehoods
      The monograph “Commonplaces and Comparisons:
Remaking Eco-political Spaces in Southeast Asia” is a
collection of papers presented at International Conference
“Politics of the Commons: Articulating Development and
Strengthening Local Practices” 11-14 July, 2003, Chiang Mai,
Thailand. The conference was organized by the Regional
Center for Social Science and Sustainable Development
(RCSD), Faculty of Social Sciences, Chiang Mai University
and co-organized by the International Association for the
Study of Common Property (IASCP), Australian Mekong
Resource Center (AMRC) and the York Center for Asian
Research (YCAR). The organizing committee of the
conference included:

      Anan Ganjanapan                  Chair
      Chayan Vaddhanaphuti             Co-Chair
      Yos Santasombat                  Committee
      Jamaree Chiengthong              Committee
      Chusak Wittayapak                Committee
      Louis Lebel                      Committee
      Philip Hirsch                    Committee
      Janet Sturgeon                   Committee
      Peter Vandergeest                Committee
      Pinkaew Laungaramsri             Committee

      The conference was financially supported by the
Rockefeller Foundation, Ford Foundation, ICCO-
Interchurch Organization for Cooperation and Development,
Rockefeller Brothers Fund, and Heinrich Boell Foundation.




Rural Development in Lao PDR:
Managing Projects for Sustainable Livehoods
COMMONPLACES AND COMPARISONS
     REMAKING ECO-POLITICAL SPACES
          IN SOUTHEAST ASIA




          Peter Cuasay and Chayan Vaddhanaphuti

Regional Center for Social Science and Sustainable Development (RCSD),
           Faculty of Social Sciences, Chiang Mai University




                                                 Rural Development in Lao PDR:
                                      Managing Projects for Sustainable Livehoods
Published in November 2005 by
Regional Center for Social Science and Sustainable Development (RCSD)
Faculty of Social Sciences, Chiang Mai University
239 Huay Kaew Road, Tambon Suthep
Amphoe Mueang, Chiang Mai 50200, Thailand
Tel: 66-(0)53-943595/6
Fax: 66-(0)53-893279
URL: http://rcsd.soc.cmu.ac.th
E-mail:rcsd@chiangmai.ac.th

Printed by
Within Design Co., Ltd.
9 Charoenprathet Road, Soi 9, Tambon Changklan
Amphoe Mueang, Chiang Mai 50100, Thailand
Tel: 66-(0)53-272111
Fax : 66-(0)53-272666
E-mail: within@within.co.th
URL: http://www.within.co.th

The publisher has generously been given permission from Anteneo de Manila
University Press in reprinting a chapter of a copyrighted work “Kingdom
and Republic, Forest Governance and Political Transformation in Thailand
and Philippines” by Antonio P. Contreras in the monograph. Grateful
acknowledgements also go to Southeast Asia River Network (SEARIN) and
Ugo Pica Ciamarra for pictures used for the cover.

ISBN 974-656-821-3


Rural Development in Lao PDR:
Managing Projects for Sustainable Livehoods
                           CONTENTS
Contributors                                                                     vii
Foreword                                                                          1
   From Common Property Resources to Territorializations:
   Resource Management in the Twenty-First Century
   Nancy Lee Peluso
Introduction                                                                     11
   Commonplaces, Comparisons and Human Consequences
   Peter Cuasay and Chayan Vaddhanaphuti
Part One: Governance as Moral Narrative
      1. The Transformation of Politics and the Politics of                      23
          Transformation
                   .
          Antonio P Contreras
      2. The Crisis of the Commons: Three Case Studies in                        40
          Indonesia, Malaysia and Thailand
          Henry Chan
      3. Indigenizing Law or Legalizing Governmentality?                         54
          The Philippine Indigenous Peoples Rights Act and
          Postcolonial Legal Hybridity
          Peter Cuasay
Part Two: Entitlement—from Territory to Identity
      4. Thailand’s Land Titling Program: Securing Land for the Poor?            79
          Rebeca Leonard and Kingkorn Narintarakul Na Ayutthaya
      5. The Commons at War: Fuzzy Property Rights                              103
          and Ethnicized Entitlements in Sri Lanka
          Benedikt Korf
      6. Changes in Indigenous Common Property Regimes                          126
          and Development Policies in the Northern Philippines
          June Prill-Brett
Part Three: Reform—Hope and Caution
      7. Effective Land Tenure Reform: Insights from Selected                   141
         Philippine Agrarian Reform Communities
         Ugo Pica Ciamarra
      8. Does Devolution Really Influence Local Forest Institutions?            165
         Two Case Studies in the Central Highlands of Vietnam
         Tran Ngoc Thanh
      9. Resource Management Initiative of an Indigenous                        179
         Minority Village in Northeast Cambodia Leads
         to Changes in the National Land Policy
         Gordon Paterson and Anne Thomas




                                                     Rural Development in Lao PDR:      v
                                          Managing Projects for Sustainable Livehoods
     Part Four: Flow—Mobilities Around Water
           10. Hydropower Development of the Lower Mekong River   199
               Basin: Pak Mun Dam, Northeast Thailand
               Maarit Virtanen
           11. Making Space for Fisheries Access and Community    219
               Management in Stung Treng, Cambodia
               Try Thuon and Tek Vannara

     Afterword                                                    255
        Social Power, Contested Belonging, and the Local
        Government of Commons
        K. Sivaramakrishnan




vi   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
                        CONTRIBUTORS

Anne Thomas has been based in Southeast Asia since 1987, working primarily
in the field of education and capacity building for local communities. Since 1996,
she has been working for the Non-timber Forest Products (NTFP) project and
International Cooperation for Cambodia (ICC) in Ratanakiri Province in
Cambodia. She has assisted the NTFP project by developing non-formal
education,providing extension materials together with local staff, and training
community members.

Antonio P. Contreras received a Ph.D. in Political Science from the University of
Hawaii in 1991. He previously held a teaching position with the College of Forestry
in Natural Resources of University of the Philippines Los Baños from 1982 to
July 2000. Presently, he is full Professor at the Department of Political Science of
De La Salle University in Manila, where he is also serving as Dean of the College
of Liberal Arts. His academic interests are in the fields of comparative politics,
political theory, political economy, political ecology, environment and natural
resources policy and governance, and gender and development.

Benedikt Korf is a lecturer in Geography at the University of Liverpool, UK. He
is also working as a development consultant for international aid agencies in Asia
and Africa. His research investigates the political geography of resource conflicts,
namely under conditions of civil war or failing states.

Chayan Vaddhanaphuti is Director of the Regional Center for Social Science
and Sustainable Development (RCSD), Faculty of Social Sciences, Chiang Mai
University. Besides teaching at RCSD, he has been involved in strengthening
research capacity of Vietnamese, Cambodia and Thai young researchers. His
research interest is on ethnic minorities and development.

Gordon Paterson is the coordinator for the Non-timber Forest Products (NTFP)
project. The project focuses on rural communities of Ratanakiri province,
Cambodia, whose subsistence livelihood depends to a significant degree on
forest-based activities and local natural resources. His area of work deals with
traditional resource tenure and ethnic minority in Northeast Cambodia.

Henry Chan is a head of the Department of Social and Community Studies,
Sarawak Forestry Corporation, Kuching, Sarawak, Malaysia. He obtained a
Master’s Degree in Anthropology. He is currently finalizing his Ph.D. dissertation
in Cultural Anthropology at the University of Helsinki, Finland. His research
interest is in agroforestry, resource tenure, conflict management and community
development in the context of sustainable forest management. He was awarded
Asian Public Intellectual Fellowship in 2001-2002.


                                                        Rural Development in Lao PDR:      vii
                                             Managing Projects for Sustainable Livehoods
       June Prill-Brett works for the Cordillera Studies Center at the University of
       Philippines Baguio. Her research concentrates on resource tenure, common
       property, legal pluralism and indigenous rights.

       K. Sivaramakrishnan is a lecturer in the Department of Anthropology,
       University of Washington. His research interests are in political anthropology,
       environmental history, anthropology of development, cultural geography,
       migration and South Asia. His research explores various inter-linked aspects of
       environmental and political change in colonial and postcolonial India,
       combining historical and ethnographic research on topics like forest
       management, economic development, state formation, nature conservation,
       environmental law, nationalism, and circular migration.

       Kingkorn Narintarakul Na Ayutthaya is the Director of the Northern
       Development Foundation, Thailand. Her background is in economics and rural
       resource planning. She has been working for 15 years to help strengthen peoples’
       organizations and networks in the north of Thailand. She has conducted
       research on national land rights policy and natural resource management
       policies and campaigned for more equitable and participatory approaches to
       development. She is currently studying the impacts of global institutional policy
       and bilateral free trade agreements on the rural poor in Thailand

       Maarit Virtanen holds a Master of Administrative Sciences. She was a project
       researcher at Tampere University, Finland. At the moment, she is continuing
       her studies in Tampere University and conducting research on water resource
       governance in Laos and Thailand.

       Nancy Lee Peluso is Associate Professor of Environment and Social Science in
       the Department of Environmental Science, Policy and Management at the
       University of California, Berkeley. She has worked on Indonesian forest and
       agrarian issues for over twenty years. She was the editor of the Common
       Property Resource Digest and has been the author of numerous articles on
       peasant and government forest management in Java and Kalimantan.

       Peter Cuasay, a Philippine-born anthropologist, earned his doctorate at the
       University of Washington, Seattle. His research on the Kuay of South Isan,
       Thailand, stressed their relationships to Asian elephants, histories of nature and
       nation, and ideas of time and identity. He has taught in the Philippines, America,
       and Thailand, and is involved in regional capacity-building for cultural studies.

       Rebeca Leonard is an advisor on community based natural resource management
       with the Northern Development Foundation, a Thai NGO based in Chiang Mai,
       northern Thailand. Originally from Edinburgh, Scotland, her background is in
       law and development studies. She has worked on local land rights systems in


viii   Rural Development in Lao PDR:
       Managing Projects for Sustainable Livehoods
Western Africa and elsewhere, examining ways to incorporate local tenure rights
and systems into a national legal framework.

Tek Vannara graduated with Bachelor Degree of Computer Science and
Engineering, Department of Computer Science, Royal University of Phnom Penh
and pre master Cultural Resources Management and Eco-Tourism from London
University, England (study at United Kingdom embassy in Phnom Penh). He
started working as a teacher for Volunteer Youth Congress for Democracy in
1999. From 2001 to 2004, he worked as a environment researcher and publication
coordinator for Culture and Environment Preservation Association (CEPA). He
is presently an Advocacy Program Manager and Environmental Researcher for
CEPA.

Tran Ngoc Thanh was awarded Ph.D. in 2004 from Humboldt University in
Berlin Germany with his dissertation entitled “From legal acts to village institutions
and forest use practices: the effects of forest devolution in the Central Highlands
of Vietnam”. His interests in forests and indigenous people led him to pursue this
study. At present he is a senior forester at Department of Agriculture and Rural
Development in Dak Lak province of Vietnam and is in charge of forestry
section. Currently, his study focuses on understanding the impact of devolution
of forest management.

Try Thuon obtained a Master of Arts in Sustainable Development from Chiang
Mai University. He has been working for Culture and Environment
Preservation Association (CEPA) since 1998 as the publication coordinator, and
as networking and advocacy coordinator. His recent work has been involved
with research and advocacy for rivers in northeast Cambodian provinces. He also
works as a volunteer research team leader to conduct studies on the Sekong
River-Based Livelihood in Stung Treng province, Northeast Cambodia and also
as short-term national consultant for IUCN-Mekong Wetland Biodiversity
Programs (MWBP) based in Stung Treng and Phnom Penh.

Ugo Pica Ciamarra holds a MA in Agricultural Economics from the University
of Manchester and a Ph.D. in Institutions and Economic Development Policies
from the University of Rome. He is currently consultant to the Pro-Poor
Livestock Policy Initiative of the Food and Agricultural Organization of the United
Nations, and has previously worked at the University of Rome, the Italian
National Institute of Agricultural Economics, FAO HQs and has been visiting
scholar at FAO Philippines.




                                                          Rural Development in Lao PDR:      ix
                                               Managing Projects for Sustainable Livehoods
Rural Development in Lao PDR:
Managing Projects for Sustainable Livehoods
                              FOREWORD
       FROM COMMON PROPERTY
RESOURCES TO TERRITORIALIZATIONS:
    RESOURCE MANAGEMENT IN THE
        TWENTY-FIRST CENTURY
                                Nancy Lee Peluso


      I would like to begin by raising some questions about theory and practice
within and outside the commons.1 These questions relate to the politics of the
commons and the ways the practices of both scholars and activists have
articulated to produce a field that takes both analytic and practical activity
seriously. Our common goals include better understanding and amelioration of
the plights of millions of dispossessed and marginalized people. Development
practice is particularly important to explore, because much commons research
and advocacy has aimed to change the ways development practitioners and people
in power see property rights.
      How have notions of commons and common property resources (CPRs)
been translated into concepts that can be mobilized by policy makers and
development planners? I will focus on some of the ways that the study of
CPRs has altered resource management policy and practice, affected the forms of
recognition accorded marginalized people and property relations, and reconfigured
parts of the nexus of political action. I concentrate on a dimension of develop-
ment practice which is becoming central to many policy recommendations, to
advocacy, and to practical applications, and which informs a great many of the
papers and presentations given at the meeting in Chiang Mai: territorialization.
      The notion of state territorialization was used in its early iterations to
denote actions by states and other authorities to control people by controlling
the spaces within which people act (Vandergeest and Peluso, 1995;
Sivaramakrishnan, 1997).2 And while “Commons” have to be understood
historically as always having territorial properties, it seems that the politics of
both commons and CPRs are becoming increasingly territorialized. As
practitioners, advocates, and theorists of practice, we have a responsibility to


                                                        Rural Development in Lao PDR:      1
                                             Managing Projects for Sustainable Livehoods
    think about the implications of this trend. By raising some of the newer
    articulations of theory and practice in the realm of territorialization, I suggest
    we can begin to understand a bit more about the fields of power within which
    we operate—and how we are implicated in these through our work. Indeed,
    CPR advocates may have been so successful that the big players have picked up
    some of their tools to use in their cookie-cutter approaches to conservation and
    development. This means, unfortunately, that territorialization as a CPR strategy
    can inadvertently reinforce top-down approaches to management— which
    contradicts the goals of many scholar-activists in this field.


                                          SUCCESSES

          Let’s start with the positive side of these developments. First, we need to
    recognize that the attention accorded to alternative property and management
    regimes by members and associates (and even critics) of the International
    Association for the Study of Common Property (IASCP) has given voice or
    inspiration to a multitude of locally-oriented, often participatory, resource
    strategies and empowerment movements. Through widespread documentation
    and sharing, and through organizing and networking about common property
    and other forms of local management, the voices of marginalized groups have
    been heard. These accomplishments are significant and deserve acknowledgement,
    as they give hope to all those who fear that the voices of the disempowered are
    never heard or acted upon.
          What are some of the ways these voices have transformed Development
    and anti-Development practices? Take, for example, the creation (and dominance)
    of Community Based Natural Resource Management (CBNRM) programs. Now
    a catchword in development, including in conservation and development, these
    programs are clearly based on many of the ideas that came out of CPR research.
    Whether or not the ideas are realized in effective ways is of course at issue, as is
    always the case when ideas emerge from specific contexts and are applied
    elsewhere without modification. A critical literature on the failures and successes
    of CBNRM programs is beginning to appear, providing opportunities for
    scholars and activists to engage further with the applications of their ideas on
    community, management and common property.
          Changes in the contexts where CPR concerns are voiced are related to these
    developments in Development. The past five years have seen a proliferation and
    recognition of indigenous and local people’s movements, including a UN decade
    devoted to them, both in specific localities and transnationally. Many of the
    issues of land rights and CPR management taken up by CPR specialists have
    helped local groups put forward alternative visions to state-led development.
    Landless people’s movements represent those who no longer have access to
    property, common or otherwise, and they also operate in local, national, and

2   Rural Development in Lao PDR:
    Managing Projects for Sustainable Livehoods
international fora. Some of these were represented in Johannesburg, South
Africa, at the Sustainable Development Conference in 2003. Agrarian, tenure,
and land reforms are once again on national and international agendas, taking
different forms than they did in the 1960s and 1970s. Witness Brazil’s Landless
Workers Movement, MST (Movimento dos Trabalhadores Rurais Sem Terra), the
Assembly of the Poor in Thailand, new farmers’ movements in Java and
indigenous people’s movements elsewhere in Indonesia. While research
showing direct connections to CPR studies and activism is still to be done on
many of these topics, the efforts of those who have written on and mobilized
around local property issues have been effective.
       Counter-mapping, for example, is no longer a clandestine operation.
Counter-mapping could be called a movement in itself because it has exploded
all over the world. Everyone seems to be mapping against power and creating
new dimensions of power. Getting contending practices on maps and gaining the
recognition of multiple versions of maps has become in some places a standard
development practice, and is certainly standard NGO practice. Maps that used to
be counter-maps are often management tools for areas dealing with the
challenges of decentralization. Decentralization of resource management is
taking place in many parts of the world, much to the joy of many CPR
proponents. And while this global move toward decentralization coincides with
neoliberal agendas which are far less deserving of celebration, it brings, at least,
a greater possibility of more fair representation of common property resource
users.
       These now-standard policy interventions and mobilizations derive from or
have been profoundly influenced by the profusion of research on CPRs. As a
field of research, CPR studies took form some 20 years ago, with the publication
of the proceedings of the National Academy of Science’s meeting on Common
Property Resource Management (1985). The collective success of the members
and associates of the IASCP at putting these issues on national and international
agendas gives us reason to continue doing grounded research on how CPR
institutions and their contexts change. Today, this means that besides working
with government agencies—and many newly-decentralized local governments
need to critically examine their resource management programs—we also need
to continue making and maintaining connections between NGOs and
academics. NGOs operate in practical, fast-moving worlds of policy-making and
practice, while in academic arenas the focus is on emerging ideas, practices,
programs, and policies. NGOs develop the practical experience that illustrates
the conditions under which certain programs work and why. Scholars of
common property can put the efforts of NGOs into historical or comparative
perspective, helping theorize and anticipate change. Together, their efforts
articulate theory and practice from multiple perspectives. Both worlds of NGOs
and academics affect the actions and perspectives, not only of policy makers and
planners, but also of millions of people who live on the margins or in the

                                                        Rural Development in Lao PDR:      3
                                             Managing Projects for Sustainable Livehoods
    interstices of great power, and who work and survive on the peripheries of
    wealth-making.
          Maybe we should pause and say, “Thank you, Garrett Hardin” for making
    some of the early founders of this field angry enough to act in the first place.


                                        CHALLENGES

           Nearly all the successes mentioned above indicate an increasing emphasis
    on the territorial dimensions of resource control. It behooves us, however, to
    avoid dwelling on our apparent triumphs. Other growing or continuing trends
    in resource management represent darker sides of territorialization (empires do
    strike back). These include the ongoing march of industrial forestry and
    plantation development, mining, the masking of customary rights with
    corporate development—as in the New Customary Land Management schemes
    being applied in Sarawak—and the increasing use of violence in battles over
    access to valuable resources. At the same time, bad theories are abounding about
    the likelihood of violence over scarce resources (Peluso and Watts, 2001).3
           We do not have to look as far as the Middle East to see violent environments.
    Looking around from our perch here in Northern Thailand, we can witness overt
    and covert militarization of international politics, many of which are related to
    resource extraction and control. These include timber and gems in Myanmar, oil
    and gas in Aceh and East Timor, gold in Papua New Guinea and Sulawesi, and
    timber and other resources in Mindoro and Kalimantan. It is chilling to think
    how frequently military solutions to resource, land, and allegedly communal
    conflicts are explained by government actors using the language of “need,”
    “market demands,” and “the common good.” Unfortunately, and sometimes
    tragically, many of those in power have learned no lessons from the research
    generated on common property and its cousins in political ecology and agrarian
    studies. Corporate, state, and gangster-backed powers are becoming increasingly
    violent, increasingly rich, and increasingly capable of buying or wresting control
    over the most valuable resources in the world.
           Thinking about the articulations—negotiated settlements as well as
    conflicts—between the dark and bright sides of territorial approaches to resource
    management brings me to my second concern: the ways in which CPR-holding
    groups and their analysts and promoters are moving away from the concept of
    “bundles of rights” and into the realm of territorialized strategies of resource
    claim. Understanding this shift suggests some explanations for the rise of new
    territorialization schemes mentioned earlier.




4   Rural Development in Lao PDR:
    Managing Projects for Sustainable Livehoods
                         BUNDLES AND BEYOND

       At a certain moment in time, and in many contemporary contexts as well,
the notion of “bundles of rights” was a highly effective tool for both analyzing
and mobilizing around resource claims. Taken largely out of property theory and
applied in common property studies, the “bundle” served the purpose of
showing that property was a relationship among people rather than between
people and things. As a set of social relationships, the processes and outcomes of
allocation and distribution could be understood as dynamic and mutable. A
bundle implied that there were lots of rights adhering to a particular resource
and that these did not have to be held by a single person or group. The emphasis
of bundles was on modes of cooperation; it showed that multiple rights could be
held by different people who could come to terms about access and use.
       Trees provide a famous example of bundles of rights. Louise Fortmann
(1985) showed that one person might have the rights to harvest fruit, another to
cut the timber, while another owned the land the tree is planted on, and so on.
When applied to multi-use trees like areca palms, the number of uses could
reach fantastic proportions (Fox, 1977).
       In Southeast Asia, we have many examples of such trees, none of which
generates as much emotional association and recognition across the region as the
durian tree, with its many layered meanings and means of making claims. In
parts of West Kalimantan, for example, a durian tree and its fruit first belongs
to the planter and her husband, and then to all their children, and then to
subsequent generations of grandchildren and great-grandchildren. The
numbers of siblings and cousins with rights in them increase through the many
human generations that such a tree can endure. Understanding the property
rights in the tree is ultimately about kinship and ancestral legacies. At the same
time, durian trees serve also as markers of past settlements (Padoch, 1994).
Clusters of them mark sites where longhouses and farming huts were once
situated, giving whole villages and other new settlement units a claim on them
through their historical meanings. A whole longhouse could experience spiritual
or material problems—bad luck—if ancestral durian trees were cut without
properly appeasing the spirits of those who planted them. Many people, whether
living in a settlement or kin who moved away, know old durian trees by name.
Besides giving the planter a place in the landscape’s history, the name could also
serve as record to other historical events in the tree’s shadow. Names like “the
place where Si Anu fell,” or “the place where Suki and Edi fought,” or “the pig
harvest” are not uncommon in durian clusters. Thus the meanings of that tree for
history were not exclusive to the planters’ descendents but constituted broader
historical claims for larger numbers of people. Today, more durians are planted
in garden plots and the gardens are inherited as places. The durian fruit, the tree,
and the tree as a plant on the land, are all representative of the many social
relationships implicated in the fruit’s production.

                                                        Rural Development in Lao PDR:      5
                                             Managing Projects for Sustainable Livehoods
           Notions of bundles of rights have been useful for many activists. The bundles
    idea, for example, provided activists a way of seeking to increase local rights to
    resources in areas claimed by forestry departments without directly challenging
    state ownership of land. Given this, and the continued importance of the bundles
    idea in studying rights to resources, how do we know the focus of resource claims
    is becoming more territorial? Below, I provide a partial list of territorialities
    compiled from ways of referring to resources and places. While state
    territorializations feature in these lists, other sorts of territorializations are also
    important.
           Words that produce and describe territories: Customary land, state land, project
    land, military operations area, sacred area, forest, community forest, ancestral
    lands, homelands, autonomous region, nature reserve, commons, enclosure,
    export production zone, plantation, latifundia, resettlement area, ejido,
    biodiversity hotspots, bantustans, public lands, spaces of death, colony, war zone,
    mine, yours, ours.
           Territorial claims: Our river, our village, our country, our homeland, our
    territory.
           Territorialized identities: Migrants, settlers, locals, visitors, outsiders,
    insiders, indigenous peoples, ejiditario, homeboys, occupants, squatters,
    tenants, Internally Displaced Persons, colonists, plantation workers, refugees,
    nationals, nationalists, citizens, colonial or post-colonial subjects.
           Territorial representations: Maps, photos, land titles, fences, land codes,
    forest laws, zoning guidelines, land use policy, concession maps, geological maps,
    legal briefs, counter-maps, dreams, dreamlines, visions, stories, oral histories,
    ethnographies, aerial photos, satellite images, borders .
           Practices of territorial production: Story-telling, map-making, exploring,
    traveling, clearing, farming, improving, trespassing, poaching, mining, law-
    making, inclusions and exclusions, resettlement, singing, dreaming, coercing,
    consenting, witnessing, worshiping, testifying, setting aside, fighting for, killing
    for, dying for, burying in, imagining.
           These lists—by no means comprehensive—show that our lives are filled
    with territorializing concepts, terms, identities, and practices that are not just
    related to places and resources but constitutive of them. Territorialization differs
    from place-making because territorialization produces places in relation to
    claimants: it makes places into territories. A more academic way of describing
    territoriality is that it is a political act, an expression of power relations that links
    a particular location to the broader sets of spatial, political and historical
    relations constituting regions, nations, and global systems within particular
    conjunctures. In short, territories are claimed places that are produced and
    reproduced through changing socio-spatial relations.




6   Rural Development in Lao PDR:
    Managing Projects for Sustainable Livehoods
       REMAKING STATES, REFASHIONING SOVEREIGNTY,
                 RECOGNIZING HISTORIES

       While much of the analysis about territorialization started in the state realm,
states are not the only institutional producers of territorialities, nor is all state
territorialization evenly produced. State territorialities can produce what Aihwa
Ong has called “graduated sovereignty” (2000). Ong’s idea was that in a
globalized world, states are not necessarily losing power, as many globalization
watchers have claimed. Rather, through alliances with transnational corporations
(TNCs), state entities have maintained or reasserted their power through new
governing forms of control over people and places. Exemplifying TNCs that have
governing power in export production zones (EPZs) in Southeast Asia, Ong shows
that states relinquish only partial control over the people living and working in
those zones. The result has not been a loss of sovereignty but the production of
more “graduated” sovereignty on the state’s part.
       Ong’s notion of graduated sovereignty travels well to the realm of resource
management. TNCs and other corporate entities often gain access to vast natural
resource concessions—territorial entities—and are granted controls over people
and resources within those concessions or zones. In addition, both international
and sub-national NGOs count territorialization amongst their strategies for
resource protection; territory is clearly a part of graduated sovereignty in the
realm of conservation. Yet both corporations and conservation organizations are
dependent for their territorial power on the architecture of spatialized state power.
Through these new alliances for sovereignty, different forms of territorial power
have emerged: debt for nature swaps, biodiversity hot spots, protected areas, and
open space (open space is not open for everything), and CBNRMs. Similarly,
communities, factions, and other interest groups also produce territorialities. Such
groups, however, do not always recognize that the territorial rights they are
seeking are also compromises: ancestral lands, communal forests, titled private
property, and CBNRM. Yet these forms also have to be seen in terms of graduated
sovereignty, for without state recognition, most could not exist. Genealogies of
territorialization thus reveal not only linear but multiple, simultaneously
occurring, articulated processes that have been negotiated and contested in a
variety of political arenas.
       So, how are the politics of the commons implicated in all this? Displaced
peoples “as often as not want land,” Ludden (2005) has recently reminded us,
and not just any land. Through the tasks of translation and territorialization,
NGOs often find themselves in the business of authorizing or facilitating the
recognition of customary claims, local conservation schemes and community
development, or negotiating other forms of access to land or resource. In this
process, people produce themselves as categories recognizable on a global or
national stage, performing their identities and trying to convey their histories as
part of claiming processes (Li, 2003; Pulido, 1998). In seeking recognition, they

                                                          Rural Development in Lao PDR:      7
                                               Managing Projects for Sustainable Livehoods
    learn to translate their imaginings of space and the things we call “resources”
    from culturally specific ways-of-seeing to categories recognizable in
    territory-obsessed fields of power. Not surprisingly, these claims to resources and
    “customary” activities in specific places are more and more frequently construed
    in territorial terms in order to be mapped and mobilized. In these cases,
    graduated sovereignty can represent an increase or a reinstatement of at least
    some local control lost to earlier forms of expropriation.
           Today’s politics of the commons has become a territorial politics. Its
    discourses emphasize gardens rather than trees, ancestral lands rather than
    customary practices, hunting grounds rather than hunting technologies,
    commons not CPRs. This is not to say that these territorial aspects are new or
    invented—far from it. The reality is that after long histories of state enclosure
    and expropriation, many peoples’ property and territorial claims remain
    unrecognized. In fact, because so many livelihoods still depend on land, and the
    losses of earlier generations have not been resolved, territorial solutions seem
    imperative. However, if each group seeks its own discrete territory, there will not
    be enough room for everyone. As we privilege territorialized identities, we may
    inadvertently create conditions for violent territorialities. It seems inevitable,
    therefore, that compromise is in order.
           How can we use history to our advantage in this endeavour? While past
    arrangements and claims can serve to place claims on contemporary bargaining
    tables, we should not use it merely as a means for finding the best, strongest,
    most legitimate territorial claims. Historical understanding is crucial because every
    place, every territory represents different conjunctures of historical forces. As
    researchers, we are responsible to understand those differences and how
    they have changed over time. As strategists, we need to know how shifting
    infrastructures and fields of power have construed the possibilities, and what
    the results have been in different times and places. Finally, as activists, we need
    to look for ways to create new coalitions, ways of organizing and negotiating.
    We should not lose sight of our aspirations for real empowerment, real
    decision-making, and a greater share of the sovereignty over CPRs of all sorts.
           Understanding or recognizing territorialization allows activists and
    scholar-activists to work through and past the forms that constrain the resource
    access and control of less powerful people and groups. We need to remain
    wary of the potential losses of control through mainstreaming, whether it is
    “counter-mapping” or “land-titling reforms” that are being reconfigured when
    large aid, development, or conservation organizations sponsor them. Some losses
    seem inevitable if gains are to be made under contemporary governmental
    regimes. Moreover, while we generally think of the strategies for inclusion in
    territorialized management schemes, many new forms of exclusion are overdue
    for consideration. The old questions of “fixed” rights versus more mutable claims,
    how long migrants need to be residents before they are considered “locals,” the
    erasure of histories of movement in order to establish sedentary identities—these

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questions are still valid, and may become more important in the rush to
territorialize. Is it possible to prevent new forms of dispossession through
counter-mapping, land-titling, and recognition? New challenges are always
produced by the actions we take in response to earlier problems. Ultimately, we
need to think about how we can use our collective knowledge and experience to
think outside the boxes—and territories—we have helped to create.


                                        NOTES

1
  This Foreword is a revised version of the keynote speech given at the IASCP Regional
Meetings in Chiang Mai, Thailand in July, 2003. I appreciate the comments on the revised
version offered by Peter Vandergeest and Janet Sturgeon. Transcripts and notes provided
by the RCSD helped jog my memory as well.
2
  Robert Sack used a similar definition in his book on “Human Territoriality” (1986) but
did not talk about the transition from ‘territoriality’ to ‘territorialization.’
3
    See, e.g., Homer-Dixon (1999); Kaplan (1996), among others.



                                    REFERENCES

Fortmann, Louise P. 1985. The Tree Tenure Factor in Agroforestry with Particular
    Reference to Africa. Agroforestry Systems 2: 229–251.
Fox, James J. 1977. Harvest of the Palm: Ecological Change in Eastern Indonesia. Cambridge,
    Massachusetts: Harvard University Press.
Homer-Dixon, Tad, 1999. Environment, Scarcity and Violence. Princeton, NJ: Princeton
    University Press.
Kaplan, Robert D. 1996. The Ends of the Earth: A Journey at the Dawn of the 21st Century.
    New York: Random House.
Li, Tania Murray. 2003. Masyarakat Adat, Difference, and the Limits of Recognition in
    Indonesia’s Forest. In Race Nature and the Politics of Difference p. 380–406. Raleigh,
    NC: Duke.
Ludden, David. Investing in Nature around Sylhet: An Excursion into Geographical
    History. Economic and Political Weekly, May 28, 2005.
Ong, Aihwa. 2000. Graduated Sovereignty in Southeast Asia. Theory, Culture & Society
    17(4): 55–75.
Padoch, Christine. 1994. The Woodlands of Tae: Traditional Forest Management in
    Kalimantan.” In Forest Resources and Wood-based Biomass Energy as Rural Development
    Assets, eds. William R. Bentley and Marcia M. Gowen p. 307–414. New Delhi: Oxford
    and IBH Publishing Co. Pvt. Ltd.
Peluso, Nancy Lee and Michael Watts. 2001. Violent Environments. Ithaca, NY: Cornell
    University Press.
Pulido, Laura. 1998. Ecological Legitimacy and Cultural Essentialism: Hispano Grazing
    in the Southwest. In The Struggle for Ecological Democracy, ed. Faber.


                                                            Rural Development in Lao PDR:      9
                                                 Managing Projects for Sustainable Livehoods
     Sack, Robert David. 1986. Human Territoriality: It’s Theory and History. New York;
         Cambridge: Cambridge University Press.
     Sivaramakrishnan, K. 1997. A Limited Forest Conservancy in Southwest Bengal,
         1864–1912. The Journal of Asian Studies 56: 75–112.
     Vandergeest, Peter and Nancy Lee Peluso. 1995. Territorialization and State Power in
         Thailand. Theory and Society: Renewal and Critique in Social Theory 24: 385–426.




10   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
                          INTRODUCTION
           COMMONPLACES, COMPARISONS
            AND HUMAN CONSEQUENCES
                    Peter Cuasay and Chayan Vaddhanaphuti


       This edited volume, the first of three, began in an effort to claim a more
fruitful space for synthesis than is usually obtained by merely stenographic
conference proceedings. After thousands of participants had followed individual
paths through the diverse offerings of the international conference, “Politics of
the Commons: Articulating Development and Strengthening Local Practices,”
the challenge of documenting this immense encounter of works and lives loomed
large. But just as large was the desire to fuse personal energies towards
developing a new range of refinements in the broad, common struggle to
understand the intertwined fates of environment and empowerment. To that
end, this first volume to unite selected and revised conference papers derives its
structure from some strands of interrogation that coalesced around questions
raised by the keynote address of Nancy Peluso.
       With an example such as a durian tree in West Kalimantan, Nancy Peluso
showed how the concept of “bundles of rights” was giving way to a growing
throng of spatialized forms. The keynote address argued that the politics of
common property resources (CPRs) is becoming more territorial “because
contemporary political economic contexts and the culture of rights claiming and
recognition demand it.”1 Such “territorializations” leave in their wake entire
vocabulary lists, so that “local people increasingly talk about their gardens rather
than their trees.” There are words constructing places (ancestral land, export
production zone, plantation), and words conjuring claims (our village, home,
exclusive territory). There are words linking territories to identities (migrants,
citizens, indigenous), to representations (counter-maps, satellite images, land
titles), and to practices (poaching, law-making, clearing). This barrage of
territorializing words (“Politics of the commons—or politics of the commas?”;
quipped some conference-goers) does more than attempt to anchor social agents
in geographic places, however. Territorialization “produces places as claims” and



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     at the same time produces claimants who articulate themselves in spatial terms,
     invoking various “rights.” For example, states, transnational corporations (TNCs),
     and communities they seek to control, struggle for power and resources in newly
     fabricated places like the export processing zone. Such novel spaces imply new
     kinds of claimants, social actors with relative power arrangements characterized
     by “graduated sovereignty.” Rather than states losing sovereign power due to
     globalization, then, Peluso warned “graduated sovereignty cuts in both
     directions; states and TNCs can gain.” Indeed, “the final message of mainstreaming
     territorialities” is that “we have to deal with the loss of control,” and this necessi-
     tates thinking about how to organize, create new coalitions, and negotiate or
     compromise.
            Peluso’s theme, the remaking of “common property resources” through
     “territorializations,” is reflected in our title word, “commonplaces.” The territori-
     alized space defining what once were commons is a commonplace. All those
     words about space, only partially listed above, imply worlds of social habitation.
     They bring lived-in worlds into orbit around the fixed sun of particular spatial
     locations. It is significant that this is an impoverished place-making. Spatial
     mania may make territorialization, in Peluso’s words, “more in the realm of
     politics” but it is also “less in terms of not being all there is to place-making.” The
     post-territorialized commons is a space remade, a place (like the multi-valent
     reality of a durian tree in which several orders of nature and culture mutually
     participate) that has been reduced to a commonplace (like a monologically
     spatial claim to garden boundaries).
            So, if Peluso is right, and our time is increasingly narrated by streams of
     territorialising words, then territorialized commons or commonplaces are
     becoming commonplace in a second, paradoxical sense. Semantically, a
     commonplace is a prosaic truism or a familiar, unremarkable pattern.
     Commonplaces of political ecology in this sense would include its prevailing
     notions of conventional wisdom: that nature both shapes human strategies and
     is itself partially produced by social practices and contestations; that resources
     are ongoing stakes in sagas of social power and differentiation; that loss of
     commons often involves a downward spiral of privatization, profit motivation,
     diverging class interests, and institutionalized injustice. In adding the force of
     territorializations to these commonplaces of environmental social studies,
     commonplaces, understood as the newly territorialized ghost of a commons, are
     being rendered commonplace, in the sense of being ordinary, homely matters.
     Commonplaces (in the first meaning, being territorialized) are being rendered
     commonplace (in the second meaning, being no longer special).
            The difference, while invisible or inaudible (the “same” word is being used),
     is enormous. As Peluso writes in the Foreword, “Historical understanding is
     crucial because every place, every territory represents different conjunctures of
     historical forces.” The contemporary conjuncture around CPRs reveals a “darker
     side” to mainstreaming territorialization. This dark side is apparent when local

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people are mobilized to achieve externally set goals, when restrictive limits are
set on local claims, when new rules and regulations are inserted into gaining
access to CPRs, or legal access is thrown open to outsiders, when conflicts
escalate within and between communities undergoing territorialization, or when
the claims of mobile groups, such as migrants or transhuman peoples, are
negated. In other words, the slippage from (territorially recoded) commonplaces
to (darkly ordinary) commonplaces is both familiar and profoundly strange. We
are gaining recognition for spatial claims, but perhaps also losing the very ground
beneath our feet. At the point of articulating rights, we may be losing cultural
powers. Territorialization haunts us so thoroughly, its ghosts have become such
commonplaces, that spaces of struggle no longer echo the violence by which
trees get uprooted to make territory.
       The mission of these collected papers is to restore some of the grit, shading,
and danger to commonplaces. How do the politics of the commons work?
“Translation and territorialization,” declared Nancy Peluso. Indigenous peoples
groups, ethnic minority groups, villages and other local groups “learn to
translate their imaginings of space and the things we call ùresources’ from
culturally specific ways-of-seeing to categories recognizable in territory-obsessed
fields of power.” Hence there is a moment of translation that later gets lost in the
normalization of the territorialized spatial practice, a time when words of
multiple languages had not yet settled definitively into the “same” mental space
or a “common” geographic referent. A similar kind of unsettled multiplicity and
juxtaposed difference occurs in the act of comparison. Usually, cases are brought
together to highlight some shared, abstract quality. But like translation, it is also
a time for differences to flicker to the fore. Comparison as an analytical strategy
of defamiliarization potentially recovers that lost moment of translation when
territory was not quite finally and exclusively physical, when the space of a
commons engaged dimensions beyond commonplace space like a tree
branching the sky. In the transit of comparisons, then, this volume pries apart
commonplaces along four lines of fissure: narrating, titling, reforming, and
flowing.


                            MORAL NARRATIVES

       A major reason space is never simply fixed by coordinates is that
territorialization operates several narratives at once. These stories attempt to
legitimate certain forms of authority over space and necessitate particular types
of change in spatial practice. Because imperatives of governance in resource
management are justified by narratives, Part One addresses the ways values like
democracy, sustainability, and moral redress assume power as stories or fictions
about space. In the first chapter, Contreras observes that in Thailand, state and
civil society, largely in the form of non-governmental organizations (NGOs), are

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     in a structural opposition, while in the Philippines, they have entered a guarded
     collaboration. In both countries, however, increasing pluralization of power
     has resulted in incomplete democratization due to persisting exclusionary,
     hierarchical, patriarchal, and elitist practices. Thus instead of a narrative
     dichotomy, with either the State or civil society as the hero of democratization,
     Contreras shows that a more complicated story needs to be told: “the struggle of
     indigenous communities and local villages for autonomy and recognition should
     try to deepen the democratization process within its own mode of governance,”
     and “the presence of civil society modes of institutionalizing power within State
     bureaucracies, albeit still in the margins at present, can provide a possible venue
     for deepening the transformative project to liberate society from the alienating
     discourses of bureaucratic institutions.”
            Henry Chan writes in chapter two about the diverse fates of sustainability
     in Indonesia, Malaysia, and Thailand, showing how these stories can be
     understood as moral conflicts. In Indonesia, what appears as an incommensu-
     rable opposition between a zero-sum game of market production and traditional
     subsistence may thus be analyzed as an inefficient conflict, since a joint
     management system could pool the benefits. In Malaysia, the story of such a
     new management scheme, certification for sustainable logging, depends less on
     the persuasiveness of sustainability than on local histories creating dispositions
     towards logging systems, and on political openness to other stories, in effect
     trading success with sustainable logging for attention to land tenure. In
     Thailand, a similarly wide array of positions can find itself resituated through
     dialogue. Communities move from incommensurable worldviews to adopting
     the mapping tools shaped by dominant institutions in order to realize their
     collective encompassment within a larger common story at the level of a whole
     watershed.
            Moral redress, a strong motive for securing ancestral domains through an
     Indigenous Peoples Rights Act in the Philippines, was subject to competing
     narratives as advocates dramatically clashed while making their cases to the
     Philippine Supreme Court. Chapter three shows how the appeal to moral redress
     becomes an ever more knotty and uncertain matter as it comes to terms with the
     complexity of hybrid legal concepts and contexts of colonialism. Outlining the
     logic driving legal hybrids of imperium and dominium, or ruling power of
     conquest and owning power over property, the analysis relates the social drama
     of the constitutionality challenge to a colonial history of ambiguity regarding the
     meaning of fundamental law in war and peacetime.


                    TITLING: FROM TERRITORY TO IDENTITY

          The first two chapters in Part Two of this collection further exemplify the
     ambiguity of war and peace by investigating the consequences of the titling

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process. Thailand, uncolonized and at peace, is the setting for the apparent
success story of a World Bank land title program. Leonard and Kingkorn deftly
contradict the World Bank theory that by fixing territory in ownership deeds, a
free market in land would be unleashed to provide poverty alleviation to
smallholders. They point out that land use with highest market return may not
be the most productive or environmentally sustainable use, leading to vicious
debt and speculation. A quasi-war of paper title thus broke out in dramatic
community actions of land repossession, in effect conquering commons back
from illegal or questionable title transfers and innovating extralegal rules of
community title and collective land use regulation.
       Precisely such community forms of jurality and social cooperation break
down, in the five case studies from Sri Lanka of chapter five, due to the full-
blown violence of the commons at war. Rather than paper titles, passionate
claims of resource entitlement are aimed at swaying the arbitrary powers of
militarized forces in a war economy. Effective civilian access to resources, argues
Benedikt Korf, takes the form of “largely ethnicised entitlements because the
politics of access follow the ethnicised logic of warfare.” Ethnic claims are lethal
performances in the theatre of war, yet also zones of a relative though polarized
peace, compared to the reigning confusion over cleared and uncleared battle
areas. In sum, behind the alleged violence of community land seizure, or the
supposedly primordial attachment to ethnicity intensified by scarcity during armed
conflict, both illegality and ethnicity bespeak the twisted forces that drive both
World Bank or civil war.
       Put another way, the larger context precipitates a perverse opportunity
structure. June Prill-Brett demonstrates how ethnicised entitlement, intended to
secure ancestral domain as moral redress, can produce unintended privatization.
The consequences now threaten the mossy forests of the northern Philippines
with commercial conversion. Like the questionable poverty alleviation of titling
land in Thailand, or the deadly ethnicisation of civilian identities drawn into the
resource games of civil war, the rise of commercial privatization and class
stratification directly contradicts the native community empowerment that had
been expected to ensue from joining territorial title to ethnic identity.


                    REFORM AND CAUTIOUS HOPE

      Part Three turns from the twists of titling to examine potential bright spots
that can arise after some kind of title is issued. While later volumes from the
conference proceedings will go into further detail about the latest developments
in governance reform and decentralization methods, three key types of reform
are previewed in this volume: land reform, devolution, and participatory
planning.


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           Data from the Philippines provide robust measures of possible success in
     both allocating and making socially productive use of land in a highly favored
     sample of Agrarian Reform Communities. With the best conditions and
     government support, the cases evaluated in chapter seven by Ugo Pica Ciamarra
     contrast with the northern mountain ethnic group context covered by Prill-Brett.
     As a positive development strategy, however, it is very sensitive to readiness
     factors like sound infrastructures and equal land access due to redistributive
     policies of agrarian reform, and may be very difficult to scale-up to include more
     barangay communities.
           Devolution is a newer solution than the route of land reform. In chapter
     eight, Tran Ngoc Thanh sounds a cautious note about unrealistically high
     expectations of Forest Land Allocation in Vietnam. The de jure rights obtained
     actually represent a loss of rights from the former de facto bundle. Translating
     legal rights to rights-in-practice has been based on a problematic assumption
     that local people will replicate state management staff. Adequately empowered
     mechanisms of community-level regulation and enforcement are needed.
     Finally, only twenty percent of the community population has received forest
     land allocation, mostly well-off families and households including a state official.
           Participatory strategies also attract great hope, and the model Participatory
     Land Use Planning conducted in minority provinces of northern Cambodia has
     attained the singular success of influencing national land law. Key features of the
     approach are rapid mapping of de facto tenure, conflict prevention through
     safeguarding transparency and accessibility (using local language, native means
     of negotiation, giving voice to women and elders, and finding cooperative
     internal management procedures), and supportive state and NGO assistance both
     technically and institutionally. Most recently, though, pilot land registration has
     triggered intense land speculation, much like the World Bank titling did in
     Thailand. Patterson and Thomas end their chapter by noting some forests are
     being targeted for subtraction from communal indigenous immovable property.
     Important choices will thus face communes seeking agricultural investments.


                        FLOW: MOBILITIES AROUND WATER

            The fourth and last section of this volume takes up Nancy Peluso’s implied
     challenge to investigate mobilities that might be obscured by the flood of
     territorialities. The mobility of fish resources, fisher people drawn to the catch or
     driven to resettle, and the water itself, flowing in rivers, diverted to agriculture,
     or dammed for power production, constitutes a rich pool for political ecology
     research. We have highlighted two particularly significant approaches that
     derive from the social ecology of the middle Mekong River. They provide an
     instructive contrast, particularly regarding risk distribution, to spur further
     thinking about mobility in a time of territorialization.

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       The storyline approach taken by Maarit Virtanen resonates with the
moral orientations and concerns about narrative explored in Part One. Official
stories and justifications act to separate putative beneficiary sites from the living
spaces of communities bearing immediate consequences, re-territorializing risk
to the social margins and playing multiple publics against each other. The public
suffering the greatest real risk, the local community, thus comes to be visualized
as a special interest that appears sacrificeable. Virtanen shows how villagers
contest this dynamic by embodying what Latour calls the “domestic regime” or
tradition at risk. As a microcosm of culture under threat, they dramatize that
sacrificing a marginalized public actually sacrifices national or cultural core
values. Risk to natural commons is thus translated into risk for a moral
commons. Yet the sacrificial victim role interferes with seeing villagers as agents
managing their own complex spectrum of extreme risks. Traditional practices
are part of a larger array of subsistence strategies, one rendered messy and
precarious precisely since villagers struggle with the misplaced risks of the
environmentally audacious plans for dams. Accusations of compensation fraud
can turn the tide of public sympathy since the perceived aggressiveness of
villagers protesting and pursuing meager state handouts contradicts their role as
victim. Yet lost support only compounds the original oversized burden of risk
imposed on them in the first place. Alongside claims to fish, land, or participa-
tion, then, the clamor over compensation is itself one more survival strategy. Its
intensity reveals not the weaknesses of villagers’ traditional character, but the
weaknesses of their economic alternatives.
       Virtanen also shows that the politically reductive storylines being
mobilized in the Pak Mun Dam conflict lead to significant casualties. The
constructive role of civil society NGOs eroded when government followed a rigid
ideal of pairing the state, as source of final answers, with the people, defined as
victim or passive object of policy. This ideal dyad excludes NGOs as an illicit
intermediary or meddlesome obstruction. Demonizing NGOs also meant
institutional learning would ultimately be doomed, occluding free flow of
information, and leading to public participation measures being used as “a tool
for lessening opposition and ensuring project implementation” rather than
meaningful input. A third casualty is the use of research to improve outcomes.
The value of different approaches, informant demographics, and data sources
deteriorated as research was reduced to the symbolic capital of partisans rather
than a common tongue for dialogue, amelioration, and precisely nuanced factual
assessment. Finally, the greatest casualty of oversimplified story-lines appeared
with protest villages, and their sometimes violent dismantling. Protest villages
were a creative counter-territorialization, reflecting the risk shifted onto the
margins back to sites of central authority. In front of Government House or at
Mae Mun Maan Yun, protest villages portrayed disenfranchised locals as
internally displaced people, economic refugees in their own land. As those
whose real story is not addressed by storylines, these protesting villagers

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     without address, like elephants out of place in cities, reveal that unjust
     distributions of risk can lead to the ultimate dis-location: being homeless at home.
            In contrast to reductive storylines, an exquisite imbrication of hydro-
     ecological science and social science reportage can be seen in the final double-
     length chapter by Tek Vannara and Try Thuon. Describing both the biophysical,
     eco-geological making of space, and the dynamic space of social conflict and
     strategy, Stung Treng comes to life as a terrain of multiple mobilities. Following
     the seasonal choreography of fish migration, fisher communities form a
     multi-ethnic driftnet crossing Stung Treng, its moving grid composed of varied
     communal practices attuned to micro-environmental rhythms; of capture
     technologies with differing impacts on fish stocks; of market networks setting
     price zones that interact with species distribution; of regulatory limits challenged
     by problems of monitoring small mesh size, big net size, explosives, poisons and
     electro-fishing; of the competitive allocation of space among fish lots, licensed
     fishing, and subsistence fishing. The changing legal regime of Cambodia, in flux
     between state socialist and capitalist orders, and flowing unevenly through
     mechanisms of decentralization, is porous to the interplay between Village
     Fishery Communities (VFCs), the State, NGOs, and international groups for
     wetlands conservation, as seen in the Ramsar site and its biodiversity priorities
     mandating wise use.
            The layered reality of Stung Treng constitutes, in principle, a fine filtering
     process for the social flow of environmental risk, but in practice, crucial
     segments of risk filtration are negated by distortions in enforcement and
     surveillance and the lack of legal recognition above the commune level. While
     Village Fishery Community Regulations (VFCR) can create a democratic
     regulatory regime, they must be submitted to, and in the last instance enforced
     by, higher state authority. Yet “[local] government is hesitant to recognize VFCR
     since they await the official law from the [central] government, in the absence of
     which their own discretion can be exercised.” Even when co-management is
     recognized, the legal fabric at the district to national level has not been knit, so
     offending big fish tend to escape through the gap. Nevertheless, the tragedy of
     the commons set in motion during the post-conflict era when lawlessness,
     corruption, and limited enforcement conspired to maximize resource extraction,
     has largely been mitigated and even reversed where the VFC movement is
     effective. A major finding of Vannara and Thuon is the restoration of higher fish
     catches after the creation of community fisheries, improving environmental
     conditions and sometimes emboldening communities to take back space in both
     riparian and land resources. Their ability to construct “a political space within
     the nation-state boundaries” illustrates yet again the dynamism of localities in
     remaking eco-political spaces in an era of territorialization.
            An Afterword by Sivaramakrishnan provides retrospection on the four
     sections of the collection, recasting their ideas in terms of emerging regional
     parallels and distinctions between South Asian and Southeast Asian
     environments.

18   Rural Development in Lao PDR:
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                                      NOTES

1
  Quoted passages refer to the transcript of Nancy Peluso’s address and the revised and
extended version published as the foreword to this volume.




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20   Rural Development in Lao PDR:
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       1
PART ONE:   GOVERNANCE AS
            MORAL NARRATIVE




                       Rural Development in Lao PDR:      21
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22   Rural Development in Lao PDR:
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                                        1
       THE TRANSFORMATION OF POLITICS
                     AND
       THE POLITICS OF TRANSFORMATION
                               Antonio P. Contreras


       The development of the modes of forest governance in Thailand and the
Philippines has followed a historical trajectory of transforming the way power
is constituted and institutionalized in society. The process is by no means complete,
since the dynamic interplay between the State and civil society continues to be
played in the political arena. The changes in forest policy, as manifestations of
such interplay, reflect the interesting convergences as well as divergences of these
two modes of institutionalization. The Statist and civil society modes articulate
as oppositional discourses in Thailand, while they have entered into some kind
of guarded collaboration in the case of the Philippines.
       At this point, whether civil societies are in the process of colonizing the
State, or the State is in the process of co-opting civil societies, is a question that
calls attention to the necessity for a structural analysis of the articulation. This
question is very valid in the Philippines, whereas in Thailand, it is more relevant
to speculate on the possible outcome of community forestry legislation, and how
this would affect the oppositional nexus between State and civil society. Would
the passage of a law signal a victory for civil society for having successfully
“civilized” the State, or would it signal the beginning of the discourse and its
bearers being co-opted by the State?
       This chapter ventures into political futuristics, specifically by looking at
the transformations that have been occurring from the political “past” to the
political “present” to be able to speculate about the “future” of politics as well as
the politics of the “future.”




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                                               Managing Projects for Sustainable Livehoods
                       TRANSFORMING POLITICS:
               EXPANDING THE DOMAIN OF THE “POLITICAL”

            The emergence of the State as a central apparatus for consolidating power
     marginalized civil society, not only in the domain of political practice, but also in
     the domain of political theory. The “political” was defined by much political
     science theorizing within the context of processes involved in State building and
     maintenance. “Politics” was defined as what politicians do. Civil society, the
     “othered” domain, was denied the theoretical attention it deserved. Its existence
     prior to the development of the State was submerged in the hegemonic centrality
     of Statist scholarship. While the recent focus on civil society does attempt to
     locate this powerful domain in its analysis, it nevertheless propagates the view
     that civil society is a late “other,” a recent development that has resulted from the
     breakdown or inability of the State to govern. I am critical of this position, not
     only for its historical inaccuracy but also for its acquiescence to dominant
     Western political theory.
            Civil society is community, and communities have existed prior to the State.
     The discourse of the Western liberal democratic theorists, which conflates civil
     society with civic-mindedness, is a product of their historical tragedies—of their
     being consumed by individualistic pursuits that inevitably led to the diminishing
     of the community. One has to “volunteer” to become a citizen in this cultural
     context, dramatized by people who shut their doors and windows and refuse to
     intrude into the business of their neighbors in the name of privacy and
     individual liberties. To hoist a discourse of conjured communities and
     volunteered citizenship over social formations that have strong community
     institutions, such as those in Thailand and the Philippines, and to have civil
     society activists and scholars in these countries buy such arguments, is to
     acquiescence tragically in a Western imposition.
            The use of adjectives such as “emerging” and “voluntary” in referring to
     civil societies is mainly done by people who see the need to go beyond the
     discourse of rights and into the discourse of civic-mindedness to pursue
     collective goals. However, in Thailand and the Philippines, the discourse of
     citizenship has long been forced on people through the ruthless process of State
     building, ably aided by ideological institutions in civil society itself. In Thailand,
     the ideology of “nation, religion and King” was propagated as a cementing bond
     to inscribe into the Thai psyche a deep concept of “Thainess.” In the Philippines,
     the process of nation building necessitated the formation of a central identity, the
     “Filipino,” through educational and cultural institutions. Thus, the discourse of
     citizenship is an outcome of the desire to establish order, even as it created a
     condition that constricted the spaces for individual freedom and liberty.
            The political struggle, therefore, in Thailand and the Philippines, as in
     many other countries similarly situated, is not in terms of cultivating the ethic of
     citizenship but rather the ethic of participation and liberation. In fact, in an essay

24   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
entitled “Freedom and Freehold: Space, People and State Simplification in
Southeast Asia,” James Scott (1998) argued that in Southeast Asia, in general, the
concept of freedom is found not in association with the State, but in the form of
being free from its power. The discourse of rights and not the discourse of
civic-mindedness should then be the more appropriate way of engaging the State.
It is in this context that civil societies “re-emerge.”
       The process of State building and maintenance, as the locus of the political
in the context of the dominant and Statist practice of Political Science, remains a
valid area for launching academic inquiries and “praxical” interpellations.
However, there is a need to redefine the manner in which such inquiries and
interpellations are made. Post-structuralist theorists, most notably Michel
Foucault, have long challenged the totalizing image of a central locus of power
that needs to be assaulted. “Grand narratives” and “grand theories” have also
been subjected to critical interrogation in post-modern theory. Hence there is a
need to re-imagine the “political.”
       A civil society that gains validity only in the sense that it is able to restrain
State power (the dominant theme of most of the definitions of civil society from
Hegel to de Tocqueville to the UNDP), remains captive to a totalizing discourse.
The mode of engaging the State rests on the assumption that civil society, as the
“other” of the State, must be able to match the structures of the latter. As most
activists point out, the goal of civil society is to nationalize its struggle, even
internationalize it, on a common front. Federations, alliances and coalitions
should become organizational necessities for them to succeed in providing the
State its headaches and its challenges.
       While there is indeed value in building a central movement to counter the
discourse of the State, the question that needs to be asked is: What happens after
civil society wins the battle? There are many possibilities, two of which are that
the State may be reformed to take up a civil society agenda; and that the civil
society, which is now a nationally organized structure matching the State, may
claim victory by throwing out the present occupants. It should be emphasized
however that in both cases, a central power still exists. A reformed State is still a
State. In the second scenario, civil society may have captured the State, but it has
now itself replaced the State bureaucracy, albeit with people from civil society
backgrounds. What I am trying to emphasize is that political struggles which are
waged in the domain of Statist assumptions of marginalization engender modes
of resistance that are just inversions of the centralizing structure of power that
they merely want to replace, but not deconstruct. Civil society activism at present,
not only in both Thailand and the Philippines but elsewhere, is increasingly
taking up a centralizing organizational mode for consolidating its forces. The
danger of bureaucratization and cooption is all too real.
       For example, progressive NGOs that have been engendered by the
community ethic, which resides in organic civil society, experience an erosion of
this ethic whenever they attempt to expand and scale up their operations. An apt

                                                           Rural Development in Lao PDR:      25
                                                Managing Projects for Sustainable Livehoods
     illustration from the Philippines is the case of a People’s Organization (POs)
     that decided to submit its project report to its funding agency, another NGO, in
     non-bureaucratic prose reflecting the indigenous discourse of the mystical
     communities that inhabited the POs area of project operations. The funding
     NGO rejected the report because it did not match their prescribed format. This
     is just one example of the many cases wherein the communitarian spirit
     prevailing in grassroots organizations is dampened when operations become
     subject to external funding.
            Despite the above critique, we should not totally abandon political actions
     that seek to nationalize the advocacy by scaling up and expanding the domain of
     operations. Nor is it a practical agenda to do away with the State. Instead, in
     order to achieve a transformation of the modes by which we are governed, we
     should change the manner we govern ourselves. Academic scholarships and
     political activism are not merely vocations which one takes. They are also
     domains for governance, wherein certain types of power arrangements and modes
     of legitimation operate. The choice of strategies for mobilization and the choice
     of theoretical perspectives taken towards the problems confronting forest
     communities are also political choices. There is a need to relocate the political to
     define it not only in the context of our fight to transform the State, but also in the
     production of our own discourses of resistance. This relocation of the political
     necessarily moves away from totalizing grand narratives to what can be referred
     to as “radical pluralism” (Laclau and Mouffe 1985).
            Such a transformation will allow us to wage collective action against the
     policies of the State on all fronts. We can wage it as organized national struggles
     carried by federations and alliances, as illustrated in the case of the community
     forestry movement in Thailand, and as a movement to establish a regional civil
     society. We can also wage it as local and everyday modes of coping and
     resistance through organic communities using ideological institutions nurtured
     and bred in their own local contexts. The expansion of legitimate civil society
     movements to include localized struggles is an important dimension of the
     transformation of politics that requires the recognition of organic processes as
     valid conduits for politics.
            Organic civil society institutions, such as those that reside in the sense of
     community, and the collective identification of people with their community,
     should be distinguished from the more abstractly “organized” civil society groups.
     (I enclose “organized” in quotations to show my discomfort with the adjective
     since it is valid to argue that even organic civil society institutions are organized
     systems of relationships, following certain logic, and so are not random or
     chaotic.) This position contrasts with that of Mulder (1996), who raised a
     scathing critique of the transformative power of organic civil societies, and
     instead gave preference to organized movements to effectively challenge the State
     for democratization. He labeled organic institutions as parochial, and claimed
     that they create political indifference. While I agree with Mulder that, indeed,

26   Rural Development in Lao PDR:
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local coping mechanisms may provide ideological masks that tend to favor the
reproduction of the status quo, I strongly disagree with his total rejection of
organic institutions as potential sources of political transformation.
       The problem with Mulder’s analysis is that the domain of transformation
remains to be captured on a grand scale. Why must the barometer of success be
that local communities are only able to participate in national governance through
massive democratization movements? This stems from the continued reliance
on the State as the focus and locus of transformative politics. It is never the
project of social movements to merely transform States and civil societies. What
is more important is to transform the mode of governance, that is, how we create
and maintain order in our lives. This entails not only a movement to change
institutions that are external to us, but also to change institutions near us and
within us. It even entails changing ourselves.
       The case of San Fernando, Bukidnon, in the southern Philippine island of
Mindanao is instructive. The upland farmers mobilized, through external
mediation by an NGO, against the logging operations threatening their
livelihoods. They aimed at the State’s discourse of forest management and
succeeded in having the operations cancelled, and in forcing the State to give
attention to their problems. Their success was however compromised by the
lack of a community ethic that could sustain the collective action to achieve the
full goal of community resource management. Dissension, factionalism, and
corruption within the community ensued.
       The above case is evidence of the failure of a movement to transform the
organic civil society institutions that governed the quality of social capital needed
to sustain collective action. These “parochial,” “informal” institutions are usually
neglected in transformative projects, and just become afterthoughts. Political
activism is just too preoccupied with national issues and concerns and external
agents, resulting in the exclusion and alienation of communities. We tend to
forget that the State is just one adversary to contend with. In the final analysis,
the enemy may be within: in social institutions and in the manner they constitute
and institutionalize power within our communities and lives.


      TRANSFORMING THE MODE OF CONSTITUTION:
  THE NEED TO DEEPEN THE DEMOCRATIZATION PROCESS

      The development of forest policies in Thailand and the Philippines
occurred amidst the backdrop of political transformations. Forest policies and
policy reforms emerged either as concessions of the State, or as deliberate
attempts to maintain legitimacy, or as honest attempts to democratize access to
resources. However, it is a generalizable conclusion that the policy transforma-
tion reflects the growing demands for participatory modes of governance, made
possible only in pluralist modes of constituting power.

                                                         Rural Development in Lao PDR:      27
                                              Managing Projects for Sustainable Livehoods
           The process of building and maintaining the State rested on the deploy-
     ment of mechanisms that achieved social order at the expense of individual rights.
     Some of the exclusionary strategies were actually deliberate attempts of the State
     to shut off and shoot down political participation, as in the case of the
     authoritarian experiences in Thailand’s many coups, and the Marcos experience
     in the Philippines. However, for the most part, the exclusion emerged from the
     structural forces that have developed during the pre-State phase of political
     development, and which were further elaborated on and constructed during the
     building and maintenance of the State. In Thailand, the royal absolutism that
     existed prior to the emergence of constitutional monarchy had anchored in place
     an elaborate social fabric that was hierarchical and rigid, and this structurally
     restrained citizens from directly participating in State affairs. In the Philippines,
     the colonial legacy left an elitist and exclusionary political lifescape that
     encumbered non-elites. Forest policies, in their initial stage, reflected this
     exclusionary mode by centralizing access to resources, and by deploying
     instruments and mechanisms that sequestered control over these resources away
     from local communities. These instruments structurally favored elite and urban
     interests, and were focused on capitalist ventures.
           However, the political space that was closed at the beginning eventually
     unraveled and opened. The creeping effects of political modernization,
     influenced by liberal political thinking and given reason by authoritarian
     excesses, were manifested as fires that fueled democratization movements (Rigg
     and Stott, 2000). The procession of military juntas in Thailand was punctuated
     and interrupted, and finally negated, by democratization movements. The
     authoritarian rule of Marcos ended through a massive demonstration of what
     soon was labeled as People Power, a historical conjuncture that saw the coming
     together of various sectors that were deeply involved in struggles to create space
     for political participation and put an end to exclusionary and oppressive politics.
           In both developments, civil society movements took the lead in
     dismantling the barriers that prevented citizens from participating in the affairs
     of governance. In Thailand, a new Constitution was written with active civil
     society participation, while in the Philippines, civil society elements colonized
     State bureaucracies in the aftermath of the Marcos departure. The elitist mode of
     constituting power, seen in the bureaucratic authoritarianism of military juntas
     in Thailand and of Marcos in the Philippines, was challenged, and gave way to a
     pluralist mode wherein different spheres of interest representation, though
     unequal, were provided access to governance institutions. Subsequently, in
     Thailand, the then all-too-dominant forest bureaucracy had to contend with
     emerging oppositional discourses from civil society, while in the Philippines, the
     forest bureaucracy unraveled and became the site for the articulation and
     resolution of debates.
           Democratization movements that located their struggles on issues of
     political participation drove the transformation of the mode of constituting power

28   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
from elitist to pluralist. Evidence suggests that this was achieved in the case of
the Philippines and Thailand to the extent that the rituals of governance at
the level of the State were reformed and democratized. One interesting
development that occurred is the globalization of democratization processes. Civil
society actors and groups began to participate actively in global and regional
discussions. All major UN Conferences were held with parallel fora reserved for
civil societies. Epistemic communities of scientists and advocates emerged to
influence in turn the emergence and operationalization of global institutions,
such as those addressing climate change and biodiversity. In the context of Track
II diplomacy, the ASEAN Regional Forum (ARF) was organized to provide room
for civil society participation in policy discussions. At present, efforts are being
exerted to strengthen the environmental agenda of the forum.
       However, the transition from elitist to pluralist modes remains incomplete,
and there is still a complex array of articulated formations wherein elitist modes
either dominate, or exist in tandem with pluralist elements (or pretensions). The
Statist locus of political analysis misses the deep cracks in the local sites where
people’s lives are governed beyond the ambit of the State and its bureaucracies.
Despite democratization, there are still prevailing exclusionary practices. Most
of these are pervasive in State institutions. In Thailand, for example, the Royal
Forest Department (RFD) remains a hierarchical, male-dominated closed
community. In the Philippines, the opening of democratic spaces has been
extended into bureaucratic domains. For example, gender sensitivity is now
mainstreamed in the operations of the forest bureaucracy and the DENR. In fact,
in 1999, the DENR was cited as the most gender-friendly government
institution. However, this small opening remains merely one segment of an
otherwise pervasively hierarchical, and still male-dominated, structure of power.
       The tragedy of an incomplete democratization is even more palpable, and
the case for greater democratization correspondingly more ironic, within civil
society institutions. Indeed, as a civil society institution taking the lead in the
propagation of liberal ideas, the academe ironically continues to be governed by
hierarchical and exclusionary structures. Although it should be quickly added
that there are also deliberative institutions within the academe, such as the
University or Academic Councils and Faculty Senates, which provide venues for
debate particularly on academic matters. However, the exclusionary character of
the academe, specifically seen in forestry educational institutions, lies in its
intolerance of alternative voices and ways. Radical perspectives and their bearers
are marginalized and subjected either to being ignored or to institutionalized
forms of harassment.
       Also present is the clique notion of governance, wherein incumbent
academic heads behave like traditional politicians in maintaining a cadre of
“academic cronies” and in propagating politics of patronage by allocating
academic appointments and recognition. Another real irony is the failure of
academe to institutionalize what it preaches to others. A case in point is the

                                                        Rural Development in Lao PDR:      29
                                             Managing Projects for Sustainable Livehoods
     College of Forestry and Natural Resources at the University of the Philippines
     Los Baños. Although it is a chief advocate of community forestry, made visible
     by its curricular revisions and departmental restructuring to strengthen social
     forestry and forest governance, it is facing resistance from the communities that
     reside within its own University forests. The provision of tenurial rights to forest
     occupants is integral to the community forestry agenda advocated by the
     College, yet the University has long denied tenurial instruments to the residents
     within the Makiling forest. It is only when these forest residents mobilized against
     the University that the process of devising mechanisms to legitimize tenure was
     initiated.
            Bureaucracies and academic institutions continue to undermine the
     democratization process when adopting exclusionary language. The bureaucratic
     language, for example in statutory constructions, is structured in such a way that
     it becomes inaccessible to ordinary citizens. It is an irony that empowering laws
     are crafted in disempowering jargon. Academic discourses, like this paper for
     example, tend to be deeply immersed in exclusionary jargon. At the global scale,
     the emergence of international institutions and their attendant epistemic
     communities of scientists and policy makers have created space for civil society
     participation. Yet, the language that governs the science, for example, of climate
     change, remains so technical that it inhibits meaningful participation from
     non-academic civil societies.
            For instance, the Protected Area Management Boards (PAMB), established
     in accordance with the National Integrated Protected Areas (NIPAs) Law in the
     Philippines, reserve seats for NGOs and POs. However, the structured discourse
     of meetings has the tendency to inhibit, if not discourage, active participation
     from local communities, not only due to the language used, but also to the
     format itself. Communities are used to unstructured discussions, with story
     telling as the popular vehicle for articulating ideas. I have been to community
     meetings that lasted for hours due to the relative openness of the discourse and
     the unstructured nature of the direction of the meeting. This mode of communi-
     cation is incompatible with the more time-defined, rigid format of formal
     meetings.
            However, the ultimate irony happens when democratization in governance
     is not completed even in those sectors of civil society that carried the struggle for
     political participation. In Thailand, for example, it is interesting that the issue of
     women’s rights and gender equality is not addressed in the community forestry
     movement. In the Philippines, I personally know of student activists and farmer
     and union leaders who are deeply committed to the protection of the rights of
     their sectors, but are insensitive, if not outright hostile, to the agenda of gender
     equality and women’s empowerment. Fortunately, and again through legislated
     directives and not as an offshoot of organic uprisings of women, the community
     forestry program in the Philippines has integrated gender concerns in its
     operations.

30   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
       However, many hierarchical, patriarchal, and elitist structures prevailing in
indigenous cultural communities are not engaged at all in the promotion of
indigenous rights to self-determination. Calls to integrate gender issues have been
dismissed as running against the cultural norms of communities, and therefore
culturally inappropriate. In fact, the Indigenous People’s Rights Act (IPRA) Law
passed in 1997 has privileged indigenous ways. While this may affirm the
indigenous cultures, it also affirms the elitist and exclusionary modes of
governance within them. Thus, in pushing for democratization along the rights
of indigenous communities, advocates ignored democratization along class and
gender lines.
       Cultural relativism and the fear of Western liberal constructs are issues that
confront democratization movements that call for the widening of political
participation to include autonomy and self-determination. In Thailand, this
tension is more pronounced in the context of the cultural positioning of women
in society. Local communities or organic civil societies are embodiments of local
modes of constituting power. The irony of democratization movements comes
when the discourse is limited to recognizing community rights to participate in
forest and natural resource management, without engaging the exclusionary
relations of power as well as the elitist modes that constitute them. The
completeness of the democratization process lies in the deepening of political
participation not only across social and political groups and organizations, but
also within them. This entails a reorientation of social movements away from
focusing only on issues of participation at the level of State governance, and
requires widening the domain of the political. For example, the struggles of
women have long been fought not only in the domain of the State but also in the
domain of the household and the personal. The ensuing critical engagement of
the discourse of identities becomes extremely problematic since the rights of
women are seen to contend with the rights of cultural integrity. This is a difficult
terrain to navigate, particularly when the social movements that carry the
democratization agenda thrive on an ideology especially propelled by a cultural
logic.
       Thus, there is a need to inquire into the extent to which cultural symbols
are embedded within the ideology that sustains the community forestry
movement in Thailand, and whether this ideology constrains the entry of gender
and class equality constructs. In the same manner, it is also important to inquire
into the actual dynamics of gender and class relations both in Thai and
Philippine upland communities, particularly in indigenous communities, to
really ascertain how women are actually situated, and how to best confront the
issue. The dynamics of “othering” and “subordinating” are always complex
questions that are locally manifested. The best persons to provide powerful
inquiries into these issues are the participants in the movements themselves,
particularly those who are “othered” and “subordinated.” Women and non-elites
in Thai and Philippine forest communities have to begin to broaden the question

                                                         Rural Development in Lao PDR:      31
                                              Managing Projects for Sustainable Livehoods
     of exclusion beyond the scale of the State denying their right to participate in
     resource management and other areas of governance. They should also look into
     their own modes of relating, and critically engage how order is maintained in
     their communities and in their homes.


        TRANSFORMING THE MODE OF INSTITUTIONALIZATION:
              CIVILIZING THE STATE AND CONTAINING
            THE BUREAUCRATIZATION OF CIVIL SOCIETY

            As previously discussed, the present modes of forest governance in
     Thailand and the Philippines are outcomes of the way political transformations
     aimed at both establishing order and strengthening political participation were
     articulated. Policies emerged in the dynamic confluence between a State that
     maintains legal and constitutional authority over a resource, and civil society
     forces that engage the State by creating spaces for local forest management and
     participation. Democratization movements have assisted the process by which
     the State accommodated civil society. In Thailand, this took the form of a social
     movement that directly carries the community forestry agenda. In the
     Philippines, the absence of a national social movement in community forestry
     was replaced by an incorporation of a civil society agenda in the operations of the
     forest bureaucracy, accomplished through civil society advocacy.
            However, the widening of democratization in forest governance did not
     automatically translate to its deepening within either the institutions of the State
     or civil society. Exclusionary and elitist structures and processes remained
     embedded in the manner in which social order is maintained. The problem of
     exclusion, which is heightened in elitist modes of constitution of power, is
     distinct from the problem of alienation. Democratization movements have
     successfully challenged the elitist modes of constitution and have caused a shift
     from elitism to pluralism. However, evidence shows these movements have the
     tendency not to engage the problem of alienation, and therefore have failed to
     problematize how power gains legitimacy in the context of identity positions.
            In Thailand and the Philippines, the movements that caused the
     withdrawal of authoritarian structures and the re-entry of democratically
     constructed governments were outcomes of struggles that challenged
     exclusionary modes of governance. Their political agenda revolved around a
     discourse of rights that focused on the right to participate in government.
     However, this discourse initially failed to extend beyond the right to participate,
     and so did not address the right to personhood and autonomy. What the
     second-generation social movements in both Thailand and the Philippines
     challenged was the constitution of power, manifested in the State’s concentration
     on the elite, and not the manner power was institutionalized. In other words,
     the State was challenged in terms of its exclusionary projects, but not in terms of
     its alienating tendencies.

32   Rural Development in Lao PDR:
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       However, even as the discourse of rights carried by the second-generation
social movements initially fell short of resisting identity repression, spaces for
democratic participation were opened. This has provided a healthy condition
for civil society movements to acquire an identity agenda. In Thailand, this was
immediate. The ease with which movements assumed an identity agenda was
influenced by the ideological foundation of the social movements that fought to
open democratic space. The counter-ideology of these oppositional movements
directly negated the State’s appropriation of Thai identity, and therefore used the
very same logic to invert the dominant State project. Reformist Buddhism was
used to launch a deconstruction of the “nation, religion, King” dogma, and the
village became a metaphor for the antithesis to the corrupt and elitist State. Thus,
even as the initial agenda of the democratization movement in Thailand was to
open spaces for participation, the struggle did not end there. It had to be carried
through into the domain of the political construction of social capital.
       The Thai State was challenged not only as a structure of power that favored
elite modes of constitution, but also as a sphere of legitimation that alienated
Thais from their “true Thainess.” This discourse was initially submerged during
the political mobilization against the Suchinda government in 1992 since the
politically pragmatic project then was at the level of government structures. The
opening of democratic space allowed civil society actors to steer their advocacy
away from the ritual of replacing “governors” and into the realm of problematizing
the “legitimacy of governance.” Thus, social movements were transformed from
being solely struggles against exclusion by re-acquiring the anti-alienation agenda
ideologically embedded in their earlier formation. At the time, the environmen-
tal debate became the focus of political discourse, and community forestry proved
a fertile venue for attacking the Statist mode of institutionalization in forest policy
and governance. The metaphor of the forest village became a powerful symbol
that frontally challenged the State.
       In the Philippines, social movements that ousted Marcos and led to the
opening of democratic space were mostly carrying a liberal agenda inspired by
the secular American model of democracy. Although institutions of Catholicism
intervened into the discourse of EDSA I, such intervention was less an
ideological challenge against the nature of the State than a moral call against
corruption and elitism of the Marcosian State. The discourse of separation
between Church and State was so strongly institutionalized, even church-based
civil society institutions such as the Basic Christian Communities (BCC) failed to
ideologically capture the imagination of rural peoples with liberation theology.
Church activism focused on the evils of exclusionary relationships and the moral
transformation of governance, but did not offer a powerful metaphor to serve as
an alternative to the State. Social movements aimed at creating democratic spaces
in the Philippines simply problematized how the State was being run at the time.
       Philippine social movements largely did not extend their critique into an
assault on the State as an institution. In fact, some of the discourses deployed to

                                                          Rural Development in Lao PDR:      33
                                               Managing Projects for Sustainable Livehoods
     justify the replacement of Marcos argued that his authoritarianism compromised
     the integrity of the State and of democratic institutions. The agenda, therefore,
     was not to overhaul the State and its attendant modes of institutionalization, but
     only to replace the personalities inhabiting it. The State was still seen, in the
     liberal democratic tradition, as the protector of freedom and citizen’s rights. This
     is largely explained by the fact that the anti-Marcos movement was dominated by
     the elite and the middle class, most of which adhered to this liberal democratic
     image of the State. The “left” which offered a different perspective of the State
     was “left out” when it decided not to participate in EDSA I. Thus, when Marcos
     fell, and the democratic space was re-opened, the immediate project was to
     reform the State, and not to transform it. A powerful symbol, like the “village” in
     the case of Thailand, was absent so there was no rallying point to launch a
     deconstructive assault against the State’s monopoly of legitimacy as the purveyor
     of social order.
            The discourse of reforming the State became easier to achieve in the
     Philippines since the bureaucracies were not independent from classes, but were
     merely reflections of class interests. The opening of the democratic space has
     allowed civil society agents to invade the bureaucracy, a historically permeable
     domain for political appointments. In the period following the ouster of Marcos,
     the “political” nature of these appointments enabled the politicization of civil
     societies to extend into the bureaucratic sphere as civil society activists were
     appointed to key sensitive policy making posts. Hence, the deepening of the
     social movement that started in the streets and in civil society partly occurred in
     the domain of the bureaucracy and the State. In the environment and forestry
     sectors, policy reforms ensued, clearly reflecting the civil society’s demands for
     participatory governance and transparency. Community forestry, at the time a
     State discourse of Marcos, had already affixed to his legitimation project, deep-
     ened into a more genuine policy agenda. Thus, in the Philippines, community
     forestry is already a policy while in Thailand it is still an object of policy debate.
            The key issue that now has to be addressed is the way the mode of
     institutionalization, or the construction of social capital, has been transformed.
     Liberation movements and not just democratization movements drive the
     transition from pluralist-Statist to pluralist-civil society modes of governance.
     This means confronting not simply the problem of exclusion but also the
     problem of alienation. As evidence suggests, democratization processes may be
     successful in restructuring the distribution of power in society, but it may fall
     short of transforming how power is institutionalized.
            In the domain of forest governance, it is clear that the community forestry
     movement in Thailand is now poised to challenge the manner in which power is
     institutionalized in the domain of human-forest relationship. Statist bureaucratic
     modes that the RFD has long adopted are now confronted by a community
     forestry alternative that is deeply rooted in the community village ethic, which
     privileges organic civil society institutions over bureaucratic mechanisms. In the

34   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
Philippines, the absence of a grassroots movement in community forestry is an
outcome of the fact that civil society movements have effectively influenced the
development of forest policy. In the discourse of community forestry in the
Philippines, local civil society institutions are allowed to provide the necessary
mechanism for forest governance and the establishment of institutions concerned
with collective decisions making, representation and gender equality are
encouraged. The democratic space opened by community forestry has also
enabled indigenous identities to participate in forest governance, in spite of the
fact that many are male-dominated and have hierarchical tendencies, thus
limiting the depth of participatory governance. Nevertheless, one is still tempted
to say that there is now a creeping “civilizing” of the State in the Philippines.
       The risk in this conclusion lies in the merely symbolic entry of civil society
metaphors into forest governance, particularly when aided by top-level policy
sponsorship. On the surface this may project an opening for civil society modes
of institutionalizing human-forest interactions. However, evidence suggests that
the reverse is actually happening. Indigenous modes of social capital, which rest
on reciprocity and mutual assistance as well as on traditional rituals of exchange,
gradually erode with the entry of bureaucratically constructed participatory
initiatives. As pointed out in the preceding section, the participation of civil
society institutions utilizing Statist modes of constructing social capital ironically
tends to bureaucratize them. This is true both in the case of local communities
and of intermediary institutions represented by NGOs. This risk has already
materialized in the bureaucratization of the everyday life of civil society
institutions in the Philippines, and it may eventually beset Thai civil societies
when the State finally decides to put its bureaucratic imprint on community
forestry. In fact, the present State’s version of the community forestry law is
lamentably limited to participatory rights of communities, but does not give
serious attention to the needs of indigenous hill-tribes and their rights of
self-determination (Ganjanapan, 2000).
       However, it is not true that the entry of bureaucratically constructed
participatory processes is the sole cause for the bureaucratization of civil
societies. The transformation of everyday village life is also affected by the larger
interplay between the local, national and global in the context of modernization
and globalization. Social change and alteration in modes of production occur as
an interaction between social and physical forces, as resource levels both
constrain social relations and indicate the impacts of changes affecting them.
Communities, whether rural or urban, continue to experience transformation in
their modes of constitution and institutionalization.




                                                          Rural Development in Lao PDR:      35
                                               Managing Projects for Sustainable Livehoods
                                         CONCLUSION

           At this point, political critiques usually lament the loss of organic modes of
     constructing social capital that might even mean liberating women and other
     non-elites from oppressive structures denying their rights to “personhood.”
     However, it must be clearly emphasized that bureaucratization of everyday life,
     which may indeed carry some liberating impacts, is also mediated by an organic
     consciousness aware of the liberation metaphor. The recruitment of external
     participatory constructs, and their advocacy by bureaucratic agents, seen for
     example in the advocacy for gender equality carried by State-sponsored
     community forest organizers in the Philippines, should unfold with the active
     participation of women and the non-elites themselves.
           Furthermore, struggles for recognition in the context of the politics of identity
     must not be seen in isolation from democratization processes. As discussed in
     the preceding section, the struggle of indigenous communities and local villages
     for autonomy and recognition should try to deepen the democratization process
     within its own modes of governance. This will also require a conscious effort to
     constructively mediate the external and internal idioms of rights and rituals.
     Ganjanapan (2000) provides a succinct argument on this point in his analysis of
     community forestry in Thailand:

             Although the practices of community forestry in northern
             Thailand may have some basis on local values and customs, it can
             not simply be regarded as a reflection of an idealistic sense of
             community because it is, in most cases, a creation of a new culture
             as a dynamic response to changing situations. Particularly, in
             encountering with changes in property relations, community
             forestry can be seen both as a reproduction of local idioms and a
             construction of a new discourse with an adoption of a universal
             concept of rights which allow local communities to articulate their
             claims to collective rights in resources. However, the reconstruc-
             tion of collective rights as an anti-hegemonic ideology can be fully
             realized by local people not only through social struggles but also
             with a reinforcement of local idioms which is possible with
             cultural processes of ritual (Ganjanapan, 2000: 219).

           Finally, it is important to point out that civil societies also exist within
     bureaucratic institutions. Bureaucracies are in themselves communities, albeit
     dominated by Statist modes of institutionalization wherein written documents,
     formal structures and impersonal relationships take precedence over the
     personal and “informal.” I am adamant in insisting that the definition of civil
     society should be weaned from its organizational anchor, and should instead be
     driven by an institutional logic. Civil society institutions become “civil” not

36   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
because of their organizational location, but because of the manner they unfold
within a social formation.
       A close institutional analysis of bureaucratic organizations, such as RFD
and DENR, would reveal the presence of informal groups and associations, of
networks of trust and reciprocity that, although invisible, tend to influence
organizational behavior and consequently public policy. For example, the closed
association of Thai foresters in RFD is a form of civil association that affects how
the organization confronts policy issues. Of course, the presence of informal cliques
can degenerate into disabling structures, such as bureaucratic “mafias” and
patronage politics. However, on the positive side, these informal associations
have the power to negate bureaucratic rigidity.
       The presence of civil society modes of institutionalizing power within State
bureaucracies, albeit still in the margins at present, can provide a possible venue
for deepening the transformative project to liberate society from the alienating
discourses of bureaucratic institutions. These informal associations often
provide creative venues, while on lunch-break or while on a field inspection
tour, for debate and discussions. They have the potential to become powerful
conduits for the articulation of an oppositional voice. An important example
comes from my long experience interacting with foresters and local communities
in the Philippines. I have observed that the foresters who are working in the
community forestry divisions appear to be the most vocal about discomfort with
bureaucratic discourses. They are also mostly young, idealistic, and perhaps not
surprisingly, women. They are very popular and well liked by local communi-
ties. In this regard, their voices provide a venue for the deepening of civil society
within the bureaucracy. At the same time, their faces provide a symbol for
humanizing bureaucracies in the eyes of local communities. In this sense, civil
societies within bureaucratic organizations may just be the key to the transfor-
mation of the State and its modes of governance.


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Anan Ganjanapan. 1996. The Politics of Environment in Northern Thailand: Ethnicity
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Bagadion, Benjamin C. Jr. 2000. Social and Political Determinants of Successful
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Bello, Walden, Shea Cunningham and Li Kheng Poh. 1998. A Siamese Tragedy:
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     Brenner, Verena, Reiner Buergin, Christl Kessler, Oliver Pye, Rainier Schwarzmeier and
         Rolf-Dieter Sprung. 1999. Thailand’s Community Forestry Bill: U-turn or Roundabout in
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     Contreras, Antonio P. 2000. State-Civil Society Interactions in Forest Governance in Southeast
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     Contreras, Antonio P. 2000. Rethinking Participation and Empowerment in the Uplands.
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     Contreras, Antonio P. 1999. Globalization, the State and Civil Society, and the Politics of
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     Contreras, Antonio P. 1998. Imagining a Filipino Political Ecology: A Critical Analysis of
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     Danguilan-Vitug, Maritess. 2000. Forest Policy and National Politics. In Forest Policy and
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         Quezon City: Ateneo de Manila University Press and UNRISD.
     Danguilan-Vitug, Maritess. 1993. The Politics of Logging: Power from the Forest. Manila:
         Philippine Center for Investigative Journalism.
     Dauvergne P. 1997. Shadows in the Forest: Japan and the Politics of Timber in Southeast Asia.
         Massachusetts: MIT Press.
     Hirsch, P. 1996. Environment and Environmentalism in Thailand: Material and
         Ideological Bases. In Seeing Forest for Trees: Environment and Environmentalism in
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     Hirsch, P. and Carol Warren, eds. 1998. The Politics of Environment in Southeast Asia:
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         Radical Democratic Politics. Translated by Winston Moore and Paul Cammack.
         London: Thetford Press.
     Leonen, Marvic. 2000. NGO Influence on Environmental Policy. In Forest Policy and
         Politics in the Philippines: The Dynamics of Participatory Conservation. Quezon City, ed.
         Peter Utting. Quezon City: Ateneo de Manila University Press and UNRISD.
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     Lohmann, Larry. 1991. Who Defends Biodiversity? Conservation Strategies in the Case of
         Thailand. In Biodiversity: Social and Ecological Perspectives, eds. Vandana Shiva, Patrick
         Anderson, Heffa Schucking, Andrew Gray, Larry Lohmann, and David Cooper.
         London/Penang: Zed Books/World Rainforest Movement.
     Lynch, Owen J. and Kirk Talbott. 1995. Balancing Acts: Community-Based Forest
         Management and National Law in Asia and Pacific. Washington, DC: World Resources
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Malayang. Ben S. III. 2000. The Changing Role of Government in Forest Protection.
    In Forest Policy and Politics in the Philippines: The Dynamics of Participatory Conservation,
    ed. Peter Utting. Quezon City: Ateneo de Manila University Press and UNRISD.
Mulder, Niels. 1996. Inside Southeast Asia: Religion, Everyday Life and Cultural Change.
    Chiang Mai: Silkworm Books.
Pasuk Phongpaichit. 2000. Civilising the State: State, Civil Society and Politics in
    Thailand. Watershed Vol. 5 No. 2.
Pasuk Phongpaichi and Chris Baker. 1995. Thailand: Economy and Politics. New York:
    Oxford University Press.
Peluso, Nancy Lee. 1993. Coercing Conservation: The Politics of State Resource
    Control. In The State and Social Power in Global Environmental Politics, ed. R.D. Lipschutz
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Pinkaew Laungaramsri. 2000. Redefining Nature: Karen Ecological Knowledge and the
    Challenge to the Modern Conservation Paradigm. Ph.D. Dissertation, University of
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Pinkaew Laungaramsri. 1997. Reconstructing Nature: The Community Forest
    Movement and Its Challenge to Forest Management in Thailand. In Community
    Forestry at a Crossroads: Reflections and Future Directions in the Development of Community
    Forestry. Proceedings of an International Seminar at RECOFTC, Bangkok.
Pinkaew Laungaramsri and N. Rajesh. 1995/96. Redefining Conservation: A Critique of
    Protected Areas in Thailand. Watershed 1:14–21.
Rigg, Jonathan and Randi Jerndall. 1996. Plenty in the Context of Scarcity: Forest
    Management in Laos. In Environmental Change in Southeast Asia: People, Politics and
    Sustainable Development, ed. Michael J.G. Parnwell and Raymond L. Bryant. London
    and New York: Routledge.
Scott, James C. 1998. Freedom and Freehold: Space, People and State Simplification in
    Southeast Asia. In Asian Freedoms: The Idea of Freedom in East and Southeast Asia, ed.
    David Kelly and Anthony Reid. Cambridge: Cambridge University Press.
Severino, Howie. 2000. The Role of Local Stakeholders in Forest Protection. In Forest
    Policy and Politics in the Philippines: The Dynamics of Participatory Conservation, ed.
    Peter Utting. Quezon City: Ateneo de Manila University Press and UNRISD.
Surin Maisrikrod. 1997. The Making of Thai Democracy: A Study of Political Alliances
    Among the State, the Capitalists, and the Middle Class. In Democratization in
    Southeast and East Asia, ed. Anek Lothamatas. Singapore: ISEAS.
Viyouth Chamruspanth. 1993. Legal Issues in Forest Management in Northeast
    Thailand. In Legal Frameworks for Forest Management in Asia, ed. Jefferson Fox.
    Occasional Paper No. 16. East-West Center, Honolulu, Hawaii.




                                                                Rural Development in Lao PDR:       39
                                                     Managing Projects for Sustainable Livehoods
                                                   2
               THE CRISIS OF THE COMMONS:
             THREE CASE STUDIES IN INDONESIA,
                MALAYSIA AND THAILAND1
                                            Henry Chan


           Forest-dependent communities use local environmental resources for their
     food and material needs, and they sell forest products for cash income. Forest
     and its environs are basic to the continuity of their culture, beliefs, and identity.
     However, the quest for modern development driven by monetary gains has
     increasingly affected the ecological functions of forest and the traditional
     utilization of resources. Expansion of exploitative and rent-seeking activities
     into forests has affected community traditions. Construction of roads into the
     forest frontier has indirectly attracted people to further open up forest for
     cultivation. In Thailand, for example, geo-political development to head off
     Communist expansion in Indo-China, and cash cropping in highland
     development programs to alleviate opium cultivation, have led to the
     construction of roads all over the forests (Hirsch 1993, Pasuk and Baker 1993).
     Having contributed to the economic growth of Indonesia, Malaysia and
     Thailand, decades of unsustainable and large-scale forest utilization led to
     massive forest degradation, leading in turn to declining revenue and conversion
     of forest to other land uses.
           These contradictions of environment and development stimulated new
     forest policies. In Indonesia, political change in the late 1990s resulted in the
     adoption of a decentralization policy in which district level governments and
     village administrations were given the right to manage their own resources. In
     line with this policy change, local communities were granted concession rights
     to harvest timber resources and to retain the revenue, with the expectation that
     the people would manage their forest in a sustainable manner. In Malaysia,
     declining timber supplies, international pressure, and the need to tap into a
     high-price market for timber export, led to the adoption of a sustainable forest
     management system that claimed to be environmentally sound, economically
     viable, and socially acceptable. To fulfill the social criterion, forestry matters of
     importance to the local communities were built into the system so that, for


40   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
example, traditional economic activities can be practiced in a sustainable
manner. In Thailand, to hold back environmental degradation, remaining
vestiges of forests have been preserved for management as protected areas,
including National Parks and conservation forest for biodiversity, wildlife
protection and watershed management. Where the environment has been
severely degraded, reforestation measures were taken to restore the functions of
watershed forests that are vital for the existence of rivers.
      The implications of these efforts for the local people are varied. While the
new management systems in Indonesia and Malaysia attempt to benefit the local
communities, the one in Thailand seems to deny the rights of the people. To
elucidate the responses of the people towards these new management systems,
the approach of moral conflict can be used to help us see the results of the
convergence of different economic, political and social systems over utilization
of the same resources. In the context of forestry in these three countries, conflicts
arise when the emergence of new systems dominates the utilization of the
resource and threatens the existence of traditional ones that forest-dependent
peoples have depended upon for their survival. Conflagration into open dispute
occurs when marginalized groups take up actions to maintain their survival.
Understanding these survival issues as moral conflict helps to explain why
normal methods of conflict management do not lead to resolution. From within
the theoretical perspectives of a moral conflict approach, there exist alternative
methods to address the intractable conflicts.
      The approach of moral conflict provides a model to assess disputes and to
work out innovative mechanisms to address problems in partnership with the
contending parties. A new analytical approach acceptable to conflict parties thus
becomes necessary. Most contemporary analyses so far are bi-partisan in nature,
and generate solutions tending to favor one party while not being acceptable
to the opposing resource user. Since one stands to lose out to make way for
the other, this situation corresponds to a “zero-sum game” equation. The
dominating side aligned to the modern market economy would have to give
way to accommodate the interest of traditional users, or vice-versa, local
communities have to give up their interest. In this polarized condition, when
one side wins, the other has to lose, hence the formation of a root cause of
intractable conflicts in forestry.
      Conflicts can arise when the dominant party refuses to accord recognition
to the interest of the marginalized, the aggrieved people have stood up to struggle
for the restoration of their livelihood. Conflicts can also arise between local
communities due to competition over scarce resources, and may be just as
difficult to resolve. The case studies that follow document the reaction of local
communities towards such problems, ranging from an attempt to drive out the
supposedly guilty party, to establishing boundaries where none had existed
before. The consequence of such actions also reflects the “zero-sum game effect”
that has prevented resolution of disputes.

                                                         Rural Development in Lao PDR:      41
                                              Managing Projects for Sustainable Livehoods
           I argue that the moral conflict model provides a productive alternative to
     deal with conflict situations compared to zero-sum models. After first giving an
     overview of theoretical perspectives on moral conflict, I proceed to reviews and
     assessments of three case studies of conflict situations.


           THEORETICAL PERSPECTIVES OF MORAL CONFLICT

            Categories of moral conflicts,2 and ways to address them, include the
     following:
            Incommensurate worldviews–where people looking at the same thing see it
     in such different terms there is no bridge or overlap. This results in the inability
     to comprehend an issue seen from the perspective of the opponent. To overcome
     this, abnormal discourse is one way to address the incompatible argument and
     reasoning. Someone who is ignorant of agreed-upon conventions of doing things,
     or who simply sets them aside, may be able to create spaces and to bridge the
     contrasting worldviews. Opponents, on their own, need to achieve a paradigm-
     shift, that is, adopt an ability to see beyond one’s own prejudices.
            Intractable Conflicts–where the relationship between the parties structures
     conflicts so that attempts to resolve them would fail. The problem is addressed
     by creating a transformation of relationship between parties through a dual
     process of empowerment and recognition, leading to a better relationship
     between the opponents.
            Inefficient Conflicts–where the conflicts have solutions but continue to
     persist because the participants fail to discern that solution exists.
            The reaction of actors in conflict can be assessed to determine which types
     of conflict are involved, so that the appropriate method could be used to find a
     solution. Mathematical Game Theory and Theological Dialogue Theory are two
     approaches that can be used to analyze reaction of the opposing parties.
            From experiments conducted under Mathematical Game Theory, the logic
     of players’ choices and the outcomes of those choices are analyzed. Three
     outcomes are seen:
            1. Zero-sum game of pure competition, in which whatever one person
                wins is what another person loses.
            2. Non-zero-sum games, in which all players can either win or lose
                together.
            3. Mixed-motive games, in which each participant is confronted by the
                risky choice to cooperate or to compete, where the choice is unknown
                to the other. If both players choose to cooperate, both can win a lot and
                lose a little. If one player decides to cooperate but the other chooses to
                be competitive, the cooperative player would end up losing a lot with
                the other gaining a lot. This is the dilemma faced by opposing parties
                during conflict management. They must decide whether to cooperate
                or to compete, without knowing the real motive of the other.

42   Rural Development in Lao PDR:
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From this mathematical game perspective, the opposing parties need to be
encouraged into adopting the non-zero sum stance to find solution to their
problems.
      Under the Theological Dialogue Theory, the focus is on the relationship
between participants in a conflict. How one reacts towards the other, by way of
monologue or dialogue, produces a reflexive effect on the relationship of the
participants. In monologue, the end justifies the means. In contrast, for dialogue,
the ends as well as means are subject to negotiation and evolution. The monological
use of questions is to gain a speaking turn or to make a point in monologue. In
comparison, questions in dialogue are asked to invite an answer. In monologue,
one speaks to impress or influence others; in dialogue, one speaks to take a turn
in an interpersonal process that affects all participants. Using this perspective,
conflicts involving monologue should be transformed into dialogue to gain an
in-depth understanding of the opposing parties.
      The relationship between the opponents needs additional examination to
determine whether the concept of rationality, as found in a game theory
approach, is present. If a type of rationality is operating, then there is a sense of
commonality between the opponents as they share a commitment to follow the
rules of the game. This gives room to each group to maneuver and to negotiate
over an outcome that could be favorable to both parties. In contrast, without a
rational process of interaction, there is no novel result. Like a debate, the
objective is simply to convince the opponent to see things as one already does,
and to persuade the other to accept the outcome that has been predetermined at
the onset of the conflict.


  ASSESSMENT OF CASE STUDIES FROM THE PERSPECTIVE
                OF MORAL CONFLICT

       Three case studies, one each from Indonesia, Malaysia and Thailand,
illustrate conflicts of forest resource use. For narrative convenience, assessments
of the conflicts according to a moral conflict approach are presented immediately
after each case study.


                                  INDONESIA

      Fieldwork was carried out among three communities of the Bahau ethnic
group in the upper reaches of the Mahakam River, in East Kalimantan,
Indonesia. The Bahau are one of the numerous indigenous peoples found in the
island of Borneo, the third largest island in the world. Traditionally they
practiced shifting cultivation.


                                                         Rural Development in Lao PDR:      43
                                              Managing Projects for Sustainable Livehoods
     Map 2.1. Upper reaches of the Mahakam River, East Kalimantan, Indonesia

           Indonesia’s Central Government in 1999 granted autonomy to regional
     administrations at the district level, allowing for their own decision-making. This
     included providing local communities the ability to commercially manage their
     forest resources to improve their livelihood and to provide revenue for regional
     administration. With this autonomous power, regional governments issued
     one-year concessions to local communities to commercially exploit their
     community forests (see also Casson, 2001).
           Problems arose out of the concessions. Community leaders and individuals
     with better access to information obtained the concessions in community forests
     for their own benefit, creating conflicts between them and the general public.
     Lacking capital themselves, they contracted the concessions to logging operators
     who extract timber using tractors and constructing roads to transport the timber.
     This violated regulations that only permitted use of chainsaws and a type of
     low-technology pulley to transport the logs in order to minimize impact on
     the environment. Boundary disputes also occurred between neighboring
     communities over the forest area since the bigger the forest area that could be
     placed under timber contracts, the greater the money that could be obtained.
     Thus issuance of concessions over the community forest to local communities
     led to an unprecedented outflow of timber, much of which could not be
     accounted for. As a result of these problems, the central government revoked the
     issuance of these concessions. A new form of community forestry is now being
     developed to better manage the forest resources.

44   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
Assessment
       From the perspective of moral conflict, the issuance of concessions over
community forest reflects the convergence of two opposing systems of resource
utilization among people traditionally from the same economic system. The
traditional system is primarily based on subsistence economy, with some form of
commercialization for some forest products. In contrast, the new system based
on the market economy has suddenly created a monetary value for trees and
forest that were formerly not readily converted to cash. The opposing systems
affect the relationship between people and their forests. Individuals are willing
to gain financial income at the expense of both the forest environment and the
relationship with other community members. Neighboring communities are
disputing over boundaries that are not clearly demarcated. This occurrence can
be attributed to the zero-sum game effect, where one side will gain zero value for
land given up to the other side, which gains 100 percent of the value. In the
clash of the two opposing systems, the one aligned with the modern market
economy would probably gain dominance over the traditional systems.
Individuals or parties who have gained the upper hand would not want to
relinquish their advantage. For that reason, conflicts in Mahakam have reached
such proportions that no resolution can be found among the conflicting parties.
       Nonetheless, I see that in the perspective of moral conflict, this is an
inefficient conflict since a solution could be found. A system of sustainable
forest management that would consolidate all the community forests of
neighboring communities under joint-management for an equal distribution
of revenue could resolve the problem. Revenue obtained from the joint-
management of forest could be pooled together to develop basic infrastructure,
and to implement activities that could generate additional capital.3


                                  MALAYSIA

      Despite various laws pertaining to sustainable forest management, decades
of difficulty in enforcement have led to unsustainable logging operations in
Malaysia. Logging operations brought environmental degradation to forests and
caused serious impact on the livelihood of forest dependent communities.
Conflicts flared up between them and the logging companies. Unable to get the
state to resolve their grievances, some communities took action by putting up
obstacles to the logging activities. As these obstacles impeded logging operations
that in turn affected the return of timber revenue to the state, the police
apparatus was brought in to suppress the conflicts. Since logging operations
occurred in forest frontiers in remote regions, the public did not know about
most of these conflicts.
      In the upper Baram, the resistance against logging was linked to
international campaigns against the import of tropical timber products. These

                                                       Rural Development in Lao PDR:      45
                                            Managing Projects for Sustainable Livehoods
     have caused the near collapse of the tropical timber trade especially in Western
     Europe. Nonetheless, present trading arrangements within the Asian timber market
     permit imports of timber products from unsustainable sources, perpetuating the
     problem.
            The certification process supported by some environmental movements in
     Europe is an attempt to rectify the situation by encouraging import of timber
     products from proven sustainably managed forests. This solution developed in
     recent years alongside international trade and environmental regulations that
     require sustainable management of forest resources, and a growing awareness
     over the need to address forest conflict and to consider the need of forest
     communities.
            In 1998, partly due to the developing concerns about sustainability and
     forest communities, and partly influenced by Agenda 21 of the United Nations
     Conference on the Environment and Development, the Governments of
     Malaysia and Germany introduced a Sustainable Forest Management (SFM) pilot
     project in the Upper Baram watershed of the state of Sarawak. The project’s goal
     is to develop a resource management system that fulfills economic, environmental
     and social considerations, and that meets the particular concerns of the local
     people. This approach helped to bring the competing interests into a common
     accord and to reconcile the differences regarding resource utilization. Motivated
     to meet the stringent requirement of timber markets that only accept certified
     items under the Forest Stewardship Council (FSC) certification scheme, a
     private logging company took up the opportunity to attempt the new system in
     the upper Baram of Sarawak.




     Map 2.2. Upper Baram Watershed, Sarawak, Malaysia

46   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
      Three ethnic communities live within and at the fringe of the pilot project
area. The sedentary Penan (formerly practicing a nomadic way of life based on a
mobile economy system) comprise of 12 communities. Several agrarian longhouse
communities, seven Kenyah and one Kelabit, are also in the project area.
      In early 2001, the project entered its final phase of formulating the forest
management plan to determine how the forest will be managed. The response
of the local communities has been varied. Consultations through community
meetings with the people of the Kelabit and Kenyah communities indicated they
strongly favor accepting the new system. This is not unexpected given their
negative experience with the way unsustainable logging had been carried out.
Some individuals demanded their traditional land rights be recognized by the
State before consenting to the system. However, most of the people agreed for
the system to be carried out at the same time another process is put in place to
address their land tenure problem. The response among the Penan former
hunters and gatherers is more complicated. Of the twelve communities, three
clearly expressed their favor. Three expressed opposition. The remaining six
adopted a “wait-and-see” approach, wanting the implementation of the system
in neighboring areas to assuage their doubts before making any decision.

Assessment
      The group that had expressed doubt over the project could not believe that
SFM could lead to minimal environmental impact. When the results of a
Reduced Impact Logging (RIL) harvesting operation were shown, one of the
communities that expressed doubt changed to a favorable position, and
eventually participated in the Task Force of Joint Forest Management.
      The same group was also concerned that the ideas of community
development made part of the SFM system might turn out to be false promises.
After all, it had been the modus operandi of logging companies to offer false
promises before opening up the frontiers. In the third year, to help erase the
people’s doubt over the project, the Canadian International Development
Agency, the Australian High Commission, and the German Agency for Technical
Cooperation provided some funding to initiate some small-scale community
development projects.
      The three communities that were opposed to the project demanded a
logging moratorium and withdrawal of the company from their forests. They
also demanded that perpetrators of injuries against them during their
anti-logging blockades be punished (these perpetrators were allegedly members
of the Police). Among these oppositional communities surfaced the allegation
that the project was actually a front of the logging company to cheat them into
accepting SFM and perpetuating conventional logging.
      As the project drew to its close in the end of 2000, two Penan communities
agreed to participate in a joint-management Task Force comprising
representatives of the local people, Sarawak Forest Department and Samling.
The local communities comprised the Kelabit of Long Lellang and Penan of Long

                                                       Rural Development in Lao PDR:      47
                                            Managing Projects for Sustainable Livehoods
     Main at the Akah watershed that had earlier indicated acceptance to the project.
     The other Penan community, Baa Benalih, had changed its position three times–
     from favoring the project to becoming doubtful, and then reaffirming support
     and later readiness to join the SFM Task Force.
           The formation of the Task Force followed the structure of a Multi-
     Stakeholder Committee (MSC) in co-managing a forest area where traditional
     rights are held by the three communities. The MSC provides a platform to
     establish common understandings, gain trust, and frame cooperation among the
     different forest users. With the context of conflict management, solutions that
     are agreeable to the different parties could immediately be acted upon, while
     protracted, competing interests could be set aside for prolonged negotiation. The
     Task Force’s goal is to be an example of how cooperation between the different
     stakeholders could take place.
           To sum up the response of the Penan communities at the end of the project,
     some groups continued to oppose or remain doubtful over the project, while
     others maintained their position favoring it. The Task Force will be the key to
     determining whether the approach of the Multi-Stakeholder Committee in
     a joint-management of forest can be “up-scaled” to the rest of the project area.
     The outcome of the project depends on the decision of State Government and
     whether it accepts a model of SFM that can be socially acceptable, economically
     viable, and environmentally sound.


                                            THAILAND

            Fieldwork in Thailand was carried out among fourteen local communities
     in the Mae Chaem watershed, Chiang Mai Province, to examine their responses
     towards forest management policies and the conflicts that arise from them. The
     first policy is an attempt to restore the Mae Chaem, a major tributary of the Chao
     Phraya River, lifeline of Thailand, as a watershed forest. The regulation prohibits
     communities from inhabiting sensitive zones, due to the perception that any
     human activities negatively affect the watershed function of the area. The second
     policy relates to the establishment of the Mae Tho National Park, and prohibits
     any human activities inside the park. Responses of the communities can be
     divided into: (1) positive reaction towards the policies, (2) resistance, and (3)
     groups of neighboring communities having conflicts with each other. I shall
     focus on the categories of cooperation and resistance.4
            The Karen community living in the Yan San watershed represents the first
     group that reacted positively to the policy of watershed management. They
     reformed their land and forestry use, and cooperated with neighboring
     communities and government agencies regarding forest management. The Karen
     live in the highland regions, and make up the majority of the indigenous peoples
     who are commonly known as hill tribes in Thailand. As opposed to some other

48   Rural Development in Lao PDR:
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Map 2.3. Mae Chaem Watershed, Chiang Mai, Thailand

hill tribes that an ecologically destructive form of shifting cultivation based on
opium, the Karen practice a sustainable, cyclical shifting cultivation that is
ecologically adapted to the sensitive highland environment.
       In 1988, the mudslide in South Thailand that would prompt the logging
ban in 1989 renewed the call for implementation of the 1985 Cabinet Resolution
on National Watershed Classification. Under this classification, “all highland area
considered as the most sensitive part of the watershed and the water source for
lowland basin must be cleared of any activity that would affect its forest
function” (Pinkaew, 1999: 113). Campaigns to drive out hill tribes who inhabit
such sensitive zones resulted in the Karen converting substantial amounts of
agricultural land into the community forest and watershed forest zones. This
conversion was problematic, as it required some affected households to give up
their land. It was these households that resisted. Faced with the threat of
eviction, the community managed to persuade those possessing more land to
give to those lacking.
       Having resolved their internal problem, the Yan San community initially
decided to protect their forest by putting up boundaries and signs prohibiting
outsiders from intrusion. Then they became bolder and decided to fix the
territorial boundary within the area of their neighbors. They rationalized that
since the redistribution of land from agriculture to forest had resulted in their
land scarcity, they were justified in claiming back land taken away from their
forefathers in the past by lowland community. They argued that their Karen
forefathers had simply avoided the newcomers by moving upland, and their

                                                        Rural Development in Lao PDR:      49
                                             Managing Projects for Sustainable Livehoods
     fallow land had been taken over. Hence they decided to exert their rights to the
     land taken away from their forefathers.5
           After much discussion and persuasion, their lowlander neighbors agreed
     with the idea of a boundary. In response, the Karen agreed to shift the
     demarcation line so that plots of land owned by the neighbors would not fall
     inside Karen territory. Most lowlanders also agreed on the restriction of forest
     use. However, individual members from the neighboring communities did not
     agree, and some even deliberately set a forest fire, forcing the entire Karen
     community to rush in and put out the fire. When problems over forest also
     began to occur between another Karen community and the lowlanders, the Karen
     decided to initiate a network for all the communities living in the same
     watershed to address the conflicts and to find ways to accept the new form of
     forest management.
           Initially, these ideas raised objections because the people could no longer
     enlarge their farms or collect forest products freely, as they had done in the past
     when forest resources were free for the taking. The lowlanders were especially
     against the idea since the lack of forest near their settlements meant they would
     be prohibited access to forests located in other communities. The Chairman of
     the Yan San Forest Committee then launched a personal campaign to meet
     village headmen, religious leaders, and committee members to discuss the
     necessity of boundaries and community forest management. While the attempt
     to convince them was extremely difficult and time consuming, he was able to
     devise a strategy to counter their arguments. Using the analogy and strategy of
     Thai Boxing, he encouraged his hosts to speak out first. Through this means, he
     gained an understanding of their thoughts. He concurred on arguments that
     were correct but clarified mistaken notions. Since forest under Karen
     management is located on higher elevations, the water that flows down is
     beneficial to the lowlanders’ rice fields. Eventually both sides came to realize a
     consensus on the importance of forests – that only with forest would there be
     water for their survival.
           Consistent with the ideas of forest management, a watershed level network
     was set up, supported by CARE International, an international NGO based in
     Thailand. Three-dimensional model maps were developed to provide a clear
     understanding of the physical landscape, forest zones and actual land
     ownership. The information helped to facilitate discussion with outsiders,
     especially with the government agencies. Based on the map indicating the
     precise location of the settlement and the degree of gradient of their cultivation
     area, the Royal Forest Department (RFD) and Land Department declared Ban
     Yan San as located outside Class I of the National Watershed Classification. This
     meant they would not be subjected to resettlement and they are entitled to settle
     where they are. At the level of inter-community relationship, the three-
     dimensional models were also instrumental in assisting the communities to
     identify how an activity could affect other areas. It also enabled community

50   Rural Development in Lao PDR:
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members with low levels of literacy to use a spatial ability to manage forest and
land use according to the actual physical landscape.

Assessment
      We can see that approaches relating to moral conflicts were adopted by the
Yan San Karen community. First, they recognized that their worldview was
incommensurate with that of the modern political system. They reformed their
land and forest use system and incorporated it into the watershed management
system of the state. They adopted a system of communication shaped by the
dominant system through mapping. This information led their opponent (RFD)
to classify their settlement as outside the Class 1A Watershed Classification that
had threatened them with eviction. Ultimately when one party understood a
game and played according to its rules, the opponent had no choice but to
accommodate them.
      Second, to successfully manage a scarce resource, the property right regime
needs to be changed from an open access resource into common or private
property rights. The change of rights faces resistance, and this is overcome by the
use of appropriate methods of moral conflict. The “Game Theory Strategy”
approach is used to convince the opponents to accept the new idea. The idea of
Thai Boxing mentioned above clearly falls under this category. Initially, the idea
seems like the zero-sum game effect, where one loses the right to something that
will be gained by the other. Using dialogue, the opposing parties gain a deep
understanding of their collective predicament, and are willing to adopt a new
system that benefits both parties. Hence, they shifted from zero-sum game into
non-zero sum game perception. This also conforms to the concept of rationality,
where all parties share a sense of common stakes, and reason together to face a
common crisis threatening their survival.


                                 CONCLUSION

       As conflicts in forestry usually arise due to the dominance of a resource
utilization system that is protected by the state’s sanctioned institutions, the other
resource systems become marginalized. However, in the Commonwealth
countries, the judiciary has increasingly ruled in favor of indigenous peoples
against the legal system. In Thailand, civil society in the form of NGOs has risen
to advocate the interest of the marginalized people. In Indonesia, a reformation
of the political system has given rise to the recognition of the local communities’
right to manage their forest resources.
       Nonetheless, regardless of the status of the people’s right over land,
territory and resources, the influence of the modern market economy could not
be avoided. At some level, communities may resist the dominant system, as in
Thailand, or have their rights recognized, as in Indonesia. Yet at some point, it is

                                                          Rural Development in Lao PDR:      51
                                               Managing Projects for Sustainable Livehoods
     difficult for a subsistence-based economy to escape the clutches of the monetary
     system. When the external system permeates a society, the community that is not
     ready to cope with the impact of rapid changes will face internal conflicts among
     its members, and even conflicts between communities practicing the same
     system of resource utilization.
           It is inevitable that eventually most forests will come under management
     systems associated with the wider political, economic and social institutions.
     As a forest is generally not devoid of human inhabitants, it is necessary to
     incorporate approaches of moral conflict into forest management, since it would
     soften the impact of rapid changes upon forest-dependent peoples. We shall see
     whether the approach adopted in Malaysia, based on Joint-Forest Management,
     leads to a convergence of resource utilization schemes that is capable of
     overcoming moral conflicts and integrating the existence of different economic
     and social systems.


                                                NOTES
     1
       A major portion of this paper has been earlier presented at the workshop, The Asian Face
     of Globalization: Reconstructing identities, institutions, and resources. First workshop of
     Asian Public Intellectuals, November 19–23, 2002, Shangri-la Hotel, Cebu City,
     Philippines. My appreciation to the Asian Public Intellectuals Fellowship for a research
     grant from 2001 to 2002.
     2
       This section is an adaptation of Pearce and Littlejohn (1997). The term moral has little to
     do with codes of sins and virtues, and is emphasized on the idea that people’s actions are
     based in what seems good and right (1997:54).
     3
      In a separate paper, a proposal has been developed with the local authorities, the
     university, NGOs and local community, to seek funding for capacity building to achieve
     good-governance among the people and the bureaucracy (Chan et al).
     4
       In examining conflicts, the “Rashomon Effect” serves as a guideline for interviewing the
     informants. Rashomon Effect tells us that each witness who saw an event will give his or
     her own account of the story, according to their perception of what had occurred. (Heider
     1988) These accounts could drastically differ and even contradict one another. “. . . The
     content of each individual source is likely to be influenced by the source’s values, focus, or
     underlying agenda. As a result, it is common to find conflicting interpretations of the same events
     across sources when chronologies are compiled for empirical analysis. This phenomenon has been
     popularized in social science literature as “the Rashomon effect.” (e.g., Scott 1985, xviii;
     Mazur 1998, cited in Davenport and Litras.) Acknowledging this effect, the study does
     not attempt to reconcile the facts – that is to identify who is telling the truth. Instead,
     it attempts to identify the underlying causes that led to the conflict, so that conflict
     resolution or management could address the root causes.




52   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
5
 The account represents one side of the story, from the view of the Karen. Both the present
and the previous lowland community leaders denied that such problems had arisen
between them and the Karen. This probable act of self-denial, I suppose, indicates their
desire to erase painful memory of events that had occurred with neighbors who had very
friendly relations with them.


                                    REFERENCES

Anan Ganjanapan. 1997. The Politics of Environment in Northern Thailand: Ethnicity
    and Highland Development Programs. In Seeing Forests for Trees: Environment and
    Environmentalism in Thailand, ed. Hirsch, P. Chiang Mai: Silkworm Books.
Casson, Anne. 2001. Decentralisation of Policies Affecting Forests and Estate Crops in Kutai
    Barat District, East Kalimantan. Case Studies on Decentralisation and Forests in
    Indonesia, Case Study 4. Bogor, Indonesia: Center for International Forestry Research.
Chan, Henry. 2002. Multi-stakeholder Committee to Accommodate Interests of Different Forest
    Users. Paper presented at the Round-table, Best Practices in Conservation:
    Communities, Donors, and Forests in Borneo, the Borneo Research Council Seventh
    Biennial International Conference, “21st Century Borneo–Issues in Development,”
    15–18 July 2002, Kota Kinabalu, Sabah, Malaysia.
Chan, Henry (et al) n.d. Menuju kepada Pemerintahan yang Baik: Pengelolaan Sumber Daya
    Alam, Kutai Barat, Kalimantan Timur, Indonesia. Proposal Bersama Pemerintah Daerah
    Kabupaten, Kutai Barat, Masyarakat Desa Long Bagun, Kutai Barat, UPT. Perhutanan
    Sosial, Universitas Mulawarman, Samarinda, Komite Hak Asasi Manusia Kalimantan
    Timur, Samarinda, dan Henry Chan, Asian Public Intellectuals Fellowship (Towards
    Good Governance: Sustainable Management of Natural Resources, Kutai Barat, East
    Kalimantan, Indonesia).
                                      .
Davenport, Christian and Marika F X., Litras. Rashomon and Repression: A Multi-source
    Analysis of Contentious Events. Source: Online http://www.pcr.uu.se/Rashomon_
    and_Repression.rtf.
Heider, K. 1988. The Rashomon Effect: When Ethnographers Disagree. American
    Anthropologist 90: 73–81.
Pasuk Phongpaichit and Chris Baker. 1995. Thailand: Economy and Politics. Oxford
    University Press.
Pearce, W. Barnett and Stephen W. Littlejohn. 1997. Moral Conflict: When Social Worlds
    Collide. London: Sage Publications.
Pinkaew Laungaramsri. 1999. The Ambiguity of Watershed: The Politics of People and
    Conservation in Northern Thailand: A Case Study of the Chom Thong Conflict. In
    Indigenous Peoples and Protected Areas in South and Southeast Asia: From Principles to
    Practice. Proceedings of the Conference at Kundasang, Sabah, Malaysia, 14–18 December
    1998, ed. Marcus Colchester and Christian Erni. IWGIA Document No. 97, Copenhagen
    1999.




                                                             Rural Development in Lao PDR:      53
                                                  Managing Projects for Sustainable Livehoods
                                                   3
            INDIGENIZING LAW OR LEGALIZING
                  GOVERNMENTALITY?
           THE PHILIPPINE INDIGENOUS PEOPLES
             RIGHTS ACT AND POSTCOLONIAL
                    LEGAL HYBRIDITY
                                            Peter Cuasay


           The Indigenous Peoples Rights Act (IPRA) of 1997 and its Implementing
     Rules and Regulations (IRR) of 1998 legislate enormous changes in the
     state-building project of the Philippines. The law was meant to secure ancestral
     domains and a full slate of human and civil rights for the 10-12 million members
     of indigenous cultural communities (ICC). Rectifying “500 years of historical
     error,” and involving 8 -10 million hectares (out of a national total of 30 million)
     that represent as much as 80% of surviving natural resources, the dimensions of
     full implementation are staggering. The law has survived a Supreme Court
     challenge largely supported by mining interests. The mandated National
     Commission on Indigenous Peoples (NCIP) is now operating, with the additional
     aid of a presidential advisory office created by the present administration.
     Legitimated by the discourse of rights, sustainability, and cultural integrity (Niezen,
     2003), IPRA appears to consolidate a prevailing moral geography. Yet this moral
     redress occurs alongside globalization of market triumphalism, spurring critical
     inquiry into the effects of “indigenizing” state policies.
           In late modern conditions of globalizing markets, we are repeatedly told
     that states are fading and sovereignty is giving way to some new postulate of
     revisable social contracts. Yet this breathless wait for the post-modern,
     post-sovereign world order overlooks an inner complexity of sovereignty itself.
     Usually, attention has been paid to imperium, the plenary powers of the
     conquering state. But another aspect of sovereignty is dominium, the state
     powers of ownership. There is a temptation, as Kingsbury has shown, to leap
     beyond sovereignty to a novel neoliberal utopia where sovereignty would
     become “a summation of the operations of the market,” or “a variable rather than
     a parameter” (Kingsbury, 2002). This chapter argues it is really a shift in


54   Rural Development in Lao PDR:
     Managing Projects for Sustainable Livehoods
emphasis from imperium to dominium, taking place within a specific legal
genealogy of sovereignty itself, that plays a defining role in many commons
problems of our time. Hence this is a more complicated story than an
evolutionary progress. We do not rise from conquest and booty to property law
and management, nor do we automatically witness growth of rights and equality,
because imperium and dominium interact to produce hybrid outcomes.
       I will trace this interaction in the Philippine Supreme Court case of the
IPRA to contrast two possible hybrids. In the first, some separation is maintained
between imperium and dominium, creating a disinterested, even apparently moral
objectivity that can be recalled in an effort to redress historic grievances. In the
second, opposing view, dominium substitutes for imperium, and collective
national interest theoretically prevails over the property interests. Since these
outcomes roughly balanced at court, ending in a tie, I suggest the balance may
ultimately tip in a third direction. With the help of a Thai example, a novel
hybrid creature of neoliberal self-regulation emerges: a regulated exchange
between imperium and dominium that promises to devolve ruling power down to
sub-state agents, but snatches ownership away as the cost of failing self-control.
Instead of ending sovereignty, this is a kind of endless cancellation of sovereignty
that is paradoxically maintained in the act of consuming or betraying itself.
       Put another way, the enumerated rights in instruments like IPRA that
indigenize law are only one side of the coin. The other face is continued denial of
the popular sovereignty making such rights effective. I turn to the legal founda-
tions of this dark side by appealing to the indigenous, historical experience that
war and peace are not so different when legalisms continue the despoliation of
war by other means. Hybrids of imperium and dominium are symptoms of a
larger slippage, the murky border between war and peace that renders the life of
so many indigenous communities an unceasing trial in a court of everyday battles.


               SEPARATION OR NOSTALGIC IMPERIUM

       The legal basis for finally granting titles for ancestral domains and lands to
indigenous cultural communities in the Philippines rests on a theory of native
title. IPRA derives this theory from the case of Cariño v. Insular Government,
which was decided by the US Supreme Court in 1909. Thus instead of giving
legal voice to a variety of customary law regimes for considering ownership and
resources (see Prill-Brett this volume), a single doctrine of native title attempted
to cover all cases. This Cariño Doctrine had to overcome the prevailing Regalian
Doctrine, which holds all untitled land in the archipelago was under control of
the Spanish Crown and therefore passed to the US colonial government as public
lands before being entrusted in turn to the independent Philippine State.
       Immediately after IPRA successfully passed, the specter of its being some
kind of upcountry land-reform-in-earnest drove Cesar Europa and Isagani Cruz

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     to file a Supreme Court case against its constitutionality. Symbolized in names of
     Spanish form, Caesar, Europe, and the Cross all wanted to stop indigenous peoples’
     rights on the steps of the high court. Reversing Ramos support, the Estrada
     administration sat back to make questionable appointments to the NCIP. A
     social drama now unfolded in the same general period as the ouster of Estrada,
     climaxing in a second “people power” event (“EDSA 2”) in early 2001 (the ouster
     of Marcos, retrospectively “EDSA 1”, was in early 1986). The Supreme Court
     upheld IPRA by the narrowest possible margin - a 7 to 7 tie vote that meant the
     constitutionality challenge failed - on December 6, 2000. Very soon after,
     Macapagal-Arroyo took power, issuing Executive Order 1 February 20, 2001 to
     create an Office of Presidential Adviser on Indigenous Peoples (OPAIP). The
     Supreme Court battle took place against a complex and ambiguous
     revolutionary backdrop, with discursive effects that register in legal rationality.
            In this social context, a theory of native title contradicting the Regalian
     Doctrine threatened to open crucial lapses in national myths of origin and
     sovereignty. Forgotten in the simple handing over of ownership from one
     conqueror to the next successor is the US colonial enlargement of its control
     through the Bureau of Non-Christian Tribes (Kingsbury, 1998: 429) and the
     legalistic way Marcos bolstered the doctrine to enhance his state. The Regalian
     Doctrine of a smooth transmission of sovereignty over the public lands also serves
     the national origin myth promoted in the Philippine Centennial Expo of 1999.
     By conflating the conflicts against Spain and afterwards the United States into a
     singular revolutionary origin in 1899, the myth obscures the ambiguous
     revolution of changing colonial masters (Bankoff, 2001), a myth requiring
     further suturing given the ambiguous revolutions of the two EDSA/People Power
     events. The NCIP in its defense of IPRA wound up unstitching these mythical
     sutures. As the Dean of the University of the Philippines (UP) Los Baños put it,
     “Land and resources that never fell under the Spanish cross or sword were never
     part of the archipelago that Spain ceded to the US in 1899. [They are] not
     encompassed by the legal presupposition of ‘public lands’. They never were.”
     (Malayang, 2001: 670) From a state viewpoint, such stark negation in the
     anti-Regalian argument is frightening (and might result in as much as 30 percent
     of the country being ancestral domain and not state property).
            Against the Regalian Doctrine, the theory of native title or the Cariño
     Doctrine tried to shelter native lands from the sovereign power of the successive
     rulers - Spain, US, and the Manila-centered Philippine state. In Cariño,
     sovereignty was analyzed into imperium and dominium in order to place the
     Regalian theory under the latter, thus giving scope to the former to make native
     title good.

             Sovereignty is the right to exercise the functions of a State to the
             exclusion of any other State. It is often referred to as the power of
             imperium, which is defined as the government authority possessed

56   Rural Development in Lao PDR:
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       by the State. On the other hand, dominion, or dominium, is the
       capacity of the State to own or acquire property such as lands and
       natural resources. Dominium was the basis for the early Spanish
       decrees embracing the theory of jura regalia. The declaration in
       Section 2, Article XII of the 1987 Constitution that all lands of the
       public domain are owned by the State is likewise founded on
       dominium. If dominium not imperium is the basis of the theor y of
       jura regalia, then the lands which Spain acquired in the 16th
       century were limited to non-private lands, because it could only
       acquire lands which were not yet privately-owned or occupied by
       the Filipinos. Hence, Spain acquired title only over lands which
       were unoccupied and unclaimed, i.e. public lands (Kapunan
       Opinion, note 86).

      Thus it was dominium transferred between states that gave them title to
public lands, but not to privately held land, including the private but
community property IPRA wanted to recognize with native title. This native
land was emphatically not acquired from the state as public land turned into
private property: it had always been private even though in the native concept of
ownership it was also held in common and used according to custom.

       A distinction must be made between ownership of land under
       native title and ownership by acquisitive prescription against the
       State. Ownership by virtue of native title presupposes that the land
       has been held by its possessor and his predecessors-in-interest in
       the concept of an owner since time immemorial. The land is not
       acquired from the State, that is, Spain or its successors-in-interest,
       the United States and the Philippine Government. There has been
       no transfer of title from the State as the land has been regarded as
       private in character as far back as memory goes. In contrast,
       ownership of land by acquisitive prescription against the State
       involves a conversion of the character of the property from
       alienable public land to private land, which presupposes a transfer
       of title from the State to a private person. Since native title assumes
       that the property covered by it is private land and is deemed never
       to have been part of the public domain, the Solicitor General’s
       thesis that native title under Cariño applies only to lands of the
       public domain into agricultural, forest or timber, mineral lands,
       and national parks under the Constitution is irrelevant to the
       application of the Cariño doctrine because the Regalian doctrine
       which vests in the State ownership of lands of the public domain
       does not cover ancestral lands and ancestral domains (Kapunan
       Opinion, 92).

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                                              Managing Projects for Sustainable Livehoods
           A separation was thereby set up between Regalian Doctrine, public lands,
     and dominium, on one hand, and the Cariño Doctrine, private but common
     property, and imperium, on the other. The source of recognition for native title
     was located in imperium by the very appeal to the precedent set by the imperial
     power. The recognition derived from the conqueror’s power to make rules, for
     the benefit of the inhabitants or otherwise, even for those groups and areas to
     which the imperial might of the toppled predecessor had never extended. Places
     unconquered by vanquished Spain could still be liable to the judgments of the
     US victor. In Cariño, the US Supreme Court said the old principle (read Regalian
     Doctrine) was but theory and discourse, and as the new sovereign, the US could
     base their approach on actual fact. Their imperium could give force to a legal
     distinction between the dominium of the insular government another form—
     native ownership.

             It is true that Spain in its earlier decrees embodied the universal
             feudal theory that all lands were held from the Crown, and
             perhaps the general attitude of conquering nations toward people
             not recognized as entitled to the treatment accorded to those in
             the same zone of civilization with themselves. . . . [But] When theory
             is left on one side sovereignty is a question of strength and may
             vary in degree. How far a new sovereign shall insist upon the
             theoretical relation of the subjects to the head in the past and how
             far it shall recognize actual facts are matters for it to decide.
             The Province of Benguet was inhabited by a tribe that the Solicitor
             General, in his argument, characterized as a savage tribe that never
             was brought under the civil or military government of the Spanish
             Crown. It seems probable, if not certain, that the Spanish officials
             would not have granted to any one in that province the
             registration to which formerly the plaintiff was entitled by the
             Spanish laws, and which would have made his title beyond
             question good. Whatever may have been the technical position of
             Spain, it does not follow that, in the view of the United States, he
             had lost all rights and was a mere trespasser when the present
             Government seized his land. The argument to that effect seems to
             amount to a denial of native titles throughout an important part of
             the island of Luzon, at least, for the want of ceremonies which the
             Spaniards would not have permitted and had not the power to
             enforce.
             The acquisition of the Philippines was not like the settlement of
             the white race in the United States. Whatever consideration may
             have been shown to the North American Indians, the dominant
             purpose of the whites in America was to occupy the land. It is

58   Rural Development in Lao PDR:
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       obvious that, however stated, the reason for our taking over the
       Philippines was different. No one, we suppose, would deny that,
       so far as consistent with paramount necessities, our first object in
       the internal administration of the islands is to do justice to the
       natives, not to exploit their country for private gain. By the organic
       act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the property
       and rights acquired there by the United States are to be
       administered “for the benefit of the inhabitants thereof.”
       . . . We hesitate to suppose that it was intended to declare every
       native who had not a paper title a trespasser and to set the claims
       of all the wilder tribes afloat. . . . But there still remains the
       question what property and rights the United States asserted itself
       to have acquired.
       . . . Every presumption is and ought to be against the Government
       in a case like the present. It might, perhaps, be proper and
       sufficient to say that when, as far back as testimony or memory
       goes, the land has been held by individuals under a claim of
       private ownership, it will be presumed to have been held in the
       same way from before the Spanish conquest, and never to have
       been public land.

      To summarize, IPRA tried to effect a separation between imperium and
dominium. Spanish dominium did indeed pass public land to the conquering US
and thence to the Philippine government. But US imperium was recalled with a
certain nostalgia as legally grounding the redress of the indigenous peoples’
historic grievances of dislocation, expropriation, and disenfranchisement.
Nostalgic staging of the legal precedent from 1909 exhorted the 1999-2000 court
“to do justice to the natives.” Such nostalgic imperium found its sovereign
prerogative need not stop at the Regalian theory of vanquished Spain, and could
even limit dominium by positing an exempt class of property held under
“native title.”


          SUBSTITUTION OR NATIONALIST DOMINIUM

       BAGUIO CITY—The government has resolved what the Supreme
       Court could not: Prescribe what natural resources indigenous
       Filipinos can actually own under the 1987 Constitution.
       Horacio Ramos, director of the Mines and Geosciences Bureau
       (MGB) of the Department of Environment and Natural Resources,
       said a memorandum of agreement between Environment
       Secretary Elisea Gozun and Secretary Teresita Deles, lead convenor

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             of the National Anti-Poverty Commission (NAPC), recognizes the
             indigenous peoples’ rights over all natural resources on Philippine
             soil.
             “The government needed a (solution) to the issue because various
             industries required a clear-cut rule on natural resource rights.
             So (Gozun and Deles) agreed to divide it evenly. The (indigenous
             Filipinos) own the top half of the land, while the government owns
             what is beneath the land,” Ramos said.
             A quarter of the mine claims applied for in 1999 crossed into
             ancestral lands or ancestral domain claims made by several
             communities in the Cordillera Administrative Region and in
             Mindanao, the Inquirer learned (Cabreza, 2003).

           If Cariño and native title were elevated and validated in upholding IPRA,
     a new twist to Regalian theory was enshrined as well. For judicial opinions on
     both sides accomplished the strange feat of shrinking the contentious issue of
     ancestral domains down to a mere surface. The judgment produced the
     curiously layered or laminated situation that led to the negotiated split reported
     in 2003. The sword of Solomon, in this case, did divide the living land in two:
     native title could apply to ancestral domains that were never public lands, but
     state ownership must apply to all natural resources below or above this surface
     by principle of sovereign prerogative. Alongside this compression of domain to
     mere surface was an expansion of emphasis, not on the rights enunciated in law,
     but on the duties of the indigenous to act as ecological managers who would
     protect, maintain, and steward the riches they do not, legally cannot, own.
     Flattened domains, fattened duties. How did the court arrive at such conclusions?
           The meaning of ancestral domain clustered around notions of land as life
     and included the material, natural resources.

             The moral import of ancestral domain, native land or being native
             is “belongingness” to the land, being people of the land—by sheer
             force of having sprung from the land since time beyond recall, and
             the faithful nurture of the land by the sweat of one’s brow. This is
             fidelity of usufructuary relation to the land—the possession of
             stewardship through perduring, intimate tillage, and the
             mutuality of blessings between man and land; from man, care
             for land; from the land, sustenance for man.

     The legal constructions by the Supreme Court erect a distinction between such
     life-giving land and the natural resources contained above or below, leading to a
     reconfirmation of state ownership over all natural resources. Ancestral domain
     under the concept of “private but community property” is reduced to an
     ancestral surface, a mere slice of land excluding subsurface resources.

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      Against the holding of land since time immemorial, the anti-IPRA opinion
declared:

       All Filipinos, whether indigenous or not, are subject to the
       Constitution. Indeed, no one is exempt from its all-encompassing
       provisions. Unlike the 1935 Charter, which was subject to “any
       existing right, grant, lease or concession,” the 1973 and the 1987
       Constitutions spoke in absolute terms. Because of the State’s
       implementation of policies considered to be for the common good,
       all those concerned have to give up, under certain conditions, even
       vested rights of ownership.
       In Republic v. Court of Appeals, this Court said that once minerals
       are found even in private land, the State may intervene to enable it
       to extract the minerals in the exercise of its sovereign prerogative.
       The land is converted into mineral land and may not be used by
       any private person, including the registered owner, for any other
       purpose that would impede the mining operations. Such owner
       would be entitled to just compensation for the loss sustained
       (Panganiban opinion).

Indeed, the Cariño Doctrine was supposed to have passed away in favor of a
nationalistic one enshrined in Constitutions, and thus ownership is a matter of
surface rights alone.

       I submit that Cariño v. Insular Government has been modified or
       superseded by our 1935, 1973, and 1987 Constitutions. Its ratio
       should be understood as referring only to a means by which
       public agricultural land may be acquired by citizens. I must also
       stress that the claim of Petitioner Cariño refers to land ownership
       only, not to the natural resources underneath or to the aerial and
       cosmic space above.
       . . . Since RA 8371[IPRA] defines ancestral domains as including
       the natural resources found therein and further states that ICCs/
       IPs own these ancestral domains, then it means that ICCs/IPs can
       own natural resources.
       In fact, Intervenors Flavier et al. submit that everything above and
       below these ancestral domains, with no specific limits, likewise
       belongs to ICCs/IPs. I say that this theory directly contravenes the
       Constitution (Panganiban opinion).

Calling the IPRA version of unlimited, perpetual, and exclusive ancestral
domains an “outlandish contention,” the legal thrust reduced domain to surface,

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     and carved out absolute state ownership of all natural resources in the heights
     and depths. This runs quite counter to the separation of imperium and dominium
     that sought to maintain both public lands and a new concept of native title to
     private but common lands. It represents rather the substitution of dominium for
     imperium: the state owns all for the good of the nation in a conquest made by
     Constitutions, re-vesting the Regalian Doctrine in nationalist clothing, or an
     assertion of nationalist dominium.
           In upholding IPRA, the Supreme Court left both theories of revisionist or
     nostalgic imperium and nationalist dominium intact by severing surface (where
     native title held) and resources (where state prerogative overrules all). A major
     precedent, the case of Republic vs Court of Appeals, supposedly justified this weird
     flattened domain, the surfacing of a distinction between land surface and
     subsurface resources. This surface/depth splitting had actually been found to be
     disturbing in the original precedent, if it is examined more closely.

             . . . Possession [by the landowners] was not in the concept of owner
             of the mining claim but of the property as agricultural land, which it
             was not. The property was mineral land, and they were claiming it
             as agricultural land. They were not disputing the rights of the
             mining locators nor were they seeking to oust them as such and to
             replace them in the mining of the land. In fact, Balbalio testified
             that she was aware of the diggings being undertaken “down
             below” but she did not mind, much less protest, the same although
             she claimed to be the owner of the said land.
             The Court of Appeals justified this by saying there is “no conflict
             of interest” between the owners of the surface rights and the
             owners of the sub-surface rights. This is rather a doctrine, for it is
             a well-known principle that the owner of piece of land has rights
             not only to its surface but also to everything underneath and the
             airspace above it up to a reasonable height. Under the aforesaid
             ruling, the land is classified as mineral underneath and
             agricultural on the surface, subject to separate claims of title. This
             is also difficult to understand, especially in its practical
             application.
             Under the theory of the respondent court, the surface owner will
             be planting on the land while the mining locator will be boring
             tunnels underneath. The farmer cannot dig a well because he may
             interfere with the operations below and the miner cannot blast a
             tunnel lest he destroy the crops above. How deep can the farmer,
             and how high can the miner, go without encroaching on each
             other’s rights? Where is the dividing line between the surface and
             the sub-surface rights?

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       The Court feels that the rights over the land are indivisible and
       that the land itself cannot be half agricultural and half mineral.
       The classification must be categorical; the land must be either
       completely mineral or completely agricultural.
       . . . This is an application of the Regalian doctrine which, as its
       name implies, is intended for the benefit of the State, not of private
       persons. The rule simply reserves to the State all minerals that may
       be found in public and even private land devoted to “agricultural,
       industrial, commercial, residential or (for) any purpose other than
       mining.” Thus, if a person is the owner of agricultural land in which
       minerals are discovered, his ownership of such land does not give
       him the right to extract or utilize the said minerals without the
       permission of the State to which such minerals belong.
       The flaw in the reasoning of the respondent court is in supposing
       that the rights over the land could be used for both mining and
       non-mining purposes simultaneously. The correct interpretation is
       that once minerals are discovered in the land, whatever the use
       to which it is being devoted at the time, such use may be
       discontinued by the State to enable it to extract the minerals therein
       in the exercise of its sovereign prerogative. The land is thus
       converted to mineral land and may not be used by any private
       party, including the registered owner thereof, for any other
       purpose that will impede the mining operations to be undertaken
       therein (GR L-43938, April 15, 1988).

      Thus the survival of both Cariño and Regalian doctrines after the 2000
decision on IPRA was a surface/depth split that had already been found
impractical. Without drawing clear inferences, it seemed the Court was
fumbling towards ancestral domains restricted not just to surfaces, but only those
surfaces where no minerals had yet been found. Thus NCIP Administrative
Order No. 3, dated October 13, 1998, exempted all leases, licenses, contracts
and other forms of concessions within ancestral domains prior to the effectivity
of NCIP AO No. 1 (IPRA’s Implementing Rules and Regulations) from the
coverage of IPRA’s provisions on free and prior informed consent (Mordeno,
2001). By substituting the nationalist dominium for the actual attainment of
imperium, the state might recognize a native ownership from time immemorial
by reserving full control of all natural resources in advance. The results were a
geo-body only skin deep and a nationalist pretension as devastating as any
conquest. The irony may be that just as doing justice to the natives can be cited
with longing once the colonial period is past, the nationalist imperative to
benefit the people might also acquire the power of a retrospective ideal after it
too disappears. At present, the notoriously weak Philippine state, quite unable to

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     follow Constitutional priorities of land reform and stewardship, is an instrument
     for transferring wealth upwards to rent-seeking elites and outwards to foreign
     corporations. But were the IPRA principle of working through customary laws
     seriously implemented, one can imagine contentious tribal councils orating about
     the need for a spirit of a higher public interest. This ghost of national interest of
     all the people would grow more vivid and compelling the further the nation
     recedes in memory, to be nostalgically idealized as it never really was.


                 REGULATION OR SOVEREIGNTY EATS ITSELF

           There are indications that moving past the deadlock between separation
     and substitution as ways to relate constituent aspects of sovereignty, imperium
     and dominium, involves yet another hybrid outcome: a regulated exchange
     between them. Imperium is given up, in the form of allowing customary law,
     self-governance, new rights, etc, but the cost of failing to achieve by oneself the
     proper control a conqueror must impose is the loss of dominium back to the state.
     This encapsulates the paradox of granting rights while flattening domain to
     surface, for it has been pointedly observed that “an interpretation that, indeed,
     ancestral domain rights are hinged on the ‘IPs as stewards of the earth’ concept
     rather than on the right to self-determination and a correction of historical
     injustices would nullify whatever so-called gains IPRA advocates claim as
     ‘victories for the IPs’” (quoted in Mordeno, 2001).
           There is a Thai example which shows what can happen to ICCs if they
     somehow are measured and found to fail in duties to preserve and manage
     ecology. This is the draft elephant law, which proposes that Kuay people
     bringing elephants into Bangkok or other urban spaces are not exerting proper
     care of the national animal, and should have their elephants confiscated. Clearly
     the burden on the nation to be a steward has been transferred to the vulnerable
     and marginalized, overcoming at once property rights and a traditional Kuay
     communal relationship with the Asian elephant by subjecting these to an outside
     regulatory test. Indigenous knowledge is recognized as a responsibility to carry
     out or mime the state’s imperium oneself, on pain of losing dominium back to the
     same state, which would then acquire rights to elephants the Kuay did not
     discipline adequately, and proceed to confiscate these “out of place” natural
     resources.
           While the concept of indigenous people is especially complex in Asia,
     technocratic functional agencies have made the use of arrangements recognizing
     the indigenous into a criterion of legitimacy, as in World Bank operational
     directive 4.20 (Kingsbury, 1998: 445). In the Philippines, this came on the heels
     of the Local Government Code of 1991 that decentralized power to Local
     Government Units (LGUs). With IPRA, the now tax-exempt ICCs are required to
     form Ancestral Domain Sustainable Development and Protection Plans

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(ADSDPPs). LGU’s and ICC’s thus compete for foreign investment. The LGUs
are aware of the squeeze; feared one municipal assessor in Coron, Palawan,
“nothing will be left for us and my office will become useless” (Arquiza, 2002).
Adding to competition is the fact LGUs and ICCs often need technical assistance
and external funds from Non-Governmental Organizations (NGOs), which along
with community associations or people’s organizations are also competing to run
programs under contract. For some time, the Philippine bubble in NGOs has
inflated, with “mutant NGOs” (Bryant, 2002b), including Politician Organized
NGOs (PONGOs) and Business Organized NGOs (BONGOs), mixed with
progressive and morally idealistic groups. At the village level, infrastructural
“contractors” actually do (or fail to do) much of the work formerly entrusted to
government, with as much as 80% going to the contractor alone (Hilhorst, 2001).
       Being on this market for development, laws have stressed the accountability
of the beneficiaries such as ICCs/IPs. “Uplanders are now being offered more
control over land and natural resources, but only on condition that in the interests
of sustainability, biodiversity, and the needs of future generations, they take on
the responsibility for conserving the little forest that is left and limit their
economic aspirations accordingly” (Li, 2002: 270). The Community Based
Resource Management (CBRM) paradigm, once authorities accept it, often
becomes compulsory dogma used to make benefits dependent on passing some
environmental scorecard (see Agrawal and Gibson, 1999). Accountability
techniques nested in the laws accomplish Orwell’s paradox of freedom as slavery.
This is because for neoliberalism, political subjection coincides with formal
political empowerment. Since practices of government “are only possible in so
far as the subject is free,” (Foucault, 1997: 292) a free exercise of sustainable
management practices advances subjection to a disciplined self-management
constantly corrected by the feedback of competition. Even though in intent the
inclusive law combines knowledge and social organization with territorial assets,
this totality seemingly rooted in one village community actually manifests as
competing individuals or groups in relationship with the outside (Duhaylungsod,
2001).
       Thus, a productive subjection issues from a globalization of neoliberalism’s
cultural project that occurs as an intimate localization in human subjects.
Failures only create “a dichotomy between recognized and recalcitrant
indigenous subjects” (Hale, 2002) and facilitate tutelary projects targeting the
community. Local society becomes recoded into a producer of appropriate
conduct that conserves and sustains both nature and culture. The magic of
gifting an entity-local community with rights gives incentive for the fallacy of
taking “community as an essence or starting point (for identities, rules, and
notions of justice) rather than as the (provisional) result of community-forming
processes” (Li, 2002: 276). Yet the community so endowed is permitted to reach
recognition only through a discipline-inducing process of rules, the “conduct of
conduct” Foucault dubs “governmentality” (Burchell, 1991).

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           The draft elephant law, inserting governmentality by threatening elephant
     confiscation if elephant people do not measure up, and the paradoxes of
     indigenizing law in the Philippine IPRA, both reflect the fact sovereignty is not
     going away. Instead, as I have tried to show, the inner complexity of interacting
     imperium and dominium produces hybrid outcomes. Separation, substitution, and
     regulation are maintained in various spaces and times. The response on the part
     of IP movements can be to link struggles across equally diverse zones, to try to
     import into law more complex notions intimately related to diverse socio-natural
     spaces, and ultimately to overload the legal sovereignty concept. A reworked
     notion of sovereignty would draw much more sensitive distinctions within both
     imperium and dominium so that their interaction would depend on much more
     than market conditions.


                                  THE WAR CONTINUUM

           The central distinction common to these hybrids, the tension between
     imperium and dominium, is nothing less than the difference of war and peace.
     If there is no such difference, if in fact the law of wartime necessity never does
     return to the fold of peacetime with its just means, then both the necessity and
     instability of the hybrids I have demonstrated arise from a larger hybridity or
     instability relating war and peace. Arundhati Roy, accepting the Sydney Peace
     Prize in 2004, spoke of this uncertainty about war and peace, connecting it with
     the paradoxical tension between justice and “human rights,” which would
     include the indigenous rights examined here.

             Even among the well-intentioned, the expansive, magnificent
             concept of justice is gradually being substituted with the reduced,
             far more fragile discourse of ‘human rights’ . . . Almost unconsciously,
             we begin to think of justice for the rich and human rights for the
             poor. Justice for the corporate world, human rights for its victims.
             . . . So what does peace mean in this savage, corporatized, militarized
             world? . . . What does peace mean to the poor who are being actively
             robbed of their resources and for whom everyday life is a grim
             battle for water, shelter, survival and, above all, some semblance of
             dignity? For them, peace is war. We know very well who benefits
             from war in the age of Empire. But we must also ask ourselves
             honestly who benefits from peace in the age of Empire? (Roy, 2004)

     For the Philippines, as part of the US Empire, the legal genealogy of this
     confounding of war and peace is bound up with colonial history. As stated at the
     outset, IPRA establishes native title on a doctrine from a US Supreme Court
     precedent, rather than on specific findings of customary law throughout the

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archipelago. The jurisdiction of US Justices was based on extending an aspect of
the US Constitution (courts of appeal) to the Philippines at a historic period
when this extension was itself extremely problematic. A novel territorialization,
known in legal terms as the doctrine of “unincorporated territories,” was critical
to the US colonial power.
       In several “Insular Cases” on the status of US-acquired territories after the
Spanish-American War, the US Supreme Court held the Constitution need not
“follow the flag” through a novel argument—former Spanish possessions, such
as Puerto Rico and the Philippines, had not been “incorporated” so as to fall
under an American government defined and limited by that Constitution. Through
this breach, America developed in the course of the 20th century something like
a dual constitution.
       The incorporation doctrine was first espoused in Downes v. Bidwell (the
case dealt with Puerto Rico, but the effects would propagate to the Philippines
and all newly acquired colonies). Its origin was the opinion by Justice Edward
Douglas White. The question he put was: “Had Porto Rico, at the time . . . , been
incorporated into and become an integral part of the United States?” White wrote
that “while in an international sense Porto Rico was not a foreign country, since it
was subject to the sovereignty of and was owned by the United States, it was
foreign to the United States in a domestic sense, because the island had not been
incorporated into the United States, but was merely appurtenant thereto as a
possession” [182 U.S. 244, 342]. The tortured construal, “foreign in a domestic
sense” created a strange territorialization, “unincorporated territory.”
       White credited this legal innovation to Abbot Lawrence Lowell’s “third view.”
Lowell too had found keeping the Constitution “irrational, because it extends the
restrictions of the Constitution to conditions where they cannot be applied
without rendering the government of our new dependencies well-nigh
impossible” (Lowell, 1899: 157). The “third view” took advantage of the unique
fact that the 1898 Treaty of Paris with Spain, unlike all previous cessions, did not
happen to make “any stipulation in regard to the relation in which the islands or
their inhabitants shall stand towards the United States.” Through this loophole
Lowell bounded with the non sequitur that the government “can acquire
possessions without making them a part of the United States” (Lowell, 1899:
172). White evidently took the suggestion to heart, and seemed to understand
that if territory can be acquired, as in war, but not “incorporated,” the plenary
powers of war, not Constitutional limits, would apply.
       Indeed, extended passages from White’s decision list all kinds of war
powers, showing that White’s logic was far more than racist exclusion from rights,
as usually observed, but a defense of plenary power.1 White’s innovation would
in time liberate international policy from Constitutional limits, or lead to what
legal scholars now call the “foreign affairs constitution” which allows a limited
government with enumerated powers at home to wield unrestricted forces abroad.



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      UNINCORPORATION AND THE IMPOSSIBILITIES OF POWER

           This plenary power perspective includes some notable features. First, it is
     uncanny that it reads as a virtual prophecy for America’s trooping and tearing
     through the 20th century. The passages lifted from White’s opinion were, in its
     time, a Supreme Court version of the kind of blueprint contemplated in the
     recent “Project for a New American Century.”
           Second, it uses a rather Derridean logic of the supplement to destroy
     Locke’s distinction of rule of law vs. rule of necessity. White argues the army
     must have the war power to act by any means necessary, but this rule of necessity
     never returns to the Constitutional fold with peacetime. Instead, the army is a
     “creature” of Congress, so a fortiori Congress must be even less restricted; the
     wartime supplement supplants the civil power so that it now “comes in to
     regulate” by the military rule of necessity, no longer distinguishing a separate
     rule of law.
           The breakdown of rule of law through the military supplement of civil
     power results in a third extraordinary effect: the impossible treaty. Foreshadowed
     here is the impossibility that haunts the Philippines as America’s colonial
     progeny—the seeming abrogation of the Constitution in upholding both
     recognition of indigenous rights and representation of the national interest. White
     paradoxically grants his opponents that the plain language of the treaty’s cession,
     understood in the normal sense, would indeed extend Constitutional rule over
     new area (the Constitution following the flag), but claims this makes a treaty
     impossibly powerful. At the same time, to be forced by a treaty into acquiring
     property without the freedom to be exempted from extending Constitutional
     requirements makes treaty power impossibly weak.

             Let me come, however, to a consideration of the express powers
             which are conferred by the Constitution, to show how unwarranted
             is the principle of immediate incorporation . . . It seems to me
             impossible to conceive that the treaty-making power by a mere
             cession can incorporate an alien people into the United States
             without the express or implied approval of Congress. . . . If the
             treaty-making power can absolutely, without the consent of
             Congress, incorporate territory, and if that power may not insert
             conditions against incorporation, it must follow that the
             treaty-making power is endowed by the Constitution with the most
             unlimited right, susceptible of destroying every other provision of the
             Constitution; that is, it may wreck our institutions. If the
             proposition be true, then millions of inhabitants of alien territory,
             if acquired by treaty, can, without the desire or consent of the people
             of the United States speaking through Congress, be immediately
             and irrevocably incorporated into the United States, and the whole

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       structure of the government be overthrown. While thus
       aggrandizing the treaty-making power on the one hand, the
       construction at the same time minimizes it on the other, in that it
       strips that authority of any right to acquire territory upon any
       condition which would guard the people of the United States from
       the evil of immediate incorporation. The treaty-making power, then,
       under this contention, instead of having the symmetrical
       functions which belong to it from its very nature, becomes
       distorted-vested with the right to destroy upon the one hand, and
       deprived of all power to protect the government on the other [182
       U.S. 244, 313 emphasis added].

This extraordinary piece of reasoning, that treaty-power can overthrow the
government simply because of some “evil” consequence of ratification, derives
from White’s attitude that incorporation would limit plenary power, so it must be
deferred as long as possible. Just as rule of law does not return with peace if civil
power is only military necessities administered by other means, a treaty that
would force plenary power to obey consistency with the Constitution must be “
impossible” if sovereign freedom is to thrive through a constantly deferred
return to a Constitutional home.
      The impossibility argument is logically equivalent to the Philippine state’s
assertion that granting title under IPRA would unbearably limit a national power.
As the rhetoric about subjecting everyone to the Constitution showed, the
Philippine state guarded its sovereign right to dispose of resources in the
interests of the whole people rather than only respect (belatedly) the resource
rights of an oppressed minority of them. The impossibility of IPRA being
incorporated into the fundamental charter setting limits on the state stems from
IPRAs roots in the injunction to “do justice to the natives” pronounced by a
conqueror’s court. Following White’s theory, the justice of native title is rendered
under war powers over foreign soil (“foreign . . . in a domestic sense”), even if
these are indistinguishable from civil powers exercised above and beyond the
Constitution (because legislating for an area that is “unincorporated”).
      The impossibility of reconciling a national charter and new rights, or
limited government and geopolitical ambitions, would produce a double reality,
uncannily foreshadowing the surface and subsurface split of ancestral domains.
America’s de facto double constitution was also foreshadowed in Justice John
Marshall Harlan’s dissent:

       Monarchical and despotic governments, unrestrained by written
       constitutions, may do with newly acquired territories what this
       government may not do consistently with our fundamental law.
       To say otherwise is to concede that Congress may, by action taken
       outside of the Constitution, engraft upon our republican
       institutions a colonial system such as exists under monarchical

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             governments. . . . The idea prevails with some-indeed, it found
             expression in arguments at the bar-that we have in this country
             substantially or practically two national governments; one to be
             maintained under the Constitution, with all its restrictions; the other
             to be maintained by Congress outside and independently of that
             instrument, by exercising such powers as other nations of the earth
             are accustomed to exercise.


                         LAW DEFERRED OR PEACE DENIED

           Put another way, the early imperialist and later superpower arrogation of a
     “foreign affairs constitution” unbound by the fundamental charter is rooted in
     the deferral of incorporation that would end the law of wartime necessity and
     return the country to a government of limited powers. In short, White’s novel “
     unincorporated territory” masks the startling proposal that the Constitution
     is the contamination. Fear of racist contamination during the rise of US
     imperialism was part of a much larger antipathy against lack of potency,
     coterminous with fear of suffering any imagined loss of plenary power. In the
     U.S. Supreme Court proceedings, these losses were mirrored in the Attorney
     General’s constant pleading about a hobbled government or a “crippled nation”
     denied colonial prerogatives. Thus, the White supremacy at issue was less
     keeping the franchise from brown folk than reserving powers over and above the
     Constitutional limits, thereby surpassing any Constitutional crippling of empire.
     By the doctrine of unincorporated territory, White gave government, as Chief
     Justice Fuller said in dissent,

             the power to keep it, like a disembodied shade, in an intermediate
             state of ambiguous existence for an indefinite period; and, more
             than that, that after it has been called from that limbo, commerce
             with it is absolutely subject to the will of Congress, irrespective of
             constitutional provisions . . . [182 U.S. 244, 373].

            By 1936, the strain of republic at home, empire abroad formally split the
     Constitution in two, a limited government of enumerated powers for an internal
     domestic community, and a theoretically unlimited sovereign acting under a
     “foreign affairs constitution” or “geopolitical constitution.” Its origin in the
     incorporation doctrine was obscured since the theory did not become settled
     law until, after a number of decisions by White himself citing Downes vs Bidwell
     as if it were solid precedent, the head of the Philippine Commission, William
     Howard Taft, became President—and elevated White, whose doctrine had so
     advanced the American empire, to Chief Justice. Upon White’s demise, Taft in
     turn took over his place as Chief Justice, promptly enshrining the doctrine in
     Balzac v Porto Rico in 1922 (Soltero, 2001).

70   Rural Development in Lao PDR:
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     Jurisprudence regards the real beginning of the two constitutions as the
1936 Sutherland decision in Curtiss vs. Wright. As Sarah Cleveland has shown:

      Sutherland abandoned the traditional concept of a limited national
      government derived from enumerated and reserved powers and
      replaced it with a bifurcated vision of internal and external
      powers, in which traditional enumerated-powers analysis applied
      only to U.S. domestic relations. According to this vision, the
      Constitution, both as a source of governmental authority and as a
      constraint on its exercise, stopped at the water’s edge. “Ordinary
      constitutional constraints” Sutherland surmised, should be
      reluctant to interfere with the exercise of the government’s
      sovereign external powers (Cleveland, 2002).

      Sutherland’s thinking, in fact, dates back to the 1898 debates on
(un)incorporating new territories including the Philippines. Sutherland was a
Senator from Utah before being a Justice, and he first advanced the dual
constitution theory in 1909. (see S. Doc. No. 61–417, reprinted as George
Sutherland, 1910, “The Internal and External Powers of the National
Government,” 191 N. Am. Rev. 373) He was influenced by Republican Senator
Platt of Connecticut, who inverted the enumerated powers doctrine, and
declared on the Senate floor that the US:

      Possesses every sovereign power not reserved in its constitution to
      the State or to the people: that the right to acquire territory was
      not reserved and is, therefore, an inherent sovereign right: that it is
      a right upon which there is no limitation and with regard to which
      there is no qualification: that in certain instances the right may be
      inferred from specific clauses in the Constitution but that it exists
      independent of the clauses: that in the right to acquire territory is
      found the right to govern it: that as the right to acquire is a
      sovereign and inherent right, the right to rule is a sovereign right
      not limited in the Constitution (quoted in Cleveland, 2002: 212).

Platt’s idea of sovereign right became in Sutherland’s eyes the outlandish
assertion of derived powers from the British crown. Thus in Curtiss vs. Wright

      Sutherland’s opinion suggested in dictum that the federal
      government’s external sovereignty derived wholly from the British
      Crown and that the Constitution only prescribed the federal
      government’s domestic powers. The federal government exercised
      a monopoly on foreign relations power unregulated by the
      Constitution. In a stunning non sequitur, Sutherland concluded
      from this that the President was

                                                        Rural Development in Lao PDR:      71
                                             Managing Projects for Sustainable Livehoods
                “the sole organ of the federal government in the field of
                international relations—a power which does not require as a basis
                for its exercise an act of Congress, but which, of course, like every
                other governmental power, must be exercised in subordination to
                the applicable provisions of the Constitution” (Paul, 1998: 689–90).

           According to Joel Paul, the Sutherland concept of the “sole organ” and the
     resulting “two constitutions” contributed to the increasing force of a discourse of
     executive expediency. This did not arise, as one might assume, through proxy
     wars and “imperial Presidency,” but was in fact deployed to secure executive
     agreements under Truman, who made GATT (an economic matter normally
     subject to Congressional approval) a defining case of theory that the President
     was the “sole organ” of international relations, thus muddling distinctions
     between military security connected with exigencies, and the hitherto
     democratic deliberations on regulating trade and commerce. The fact that later
     GATT and NAFTA have been handled not as Article II treaties but executive
     agreements normalizes this view (Paul, 1998).
           Thus we come full circle back to Roy’s assertion that corporate savagery
     muddles peace and war. To it we must add that neoliberal self-regulation
     (discipline your community or its property reverts to the state) is a hybrid act of
     continuing violence against ICCs—a perpetuity of war in the uncertainty of rights.
     This final paradox of Philippine postcolonial legal hybridities in IPRA answers a
     question Foucault asked the audience at College de France in 1976. “If we look
     beneath peace, order, wealth, and authority, beneath the calm order of
     subordinations, beneath the State and State apparatuses, beneath the laws, and
     so on, will we hear and discover a sort of primitive and permanent war?
     When, how, and why did someone come up with the idea that it is a sort of
     uninterrupted battle that shapes peace, and that the civil order-its basis, its
     essence, its essential mechanisms, is basically an order of battle?” (Foucault, 2003:
     47). In the legal heart of victory for native title, the battle of the long shadows of
     colonialism has never ceased to be waged.


                                               NOTES
     1
         Here are the passages, formatted to emphasize the geopolitical ambitions therein.
     1. Discovery
            Citizens of the United States discover an unknown island, peopled with an
     uncivilized race, yet rich in soil, and valuable to the United States for commercial and
     strategic reasons. Clearly, by the law of nations, the right to ratify such acquisition and
     thus to acquire the territory would pertain to the government of the United States. Can it
     be denied that such right could not be practically exercised if the result would be to
     endow the inhabitants with citizenship of the United States and to subject them, not only


72   Rural Development in Lao PDR:
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to local, but also to an equal proportion of national taxes, even although the consequence
would be to entail ruin on the discovered territory, and to inflict grave detriment on the
United States, to arise both from the dislocation of its fiscal system and the immediate
bestowal of citizenship on those absolutely unfit to receive it?
2. Conquest
       A just war is declared, and in its prosecution the territory of the enemy is invaded
and occupied. Would not the war, even if waged successfully, be fraught with danger if the
effect of occupation was [182 U.S. 244, 308] to necessarily incorporate an alien and
hostile people into the United States?
3. Military Occupation
       Suppose at the termination of a war the hostile government had been overthrown,
and the entire territory or a portion thereof was occupied by the United States, and there
was no government to treat with or none willing to cede by treaty, and thus it became
necessary for the United States to hold the conquered country for an indefinite period, or
at least until such time as Congress deemed that it should be either released or retained
because it was apt for incorporation into the United States. If holding was to have the
effect which is now claimed for it, would not the exercise of judgment respecting the
retention be so fraught with danger to the American people that it could not be safely
exercised?
4. Forcing Indemnity
       Suppose the United States, in consequence of outrages perpetrated upon its
citizens, was obliged to move its armies or send its fleets to obtain redress, and it came to
pass that an expensive war resulted and culminated in the occupation of a portion of the
territory of the enemy, and that the retention of such territory-an event illustrated by
examples in history-could alone enable the United States to recover the pecuniary loss it
had suffered. And suppose, further, that to do so would require occupation for an
indefinite period, dependent upon whether or not payment was made of the required
indemnity. It being true that incorporation must necessarily follow the retention of the
territory, it would result that the United States must abandon all hope of recouping itself
for the loss suffered by the unjust war, and hence the whole burden would be entailed
upon the people of the United States.
5. Military = Civil Authority
       But, it is argued, all the instances previously referred to may be conceded, for they
but illustrate the rule inter arma sitent leges . . . A case has been supposed in which it was
impossible to make a treaty because of the unwillingness or disappearance of the hostile
government, and therefore the occupation necessarily continued, although actual war
had ceased. The fallacy lies in admitting the right to exercise the power, if only it is exerted
by the military arm of the government, but denying it wherever the civil power comes in
to regulate and make the conditions more in accord with the spirit of our free institutions.
Why it can be thought, although under the Constitution the military arm of the
government is in effect the creature of Congress, that such arm may exercise a power
without violating the Constitution, and yet Congress-the creator-may not regulate, I fail to
comprehend.
6. Inherent Right to Colonize
      This further argument, however, is advanced. Granting that Congress may regulate


                                                               Rural Development in Lao PDR:       73
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     without incorporating, where the military arm has taken possession of foreign territory, .
     . . there is here involved no regulation, but an actual cession to the United States of
     territory by treaty. The general rule of the law of nations, by which the acquiring [182 U.S.
     244, 311] government fixes the status of acquired territory, it is urged, does not apply to
     the government of the United States, because it is incompatible with the Constitution that
     that government should hold territory under a cession and administer it as a dependency
     without its becoming incorporated. This claim, I have previously said, rests on the
     erroneous assumption that the United States under the Constitution is stripped of those
     powers which are absolutely inherent in and essential to national existence.
     7. Military Bases and Supplies
           Suppose the necessity of acquiring a naval station or a coaling station on an island
     inhabited with people utterly unfit for American citizenship and totally incapable of
     bearing their proportionate burden of the national expense. Could such island, under the
     rule which is now insisted upon, be taken?
     8. Construction Rights
            Suppose, again, the acquisition of territory for an interoceanic canal, where an
     inhabited strip of land on either side is essential to the United States for the preservation
     of the work. Can it be denied that, if the requirements of the Constitution as to taxation
     are to immediately control, it might be impossible by treaty to accomplish the desired
     result?
                                        Source: White concurring opinion, 1901 (182 US 244, 308–311).



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Cuasay, Peter. 1998. Borders on the Fantastic: Mimesis, Violence, and Landscape at the
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Duhaylungsod, L. 2001. Rethinking Sustainable Development-Indigenous Peoples and
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Foucault, Michel. 1997. Ethics, Truth and Subjectivity: The Essential Works of Foucault
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Foucault, Michel. 2003 [1997] 21 January 1976, “Society Must be Defended”: Lectures at the
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    the Roots Of Conflict. Bijdragen tot de Taal—Land en Volkenkunde 157(3): 661–676.
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76   Rural Development in Lao PDR:
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       2
PART TWO:
               ENTITLEMENT-
               FROM TERRITORY
               TO IDENTITY




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78   Rural Development in Lao PDR:
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                                       4
     THAILAND’S LAND TITLING PROGRAM:
       SECURING LAND FOR THE POOR?1
           Rebeca Leonard and Kingkorn Narintarakul Na Ayutthaya


      The World Bank’s Land Titling Program in Thailand was one of the
largest land titling programs implemented throughout the world. The Bank has
praised itself for what it sees as the success of the program in several of its own
reports, 2 and this has ser ed as model for Bank programs in other
                                v
countries in the region (Indonesia, Lao PDR, and the Philippines) and around
the world. We will examine the scope of this success, with emphasis on the
impact of this program for poverty alleviation in Northern Thailand. After
describing the context of land and the rural poverty in this part of Thailand, the
chapter will provide an outline of the Bank’s land policy objectives and identify
the main elements and achievements of the Land Titling Program (LTP). We will
then explore the impact of the program on the poor based on the real
experiences of groups of farmers in Lamphun province. The results challenge
the broadly positive conclusions reported in the final evaluation of the 3rd phase
of the LTP. As an example of the impact on local communities, the case of the
District of Baan Hong allows a comparison between the expected benefits of land
market stimulation, increasing land prices, and access to institutional credit and
the actual consequences experienced by farmers in the area.


ACCESS TO LAND FOR THE POOREST RURAL COMMUNITIES

       Access to land is fundamental to the livelihoods of poor communities in
rural areas. Land continues to serve as a means of providing subsistence needs as
well as income generation. Holding land enables family labour to be put to
productive use, and provides a safety net for family members who work in
temporary or insecure employment elsewhere. This was particularly evident in
Thailand during the economic collapse in 1997, when the sudden threefold rise
in urban unemployment was mitigated by the absorption of labour in the rural
areas.



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           Agriculture remains an important sector of the Thai economy employing
     around 54 percent of the workforce (out of a total workforce of 33.4 million
     people).3 The poorest sectors of Thai society are those households in rural areas
     without land or with very meagre land assets (with limited areas and poor
     quality soils). Thailand’s Office of Agricultural Economics estimated in 1995
     that the income of the population working in agriculture is about 15 times lower
     than the income of the population outside the agricultural sector. It was also
     found that the national average household income in 1999 was 12,729 Baht (or
     US$318) per month whereas the average income for farming households was
     no higher than 1,000 Baht (or US$24) per month (Office of Agricultural
     Economics, 1999). Land also continues to provide important social functions
     such as identification with family roots, cultural and community identity.
           The Land Institute Foundation, an independent Thai research organisation,
     has estimated that over 30 percent of the 5.5 million households in the
     agricultural sector have insufficient land to derive a livelihood (in the Northern
     Region, this is considered to be less than 10 râi or about 1.6 hectares).4 (see Table
     4.1: Distribution of land holding in Thailand.)

     Table 4.1. Distribution of Landholding in Thailand.

                                       Farming Households
        Region        Without         Less than    0.8–1.6      Over 1.6        Total
                       land            0.8 ha     hectares      hectares
     North             181,125         290,695     275,248        866,602     1,613,670
     Northeast         107,556         116,910     202,089      1,821,566     2,255,124
     Central           168,992          74,694      79,295        780,537     1,073,518
     South              27,146          83,497      91,428        439,436       641,507
     Total             454,819         565,799     658,060      3,908,141     5,586,819

     Source: Agricultural Land Reform Office, 1999, from “Final Report of the Project
             to Study Land Holdings and Utilisation. Economic Mechanisms and
             Laws for Optimally Efficient Land Use,” Land Institute Foundation, 2000.

           The numbers of people without land has increased through recent decades,
     not only because of population increase, but also a range of other factors. These
     include the somewhat artificial classification of 50 percent of the country as
     national state forest in the 1960s, including areas that were already used for
     agriculture prior to classification.
           Large areas of agricultural land have also been taken or kept out of
     production. This was particularly evident during the high economic growth
     years of the late 80s and early 90s, when investors began to acquire land on
     a massive scale and speculated on rising land prices. The Land Institute
     Foundation estimated that the annual economic cost of underutilised land
     (including urban areas) to the country is approximately 127.4 million Baht or
80   Rural Development in Lao PDR:
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                          ,
around 3 billion US$ (LIF 2000). Much of this land was used as collateral to
borrow huge sums that were never repaid.
       Figures from the Bank of Thailand reveal that the total value of non-
performing loans (NPLs) could be as high as 2.92 trillion Baht (approximately
68 billion US$) over the period 1997–2000. The majority of NPLs were in the
                       ,
real estate sector (LIF 2000: 6–31). As a reaction to the unfolding economic
crisis in 1997, the Thai government was compelled to bail out the creditors
holding bad debt (especially that owed in foreign currency) under the conditions
of emergency International Monetary Fund (IMF) loans. Thus, the costs of
imprudent private lending were transferred to taxpayers throughout the country.


                THE WORLD BANK’S LAND MARKETS

       The World Bank’s discussions of land policy invariably begin with the
importance of access to land as a primary means of alleviating poverty. The
Bank’s analysis of how to promote the access of the poor to land is more
controversial. Following its economic approach in other sectors, the Bank’s
interest in land titling stems from its objective of empowering individuals to
trade land within a free market. A freely operating market is predicted to
facilitate the optimum allocation of land by encouraging land transfers to those
who can use it most productively. At least in some cases, according to this
theory, a market should promote the land retention or transfer to small-scale
farmers, as research has shown that they are able to make more productive use of
the land than large scale farming operations. Compared to family-run small farm
operations, larger farm holdings operating with wage labour are recognized to
incur substantial “efficiency losses,” including the costs of wages and welfare for
labour, management/supervision costs, and the greater likelihood that hired labour
will lack motivation (Quan, 2000).
       A second justification put forward by the Bank is that the establishment of
land markets should stimulate the supply of cheap formal credit to both rural
and urban sectors. The latter is considered essential for agricultural and
economy-wide growth, which is expected to lead ultimately to sustained poverty
reduction. Again according to theory, land that is easily saleable should be
attractive as collateral, as the assessed value should be higher than land held
under restrictions or conditions, and lenders should also be able recover funds
more cheaply in the event of non-payment. Following this logic, the Bank seeks
to promote policies allowing land to be sold as easily as possible, as this would
encourage the most efficient lending rates. Full individual ownership of land, as
evidenced by a title deed, is the best way to ensure that land is easily saleable.
       Although the Bank says that the importance of such markets “has long
been realised by researchers and policy makers alike,” (World Bank, n.d.: 62)
there is a growing opposition to the Bank’s land commodification policies from

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     local community organisations, civil society representatives, and other critics of
     the World Bank who do not share the Bank’s confidence, and are questioning
     their arguments for promoting land markets (Rosset, 2001:5). Local
     communities face a number of risks where free markets in land are promoted
     through national policy interventions. Of course, local markets in land often
     arise spontaneously, whether or not encouraged by, or even registered in law.
     Such transactions of land need not be harmful to local interests or prejudicial to
     poorer sections of society. However, it is important to realise where the risks of
     land loss by the poor lie, particularly during the initial stages of opening
     markets, in order to reduce them. The risks to local communities during the
     process of stimulating land markets include:

            1. The playing field is far from level. Established actors in the market
     have greater access to information about financial opportunities, are more liquid
     (have more cash available for investment), and are more powerful than others.
     This is particularly the case when there is high economic inequality on a regional
     or sectoral basis. The purchasing power of investors in the main cities, for
     example, far exceeds that of smallholder farmers in the rural areas. This
     imbalance can provide a lucrative opportunity for metropolitan traders, pushing
     the price of land high out of reach for the landless, the poor, and future
     generations of smallholder farmers. The interests of investors and farmers in
     holding land tend to differ substantially, and their acquisition of land purely as
     an investment can severely disrupt local development patterns, as we will see
     was the case in North Thailand. Indeed, many countries, including Thailand,
     pose restrictions on foreign ownership of land, precisely to prevent local resources
     from being controlled by buyers from more affluent countries who can out-bid
     local entrepreneurs. A parallel could be drawn to argue for appropriate
     restrictions to be placed on the acquisition of land on a local basis within the
     country.

            2. The collective outcome of market transactions is not necessarily socially
     desirable, contrary to Adam Smith’s basic precept, and government controls in
     the public interest can be justified. Joseph Stiglitz, former Chief Economist and
     Senior Vice President of the World Bank, who left the institution in 2000,
     illustrates the dangers of relinquishing government control over capital markets.

             The IMF contended that the kinds of restraints that Thailand had
             imposed to prevent a crisis interfered with the efficient market
             allocation of resources. If the market says, build office buildings,
             commercial construction must be the highest return activity. If the
             market says, as it effectively did after liberalisation, build empty
             office buildings, then so be it; again according to IMF logic, the
             market must know best. While Thailand was desperate for more
             public investment to strengthen its infrastructure and relatively

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       weak secondary and university education systems, billions were
       squandered on commercial real estate. These buildings remain
       empty today, testimony to the risks posed by excessive market
       exuberance and the pervasive market failures that can arise in the
       presence of inadequate government regulation of financial
       institutions (Stiglitz, 2000: 101).

      The highest return activity for rural land is not necessarily the most
productive, nor the most environmentally sustainable. Legal measures, such as
progressive land taxation and land zoning, to discourage the hoarding of land, to
promote smallholder retention of land and other ways of adjusting market
incentives towards overall economic and social policy goals have been argued for
years by peasant organisations in Thailand. Existing taxes on agricultural land
are extremely low in Thailand, amounting to less than a quarter of one percent of
land value. These have a negligible effect on land values (Feder et al, 1988).
Proposals for reform put forward by academics and People’s Organisations are
currently being considered by the Thai government.

      3. The commoditization of land into easily transferable capital within a
national market in itself has an impact, not only on the local economy, but on the
cultural and social relations surrounding land. As pointed out above, in many
rural societies, local values of land include not only use values (such as the
subsistence value and income-generating potential of land), but a range of other
values, according to different contexts. These may emphasize the heritage value
of land (as a link with family ascendants or descendants), the importance of
maintaining land within a community group, local ecological knowledge, and in
some areas, human obligations in an ongoing relationship with spirits associated
with the place. These values cannot easily be associated with an equivalent
economic value despite genuine efforts by environmental economists, and
therefore risk being destroyed under a centralised market. If this kind of
cultural transformation is intended, it is inappropriate to undertake this without
engaging in a widespread consultation or public debate, let alone to hurry the
process along driven by the narrow agenda of international institutions or donor
agencies.


         THE WORLD BANK’S LAND TITLING PROGRAM
                     IN THAILAND

       The Land Titling Program originated in the early 1980s in discussions
between the government and the agricultural sector of the World Bank on a
structural adjustment loan. The original aims of the program were “to
accelerate the issuance of title deeds to eligible land holders,” “to improve the
effectiveness of land administration, both in Bangkok and in the provinces,” “to

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                                            Managing Projects for Sustainable Livehoods
     produce base maps and cadastral maps in both urban and rural areas on one
     homogeneous mapping system, showing all land parcels,” and “to improve the
     efficiency of the Central Valuation Authority.” The program was divided into
     four phases, but in phase three, authorised by the government on 22 September
     1994, the objectives were adjusted to “provide secure land tenure to eligible land
     owners,” “develop long term sustainability of the Department of Lands’
     institutional capacity,” “improve land administration service delivery,” and
     “develop an effective national property valuation function.” Phase four of the
     program is yet to begin implementation (see Box 4.1: Areas covered by the Land
     Titling Project).

                  Box 4.1: Areas covered by the Land Titling Program

      Phase 1: Northeastern region (southern 33 percent of the area) + Upper Northern
               region (western 50 percent)
      Phase 2: Lower Northern + Central region (16 provinces, high value rural land) +
               Northeastern region (6 provinces) + Eastern Seaboard region
      Phase 3: Northeastern region (remaining 10 provinces), Northern region (remaining
               7 provinces), Central region (2 provinces)
      Phase 4: Southern region. Yet to begin implementation. The World Bank has
               suspended loans for Phase 4 as the government will use own revenue for
               future implementation of the program.



             Overall, US$183.1 million was loaned by the World Bank to cover the
     three initial phases of the project. To date, 8.7 million land titles have been
     issued. This is a substantial number, despite being less than the number of titles
     targeted by the program. However, as we will see, this figure can be misleading
     and cannot be taken as evidence that 8.7 million farmers have benefited.
     Notably, the program did not set targets for the number of beneficiaries. In terms
     of regional coverage, each region has been covered by the program largely
     according to schedule. Delays were reported as a result of the difficulties of
     tracing absentee landlords, as well as the imprecision of boundaries of national
     forest reserve areas.
             Essentially, the program aimed at the acceleration of the land titling
     process. Thailand’s Land Code of 1954 used to require individuals to present at
     the very least an occupancy certificate (Bai Yeub Yam) in order to acquire a land
     title deed. The land titling program amended the Land Code to remove this
     requirement and quicken the official process for the Department of Lands (DoL)
     to approve land title deeds. “The DoL was hard pressed to meet the demand for
     land records in the form of land use certificates, title deeds, and property maps.
     . . . [At] the rate in which title deeds had been produced since DoL was established
     in 1901, and with current resources, the DoL would take 200 years to complete
     the registration of rights in land throughout Thailand. Even with a proposal to

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expedite the surveying and mapping in support of land registration, the time
estimate was still 85 years” (Rattanabirabongse, et al, 1996).
     Since the titling process was not simply a matter of clarifying land rights,
but a platform for the establishment of a land market, it was regarded as
important that a uniform register providing complete coverage be established.

       The purpose of a land registry is to provide an authoritative record
       of the status of land ownership. It is therefore essential that this
       institution be complete and define unambiguously the status of
       individual parcels. The ensuing desire to establish a unified
       framework that covers both rural and urban areas has been a main
       reason for most of the Bank’s land administration projects to adopt
       programmatic approaches that would accomplish the overall
       objective in phases (World Bank, n.d.: 11).

       Given this perceived urgency to achieve complete coverage, changes were
made to the national code in order to make the titling process easier. Thus, the
Land Code was modified to allow the NS3K (Nor Sor Saam Kor) utilization
certificates to be upgraded to full title deed NS4 (Nor Sor Sii) on request, without
a field survey (s 58 tri). The Land Code also allows full land title to be issued
when there were no documents of occupancy or land claim reservation
certificates (ss 58 bis, 27 tri and 59 bis). Those applying should have been in
possession of the land since before the Code came into force, however minimal
proof needs to be offered to the local DoL official to support such a claim. Thirty
days prior and subsequent notice should be given at the house of the village
head, as well as at various relevant Land Offices. Another change to the law
involved the replacement of the Provincial Governor as the authorising officer on
title deeds with the Provincial land officer or his branch office head. According
to an internal review of the program, this change in the law was a “bold step
perhaps, but necessary to complete the project in 20 years” (Rattanabirabongse,
n.d.: 1). However, by allowing for faster processing of land titling applications,
the authorities provided an ideal opportunity for investors and state officials to
abuse the system, particularly during the high economic growth period.


                         IMPORTANT OMISSIONS

      The Land Titling Program (LTP), while aimed at increasing land tenure
security for existing landholders, did not attempt to address two critical issues of
importance to low income farming groups in Thailand. The first was forest
tenure. The Thai LTP dealt exclusively with “non-forest lands” because all lands
denominated as forest are considered state property, whether or not communi-
ties have been living and farming in those areas for several generations. The state

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     was ostensibly reluctant to offer secure rights for fear of legalizing forest
     destruction. Consequently, some of the poorest farming groups in the country,
     including Thai farmers and ethnic minority groups who occupy forests,
     especially in the highland areas, have been left in a precarious legal position.5
     They continue to be threatened with eviction, forced restriction of their
     agricultural practices, and official harassment. This aggravates the tendency for
     politicians to cast ethnic minorities as scapegoats for all manner of national
     problems. LTP did not seize the chance to “regularize” the land rights of this
     large group of people, many of whom have occupied their village lands for
     hundreds of years.
            A second important omission was that no provision was made in the
     planning or preparation of the project for the recognition or registration of rights
     to village commons or common property resources. The LTP was aimed at the
     registration of existing land rights in order to give them validity under the
     national legal framework. However, the only option open was the registration of
     individual rights. Hence in theory, local tenure systems that recognise common
     rights to community resources could continue to exist extra-legally as before.
     Yet legalisation of individual rights alone creates a danger that common rights
     will lose their legitimacy, leading to the break-up of community-based resource
     management systems. It was foreseeable that some, if not all common lands
     would risk being misappropriated under individual land claims. Without
     protection for community rights, both powerful insiders and outsiders to the
     community could participate in privatizing common property with little legal
     objection. As the case studies from Lamphun province illustrate, many false
     claims of individual ownership over commonly held land were made with
     minimal notice to local communities and with little bureaucratic difficulty.


                  IMPACTS OF THE LAND TITLING PROGRAM

           The World Bank evaluations of their program summarize the positive im-
     pacts with a number of statistics. They cite a substantial increase (127%) in the
     price of land, vastly increased access (132%) to institutional credit, increased use
     (117%) of bought farm inputs, increased yields in newly titled areas, and an
     increase in the areas used for farming, when compared with areas that had not
     yet been titled under LTP. High fiscal benefits for the Department of Lands were
     also considered significant.
           The experiences of farmers in Baan Hong district, Lamphun province, in
     Northern Thailand provide a different perspective. In this district, seven villages
     and adjoining farmland were established at the boundaries of an area of 15,000
     râi (2,400 hectares) of common land. Access to these community lands had
     been governed under local tenure arrangements until the introduction in the
     1960s of a Land Allocation Program.
           This 1960s allocation attempted to distribute certificates to parcels of land

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on the basis of a grid map. It gave no consideration to any existing use of this
area, the suitability of each parcel for agriculture, or the proximity of the parcels
to the beneficiary’s other lands. Because plots were only identified by numbers
on a map, few families were absolutely sure where they were allowed to farm.
Sometimes, villagers were allocated a piece of land that was not suitable for
farming, so they moved elsewhere. In practice, available land was put to use by
the farmers, but often not in accordance with the papers that were issued to
them. Confusing results ensued, and with the competing official claims to land
and the impracticality of access, few farmers could actually use the land officially
allocated to them even though they retained the bai jong (certificate).
       In an attempt to resolve the disputes in the 1970s, the DoL fixed another
map that confused the matter even further. Recognising the procedural mistakes
made earlier, therefore, the government revoked all certificates issued during the
allocation program in a single administrative stroke in the mid-1980s, with the
intention of re-registering the land rights at a later stage. Thus in the 1980s, few
formal claims were recognised over this land, and there was a need to clarify
land rights in this area. The LTP, however, did not give the local farmers the
opportunity to secure title to these lands, as the farmers were not involved when
the project officers came round to issue title.


   MISAPPROPRIATION OF LAND IN BAAN HONG DISTRICT

      As the economy grew in the late 1980s and early 1990s, financiers began
looking for secure long-term investments for their accumulating capital and found
that buying up rural land areas was an ideal investment. Such land could be
acquired cheaply, issued with title, and given the economic climate of the times,
had every likelihood of rising swiftly in value. In Lamphun province, titles for
extensive areas of land were issued during the height of the economic growth
period in 1990-1993 without the knowledge of local communities. The residents
became aware of the alienation of their community lands when fences started
appearing in the fields.
      The entire 15,000 râi in Baan Hong District described above, previously
held in common by local communities and supposedly to be allocated to local
people, is now titled under the names of non-resident companies and wealthy
individuals from outside the community. Local farmers have vigorously
challenged the legality of the title deeds. Villagers state there was no notice of
intention to survey the area and issue title, nor was there any announcement
over the village loudspeaker. Indeed research into the title deeds has revealed
that many were issued on the basis of incomplete survey information, sometimes
under false names, or from non-existent or long-dead sellers. In at least one case,
the space for the name and address of the seller was simply left blank.
      Thus, villagers in Baan Hong were prohibited from using their community

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     Map 4.1. Baan Hong District, Lamphun Province, Thailand

     land, around which fences were constructed in or around 1990. Seeing such
     fences and boundary markers appearing in the lands they had traditionally claimed
     for village use, people from Sritia village rose up in protest at the illegal transfer
     of this land to outsiders. A youth leader involved in the protests was shot and
     killed by unknown gunmen. Continued protest by farmers eventually led to the
     establishment of a joint government and community representative investigation
     committee in 1997, to look into the acquisition of land in state land areas around
     the country.6
            Despite findings that land transfers of the sort described above were illegal,
     official action has yet to be taken to revoke the deeds. The majority of plots in
     the Baan Hong area were left abandoned by the official titleholders, possibly kept
     fallow to allow for quick sales when the time and price was right, or perhaps
     simply because using the land was a low priority for the titleholders. By 1997,
     the entire area had been mortgaged. During the Asian crisis and Thai financial
     meltdown, the loans became unpayable (“non-performing”). Local communi-
     ties, themselves facing hardships during the economic depression, continued to
     be excluded from the land.


              LAND REFORM BY COMMUNITY ORGANIZATIONS

          Perhaps understandably, villagers have not been very impressed by the
     various processes intended to secure their land rights over the past decades.

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A substantial amount of research on the part of non-governmental groups and
lawyers was needed even to identify the current official owners of specific plots
of land. Many deeds have passed through several hands in the early 1990s,
increasing in value upon every transfer. In some cases, it seems that the transfers
have been deliberately obscured, with properties returning to their original
owners after seven or eight transactions (though finally registered in the name of
a company rather than the original individual).
      Frustrated by the lack of action taken by local officials to recover the land,
local people began to organise themselves and take the matter into their own
hands. In 1997, villagers in Wiang Nong Long and Baan Hong Districts took the
decision to occupy lands that had been left abandoned for several years.
Neighbouring communities, similarly desperate for land for subsistence, followed
suit. Cases of land occupation increased throughout the province and elsewhere.
Today, a total of 3,798 families have joined the land occupation movement and
put over 14,305 râi (about 2,150 hectares) of abandoned land to agricultural use
in 23 areas of Lamphun, Chiang Mai, and Chiang Rai provinces (see Table 4.2:
Participation in land occupation, Lamphun province).

Table 4.2. Participation in Land Occupation, Lamphun Province, Thailand

       No     Year   Village, District               Area (rai)      Families
        1     1975   Wiang-Laopongseu,                     800           136
                     Wiangnonglong
        2     1997   Paetai, Wiangnonglong                  600            99
        3     1997   Taluk, Wiangnonglong                   700           160
        4     1997   Tachang-nonglong,                      100            50
                     Wiangnonglong
       5      1997   Nongkhiad, Baan Hong                1,700             81
       6      1998   Sritia, Baan Hong                   3,000            560
       7      2000   Takoamuang, Baan Hong               1,000            111
       8      2000   Nongsoon, Baan Hong                 1,300            215
       9      2000   Laikeaw, Baan Hong                    120             58
       10     2000   Raidong, Baan Hong                    426            282
       11     2002   Dongkiled, Pasang                   1,000            160
       12     2002   Sanpahak, Pasang                       55             64
       13     2002   Pongroo, Pasang                       303            150
       14     2002   Nakornchedi, Pasang                   204            143
       15     2002   Sanhangseu, Pasang                    330            275
       16     2002   Raikoaka, Pasang                      170             98
       17     2002   Prabat, Pasang                        300            247
                     Total                              12,108          2,889

         Source: Northern Farmers Alliance, Secretariat Group, 2002.


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           Until 2002, local authorities had, by and large, tolerated the land
     occupations in areas throughout Lamphun province. They had taken no action
     against the farmers, who had by now established fruit orchards, prepared and
     cultivated the fields, and set up huts and shelters and access tracks amongst the
     fields. However, in January 2002, police authorities began issuing arrest
     warrants for farmers on charges of encroachment onto titled land.
           On 23 April 2002, a resolution by the Council of Ministers effectively gave
     the police the green light to begin arresting farmers’ leaders. These arrests often
     deployed hundreds of officers just to place one or two people in a village into
     custody. Many of the arrested farmers were initially denied bail and underwent
     prolonged imprisonment prior to being brought before a court. Due to the way
     police had filed the charges, sums for bail at first exceeded several million Baht
     for each farmer. After court appeals, bail was set at more reasonable sums which
     were then secured by the personal guarantees of sympathetic senators and
     others. An agreement was finally reached between the farmers’ groups and the
     state to desist from imprisoning any more farmers. Seventy-four farmers and
     one NGO worker are presently awaiting trial.

     Case Study 1: Repossession of public land, Sritia village, Baan Hong district
           In Sritia village, in 1998, villagers together decided to mobilize as a
     community to recover 3,000 râi (480 hectares) of neighboring land that had
     been transferred to companies but had been abandoned for years. The vast
     majority, 560 of the 580 families, in the village took part in this activity. A
     committee was formed to manage the process.
           Areas were delineated in order to be reallocated as either community forest
     (800 râi or 128 hectares in total) or farmland for individual families (giving 2.5
     râi to each). All of these individual plots have been planted with longan and
     other fruit trees—reasonably long term investments in spite of the lack of official
     tenure security. Transfers or sales of these territories to relatives in the village or
     other community members have already taken place.
           The involvement of the community in the land allocation, through a
     representative committee, seeks to emphasise transparency and fairness in the
     allocation of land. Villagers involved must actively support the community’s
     campaigns to establish their rights. All members of the community hold their
     land on condition that they put their land to use. They are prohibited from
     selling to outsiders.

     Case study 2: Sustaining land tenure, Raidong, Baan Hong
           Villagers in three villages of Baan Hong District, including Raidong, took
     action to occupy 426 râi of illegally-transferred land in their district in
     November 2000. Around 280 families joined the occupation within the first
     month and together worked to clear the land for planting. Each family was
     allocated 1.25 râi (0.2 ha) of land (though an extra 0.04 ha was allowed for
     committee members in recognition of their work on behalf of the group).

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       The villagers have agreed upon regulations for the management of this
land, and these have been amended and developed over the past three years.
Exchange of land was not allowed at first, but following some informal swapping
of plots, the group decided that they had to make some provision to regulate
transfers for those who wanted to sell, or alternatively resign from the movement
(e.g., due to illness, etc.). Thus, the rules were changed to allow villagers to
return the plot to the committee in exchange for a nominal sum of money. Over
the last two to three years, around 10 plots have been returned for redistribution.
Currently, purchases of this land must be paid for at a standard price, which has
been set deliberately low by the committee in order to not exclude the poor from
the local community. Criteria for identifying who is entitled to purchase have
also been established.
       As there is no provision under the Thai Land Code for common property,
the villagers decided to create their own community tenure regime. Contributions
were made by each family to pay for a survey map identifying the boundaries of
the entire area and the dimensions of each individual plot. The villagers then
produced a “community title” covering the entire area in the name of the land
reform by communities movement, and issued individual certificates to each
member, each indicating the location of the individual plots, the neighbouring
plot holders, the rights of the titleholder, and attested by four signatories.
Villagers explain that the main motivation behind their “community title” is to
ensure long term access. As community title is not officially recognised, it
cannot yet be used as collateral. The community therefore decided to set up
their own “land bank” or savings fund to facilitate small loans.
       An important motivation to join the movement was severe indebtedness.
Debt has been exacerbated by vulnerability to the declining prices and increasing
costs of their main product: longan fruits. Many of the participants in the
movement have thus sought to use their new fields for subsistence as well,
applying low input sustainable agriculture systems. In just 0.2 ha, one farmer
has planted 24 longan trees, two lemon trees, one mango tree, one sapodilla tree,
two custard apple trees, nine cha-om bushes, two bamboos, chillies and beans
for sale, rice, peanuts, aubergines, pumpkins, cucumbers, and corn.


             LAND CONCENTRATION UNDER THE LTP

       The cases in the North of Thailand highlighted above show both the
resistance of community groups to lands being transferred outside their
communities, and the keenly felt imperative, among indebted and impoverished
farmers, to put abandoned land to use. In both case studies, the official titles
illegally alienated land from the local tillers. The revocation of such titles
illegally issued in Lamphun province, and elsewhere around the country, would
allow the restoration of lands to their rightful owners, relieve the tensions

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     between farmers and the government, and would go a long way towards
     remedying significant problems brought about during the implementation of the
     World Bank’s Land Titling Program.
            Corrupt practices allowing illegal title transfer create ways for villagers to
     lose their land, but there are others. The LTP was meant to set in place a
     framework for a “free market in land” to begin functioning optimally. In this
     market framework, land is purposely decoupled from local histories, social norms
     and responsibilities, and other non-economic factors. While such decoupling or
     abstraction makes it possible for individuals throughout the country to acquire
     land at an open market price, it also makes irrelevant the concerns of local
     communities and the fate of their common property. From the market point of
     view arising from this policy, the cost to the community and the larger social
     costs are balanced by the “benefit” that, in theory, price competition should
     ensure an incentive to make the most profitable use of the land. But as seen in
     the cases in Lamphun province, the most profitable use is not necessary the most
     productive. Market conditions, irrespective of the actual disposition and use of
     the land, can enable high profits to be made by simply biding time and
     speculating on rising prices. Without a single crop being produced, building
     built, or business managed on the premises, profits accrue outside the
     communities, but neither productivity nor poverty alleviation result for local
     farmers.
            Furthermore, in practice, greater access to information and extra
     bargaining power of the wealthier and more politically influential people favours
     the accumulation and concentration of land by large landholders. While the
     Land Code appears to favour “small” holdings by setting a basic land holding
     limit at 50 râi (eight hectares) per title deed (exceptions are allowed at the
     Provincial Governor’s discretion), there is no legal restriction on the number of
     title deeds any one landowner can hold. Initial studies into the accumulation of
     land in Lamphun province show that in Nong Pla Sawai subdistrict, described
     above, seven companies or individuals acquired a total of 4,786 râi (765
     hectares).
            Investigating the existing data on land concentration is a very time-
     consuming task in Thailand, made even more difficult when officials prohibit
     public access to information, as the community land reform movement
     discovered in Lamphun province. A detailed study by the Land Institute
     Foundation in one district in a northeastern province of the country managed to
     obtain data on the 69 largest landholders in the district, who together owned
     31,290 râi (about 5,000 hectares) in total. (see Table 4.3: Concentration of land
     in Dankuntot district.) It can be seen from the table that most landowners in the
     top twenty did in fact hold less than the nominal limit of 50 râi per deed.
     However, they were in possession of dozens or hundreds of deeds allowing their
     overall landholding to substantially exceed the “limit.” Indeed, the full extent of
     large holdings has not yet been revealed due to incomplete access to records.

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The DoL was not required to keep data on land concentration, despite the
importance of such information as an indicator of how many households
ultimately benefit from its titling program.

Table 4.3. Concentration of Land in Dankunbot District, Nakhon Ratchasima
           Province, North Eastern Thailand

                                         No of deeds           Average size
        Ranking of          Râi         held by single        of landholding
        landowner                           owner                 per deed
             1            2,786.78            83                  33.57
             2            2,055.16           159                  12.93
             3            1,931.08            45                  42.91
             4            1,884.73            86                  21.92
             5            1,116.80            63                  17.73
             6            1,107.26            60                  18.45
             7              877.55            42                  20.89
             8              823.03           105                   7.84
             9              767.51           257                   2.99
            10              697.71            45                  15.50
            11              644.95            35                  18.43
            12              530.90            52                  10.21
            13              520.86             1                 520.86
            14              499.64            22                  22.71
            15              481.23            67                   7.18
            16              401.82             4                 100.46
            17              400.00             8                  50.00
            18              394.95            35                  11.28
            19              381.67            17                  22.45
            20              374.74            20                  18.73

                     Source: Land Institute Foundation, 2000.

       The World Bank recognises that land markets often exist autonomously,
without a national land register and without the need for formal title. This is
evidenced in Sritia, Raidong, and other villages taking part in Thailand’s
community land reform movement. Land has traded even without formal land
deeds, relying on community authorisation, trust, and social network
responsibilities. Transactions involving tenure certification other than title may
be considered economically less efficient than transfers based on formal title and
open market values. However, such non-title transfers traditionally have been
more successful than a free market mechanism at maintaining land in the hands
of a large group of smallholders within the local community.

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                                     PRICE ESCALATION

            One important benefit of the LTP claimed by the government is the rise in
     land prices conferred by issuing formal land titles. Providing title allegedly
     confers “a considerable implicit wealth transfer” which should benefit existing
     landholders, including poor farmers, once a land market is set up and properly
     functioning (World Bank, n.d.: 3). In the evaluation of the third phase of the
     land titling program, it was found that “legal title is the main factor in
     explaining differences in land prices . . . titled land was between 75 percent and
     197 percent more valuable than land without any documents” (Rattanabirabongse,
     n.d.: 11). Yet it is difficult to see in practice how increased land prices have
     benefited the rural poor.
            For the landless, including new generations of farmers, higher prices
     increase the barriers to access land. The acquisition of land itself becomes a
     major long-term debt for new landowners, diverting a substantial proportion of
     future income into mortgage repayments. Where prices rise sharply out of line
     with local incomes, the exclusion of poor purchasers is inevitable.
            The commodification of land operates as a fundamental obstacle to poverty
     alleviation. The process of transforming it into a freely tradable asset encourages
     the purchase of land by wealthier groups. As stated above, the very existence of
     title can vastly increase the value of land. This creates a significant incentive for
     wealthy entrepreneurs to buy up untitled land, pay their registration dues, and
     make a quick profit. At the height of the boom, in the early 1990s, people were
     buying and selling within a day, making 100% profits. The titling process itself
     generates speculative interest in the purchase and sale of land.
            In Thailand, only 12 percent of agricultural land was held under title deeds
     prior to 1982 (Brits et al, 2002). Going from minimal coverage to total coverage
     in a relatively short period opens up a lucrative opportunity for those with the
     resources and information to exploit the titling system. Stiglitz states that
     Thailand provides a case in point that speculative real estate lending is a major
     source of economic instability.

             Before liberalization, Thailand had severe limitations on the
             extent to which banks could lend for speculative real estate. It had
             imposed these limits because it was a poor country that wanted to
             grow, and it believed that investing the country’s scarce capital in
             manufacturing would both create jobs and enhance growth. . . .
             The pattern is familiar: as real estate prices rise, banks feel they can
             lend more on the basis of the collateral; as investors see prices
             going up, they want to get in on the game before it’s too late—and
             the bankers give them the money to do it. Real estate developers
             see quick profits by putting up new buildings, until excess
             capacity results. The developers can’t rent their space, they default
             on their loans, and the bubble bursts (Stiglitz, 2002: 101).

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       It is rarely the poor who benefit from such property speculation and rising
land prices. The experience of land commodification in North Thailand shows
precisely such outcomes. Land is taken away from local people and becomes
concentrated in the hands of a limited number of wealthy landowners.
       Where the poor do actually acquire title under such a registration program,
it is possible for them to benefit from the “implicit transfer of wealth” through
being legally entitled to sell their increased value land and dispose of the pro-
ceeds. However, where land is important to social identity, or is a major part of
the family heritage, or the main source of food and regular income, the ability to
sell land is not a generally perceived need. Assigning an open market value to
land is expected to give people an objective means of assessing the value of their
assets overall, and the World Bank’s theory predicts that this should allow people
to make rational decisions about the best way to trade their assets and maximise
their earning potential. But the rural poor are unlikely to sell their primary
means of livelihood unless under pressure to do so. Of all income groups, they
are perhaps most likely to be limited in alternative choices of lifestyle or
workplace.
       In the context of rising prices, once poor people sell their land, it grows
ever more difficult for them to buy it back (Deininger and Feder, 1999). Thus in
times of hardship, which can affect many members of the community at one
time, the poor are divested of their rights to land that would help them pay off
their debts, and have little choice but to rent land or find whatever wage labour
they can elsewhere.


     INSTITUTIONAL CREDIT, INSTITUTIONALIZED DEBT

      One of the main rationales for introduction of title is to stimulate credit.
The importance of this was particularly supported by the extensive studies
carried out by Feder et al (1989) in the mid 1980s. A mid-term evaluation of the
LTP found that access to institutional credit increased by 27 percent and
that interest rates were cheaper with the more formal lending sources
(Rattanabirabongse et al, n.d.: 11). Higher land valuation should theoretically
enable greater access to credit. Agricultural credit is promoted as an instrument
to stimulate the adoption of new technology to increase yields. This in turn
should contribute to raising farmers’ income through the sale of higher quality
and greater quantities of produce.
      However, the equation between the provision of credit and higher incomes
is complex. While it is true that access to credit can provide the leverage for
productive investment that might be impossible to achieve on an operating
budget of family resources alone, without the appropriate support or caution,
credit can often result in serious indebtedness of poorer farmers (see Box 4.2).



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                                            Managing Projects for Sustainable Livehoods
      Box 4.2: Being in debt is a natural thing, you can get out of it when you die.*
           A farmer in Sritia village in Lamphun province described how he took out a loan
      of 5,000 Baht (about US$200) 10 years ago to start raising pigs. Due to high family
      expenses, however, he was unable to pay back the original loan from his own
      resources. A combination of taking out short term loans from various local dealers
      at high interest rates, and the fluctuating income from longan fruit farming, led to the
      rapid escalation of his debt over 10 years.
           Four to five years ago, this farmer thought of selling his land (valued at 170,000
      Baht or US$4,250) in order to pay back the debt. However, the officers from Thailand’s
      Bank for Agriculture and Cooperatives (BAAC) advised him not to sell and encouraged
      him to take out further loans to develop the land instead. The BAAC officers promoted
      hormones to stimulate the growth of the longan fruits, potassium chlorate for fertiliser,
      vaccines for his livestock, and the purchasing of an electric water pump. The BAAC
      also offered further unsolicited loans a couple of years later.
           These farm inputs were very expensive while the market price for his primary
      crop kept declining. The farmer’s debt has now reached 150,000 Baht (about US$3,750)
      and there is little likelihood of his ever earning enough profit from his investments to
      repay this amount. He says he is now hoping for a win in the lottery.
      *Response from a local official with Thailand’s Bank for Agriculture and Cooperatives (BAAC)
      when asked whether he thought there was a chance that farmers could get out of debt.
      (See Bamford 2000)

            Long-term indebtedness is a major problem for smallholder farmers
     throughout the country. Rather than promoting productivity, accumulated debt
     can pose a serious constraint. Macro-economic statistics show a decline in the
     average net income from agriculture in Thailand from even before the economic
     crisis of 1997. Average net income from agriculture per household decreased by
     six percent between 1992 and 1997. However, over the period 1991 to1999, the
     average debt increased at a rate of 40 to 60 percent a year. The Office of
     Agricultural Economics expressed a warning that if this trend continues, the
     agricultural sector will face insolvency like businesses in other sectors (Bamford,
     2000).
            Research by the Northern Peasants’ Federation (NPF), a farmers organization
     in North Thailand, carried out in 50 villages in five provinces of the upper north
     of Thailand, including Lamphun, has demonstrated that each farming
     household on average owed as much as 70,000 Baht (US$1,600) to various banks
     and village money lenders. Approximately 90 percent of the households in the
     surveyed villages were in debt (NPF, 2001). Sums are often borrowed for
     investments that do not generate the expected return for a variety of reasons.
     Where income is diverted into loan repayments, less disposable income is
     available in the following season. Particularly among low-income groups, an
     increase in borrowing is then required to make ends meet in the subsequent
     farming season. In this situation, subsequent loans are commonly not used
     entirely for productive investments, but to pay for household goods, fulfil family
     obligations, or other important long-term expenses such as the children’s
     education.

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       The operational policies of the government’s Bank for Agriculture and
Cooperatives (BAAC) do not appear supportive of villagers trying to maximize
their chances of repaying loans. The case of one villager in Raidong who was
seriously in debt to the BAAC appears typical. He became unable to repay his
loan in the first couple of years, due to the collapse in longan prices. He was told
that he should borrow money from informal moneylenders to make the
repayments to the bank. At first, he borrowed from a friend to pay off his bank
loan, but had to borrow more to pay off his friend, then the crops failed so no one
in the village had any spare money to lend any more. Borrowing from high
interest moneylenders became the only option. As all BAAC debtors must pay
into a “District Welfare Association” (or “funeral fund”), the Bank is guaranteed
to recover its loans in the case of death, which reduces the incentives of its
officers to make sure the loans are issued for productive investments.
       While these problems are not directly attributable to the LTP, the program
is based on the premise that titling is an important priority to facilitate increased
access to financial resources, which will ultimately benefit the poor. This premise
appears flawed on the existing evidence, as it is based on two assumptions: (1)
title documentation is necessary for increased credit access, and (2) a direct
relationship exists between increased access to credit and increased agricultural
profit margins of the poor. But there is no shortage of credit supply in poor
communities in Thailand. Borrowing from agricultural cooperatives and the Bank
for Agriculture and Cooperatives is possible on the strength of a certificate of use
(NS3K), pre-emptive claims certificates (NS1), other land use licences, or with
personal or group guarantees. Informal lending is also widely available. Credit
is now being offered in rural areas through a variety of government schemes,
including a program to loan one million Baht to every village in the country.
       Macroeconomic data from Thailand point to increasing indebtedness, rather
than a net increase in disposable income amongst lower income groups. A
research report by Thailand’s Bank for Agriculture and Cooperatives (2000)
recorded total debt of the agricultural sector (comprising 5.6 million families or
28 million people) amounted to about 411 billion Baht (US$ 9 billion). While
the initial loans may be obtained from formal lending institutions, if the debt
cannot be paid back on time, further loans are then obtained from informal
moneylenders with higher interest rates. Following the economic crisis, the
proportion of informal sector debt rose to 17 percent of the total debt. In a
context of increasing input costs, declining product prices, and adverse climate
conditions, the cycle of borrowing has become virtually impossible for many
farmers to escape. Rather than focusing on mechanisms to “unlock” further
supplies of credit, farmers often need support in reducing their existing debt.
       In other words, it is simply not possible for promoters of the LTP to claim
that the program makes a contribution to the alleviation of poverty, merely on
the basis of increasing access to credit. In fact, very little evidence has been put
forward by the DoL or by World Bank documents to support the existence of a

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     beneficial correlation between access to credit and profits from agriculture among
     the poorest groups of land users.


                                        CONCLUSIONS

            Land is not simply an economic commodity with physical dimensions that
     can be plotted on a grid, registered on a computer, and traded in exchange for
     other economic assets whenever it seems to make the most economic sense.
     Little attempt was made in the planning stages of the LTP to understand,
     incorporate, or adapt to rural land tenure systems, particularly in areas with
     strong local contexts and customs. To consider land in its social context requires
     an understanding of local community livelihoods, of cultural adaptations for a
     wide range of land uses, including not only individual farmlands, but also village
     commons and community forests, and of collective meanings and values not
     easily assimilated into the market pricing and volatility of abstract commodities.
            While nothing is inherently wrong with clarifying land rights or issuing
     legal documents to existing land users,7 the implementation of the World Bank
     LTP in Thailand went beyond clarification and formalization. As a result of the
     program, land has been transferred from smallholders in local communities to
     largeholders from the cities, and rights have been transformed from commonly
     held informal rights to individually held formal rights, and in some cases, from
     complex layers of rights over one piece of agricultural land to a simple layer of
     ownership rights [see Prill-Brett, this volume, for paradoxical results of title
     reform in the Philippines]. Researchers of local land tenure systems around the
     world have documented the effectiveness of numerous other types of tenure
     regimes within local contexts (e.g., Toulmin and Quan, 2000). While individu-
     ally-held title deeds may be appropriate for landholders whose place most
     importance on the transferability of their assets, it is not necessarily the best
     option for farming and rural community groups who place relatively high
     importance on maintaining their landholdings for future generations.
            Ensuring the security of access to land particularly for the poor was the
     starting point of the Bank’s intervention in land policy in Thailand. An internal
     evaluation of the program from the Bank’s own Evaluation Department (1999)
     confirmed, however, that tenure security in Thailand was “relatively high to
     begin with.”8 Those who held the most precarious land rights, including the
     very poorest groups in the state forest areas, were left out of consideration. No
     assessment was made of traditional rural tenure regimes, even outside the state
     forest areas. In order to promote an efficient market, the Bank held that only a
     private title deed could suffice.
            Thus, most of the emphasis of the program has been placed on improving
     the administrative mechanisms for bestowing formal rights and enabling their
     efficient transfer. The experience in Lamphun suggests that success in this
     aspect of the program has benefited urban-based affluent groups. While

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investors can gain benefits from the rapid sales of land, farmers rarely seek to
trade land for capital gains. While sophisticated new mapping techniques and
computerization may enhance efficiency in future transfers, they are not a first
priority for farming communities, which aim to hold land for a medium to long
term.9
       The impact of the program upon “poverty alleviation” has not been a direct
avenue of inquiry for the Bank’s various evaluation teams. Little attention,
therefore, seems to have been paid to the farmers’ interests in formalising land
rights, such as sustaining these rights in the hands of local farmers. The program
was consequently insensitive to the risks they faced of losing land rights against
their will. In fact, the Bank itself seems to be in some doubt about how the
effectiveness of such a program could really be measured. One Bank concept
paper acknowledges that “despite the significant resources being invested by the
donor community for modernizing land administration infrastructure, there is
little systematic discussion of the key elements of such a system, and of what
constitutes effectiveness within particular socio-economic, cultural and
temporal contexts” (Brits et al, 2002:1). As a result, no data has been kept at the
DoL to enable an evaluation team to monitor the number of beneficiaries of the
titling process.
       “Alleviating poverty” needs to begin with an analysis of the problems facing
the poor. In rural areas of Thailand, this includes the lack of extension and
research into low-input sustainable farming practices, the continuous decline in
product prices to levels below the cost of production, and the increasing trend
towards alienation of land from the poor. Even if the clarification of land rights
is a priority in areas where uncertainty exists, the mechanisms adopted by the
program were insufficiently safeguarded, leading to loss of security for local
landholders, as cases in Lamphun province have demonstrated.
       The Land Titling Program has had a perverse impact on Thailand’s economy
as a whole. The transfer of wealth through the provision of title was a significant
factor in stoking land speculation and increasing land concentration in the
economic growth years until 1997. The program made it possible for generally
urban-based and already wealthy financiers to acquire land as a tradable
commodity. The rapid increases in the value of land, held up by the Bank as
evidence of the benefits conferred by the LTP, have benefited a new band of
entrepreneurs seeking quick profits rather than sustained and productive land
use. This had a serious impact on the national economy as the inflated values of
land were used to borrow money for unproductive investments, eventually
causing massive defaults on private debts contributing to the economic crisis in
1997.
       Monitoring and evaluation of impacts on the poor are essential in the
process of poverty alleviation. But in the foregoing cases from the North of
Thailand, the very people who were supposed to benefit from the World Bank
program have become worse off. That this case has often been touted as an

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      example of best practice, and as evidence of the virtues of rapidly establishing
      land markets, seems to reflect an ideological commitment impervious to the
      realities experienced by target beneficiaries. If the World Bank still dreams of
      “a world free of poverty,” the value of participatory approaches supporting the
      poorest sections of society in gaining and maintaining access to land needs to
      become a practical, not merely rhetorical, priority. Such an approach would
      understand land not simply as a tradable commodity with economic value, but
      as an important livelihood asset of the rural poor, endowed with social, cultural,
      and environmental value.


                                                NOTES
      1
        This research was supported by Land Research Action Network, a network of academics
      and activists working on land reform issues around the world. An earlier version of this
      study was published in Watershed Vol. 8 No. 2, November 2002—February 2003.
      2
          The program was awarded a World Bank Award for Excellence in 1997.
      3
          http://www.cia.gov/cia/publications/factbook/geos/th.html
      4
          6.25 râi = 1 hectare (ha)
      5
        An estimated 10 million people are living and farming in the national forest reserve areas
      as well as in many protected forest areas. A Draft Community Forestry Bill giving legal
      recognition to the role of these forest-dependent communities and their sustainable
      management of forests has been a issue of debate in Parliament since the early 1990s.
      6
        The Rally for Rights (by the Assembly of the Poor, a broad coalition of farmers and village
      groups from all over Thailand) in front of Government House in Bangkok in 1997
      highlighted 121 cases of state officials issuing illegal titles all over the country. A
      Committee of the Assembly of the Poor, a coalition of local communities’ groups all over
      Thailand, has investigated these cases and submitted the evidence to the government.
      7
        There is little research into whether women have been prejudiced by the process of
      formalisation of land rights in Thailand. The Civil and Commercial Code requires each
      spouse to consent in the sale of property. The Department of Lands registration processes
      have respected this position requiring spousal consent to a transfer of rights regardless of
      who is registered on the title. Even so, the title is usually registered in the name of the
      male head of household, contrary to the matrilineal property ownership traditions
      prevailing in many parts of Thailand. Further research should be encouraged to assess
      the effect of title registration on the status, roles and rights of women.
      8
        The full quote reads: “The findings of a 1980 sector strategy review might suggest that
      land administration was not a priority area for Bank intervention. First, land tenure in
      Thailand was relatively secure, based on a homesteading tradition that allows any citizen
      to claim up to four hectares to provide for his family. Second, landholdings were
      relatively equal, with many small and few large landholders, and no apparent trend
      toward increasing property concentration. Third, as a result of these factors, the country
      did not have a large landless population. And fourth, farmers’ access to credit was

100   Rural Development in Lao PDR:
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relatively good and getting better. Thus, based on the sector review, there was little scope
or justification for the Bank to give priority to land administration.”
9
 The property boom has resulted in a major rise in government revenue from registration
(in 2001 the Department of Lands received average revenue of approx 90 US$ per
transaction). Burns, a consultant to the LTP program, stated that a key indicator of the
program’s success was that better land records systems and new technology such as the
internet has contributed to increased land market activity. He cites an article in the Far
Eastern Economic Review (2001) which observed that “Buyers are demanding better quality,
and can do their research more thoroughly, thanks to on-line registration records and
home-buying guides on the web. Buyers who used to spend 6 months driving around to
make inquiries can now find the information on-line within hours. And they bargain
hard, their purchasing power enhanced by low interest rates and cut-throat competition
among banks to give them housing loans.” If such indicators are indeed key, it seems the
program’s focus on empowering the rural poor was lost somewhere after the initial plan-
ning stages.



                                    REFERENCES
Bamford, C C. 2000. “Micro Credit Equals Micro Debt” in The Transfer of Wealth: Debt
    and the Making of a Global South. FOCUS, Bangkok. http://www.focusweb.org/
    publications /books/transfer.pdf.
Brits, A-M, C. Grant, and T. Burns, 2002. Comparative Study of Land Administration
    Systems With Special Reference to Thailand, Indonesia and Karnataka (India). Draft
    Report for Regional Workshops on Land Policy Issues, Asia Program.
CAER—Centre for Applied Economics Research. 2002. Land Titling Project: Phase III,
    Socio-economic and Environmental Impact Studies, the Final Study: The Comprehensive
    Final Evaluation. Final Report submitted to Department of Lands, Ministry of Interior,
    Bangkok, Thailand.
Constitution of the Kingdom of Thailand, 1997. Prepared by the Legal Section, Office of
    National Water Resources Committee, Secretariat of the Prime Minister.
Deininger, K and G. Feder, 1999. Land Policy in Developing Countries. Rural Development
    Note No. 3 World Bank, Washington, DC.
Department of Lands, Ministry of Interior. 2001. The Land Code. Bangkok: Department of
    Lands
Far Eastern Economic Review. 2001. 8 March 2001.
Feder, G, T. Onchan, Y. Chalamwong and C. Hongladarom. 1988. Land Policies and
    Productivity in Thailand. Baltimore: Johns Hopkins University Press.
Forsyth, T. J. 1994. The Use of Cesium 137 Measurements of Soil Erosion and Farmers’
    Perceptions to Indicate Land Degradation Amongst Shifting Cultivators in Northern
    Thailand. Mountain Research and Development 14: 229–244.
Land Institute Foundation.2000. Complete Report of the Project to Study Land Holdings,
    Land Utilisation, Economic Mechanisms and Laws for Optimally Efficient Land Use. Bangkok:
    National Research Office. (avail in Thai only).
NPF—Northern Peasants Federation. 2001. Voice of the Farmer.
Quan, J .2000. Land Tenure, Economic Growth and Poverty in Sub-saharan Africa in
    Evolving Land Rights, Policy and Tenure in Africa, ed. Toulmin, C and Quan, J. London:
    DFID.

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                                                       .,
      Rattanabirabongse, V., R.A., Eddington, A., F Burns, and K. G. Nettle. The Land Titling
          Project: Thirteen Years of Experience (1984–1996). Bangkok: Department of Lands.
      Rosset, P. 2001. Tides Shift on Agrarian Reform: New Movements Show the Way. Institute
          for Food and Development Policy Backgrounder vol. 7 No. 1 Winter 2001.
      Stiglitz, J. 2002. Globalization and its Discontents. London: Allen Lane Penguin Books.
      Toulmin, C and J Quan. Evolving Land Rights, Policy and Tenure in Africa. London: DFID.
      World Bank (no date) Lessons Learned and New Challenges for the Bank’s Development Agenda.
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      World Bank Operations Evaluation Department. 1999. Land Administration &
          Rural Development: Two Cases from Thailand. Precis no. 184. http://www. worldbank.org




102   Rural Development in Lao PDR:
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                                        5
                THE COMMONS AT WAR
             FUZZY PROPERTY RIGHTS AND
              ETHNICIZED ENTITLEMENTS
                    IN SRI LANKA1
                                   Benedikt Korf


                               INTRODUCTION

       Most research on the nexus of resources and violent conflict has focused on
resource competition and environmental degradation as a source of social
conflict and war (e.g. Baechler et al., 1996; Hauge and Ellingsen, 1998; Homer-
Dixon, 1999). The common notion that resource scarcity would increase the
likelihood of conflict has recently been contested by some peace researchers who
argued that resource abundance rather than scarcity created the opportunities
and incentives for actors to start a rebellion in order to monopolise benefit streams
from resources (Collier and Hoeffler, 2002; De Soysa, 2002; Elwert, 1997;
Keen, 1997, 1998). This literature referred to economies of war and markets of
violence where conflict entrepreneurs would loot available resources. These studies
on warlordism have overshadowed more refined research on the institutional
mechanisms and the politics of resource access in times of warfare. Among the
few studies that have taken up the latter issue, Unruh (1998, 2001) investigated
property rights in the post-war transition process of Mozambique. Also, Alston
et al. (1999) studied property rights under conditions of political violence in the
Brazilian Amazon region—even though not a civil war as such. Suliman (1999),
in a case study from central Sudan, exemplified how resource scarcity and
diminishing access to natural resources was one of the major catalysts for social
conflict and violence.
       The lack of empirical evidence from the micro-level is understandable in
the light of security concerns and unresolved ethical questions of undertaking
social research in war-torn areas. However, there is an urgent need for micro-
level studies, because civil and guerrilla warfare, which is rising significantly in
scope and scale worldwide, mostly takes place in wider rural spaces, which are a



                                                         Rural Development in Lao PDR:      103
                                              Managing Projects for Sustainable Livehoods
      strategic retreat for fighters. These areas often are at the same time significant
      open access or common pool resources on which a large part of the population,
      especially the poor depends for their survival. In times of social unrest and
      political instability, the local commons and their access regimes, too, undergo
      constant alterations. Thus, resource dependent families who are not able to take
      refuge outside the disputed areas often face double hardship, suffering from the
      direct effects of warfare in the form of loss of assets and the constant threat to
      survival and facing an ambiguous institutional field governing access to their
      livelihood resources.
             This chapter investigates the impacts of political violence and the local
      politics of access and entitlements in common property regimes in times of
      ongoing civil warfare, taking Sri Lanka as an example. It analyzes five case
      studies of access to local commons in a comparative perspective. While all cases
      are geographically close to each other, they are ethnically, socially and
      economically differentiated. In fact, one can observe that the impacts of war on
      resource access regimes and livelihood outcomes differ significantly, although all
      five locations are situated in highly contested spaces of political turmoil,
      uncertainty, and sporadic fighting. Two basic propositions are investigated to
      explain this differentiation in livelihood achievements: first, property rights to
      commons resources become fuzzy due to the high level of political uncertainty,
      shifting actor constellations and power realms and the dynamism in access
      regimes. Second, because of the war and the breakdown of state and civic
      institutions, ethnicity becomes a mechanism for local farmers to access resources
      available largely through arbitrary power. Civilians thus become part of the
      “game.” In effect, this leads to “ethnicized entitlements,” since the ethnic groups
      are differently endowed with bargaining power to access resources. These
      depend upon their affiliation with militant actors and their respective power
      resources.
             More specifically, the case studies illustrate how the dynamics of the
      conflict situation in Sri Lanka have produced different types of local contests
      over resource entitlements, and how these processes epitomize the political
      economy of war. The case studies presented here point to two determinants of
      changing entitlements and access to resources in times of war and conflict. At the
      macro-level, the military and political actors issue security policies and
      subsequent access restrictions—formally by legal order, or informally by threat
      to assets and lives. On the micro-level, civilians themselves are a dynamic agent
      of institutional change. They make use of the void created by institutional
      failures and proactively seek to alter entitlements and resource access. Within
      civil society, horizontal intra-group linkages (based on social capital) and
      dissociation from the “ethnic other” can lead to internally strengthened, but highly
      segregated ethnic or religious communities that may be prone to political
      instrumentalization from radical groups within the community and to victimization
      from external communities’ powerholders. As we will illustrate, vertical political

104   Rural Development in Lao PDR:
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contacts and alliances (political capital) to a large extent determine a group’s
ability to instrumentalise ethnicity or religious affiliation. While war entrepre-
neurs utilize their oligopoly of power to extract rents from the local population,
local farmers themselves develop strategies to make use of this new, destabilized
institutional environment to re-stabilise and enhance resource entitlements in
terms of partisan ethnic identities and the sufferings of war (Korf 2003a; 2004a,
2004b).
       The chapter first discusses conceptual issues for better understanding the
politics of resource access and entitlements under conditions of civil warfare,
resorting to Bourdieu’s theory of practice. It then sketches the political and
institutional field which we find in the war-affected areas of Sri Lanka. Then, five
case studies on local struggles for access to commons resources are elaborated to
show the processes which lead to fuzzy property rights and ethnicized entitle-
ments. In conclusion, it is argued that “the local trumpets the national”—local
struggles for resource access are incorporated in broader struggles for ethnic
identity and territorial claims.


                ACCESS, ASSETS AND ENTITLEMENTS

       The notions of property rights and entitlements, as well as social and
political capital are crucial to understand the functioning of livelihoods and the
role institutions play in determining livelihood opportunities. Property rights are
viewed as social institutions, including formal legal codes and informal social
norms, which define and enforce the range of privileges granted to individuals
with respect to specific economic resources (Eggertsson, 1990). Even under the
conditions of civil war, people need not be helpless victims, but may dispose of
assets and opportunities (though limited), making use of them for survival. In
this, we are particularly concerned about the endowments and entitlements of
people depending on common-pool or open-access resources in times of civil
warfare.
       The environmental entitlements approach (Mearns 1995, Leach et al. 1999)
defines institutions as “regularised patterns of behaviour between individuals
and society” (Mearns, 1995: 103) and considers these as central agents of
mediation between the social and the environmental sphere. The approach is no
doubt very instrumental in understanding the social factors that determine
common property resources, since it focuses on dynamic institutions of
intra-community relations that are based on the heterogeneity of communities,
their local history and power politics. However, since we are particularly
concerned with the analysis of micro-level conflicts over common property in
times of institutional failure (such as during war), we shift the focus to the politics
of access (Ribot and Peluso, 2003). The original concept of entitlements
proposed by Sen (1981) and Leach et al. (1999) tends to remain in a rather

                                                          Rural Development in Lao PDR:      105
                                               Managing Projects for Sustainable Livehoods
      legalistic framework. Especially Sen was more concerned with issues of moral
      philosophy than power analysis (Fine, 1997; Gore, 1993). Ribot and Peluso (2003)
      have therefore argued that Sen’s and others’ rights-based theories do not take
      sufficient account of structural and relational mechanisms of gaining access to
      resources, i.e. they tend to neglect the politics of resource governance. The
      reference of environmental entitlements to having “legitimate effective command”
      (Leach, Mearns and Scoones 1999: 233) over environmental goods and services
      is difficult to apply to civil wars, as the evidence on who legitimately commands
      over resources is often highly contested and blurred by politicisation and, in our
      case, “ethnicization.” The entitlements approach can only partly explain the
      volatile social and political processes triggered by institutional failure in times of
      war. In times of open conflict, established institutions tend to be highly volatile
      and subject to continuing changes. They often turn inoperative, and “regularized
      patterns of behaviour” can be altered substantially within a short period of time.
      Likewise, environmental entitlements are subject to social and political upheaval.
             In order to understand these distorted dynamics in the light of warfare, we
      resort to Bourdieu’s resourceful social theory and his notions of “field,” “capital,”
      and “strategy” (Bourdieu 1985, 1992, 2000). According to Bourdieu, people’s
      social practices, that is choices and actions, are embedded in an objectively
      structured social space he calls “fields” (Bourdieu, 1985). Therefore, individuals
      belonging to a certain field—the Sri Lankan conflict can in that sense be called a
      sub-field of a larger political field (Bourdieu, 2000)—are acting within the
      boundaries of certain rules they unconsciously adhere to. In our example, if
      people cannot escape the sub-field of conflict and war by taking refuge outside
      the conflict environment, they are under compulsion to stick to the rules that
      dominate the field—the institutional peculiarities of the conflict that dominate
      social life at the micro-level, within villages and households. Otherwise they run
      the risk of being excluded from the field, which would mean imprisonment,
      abduction or, in the worst case, death. In order to sustain themselves and their
      families, most individuals would therefore automatically stick to the rules of
      social practice specific to their field. Within that, however, the social practice of
      individuals is determined by the disposition over resources, which in Bourdieu’s
      terminology are called “capital” (Bourdieu, 1985, 1992).
             In Bourdieu’s concept, a specific kind of capital—such as economic, social,
      political or symbolic capital—is best suited to gain or maintain power within
      the structure of particular social fields (Bourdieu, 1985). Bourdieu (1992)
      understands social capital as the potential and actual resources associated with
      networks and relations an individual can mobilise for his or her benefit, and our
      observations suggest these are of prime significance in the sub-field of conflict.
      Social capital is defined by Bourdieu as resources linked to a durable network of
      “more or less institutionalised relationships of mutual acquaintance or
      recognition” (Bourdieu, 1985, cited in Portes 1998: 3). Social capital enables an
      individual to make use of family, clan and neighbourhood support in a

106   Rural Development in Lao PDR:
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community, hence it involves the social entitlements of an individual on a
horizontal level. While Bourdieu did not expand on the definition of political
capital, it is often perceived as links between an individual or a group to power
structures (Baumann, 2000: 20), particularly the administrative, political,
and-in the context of violent conflict—military power holders. Political capital
therefore can be understood as vertical links to political power, involving the
capture of resources and political advantages through patronage networks. In
Bourdieu’s model, the distribution of capital between different actors may
induce a change of the field’s structural parameters and the micro-politics of
power that govern the use of social and political capital within community
boundaries and beyond. In other words, a field’s structure directly reflects the
distribution of capital among individual actors or institutions, i.e. the relations of
power (Bourdieu, 1993). Therefore, fields in general are also battlefields of power,
and power structures are constantly altered using different strategies. This
agonistic perspective makes Bourdieu’s model particularly applicable to the analysis
of dynamic and convoluted conflicts.
      The final term in the analytical framework addresses the context of the civil
war in Sri Lanka. While typically understood as “ethnic conflict,” it might be
more appropriate to call it an “ethnicized conflict” and stress the instrumental
nature of ethnicity and its link to ongoing violence. In contrast to primordial
conceptions that see ethnic identities and sentiments as overpowering, ineffable,
and “given,” the instrumentalist school of thought in anthropology conceptualizes
“ethnicity” as a highly malleable social, political, and cultural resource that can
be mobilized by various groups. These scholars emphasize that ethnic identity
overlaps with other kinds of social identity and that people can assume various
identities in different situations (Banton, 1983, 1994, Hechter, 1978, 2000;
Wimmer, 1997). Horowitz (1985) stresses the socially constructed nature of
ethnicity and the leverage individuals and groups have in developing their own
identity from a variety of cultural heritages. The analytical framework of this
chapter follows the instrumentalist school. “Ethnicity” will be treated as a social
and political construct used as a tool of power, and understood as a resource for
political mobilization. Ethnicity is often an effective anchor for imagined group
identity, based on beliefs in a common origin and “culture” defined by ties of
language, religion, or history. In fact, recent anthropological research in Sri Lanka
has emphasized the “hybrid identities” of its political and social elites and the
diversity of interests, cultural pattern and religious identities within the main
ethnic communities (Nissan and Stirrat, 1990). In the advance of the political
conflict between Singhalese and Tamils, each ethnic constituency tended to hide
the contradictions within its own community, emphasizing the dividing lines
between the ethnic groups (Thangarajah, 2003).




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                      CONTESTED TERRITORIAL CLAIMS AND
                      FUZZY PROPERTY RIGHTS IN SRI LANKA

            The ethnicized conflict in Sri Lanka is a multi-dimensional phenomenon,
      or a conflict cocktail. Social and political cleavages occur at various levels along
      many lines of dissent. The fundamental issue of the macro-conflict is the
      grievance between the Tamil minority and the Singhalese-Buddhist majority
      which has escalated into a war between the Liberation Tigers of Tamil Eelam
      (LTTE) and the largely Singhalese armed forces (Spencer, 1990). In addition to
      this major cleavage, there are other social, political and ethnic cleavages
      between (and within) the three major communal groups, Singhalese, Tamils and
      Muslims. Hence there are clashes between Muslim and Tamil communities in
      the East, recent troubles between Singhalese and Muslims in more peaceful zones
      of the country, and finally two Marxist youth insurrections in the South in 1971
      and the late 1980s in an escalated intra-Singhalese conflict (Mayer, 2002;
      Uyangoda, 2003). In the war-zone of east Sri Lanka, competing claims and
      disputes over land exist between the Tamils and the Singhalese, the Tamils and
      the Muslims, as well as the Singhalese and the Muslims. Rival claims to land
      made by different ethnic groups are rooted in the memories and perceptions
      forged out of the politics of ethnicity and colonisation in Sri Lanka. Many Tamils
      have perceived the expansion of Singhalese settlements in the northeast as an act
      of political and geographic “colonisation of traditional Tamil areas,” whereas the
      Singhalese see this as an expansion into areas they had abandoned in ancient
      times.
            In the Sri Lankan civil war, the state has kept a strong presence throughout
      the country with the exception of a few enclaves in the east and the Vanni areas
      in the north that are controlled by the Tamil rebels. The state continues to
      provide important sources of public entitlements for the war-affected population
      in the North and East. Basic welfare programmes (food stamps) mitigate some of
      the effects of the conflict, (O’Sullivan, 1997) as part of the President’s political
      strategy to win “the hearts and minds of the Tamil people.” However, on the
      local level, institutions are distorted by the influence of violence in society and
      the political economy of war (Goodhand and Lewer, 1999; Goodhand et al.,
      2000; Silva, 2003; Korf et al., 2001; Korf 2003a, 2004). As a result:

            • Uncertainty and risk increase dramatically, due to repeated escalations of
              violence and fighting, leading to highly uncertain expectations and
              a high
            • Social networks are reshuffled and eroded, especially inter-ethnic
              political and economic exchange networks. Social bonds are confined
              more to the closer network of family than to wider community linkages
              due to lack of trust.


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      • Hybrid governance structures the evolve in a political economy of
        violence. Formal state institutions and regulations co-exist with the rule
        of an underworld of violence governed by war entrepreneurs (rebels
        and army). In addition, in the uncleared, rebel-controlled areas, the LTTE
        has established its own state machinery with a court system that coexists
        with government machinery.

      In such times of uncertainty and distress, people may prefer concentrating
on short-term survival to worrying about the sustainable management of natural
resources. Opportunistic free-ride behaviour and moral hazards might become
more prominent, due partly to the short-term horizon, and partly to the decline
of social bonds. In the war zones of Sri Lanka, conflict entrepreneurs combine
both a rent-seeking war economy and ethnicised ideologies and grievances,
using the latter as an instrument to stabilise their realm of power. They play a
fundamental role in determining entitlements to resources. They often patronise
their own clientele or ethnic group and thus reinforce intra-ethnic identities and
inter-ethnic grievances. Population displacement seriously detracts from social
bonds and destroys the social capital of individuals. Indeed, the deterioration of
social safety nets can also be the result of a conscious war strategy.
      Local conflicts over resources often intensify during civil wars, mostly
because the resource stock becomes more scarce, in particular the resource stock
which is accessible and can be utilized. Property rights to land are an issue of
utmost complexity, since several layers of disputes, claims and grievances are
superimposed. The ideologized arguments that all conflict parties utilize to
justify claims to land and space mirror inter-communal disputes, both at
meso-level and micro-level. In the war-affected northeast of Sri Lanka, this has
resulted in (Korf, 2003b):
      • Fuzzy property rights involving absentee landlords, illegal encroachment
         of land, destruction of land titles, etc.
      • A gap between formal and effective property rights emerges, because
         entitlements to land are seriously altered due to displacement and land
         seizure (encroachment). The hybrid governance structures at local and
         regional level seriously undermine enforcement of the rule of law.
      • Violent actors restrict accessibility to certain areas that have been under
         cultivation or other use prior to the escalation of the war (e.g., security
         restrictions of the army, LTTE’s order on the use of jungle resources). In
         addition, people are reluctant to access areas that are remote and often
         subject to military confrontations.
      • Politicised administrative structures and blurred institutional responsibilities
         allow political actors to exercise pressure on administrators. This creates
         ethnic biases and a lack of accountability in administrative decisions.
      Influential bodies and actors in both parties have developed ideological
underpinnings for their claims to land and space in the northeast, based on

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      constructing the past and delineating historical claims for land. Scholars from
      both sides have attempted to justify the politics with numbers and maps. While
      Tamil scholars have enumerated the “change in population ratios” in the east, in
      particular Trincomalee and Amparai districts, (Tambiah, 1986; Balasundarampillai,
      2002; Manogaran, 1987) nationalist Singhalese scholars have often argued that
      their colonization schemes largely touched unoccupied land, and thus did not
      expel any Tamils (Peiris, 1991, 1994; Hennayake, 1985; de Silva, 1998). One
      could argue that even though Singhalese settlers were largely settled in only loosely
      populated areas, the change in population ratio (and thus electoral powers) were
      substantial and thus undermined the political claims of Tamils over their
      “homeland.” Exactly for this reason, many Tamils in the northeast perceived the
      Singhalese colonization schemes as a threat to their political aspirations and the
      security of their ethnic integrity. In fact, various studies from international
      scholars and consultants underline the Singhalese nationalist rhetoric about
      colonization schemes, which were even officially promoted in project booklets
      and by high-ranking officials (Bastian, 1995; Klingebiel, 1999; Mallick, 1998;
      Peebles, 1990). This rhetoric was part of what Moore described as “peasant
      ideology” in the Singhalese constituency (Moore 1989). Land colonization and
      allocation was a crucial ingredient of the populist democratic state in Sri Lanka
      (Dunham, 1983). The capture of colonization schemes by politicians and the
      resulting politicization of land issues is thus not confined to the areas subject to
      ethnicised disputes, but is a general feature of the political system in Sri Lanka.
            In addition to this dichotomous ideological battle between Tamil and
      Singhalese people, the Muslim community must not be forgotten as a major
      stakeholder in the east and some parts of the north. Mostly originating from
      settlers and traders that arrived at the coastal strips some 500 years back,
      Muslims in the east are largely involved in farming, fishing and trading (Fuglerod,
      2003; McGilvray, 2003; Thangarajah, 2003). Since they have the highest
      population growth rates and tend to live in congested areas, their demand for
      land and space has constantly increased in recent decades. Some Muslim
      politicians have demanded their own independent Muslim homeland or
      administrative entity without, however, the same ideological ferocity that
      Singhalese and Tamil political leaders have tended to use.


                         “ETHNICIZED ENTITLEMENTS”:
                      LOCAL POLITICS OF PROPERTY RIGHTS

            The inter-ethnic competition over land, water and resources has transformed
      into a struggle for identity, security and territorial claims in the highly contested
      theatre of war. Even at local level, small-scale resource disputes largely mirror
      these broader ideologies of contest and survival. Competing claims to land and
      water resources are therefore highly emotionalized and ethnicized, rendering it

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an effective ideological tool to create grievances. In this field of warfare and
political struggle for identity, local farmers have to survive making use of local
commons resources. How can they ensure effective entitlements to resources? In
their struggles to secure their livelihoods, survival economies of civilians and the
war economy of combatants become closely intertwined. The opportunities for
economic gain differ depending on ethnic affiliation, which determines the
relative political bargaining power in the local field of power. Hence, effective
entitlements are largely ethnicized entitlements, because the politics of access
follow the ethnicized logic of warfare.
       Five case studies on resource access are compared to illustrate the
processes and actors’ constellations, which determine the power field and hence,
the processes of entitlement mapping under civil war conditions. The case
studies are located in the Trincomalee district in the east of Sri Lanka. The
district has been subject to communal violence between the three dominant
ethnic groups, Singhalese, Muslims and Tamils. The Trincomalee district
provides a good example for the complexity of the Sri Lankan civil war, since it is
a cocktail of various intertwined conflicts. In addition to the war that shapes and
dominates everyday life (fighting, army road blocks, security restrictions), there
are resource conflicts mainly between Tamil and Muslim villagers, and between




Map 5.1. Trincomalee District, East of Sri Lanka

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      Tamil and Singhalese farmers. Land use for agricultural production has been
      severely affected by the conflict, because some people had to abandon their land
      or otherwise lose access to resources and the economic opportunities to use what
      is still accessible. In the context of the ethnicized conflict, the contested land use
      rights, vested interests of armed actors, and the link between land rights and the
      causes of conflict make it difficult for administrators and decision-makers to
      enforce the rule of law. Thus the current volatile and fuzzy land entitlements
      seriously threaten the societal bonds across communal boundaries, constrain
      development efforts, and contribute to confirm old and create new socio-
      political cleavages among the communal (ethnic) groups in the district. All five
      research locations are in contested areas close to the borderline between cleared
      (government controlled) and uncleared (rebel controlled) areas. Such localities
      in proximity to the borderline are particularly affected by fighting, violence,
      intimidation, and instability. In fact, the clear distinction between “cleared” and
      “uncleared” areas masks the dynamic nature of spatial control. The rebels
      control most of the rural areas during the night while the government forces are
      in control of “cleared” area during the day.


                           ITHIKULAM AND KUMPURUPITTY

            The first two case studies (Ithikulam and Kumpurupitty), both Tamil
      villages, underline how the civil war can lead to entitlement failure and how this
      forces farmers to change their livelihood strategies. In these two cases, we can
      see how disruptions and social upheaval due to violence can undermine civic
      associational life and intimidate people’s livelihood activities. However, the two
      case studies show in contrast that while in one occasion, farmers were, indeed,
      able to convert threats into opportunities and to find a niche for their economic
      survival, in the other case, farmers are too intimidated and reluctant to use an
      emerging economic boom for their own economic gain.

      Ithikulam — converting threats into opportunities
            Ithikulam is a settlement in uncleared area, located in the rebel controlled
      areas, which is of very recent origin. It was established by Tamil farmers who
      had to flee their nearby home village which came under fire, because it was
      located in the front line with frequent movements of army soldiers and rebels.
      These farmers searched for a new basis of livelihood and informally acquired
      land on which they started to cultivate highland crops, such as vegetables. Due
      to their apparent hardship, the local rulers in the area, the LTTE rebels,
      informally granted these farmers user rights. However, the farmers also sought
      to obtain titles from the governmental land administration to be on the safe side,
      because the frontline is volatile and the area, which is currently “uncleared,” may
      be cleared and under government control tomorrow. These farmers continue to

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face a very ambivalent social and political power field. Overall, the LTTE
imposes access rules, restricting firewood collection in the nearby jungle for
security reasons, because the rebels want to monopolize the obtainable rents and
keep military control of these areas. The LTTE also enforce an independent
court rule and have established their own administrative structures to which
these farmers have to obey. In this political field dominated by the authoritarian
rule of the rebels, farmers do not have much space to voice their needs and
interests. Their endowment with social and political capital is limited. The
farmers in Ithikulam do not dispose of associational links in the form of
community-based organizations, since they only arrived in the location very
recently and without a social fabric in place. In addition, their social status in
kin relations is comparatively low, since cultivating highland is of lower social
status than paddy cultivation.
       Economically speaking, however, the farmers were able to convert the
seeming threat into new opportunities. In fact, highland cultivation provides
them with a more solid and continuous income than traditional farmers can gain
from paddy cultivation. This is so, because highland cultivation is a low-input
agriculture with a comparatively high market value. Farmers from Ithikulam sell
their produce on the nearby market town of Toppur, which is located in cleared,
government controlled area. As they do not require expensive agricultural
inputs and credits, they are much less dependent on importing such items from
government-controlled areas to rebel controlled areas. On the other hand, since
their marketing channels for highland products are located in cleared areas, they
face a permanent vulnerability that these channels may be closed down in
periods of military escalation between army and rebels. Farmers may have to
bribe army soldiers when passing checkpoints and may be taxed by the LTTE
when accumulating wealth. Hence, their current relative wealth is fragile.
However, in times of relative calmness, some farmers from Ithikulam could
accumulate financial assets which allowed them to start constructing houses in
traditional villages of their kin relations. These houses can be used as a dowry,
which will allow these families to rework their social status and to strengthen
their former kin relations.

Kumpurupitty — missing the onion boom
      In Kumpurupitty, a Tamil village located in a highly contested area, we can
observe a radical change in socio-economic structures. Paddy fields, once the
main income source for farmers, are currently not accessible due to security
restrictions, since most fields are located close to jungle areas. In addition,
farmers cannot use common-pool resources such as those derived from the jungle,
lagoon, or sea, because of these restrictions. The area is highly contested by the
two conflict parties which has created an atmosphere of intimidation and fear.
Local leaders are reluctant to expose themselves because this could put them
into trouble. Many local leaders and wealthy farmers have opted to migrate to

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      more secure places, leaving the poor behind to fight it out. Since the village has
      been displaced several times, and due to the continuing unstable situation, social
      bonds within the community are very weak. The social fabric is fragmented
      along caste lines. Government agencies are reluctant to enforce laws against land
      encroachers, for example, because this could create trouble for them with either
      of the conflict parties. The LTTE collects taxes, intimidates those Tamils who
      cooperate with the government, and recruits young men for its services. In this
      political field, there is very little scope for local associational life to flourish.
             While the area undergoes a period of political uncertainty and military
      contestation, the war has also provided new economic opportunities. Large
      areas in Kumpurupitty and surrounding villages have experienced an “onion
      boom,” which has brought new income and wealth into the area. When the war
      broke out, onion production from Jaffna in the north of Sri Lanka which earlier
      dominated the national markets, could not be transported to the markets in the
      capital of Sri Lanka. This void is filled with onion production on the highlands
      along the coast of Nilaveli and Kumpurupitty. However, farmers in Kumpurupitty,
      one of the most vulnerable and highly contested area in the locality, are reluctant
      to invest in onion cultivation, which requires very costly inputs and investments,
      but promises high profits in good years. Instead, they rent out their highland at
      the coastal vicinity to outsiders who make the investment and reap the large
      profits available in onion cultivation. It appears that the farmers of Kumpurupitty
      are afraid of taking the risk of investment, which could easily be lost whenever
      the fighting escalates and they are forced to flee again. Arguably, due to the
      resulting insecurity, these farmers have been forced to miss the onion boom. In
      effect, these farmers may secure a basic entitlement by working as wage labourers
      and earning a small income from the land rent, but the larger profits flow out of
      the local economy.


                 BEHETHKEWAWEWA, MENKAMAM AND ALLAI

             The second cluster of three case studies investigates management practices
      of irrigation water and paddy land in the context of inter-ethnic troubles and
      violence. These conflicts mirror the larger competing claims to land, space and
      resources. On a local level, the ideological dividing lines and competing
      territorial claims are reproducing broader inter-ethnic grievances on the
      community level.

      Behethkewawewa Tank — fragile prosperity at the fringe of power
            Behethkewawewa is an abandoned irrigation tank located close to a
      Singhalese settlement, which is called Kalyanapura. These settlers, originating
      from Sri Lanka’s south, came to this area as part of the colonisation strategy of the
      Sri Lankan government. Kalyanapura is located at the borderline between the

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heavily guarded Singhalese settlements and the LTTE controlled jungle areas
surrounding their paddy fields. The farmers of Kalyanapura are largely paddy
cultivators using irrigation water from a tank nearby. The settlers are protected
by army and police against the attacks from LTTE rebels. During night time, the
government pays local farmers to work as home guards to defend the village. In
fact, the village experienced several attacks from the Tamil rebels causing
injuries, deaths and destruction of assets. These settlers are the frontiersmen of
the Singhalese state vis-á-vis the Tamil fighters. They receive considerable state
support in social welfare, input supplies and job opportunities as home guards.
By this, the state wants to encourage the Singhalese settlers to remain in the
contested areas. This policy has allowed these farmers to safeguard a fragile
prosperity at the fringe of power of the central authorities. However, better-off
farmers—roughly one third of the population—have left the village due to the
high level of insecurity. Apparently, the remaining farmers face a very ambiguous
social and political field, being under constant threat of being attacked while
receiving military and economic backing from the Singhalese state. The social
bonds and associational ties among the remaining farmers are comparatively
strong—their community is endowed with a strong, old leader, the former farmer
organisation president, who receives a high esteem among the fellow farmers
and who disposes of strong political ties with influential religious leaders and
military personnel, both in the locality and on a higher political level.
       The trouble with competing land claims related to Behethkewawewa
Tank started after an international aid agency had funded and supported the
rehabilitation of the formerly abandoned tank. In fact, the tank had been
abandoned even prior to the arrival of the Singhalese settlers in the area in the
1970s. The local farmer organisation organised food-for-work and voluntary
contributions for the reconstruction of the tank on the premise that the land
which would then be cultivable, would be distributed to landless families in the
village. However, when the tank rehabilitation was finalized, the responsible
government authorities had not sorted out the land ownership pattern. Since
the tank has been abandoned for a long time, the land title holders were difficult
for the administration to identify. The local farmer leader used the fuzziness and
ambiguities in property rights and activated his political capital and clientele
networks with powerful administrators, military, and police to acquire the land
under the rehabilitated tank for his own community. Pressure from the leader’s
powerful allies intimidated those administrators who were attempting to follow
prescribed government guidelines and to identify the proper title holders.
       These interferences coincided with the claim of Tamil rebels that the land
under this tank belonged to Tamil owners who have been displaced or migrated
out, but whose land ownership would still be valid as it was privately owned
“deed” land, which, according to Sri Lankan law, cannot be confiscated and
reallocated by the state. The rebels took this case to illustrate how the Sri Lankan
state continued to support the gradual encroachment of Singhalese farmers into

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      Tamil territories, thus undermining the resource claims of the Tamils and their
      struggle for an independent homeland. The rebels therefore threatened to attack
      the tank should the land ever be alienated to Singhalese farmers without a proper
      identification process of the former title holders. The Singhalese farmers in this
      border village have been attacked several times by the LTTE, and those
      remaining in the village are very alert to future violence and fighting. Clearly,
      this case of land alienation has become a “symbol” of the ethnicised rhetoric of
      both parties. In effect, the threats from the rebels forces the Singhalese settlers
      into an even closer alliance with nationalist politicians and administrators and
      with the military machinery of the state, making them even more prone to attack
      from outraged Tamil rebels. The escalation path came to a preliminary end,
      because of the national ceasefire agreement between the Sri Lankan government
      and the LTTE in February 2002, which made a military attack impossible for the
      LTTE without risking the overall ceasefire agreement on the national level.

      Menkamam Tank — stalemate over disputed land
             Menkamam is a tank used to irrigate traditional Tamil paddy fields by
      farmers living in the Tamil village, called Menkamam. The tank borders with a
      Singhalese settlement, called Dehiwatta, which is part of a larger irrigation and
      settlement scheme of the area, which was also part of the Singhalese colonisation
      programmes. The area is located in “cleared area,” which means that it is under
      government control, at least during day time. However, during nights, the LTTE
      exercises a large influence, collecting taxes from Tamil and Singhalese farmers,
      intimidating people who do not comply with their rules and acting as informal
      political authority for settling disputes between Tamil farmers. While the area is
      relatively calm in the sense that there are few direct fights and contestations
      between army, home guards and the LTTE, there is a fortified borderline
      separating the Tamil zones from the Singhalese settlements, even though both
      are in “cleared,” presumably government-controlled areas. There is a high
      military and police presence in Dehiwatta to protect the Singhalese settlers from
      attacks, however, this system is not effective, because the security forces
      withdraw during night time and leave the defense to local home guards. Overall,
      the farmers in this areas have access to regular irrigation water, and those settlers
      with fields in the irrigation scheme are able to cultivate two seasons a year which
      provides them with considerable income and a comparatively stable livelihood.
      Both villages are, compared with other locations in Trincomalee, economically
      well off.
             There is an ongoing and protracted dispute over land and water resources
      derived from Menkamam tank between Tamil and Singhalese farmers.
      Traditionally, Menkamam tank provided irrigation water to paddy fields
      belonging to the Tamil village, but some Singhalese peasants from Dehiwatta
      have encroached on parts of the tank bed land. When the Tamil farmers want to
      store water in the tank for irrigation purposes, this threatens the Singhalese who

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are cultivating on the tank bed. In order to avoid their field becoming
submerged in water, the Singhalese farmers organised themselves. Under the
protection of police and army, they cut the tank bund so that the water is drained
off the tank. This allowed them to cultivate their fields but led to water shortages
for the Tamil cultivators, because the storage capacity of the tank was
considerably reduced. While the dispute originated long ago and continued to
fuel Tamil-Singhalese grievances, the civil war has changed the actors
constellations and thus the alliances of the farmers of both communities with
military and political powerholders. Throughout, the Singhalese settlers have
been in a stronger bargaining position. Prior to the war, the administration
remained inactive because of pressure from powerful Singhalese politicians who
ensured that no action was taken to vacate the encroachers. With the outbreak
of civil war, the dividing lines have deepened and new actors have appeared on
the scene—the combatants on both sides.
      However, in the political geography and social field of the locality, the
LTTE is not strong enough to level the playing field in favour of the Tamil
farmers. In fact, the Singhalese settlers safeguard their “unruly” entitlements
through the assistance of police and army, which leads to entitlement failure
among Tamil farmers. The administration that would have to order the
evacuation of the encroachers is reluctant to interfere because of the political
alliances of the farmers with the police and army. Furthermore, the two villages
belong to different sub-districts, one governed by a Tamil divisional secretary
and one by a Singhalese one. In the prevailing ethnicised perceptions, these two
government servants will hardly cooperate to find an administrative solution.
The rebels are not powerful enough to fight it out with the army, and would not
be able to provide protection for the Tamil farmers after an attack. This situation
leads to a feeling of powerlessness among the Tamil farmers, but this is not
confined to the particular village. Instead, Tamils from the whole area make
reference to this case to underline how the central government would
discriminate against them. At the same time, the Singhalese farmers complain
that the LTTE would force taxes upon them, or otherwise threaten them with
violent action. The Menkamam case illustrates clearly how broader struggles are
reproduced on the local level and how these grievances are incorporated into
ethnicised discourses.

Allai Extension Scheme—the power of water
      Allai Extension is a large-scale irrigation scheme established in the 1950s
that provided land and irrigation water to Singhalese settlers from outside the
district, as well as to Tamil and Muslim peasants. As such, it was part of the
wider peasant colonisation ideology of the central government. The irrigation
scheme provides regular water supply for two seasons, thus offering small-holder
peasants and settlers an economic source of livelihoods, which allows them a
comparatively wealthy living standard. The irrigation scheme is largely located
in government-controlled, cleared area. The Singhalese settlements are protected
through fortified police camps and military presence, however, with limited

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      effectiveness. As in the case of Menkamam, the LTTE are quite influential and
      impose their power and regime during night time, extracting taxes, taking
      ransoms and intimidating opponents.
             The hydraulic layout and allocation of land plots in the scheme have
      favoured Singhalese settlers who received the land in the upstream area of the
      irrigation scheme, while Tamils and Muslims shared the allotments downstream.
      Water disputes between upstream and downstream farmers, and failures of
      collective action that might afflict many irrigation schemes, become transformed
      here into perceptions of an “ethnicized” stance among the local farmers. Yet it is
      the geographical location and the political capital assets that actually created the
      differentiated entitlements to water. The Singhalese upstream farmers have the
      strongest position, since they can easily block the water supply to downstream
      farmers. They often divert more water than is allocated to them in order to
      cultivate encroached paddy fields. This leads to water shortages on fields
      belonging to Tamils and Muslims. A central government agency, the irrigation
      department, controls the flow of water and the distribution of it. Many of the
      technical officers in this department are Tamils, which would lead us to expect
      that they could favour their own folk. However, in the ambiguous political field
      of warfare, while the government machinery appears to continue functioning to
      some extent, it is the influence of powerful actors—combatants, police officers,
      politicians—who interfere and bend the rules in favour of a specific, ethnic
      clientele. In the case of Allai Extension, Singhalese farmers use their political
      capital and networks with police officers to intimidate irrigation technicians.
      Ironically, the office of the technical irrigation officers is located in the regional
      police camp which makes subtle threats an easy exercise. Singhalese police
      officers may thus “encourage” Tamil technical officers to let Singhalese farmers
      divert as much water as these deem necessary. This increases the water shortage
      for Tamil and Muslim farmers.
             Being at the very tail end that receives the least water, the Muslim farmers
      seem to be most affected in this scheme, comparatively speaking. Since fields
      belonging to Muslims and Tamils are dispersed and located adjacent to each
      other, many Muslim farmers have to pass through Tamil villages to access their
      fields. In times of ethnic troubles or security incidents, they are afraid to go to
      their fields. If such incidents happen during crucial times of the cultivation
      season, they may lose their whole harvest and investment. Some Muslim land
      owners have thus leased out their land to Tamil farmers, often under unfavourable
      conditions. Some Tamil farmers even refuse to pay their land lease and threaten
      to inform the LTTE should the Muslim land owner dare to involve the police in
      claiming his money. In addition, some Muslim paddy lands are situated in
      uncleared area, and the rebels do not allow Muslims to enter these areas to
      cultivate their land. In this subtle, fuzzy political geography, Muslim farmers
      face a serious entitlement decline. They have the weakest political capital in this
      regard, because they can neither approach the Singhalese dominated security
      forces nor the LTTE for support.

118   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
       However, Muslims are not all losers in the war. In much of the Muthur area
where Allai Extension Scheme is situated, it is Muslim traders that dominate
commerce because Tamil traders face trouble with the army when passing
checkpoints. Muslims, who are not suspected of collaboration with the LTTE,
can easily form informal alliances with army officers, bribe them, and carry out
their trade business. On the other hand, they also have to pay taxes to the rebels.
Most of the Tamil paddy cultivators have come to depend on the services of
Muslim traders. Suffice to say that this has sowed grievances among Tamil
farmers, who claim that the Muslim traders buy their produce at excessively
low prices.
       Table 5.1 highlights the key findings of the five case studies in the war-
affected areas of Trincomalee. Even though the five localities are geographically
close, the vulnerability context, the local political geography, and the political
power field lead to very differentiated livelihood opportunities in each of the five
cases. Overall, the case studies suggest that political capital assets, the ability of
a household or community to use alliances with political, administrative, or
military power holders, largely determine the access to local commons and
resources derived from these. The cases sketch out an emerging patron-client
political economy of ethnicity, where ethnicity has become a bargaining resource
to shape the local informal rules of the game. Apart from ethnicity and close
alliances of particular ethnic groups with their respective conflict party, there are
also significant differences in political capital assets within ethnic groups. As the
example of Muslims shows, many Muslim farmers have lost substantial property
rights to their livelihood resources, even as Muslim traders have expanded their
business by exploiting seeming neutrality to advance in step with the war. How
effective political capital can be made use of depends on the subtle power
balances in the specific political geography of war and the power field originating
from it.


                                 CONCLUSION

       Violent political conflict and civil wars are arenas of dramatic institutional
change within brief periods of time, leaving behind often very fragile systems of
rules and governance. Since common-pool and open access resources are
significant sources of rural livelihoods, they have often become part of the
political economy of war. The case studies from Sri Lanka’s northeast have
illustrated how the distribution of social and political capital assets and the field
in which these can be brought into effect, have become fragile, ethnicised and
exclusive rather than inclusive. The ongoing war and inter-communal riots in
the late 1980s and early 1990s have substantially undermined the trust between
different ethnic groups. This allowed war entrepreneurs to use the notion of
ethnicity as an ideological tool to construct support among their clientele. This
political economy of war has also created an institutional environment where the
political capital assets are largely determined by ethnicity as an important
determinant of social and political bargaining power.

                                                          Rural Development in Lao PDR:      119
                                               Managing Projects for Sustainable Livehoods
                                                                        Table 5.1: Five Case Studies on the Politics of Access in the Civil War of Sri Lanka




                         120
                                              CASE             ITHIKULAM                    KUMPURUPITTY                   BEHETHKEWAWE WA                MENKAMAM TANK                  ALLAI EXTENSION
                                                                                                                           TANK                                                          SCHEME
                                                               TAMIL; UNCLEARED             TAMIL; SEMI-CLEARED            SINGHALESE;                    TAMIL (T)-                     SINGHALESE (S),
                                                                                                                           BORDER VILLAGE                 SINGHALESE (S);                TAMIL (T), MUSLIM
                                                                                                                                                          CLEARED                        (M); CLEARED
                                              Background       • People fleeing from        • Returning villagers          • Land rights on               • Longstanding dispute        • In major irrigation
                                                                 their village, settled       living in very unstable        rehabilitated, formerly        over encroachment of          scheme, water sharing
                                                                 down informally and          security environment,          abandoned tank nearby          tank bed land (S) that        is ethnically biased
                                                                 engage in highland           but have economic              a Singhales border             affects the water supply      and disadvantages the
                                                                 cultivation and wage         potential for profitable       village are highly             to paddy fields (T).          tailenders (T, M) over
                                                                 laboring.                    onion boom.                    contested                                                    the upstream farmers (S).

                                              Rules and        • Powerful rebels            • Both conflict parties        • Strong social bonds          • Ethnicised political        • Upstream farmers (S)




Rural Development in Lao PDR:
                                              behaviour          enforce collective           intimidate villagers;          and strong political           capital and inclusive         divert water at expense
                                                                 action and ‘rule of        • Lack of leadership,            capital (clientelist           social bonds within           of downstream farmers
                                                                 law’ (the ‘strict but        because high personal          alliances with                 each ethnic community;        (T,M); collective action
                                                                 just’ rulers);               risk to expose oneself         politicians, Buddhist        • Balance of power              failure,
                                                               • Land tenure is               politically or                 clergy and military);          between the conflict        • T use blockage of water




Managing Projects for Sustainable Livehoods
                                                                 informally assured           economically;                • Political bias in              parties who profit from       supply to M fields as
                                                                 by rebels, but villagers   • Social bonds and               regulating land tenure         their war economies           power politics in
                                                                 also seek ‘titles’ from      networks in the                issues, favours villagers      (taxes and bribes from        inter-ethnic troubles,
                                                                 the government;              community collapsed            and infuriates rebels          the civilians);             • No law enforcement
                                                               • Social and political         during displacement;           who threaten revenge.        • Administrators                because of political
                                                                 capital of households      • Administration                                                ‘burying the head             pressure by powerful
                                                                 to voice their needs         tolerates illegal                                             in the sand’: reluctant       patrons - army, police
                                                                 and interests is very        encroachment.                                                 to take legal action.         (S); LTTE (T).
                                                                 limited.

                                              Outcomes         “Converting threats          “Missing the onion boom”:      “Fragile prosperity at         “Stalemate over               “The power of water”:
                                                               into opportunities”:         • Uncertainty and              the fringe of power”:          disputes land”:               • Entitlement failure
                                                               • Limited, but stable          insecurity in effective      • Protection of army and       • Deadlock in institutional     (less irrigation water)
                                                                 income and livelihood        property rights (no            financial support from         regulation of land            for specific ethnic
                                                                 opportunities (as long       access to fisheries and        the central state increase     disputes increases            groups at the tailend
                                                                 as security does not         jungle resources);             economic entitlements;         inter-communal                (M),
                                                                 escalate);                 • Collective action failure,   • Comparatively wealthy,         grievances, blocks          • Conditioned water
                                                                                              because of breakdown           but high political             dispute resolution and        supply as power politics
                                                               • Gradual buildup of                                                                         undermines trust in
                                                                 financial capital allows     of social norms and            insecurity because of                                        (T-M),
                                                                                              network.                       threat of LTTE attacks         state institutions.
                                                                 to invest in social                                                                                                    • Inter-ethnic grievances
                                                                 capital.                   • Effective economic                                          • Local conflict mirrors        piling up and create
                                                                                              entitlement decline.                                          wider political cause of      an atmosphere of
                                                                                                                                                            the civil war and thus        confrontation.
                                                                                                                                                            reinforces grievances
                                                                                                                                                            and hatred.
                                              Source: Korf et al, 2001; Korf, 2004a.
       In fact, local farmers use their relative bargaining power that is largely
derived from political capital, i.e. their alliances with combatants, to derive
benefit streams from resources that are not legally theirs. This also leads to a
refinement of social relations towards the “ethnic self,” excluding the “ethnic
other.” Two aspects play a role: on the one hand, farmers benefit from this
seizure of resources at the expense of the “ethnic other,” on the other hand, the
grievances propagated in and deepened through warfare, provide an ideological
and moral justification for such behaviour. The logic of this ethnicization—
strengthening political capital assets along ethnic lines—seriously undermines
peace building activities and the restoration of “neutral” governance structures to
regulate access to essential livelihood resources. In effect, social and political
networks often mirror the broader struggle of the civil war. The patron-client
system of property rights that we observe in the war zones constantly reproduces
on the local level the same lines of ethnicised dissent orchestrated by the civil
war. Grievances occur because politically and ethnically biased informal
property rights deepen social cleavages along communal lines, undermining civic
engagement, the accountability of government institutions, and ultimately trust
in governmental decisions and arrangements. This further contributes to
reducing social bonds and civic engagement on the community level, while also
discouraging collective action since farmers seek individual alliances with power
holders rather than co-operative solutions.
       Horizontal intra-group linkages (based on social capital) and dissociation
from the “ethnic other” can lead to internally strengthened, but highly segregated
ethnic or religious communities that may be prone to political instrumentalization
from radical groups within the community and to victimisation from external
communities’ powerholders. Vertical political contacts and alliances (political
capital) to a large extent determine a group’s ability to instrumentalise ethnicity
or religious affiliation. In both cases, where access rights have been altered as an
effect of the political dynamics of the conflict, and where actors voluntarily and
proactively change entitlement schemes by polarisation and ethnicisation, the
observed dynamic is directly linked to the particular political condition of
warfare and the subsequent processes of social and political transition. The
institutional failure is used to satisfy a group’s own interests by redistributing
resource entitlements in a blurred legal framework. These unruly social
practices can fill the institutional gap and transform the political geographies of
war at the local level. Certain groups may profit from the ethnicisation of
resource entitlements, while others are left with an entitlement failure and, in the
realm of political cleavages, find it difficult to make claims to their entitlements.
       Indeed, this re-arrangement of social and political capital can have serious
repercussions on the peace building process. In Sri Lanka, this is signified in the
fact that since the signing of the ceasefire agreement in February 2002, ethnic
tension and even violence have increased significantly on the community level
between Tamils and Muslims in the research areas. These riots have their roots

                                                         Rural Development in Lao PDR:      121
                                              Managing Projects for Sustainable Livehoods
      largely in the perceptions of either side that the “other” would have gained an
      unjustified political advantage over access to resources. Competition over
      resource access easily becomes framed in terms of life and death, the ethnic self
      and the ethnic other. Even small, localised territorial disputes are translated into
      broader struggles of ethnic identity. It is therefore not only the national level
      where the Sri Lankan government needs to negotiate an agreement with the LTTE.
      Also, the smaller struggles on the local and regional level need to be resolved
      within an institutional frame which is acceptable for all local stakeholders, and
      this most likely will be a challenging task, as the case studies have shown. The
      Sri Lanka experience underlines how crucial it is to study the commons at war as
      part of a broader process towards peaceful and sustainable development.


                                                NOTES
      1
        I would like to thank Stefanie Engel, Hartmut Fünfgeld, Konrad Hagedorn, Ulrike Joras,
      Norbert Ropers and Claudia Trentmann for their valuable comments and suggestion on
      earlier drafts of the chapter. The contribution of the following persons in the field studies
      in Sri Lanka are gratefully acknowledged: Rathnayake M. Abeyrathne, Riyas Ahamed,
      K. Devarajah, D. Dharmarajah, Tobias Flämig, T. Sakthivel, Christine Schenk, Rohini
      M. Singarayer, Monika Ziebell and Julia Ziegler. This research received funding from
      the following sources: GTZ, BMZ, Humboldt-University of Berlin, ZEF and the
      Robert-Bosch-Foundation for field work. This work formed part of the research group
      “Determinants and effects of alternative institutions for natural resource management in
      developing countries” at ZEF which is funded by the Robert Bosch Foundation.



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                                                    6
              CHANGES IN INDIGENOUS COMMON
                   PROPERTY REGIMES AND
                    DEVELOPMENT POLICIES
                IN THE NORTHERN PHILIPPINES
                                            June Prill-Brett


                                        INTRODUCTION

            What are the impacts of Philippine development policies on the
      Indigenous Peoples (IPs) who have retained their pre-colonial common property
      regime management practices? How are the IPs responding to the changes
      in development policies that affect traditional land tenure and resource
      management? What aspects of the common property regime are changing, and
      under what conditions or pressures? What are some lessons learned in the
      Cordillera, the mountainous region of northern Philippine highland IPs, about
      the way common property regimes can lose their underlying reasons for
      existence?
            This chapter engages these questions. I begin with a brief historical
      background of pre-colonial property regimes and discuss the development of
      resource management practices associated with each property regime. I go on to
      show the changes in the indigenous property system in lowland Philippines
      under the Spanish colonial period. Under American colonial administration, more
      laws were introduced which required the registration and titling of land and the
      state management of other natural resources such as forests and minerals. After
      independence, colonial laws on resource management were adopted by the
      Philippine Republic. The Regalian Doctrine was used to usurp the common
      lands of indigenous communities, rendering them squatters on “public lands.”
      The indigenous communities’ common property became open access, leading to
      unsustainable management and the breakdown of rules for managing natural
      resources (see also Leonard and Kingkorn, this volume).
            I argue that in the Cordillera there is an increasing tendency for common
      property regimes to be converted into open access due largely to the confusion



126   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
brought about by state policies on resource management, the concept of “public”
land owned by the state, and the state’s inability to manage these resources
sustainably. Under this situation, an opportunity structure emerges whereby
individuals, mainly from surrounding communities, clear the mossy forest to
convert the land into commercial farms. This has happened to the Mount Data
National Park, and the same is threatening the Mt. Pulag Protected Area and Mt.
Polis mossy forests of Benguet and Ifugao, in the Cordillera.




Map 6.1. Cordillera, Philippines


                   HISTORICAL ANTECEDENTS:
                PRE-CONQUEST PROPERTY REGIMES

      During pre-conquest Philippines, Filipinos were identified as belonging to
a community or domain, and had rights to different types of resources. Thus, the
social identity of an individual is closely associated with his belonging to a
particular community, occupying a territory, which is his/her ancestral domain.
Customary law governed the management of natural resources within the
domain. In the Cordillera region and in other non-subjugated forest
communities the indigenous tenurial system largely continues to be practiced.
This section presents the pre-colonial property regimes to give us a view of
possible pre-conquest lowland tenurial arrangements.


                                                      Rural Development in Lao PDR:      127
                                           Managing Projects for Sustainable Livehoods
      The establishment of indigenous land rights
             The general pattern of land rights in the Cordillera is primus occupantis
      (rights vest in the first to occupy the land by clearing it and making some
      improvements). “Titles” are embedded in rituals and are orally transmitted. This
      is further reinforced through continuous occupation. The various indigenous
      groups have, over time, developed land use systems and accompanying rules
      and obligations that cover the relationships among the individuals who use the
      land. Different rights govern foraging, swidden farming, wet-rice agriculture,
      mining, and cattle and water buffalo grazing.
             It is not uncommon for ethnic groups to have multiple land use systems,
      each governed by different rules of management (Prill-Brett, 1994: 689). Those
      whose livelihood depends on exploiting the products of the forest generally do
      not have strong attachments to the soil per se, for no labor has been invested in
      maintaining or improving it. Among swidden cultivators, access to productive
      land is acquired by clearing portions of the forest through the slash-and-burn
      method. Usufruct rights govern lands cultivated within the traditionally defined
      territory of the community. There is exclusive ownership to the crops planted
      and the use of the land until the soil is exhausted of its nutrients. Then the
      cultivator allows the land to lie fallow for several years, depending on the
      regeneration experience with the forest in the particular area. Very minor
      improvements are made on the land, for tenure is temporary, limited to some
      extent by ecological conditions.
             The right of usufruct is usually the rule among communities that practice
      swidden agriculture where land is still abundant and population is low. Swidden
      land may belong to a corporate descent group, (see Prill-Brett, 1987, 1991;Wiber
      and Prill-Brett, 1988) or to individuals, and is managed by the family. Wet rice
      irrigation involves investment in permanent structures such as artificial pond
      fields, with its retaining stonewalls and irrigation canals. This type of land is
      generally not fallowed since it is continuously productive. Thus ownership rights
      are restricted to individuals who inherit the paddy field, and managed by the
      family as the productive unit. Inheritance rules for such property are more
      complex (see Prill-Brett, 1986, 1991).
             Forest stands that surround a community traditionally belong to the
      community as common property. However, cognatic descent groups or clans
      may lay claim to certain forest stands as their common property after investing
      minimal improvements, such as swidden gardens followed by the performance
      of rituals. In some parts of the Cordillera such as Ifugao, forested areas called
      muyong/pinuchu are usually located in areas adjacent to inherited paddy fields
      and are owned by individuals as private agroforests.
             An important character of natural resources that fall under common
      property in the Cordillera is the rule of non-alienation of land to “outsiders” who
      do not belong to the community.



128   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
Common property regimes and management
       Diversity of resource use and management is a central feature of
indigenous strategies. The underlying logic was to share scarce resources, and
access to these common property resources by the poor or marginalized
members of a community was covered by this rule. Cordillera property regimes
can be grouped under three classifications: the communal rights regime, the
indigenous corporate rights regime, and the individual private rights regime. Histori-
cally, land may have a “life cycle” and pass through each regime as a stage,
eventually falling under very restricted rights of access and management, and
being modified by the permanent improvements that had created ownership
rights (see Prill-Brett, 1987, 1991).
       • Communal property regime: Each community owns unrestricted rights to
          natural resources such as water from springs, rivers, and brooks, grazing
          land, forest products, timber and fuel, and the right to hunt wild
          animals within the communal domain. All members of the community
          have rights of access to these common property resources without
          having to ask permission from anyone. However, non-members of the
          community are excluded from exploiting such resources without the
          consent of the community.
       • Indigenous corporate property regime: Ownership rights are restricted to
          members of a cognatic descent group. All the descendants of a founding
          ancestor or ancestress, who first put improvements on a portion of the
          communal land, have usufructory rights to this type of property, which
          is owned in common by the group. It is usually the members of a “clan”
          who did not inherit enough rice paddies that generally avail of the
          common-owned land for cultivation.
              Rights to corporate property ownership developed as a safety net
          and a strategy to ensure that members of a group who were unable to
          inherit rice paddies could gain access to land for food production. This
          corporate property regime is also a legal entity that owns this common
          fund for the benefit of its members (see Prill-Brett, 1987, 1993).
          Corporate property rights devolve to the group as undivided rights in
          common, and cannot be claimed by individual members in severalty
          (see Wiber and Prill-Brett, 1988). Thus an individual member who has
          been tilling the same plot may not transmit the land to his/her own
          children separately, since it belongs to the corporate group as common
          property.
              This kind of property (as a common fund) may only be alienated
          when the corporate group faces some crisis, such as needing to raise the
          required penalty incurred by a member that renders the group liable.
          Should the property be up for sale, it is first offered to any of its
          members who could furnish the required fine/penalty for violation of
          the provisions of customary law. Thus common property rights transfer

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                                               Managing Projects for Sustainable Livehoods
              to the individual who furnished the required fines/penalties, whereupon
              the property ceases to operate as the common property of the group.
            • Private individual rights regime: These are individual rights over rice
              paddies, residential lots, permanent gardens, and lands that have been
              invested with permanent material improvements. Such properties are
              inherited by individuals, usually following primogeniture rule and
              managed by the family of the inheritor. The sale or alienation of this
              type of property is by the decision of the owner who inherited the
              property. Custom dictates that it is offered first to the immediate family
              members, then to further relations before it is sold out of the kinship
              group.


       THE COLONIAL PERIOD: LAWS AFFECTING NATIVE TITLES

            Indigenous land rights have always been a focal issue for colonial
      governments in the Philippines, first with Spain and then the United States. The
      problem confronting indigenous claimants to ancestral lands can be traced back
      in Philippine history to the legal fiction called the Regalian Doctrine. In 1521, the
      Portuguese explorer Ferdinand Magellan claimed the Philippine archipelago for
      the Spanish Crown, by virtue of erecting the Christian cross on one of the more
      than 7,000 islands. The lowland Philippines was a Spanish colony for almost
      four centuries, where Catholicism and Hispanization were imposed on the
      lowland Filipinos, extinguishing their indigenous tenurial system. However, those
      who inhabited the northern Cordillera highlands, as well as the southern areas of
      Mindanao, resisted subjugation by the Spaniards (Scott, 1982). While the
      lowland Philippines fell under a feudal system of government where community
      lands were assigned to Spanish conquistadores as a reward for their loyal services
      to the Spanish Crown, the mountain peoples remained in control of their lands
      and continued to practice their indigenous land tenure system throughout the
      Spanish and American colonial periods.
            In the Treaty of Paris in 1898, the Spanish Crown ceded the Philippines to
      the U.S. The Philippine Bill of 1902 and succeeding Philippine Acts of the U.S.
      Congress decreed the transfer of all lands vested in the Spanish crown to the
      Philippine government, and gave authority for various laws to be formulated to
      deal with public lands, land registration, cadastral surveys, waters, and minerals
      (Keesing & Keesing, 1934: 163). The U.S. colonial administration, ignorant of
      native land tenure systems, considered lands not covered by land registration or
      paper titles to be public land. Although the American administration
      encouraged land registration among the indigenous groups, the diverse native
      land tenure system did not all fit with the imposed private ownership concepts.
      Only a few, mostly elites and schooled individuals, took advantage of the land
      registration system (Keesing and Keesing, 1934).

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       The American colonial government adopted the Regalian Doctrine from
colonial Spain, but instead of the King as the owner of all natural resources, the
state was substituted (see Cuasay, this volume). Under American natural resources
law, land was classified into private, public, and land reservations. Thus, the
common property resources such as communal lands and corporate lands owned
in common by the natives were not recognized as such but were viewed as public
lands under the control of the state. These common lands were now open for
titling by any qualified applicant following the payment of land taxes. Under the
American land tenure law, some natives (especially the poor) who could not avail
of private lands under the customary law now had the opportunity to own land
privately (see Wiber, 1996). Large tracts of land once associated with the upper
class (baknang) of Benguet Province, landholdings had to be limited also due to
the payment of taxes. The consequence is that common property resources
became privatized, particularly in the Province of Benguet.
       After independence in 1946, the Philippine Republic adopted the natural
resource laws introduced by the colonial governments, with the Regalian
Doctrine as the primary basis for the State ownership and control of all natural
resources in the Philippine archipelago. Also adopted was the western concept
of resource management and conservation policy that perceives protected areas
(national parks, ecological stations) as empty spaces with no human dwellers.
Traditional dwellers of the forest, under the western view of conservation, should
be expelled in order for conservation to take place or to be successful.


                       POST-COLONIAL POLICIES

The Philippine Republic “develops” natural resources
      Under the Philippine Republic the Regalian Doctrine remained the
theoretical bedrock on which Philippine natural resource laws rest (Lynch, 1986).
The immediate consequence was that any land not covered by official
documentation was considered part of the public domain and owned by the
state, regardless of how long the land had been continuously occupied.
Furthermore, the occupants could be evicted should the government have need
for the land. The past decades have been characterized by ever-intensifying
agribusiness, logging, infrastructure and other projects in the name of economic
development. These development activities have encroached into the ancestral
domains of indigenous communities, displacing some, especially those
practicing swidden agriculture, and threatening to dislocate others (see Cuasay,
this volume, for background of Philippine lowland tenure and reform).
      Under the regime of President Ferdinand Marcos the laws were
manipulated to justify state claims to indigenous peoples’ ancestral lands. Such
cases involved the controversial Chico hydroelectric dam in the Cordillera and
other projects in the 1970s. Presidential Decrees 410 and 705 were enacted. PD


                                                       Rural Development in Lao PDR:      131
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      410 was an attempt to legitimize the government’s claim that indigenous people
      were squatters on the land they had occupied since time immemorial unless they
      apply for land occupancy certificates. The decree excluded Abra and Benguet
      provinces from availing of this process since these were the sites where
      government projects were to be carried out. The Revised Forestry Code (PD
      705) included the 18% slope rule stipulating that all lands with a slope greater
      than 18% were made part of the public domain and considered non-alienable. A
      large portion of the centuries-old rice terraces in the Cordillera was thus
      rendered public land. The intent of these laws was apparently to prepare for the
      construction of a series of hydroelectric dams in the Cordillera region and to
      award Forest Reservation lands to the Cellophil Resources Corporation. The
      reservation included the ancestral domains of the Tinguians of Abra (Dorral,
      1979: 118).

      Unsustainable state management and a paradigm shift
             The Philippine government’s recognition and granting of ancestral land
      rights and ancestral domain rights to indigenous peoples (Prill-Brett, 2002)
      through the passage of the Indigenous Peoples Rights Act (IPRA) has been the result
      of policy conflicts over land access, use, and control. The inability of government
      to sustainably control and manage the natural resources led to a general
      perception that resources formerly under the rule of indigenous law were now
      open access resources in the public domain. The resulting intensification of
      forest degradation and unsustainable resource extraction prompted the
      government to change its policies toward indigenous cultural communities
      occupying the forest (see Cuasay this volume, for ironies of these reforms).
      Recognition of IPs ancestral lands and domain has therefore been increasingly
      linked to a policy of ecological conservation and the protection of biodiversity.
      IPRA also provides for the creation of the National Commission on Indigenous Peoples
      (NCIP) that “shall be the primary government agency responsible for the
      formulation and implementation of the policies” covered by the law. Among the
      many responsibilities of the NCIP is the mandate to issue Certificates of Ancestral
      Land Titles (CALTs) and Certificates of Ancestral Domain Titles (CADTs) over areas
      that have been awarded CADCs and CALCs by the Department of Natural
      Resources (DENR). IPRA further allows the titling of individually owned
      ancestral lands under the provisions of the Land Registration Act 496 of 1902.
      Another significant breakthrough is that this Act further states that “individually-
      owned lands which are used for agriculture, residential, pasture, and tree
      farming purposes, including those with slopes of 18% or more, are hereby
      classified as alienable and disposable agricultural lands” (A&D, Sec 12). This
      law will now allow the titling of agricultural lands such as the rice terraces with
      slopes of 60 to 80 degrees as alienable and disposable.
             The new law also reflects a paradigm shift towards Community-Based
      Resource Management (CBRM) and sustainable environmental protection. In


132   Rural Development in Lao PDR:
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connection with the recognition and titling of ancestral lands, both government
and non-government development agencies have increasingly considered CBRM
methods governed by customary law as essential to protecting the environment
and the economic interest of the indigenous peoples. Strengthening IPs’
customary institutions is seen as important to empower people and give them a
stronger bargaining position as they are increasingly interacting in the market
economy.
       However, it is also important to consider that state agencies pursuing
different and often contradictory sectoral interests are involved in the making
and implementation of state regulations. Thus, the Philippine government’s
support for awarding certificates of claims to ancestral lands and domains has, to
a large extent, influenced the indigenous concepts of land ownership access and
management of common property resources. Moreover, this situation is
complicated by the fact that two government departments, the DENR (the “lead
agency”) and the Department of Agrarian Reform (DAR), both involved in the
implementation of state recognition of ancestral lands and domains, have
inadvertently created problems with the awarding of overlapping claims (see
Prill-Brett, 2002; NIPAP General Management Plan, Vol. I, 2000).
       In the interaction of indigenous communities with the different sectoral
groups, IPs find themselves in a confusing situation. Agencies present them with
different and often conflicting perspectives, objectives, and agendas from their
respective institutions. In some cases, this has opened up new opportunities and
some community members take undue advantage. The DENR, for instance, is
mandated to protect and conserve the forest and other natural resources. It has
its own management plan in order to attain these objectives. The Department of
Agriculture’s primary objective is to increase agricultural production, while DAR’
s main thrust is agrarian reform, the distribution of land to the landless. In
addition, the NGOs that usually work with IPs are not exempt from carrying
their own agendas on resource management. Often, the objectives of these
different agencies come in conflict with the indigenous communities’ own
resource management practices, especially for common property resources. Such
conflicting and often contradictory perspectives open up competition among
stakeholders asserting their rights by invoking both customary and state laws to
support their access to resources.

The opportunity structure to privatize common property
      Faced with these contradictions, the problem for implementors of
community-based development projects and their sustainability paradigm is
usually lack of adequate ethnographic information on indigenous land tenure
systems and existing property regimes. Many questions of communal rights
need to be posed. What are the common property resources of a particular
community? What kinds of rights to what kinds of resources do community
members have access to? Who are the responsible resource managers, for what


                                                       Rural Development in Lao PDR:      133
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      kinds of resources? What are the social arrangements (rules) pertaining to these
      resources? Confusion arises among development implementers, especially
      regarding the locus of rights and responsibilities in resource management
      pertaining to different regimes—communal resources, indigenous corporate
      resources owned by clans, cognatic descent groups, and individual private-owned
      resources. New structures may be introduced that often ignore existing social
      arrangements (see also Leonard and Kingkorn, this volume, for a similar
      situation in the Northern Thai case). In some instances, where there are no
      existing rules in the management of communal resources, or where the rules
      have broken down, an “opportunity structure” emerges (see Appell, 1980 quoted
      in Prill-Brett, 2002) which is used by individuals and interest groups. As
                      .
      suggested by F von Benda-Beckmann (1983), “plurality provides the necessary
      leeway for individual actors or interest groups to lift the behavior out of the
      opportunity structure and reify it in the social structure” since emergent
      structure in legal pluralism situations is contingent on purposive political and
      economic actions.
             Under such conditions, some indigenous claimants have invoked the
      customary and national laws to allow them new access to natural resources that
      may not result in equity amongst indigenous community members, nor attain
      environmentally sustainable objectives (see Prill-Brett, 2002). Sometimes IPs
      invoke indigenous tenure rights in order to gain access to land and create
      permanent rights through state-granted title (see Wiber and Prill-Brett, 1988).
      Among indigenous communities that still practice collective land ownership by
      the corporate descent group, there is the current tendency (the land regime “life
      cycle”) for corporate land to become privatized by individuals who belong to the
      corporate group. This is facilitated through the planting of non-traditional crops
      such as temperate vegetables, citrus and other fruit tree varieties, coffee, and
      other cash crops. These crops were largely introduced by development agencies
      like the Department of Agriculture as part of poverty alleviation projects to uplift
      the socio-economic conditions of indigenous cultural communities. However,
      when permanent crops and improvements (e.g., barbwire fences) are invested
      on the land, there is a tendency for the enterprising person to keep increasing the
      landholding and then take the privatization step of having the land tax-declared
      at the Bureau of Lands. If the corporate group members do not protest and
      enforce their equal rights of ownership these co-owners will eventually be
      excluded in the future from enjoying their rights. There are some cases where
      this has happened and corporate property became privatized by one of the
      corporate members. The rights of the other members have been extinguished by
      using national tenurial instruments, the tax-declaration of the land under the
      individual’s name. The tenurial instrument shows that the “legal” owner is
      recognized by the national legal system, since the individual performed the legal
      requirements and paid the taxes.
             In the Cordillera experience, it appears that when indigenous communities

134   Rural Development in Lao PDR:
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shift from the production of subsistence crops to cash crops, especially if there is
a heavy input of capital, there is the tendency for common property regime to
become privatized by enterprising persons of the communities. Persons who
invested permanent improvements on common land often make use of the state
tenurial instruments to perfect private ownership rights over the land previously
owned and managed by communities. The breakdown of internal jurality in
communal management was in turn facilitated by the governmental superimpo-
sition of national law over customary law for resource management. For the
period in which these resources devolve into open access, major depletion and
destruction occurs before resurgent internal jurality has a chance to develop
(Bromley and Cerna, 1989; Berkes, 1986; Runge, 1986). This is clearly demon-
strated in the Cordillera where the government virtually declared all forested
areas as public land. The forest in question, originally managed under nuanced
common property regimes by multiple communities, was perceived to be an
“open access” resource. In these circumstances, an opportunity structure emerges
for the rule of exclusion to be challenged by individuals or groups who invoke
the national law (Malayang, 1991). In spite of the paradigm shift towards
environmental sustainability and recognition of indigenous communities’ rights,
IPRA may have the unintended consequence of serving as another law
facilitating the privatization of common property.

Resource degradation and mismanagement of common property
      The inconsistent and inappropriate state policies have negative
implications for the land under common property regime (Prill-Brett, 1994).
The overall result is the depletion of resources due to the breakdown of the
internal jurality of the community in the management of common property
regime. Individuals put in this situation take advantage of the uncertainty of the
current land tenure situation to expand their landholding and use state legal
instruments to privatize common property, leading to increased degradation of
the environment and the loss of biodiversity. When communities are deprived of
the right to manage the common property resources such as forestlands within
their ancestral domain, the perception of open access to public land arises. This
creates open competition for resources between the community and government-
favored individuals or corporations, and as a result the resource is not allowed to
regenerate since there is no incentive to prevent its depletion. In some cases, the
community may even compete in depleting these resources. Some individuals
have taken advantage of this opportunity to convert common property resources
into capital.
      An example is the accelerating conversion of the mossy forests into
commercial vegetable farms within the past twenty years. The government’s
declaration that the forest is public property, and therefore owned by the state
has encouraged some members of neighboring villages to encroach into the
traditional territory or domain of another to exploit their resources. This has

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      resulted in an increase in cases of conflict over resources and boundary disputes.
      The transformation from common property to private capital has affected the
      mossy forest of the northern central Cordillera in cases such as Mt. Data, (see
      Delson, 1989) the increasing encroachment of Mt. Pulag (Benguet), and Mt. Polis
      (Ifugao).


                                         CONCLUSIONS

             Under traditional land management, institutional arrangements in the
      access, use, and transfer of resources, particularly agricultural land and forest,
      were strategies developed by indigenous communities aiming at sustainable and
      equitable resource use. Diverse practices of multiple land use and management
      emerged. The nature of these institutional arrangements defined the extent of
      property regime over land and related resources.
             State policies governing Philippine natural resources have resulted in
      unintended consequences, contributing to non-sustainable resource management
      and the loss of biodiversity. This has also indirectly led to the commencement of
      the demise of common property regimes. With nationalization, common
      property resources claimed by indigenous communities were gradually converted
      to open access (see Prill-Brett, 1993, 2002), and eventually privatization, as also
      experienced in the Northern Thailand case (see Leonard and Kingkorn, this
      volume).
             Some unintended consequences have also been observed in the implemen-
      tation of the IPRA. This law was intended to improve the quality of life and to
      promote unity among the indigenous communities. However, issues involving
      boundary conflicts between adjacent community-stakeholders, and between
      individuals and groups within the same community, have been increasing. This
      is largely due to the introduction of new technologies and infrastructures
      such as roads, the replacement of subsistence crops by commercial crops, and
      conflicting rules and policies of conservation introduced by national and
      international conservation agencies. Indeed, it sometimes appears that the
      several agencies involved in development work within a particular area rarely
      coordinate with each other.
             Furthermore, the superimposition of nationalization policies, interacting
      with population increase and the increasing commercialization of agriculture
      and forest resources, has contributed to the breakdown of traditional
      institutional arrangements. Giving land titles without first understanding the
      local land classifications and the rules of management that govern these may lead
      to more inequality leading to conflict. When common property resources
      become privatized community members are deprived of their access rights to
      these resources, such as the case of land titling in northern Thailand (Leonard


136   Rural Development in Lao PDR:
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and Kingkorn, this volume).
      Well-meaning development projects being introduced to indigenous
communities without first understanding the traditional resource management
practices may encourage the creation of new rights that may eventually lead to
the demise of common property regimes.


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Benda-Beckmann, Franz von. 1983.Why Law Does Not Behave: Critical and Constructive
     Reflections on the Social Scientific Perception of the Social Significance of Law. In
     Proceedings of Folk Law and Legal Pluralism Commission Symposia, XI International
     Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August
     19–23, 1983. Vol. I: 233–262.
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Berkes, F 1986. Common Property Resources and Hunting Territories. In Who Owns
     the Bear? Northern Algonquain Land Tenure Reconsidered, eds. Ch. A. Bishop and
     T. Morantz. Anthropologica 28: 146–62.
Bromley, D.W. and M. Cerna. 1989. The Management of Common Property Natural
     Resources: Some Conceptual and Operational Fallacies. World Bank Discussion Paper
     57. Washington: The World Bank.
Delson, Marcelino. 1989. The Death of a Wetland in the Uplands (The Mount Data
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     Management, Leiden University, Netherlands, June 4–9, 1989.
Dorral, R. 1979. Tingguian Opposition to CRC. AGHAM TAO Vol. 2.
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Keesing F and Marie Keesing. 1934. Taming Philippine Headhunters. London: Allen & Unwin.
Lynch, O.J. 1982. Native Title, Private Right and Tribal Land Law: An Introductory
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Lynch, O.J. 1986. Philippine Law and Upland Tenure. In Man, Agriculture, and the Tropical
     Forest: Change and Development in the Philippine Uplands, eds. S. Fujisaka, P. Sajise, and
     R. Castillo. Bangkok: Winrock International Institute for Agricultural Development.
Malayang, B.S. 1991. Tenure Rights and Exclusion in the Philippines. In Nature and
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Mount Pulag National Park. 2000. National Integrated Protected Areas Programme (NIPAP),
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National Integrated Protected Areas Programme (NIPAP). 1998. Socio-Economic and
     Cultural Profile of Mount Pulag Area of Interest: Findings and Recommendations for PA
     Planning Resulting from a Rapid Rural Appraisal Conducted within the Communities of
     Barangays Tawangan and Bashoy, Kabayan Municipality, Benguet. January 6, 1998.
Prill-Brett, June. 1985. Bontok Land Resources and Management In Agroecosystem
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     on Environmental Science and Management, University of the Philippines Los Banos,
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Prill-Brett, June.1986. The Bontok: Traditional Wet Rice and Swidden Cultivators of the
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Prill-Brett, June. 1987. Landholdings and Indigenous Corporate Groups among the Bontok of
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      Prill-Brett, June. 1988. Preliminary Perspectives on Local Territorial Boundaries and Resource
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      Prill-Brett, June. 1993. Common Property Regimes among the Bontok of the Northern
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         3
PART THREE:      REFORM-HOPE
                 AND CAUTION




                         Rural Development in Lao PDR:      139
              Managing Projects for Sustainable Livehoods
140   Rural Development in Lao PDR:
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                                        7
        EFFECTIVE LAND TENURE REFORM:
      INSIGHTS FROM SELECTED PHILIPPINE
       AGRARIAN REFORM COMMUNITIES1
                                Ugo Pica Ciamarra


                               INTRODUCTION

       The open access and the commons dilemmas emerge from the observation
that unregulated common property rights may eventually lead to environmental
degradation and resource depletion. From an economic viewpoint, in fact, the
prevailing configuration of markets and policies often results in an incentive
structure that induces people to maximise individual profits by not taking into
account the externalities they inflict on the society as a whole (Hardin, 1968).
Unregulated open access resources and commons are thus being appropriated
without compensation by over-grazing, over-foresting, over-fishing and, in
general, by over-exploiting natural resources, with negative externalities for present
society and future generations.
       Economic theory points at two major approaches of correcting
externalities. The first consists of taxes, quotas and subsidies imposed by an
external authority, such as the State or the community, so as to make the agents
internalize the social costs. The second is the assignment of individual property
rights that are alleged to internalise the externalities and give individuals the
proper incentives to act in a socially efficient way. Regrettably, on the one hand,
the State and the community do not possess the necessary information to set up
the first-best fiscal policy or to entirely detect and control resource access. On
the other hand, privatisation is an efficient policy as long as enforcement costs
are nil and all markets are complete and perfect, that is, under conditions rarely,
if ever, satisfied in the real world (Atwood, 1990; Baland and Platteau, 1996;
Carter and Olinto, 2003). Recent micro-scale empirical findings show
that state-led, community-based, and market-driven (privatization) modes of
internalization of social costs can be combined in heterogeneous and original
ways that open avenues to numerous effective solutions to the management of
natural resources. Common elements to these strategies are to increase individual


                                                          Rural Development in Lao PDR:      141
                                               Managing Projects for Sustainable Livehoods
      access to natural resources, to enhance the productivity of people’s natural
      resource assets, and to involve local actors in resource management (Lee, 1998;
      Scherr, 2000).
             This chapter explores the “Farming System Development” (FSD) approach
      adopted by the Philippine government to promote the sustainable development
      of some rural communities. These communities are a subset of those defined as
      Agrarian Reform Communities (ARCs) under the current agrarian reform
      program. In 2001, ARCs accounted for only 3,200 of the country’s 42,000
      barangays, but these are concentrated among the most rural and impoverished.
      FSD applies to those ARCs in which land distribution has been mostly
      completed and where farmers’ organisations have reached an advanced level of
      maturity. The FSD method relies upon the assignment of private land property
      rights, a bottom-up community development program, and enhanced
      participation of local governments and private investors in the economic
      activities.
             The main finding is that most FSD farmers are better off. On one hand,
      this is because the FSD approach has promoted a process of diversification of
      economic activities. Thus while agricultural production techniques have stayed
      almost unchanged, farmers have started using different kind of inputs bundles.
      On the other hand, the physical and human capital of the communities have also
      increased. Not only are local governments and private agents investing in the
      area, but social capital is also being generated by joint management of rural
      cooperatives and contract-farming arrangements.
             To set the context for the FSD approach, I first present the two major
      elements of the Philippine “Comprehensive Agrarian Reform Program”
      (1988–2008), the land acquisition and distribution component, and the public
      delivery of support services to agrarian reform beneficiaries. I then describe
      fully the Farming System Development model. This leads to discussing detailed
      data from a before/after evaluation of the application of the FSD approach on
      farmers’ welfare, agricultural production systems and community development.
      The impact assessment is based on discernible average differences in primary
      and secondary data collected at household and community level in selected
      Agrarian Reform Communities nationwide, both in a baseline year and in 1999.
      The conclusion relates the main findings in summary form.


                      AGRARIAN REFORM IN THE PHILIPPINES

      Comprehensive agrarian reform program (CARP)
            Land distribution in the Philippines has been traditionally skewed, as a
      result of Spanish colonization (1565–1898), US dominion (1898–1946) and the
      exclusionary agro-export growth promoted after the 1946 independence (Allen,
      1938; Constantino, 1978; Ruiz, 1945; Willis, 1905). In 1988, 5 percent of all

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families owned 83 percent of the arable land (Putzel, 1992). Thus since 1574
the Philippine history has been characterized by countless rural riots and revolts,
largely negative reactions to exploitative labor and tenancy relationships, and by
several agrarian laws, which intended to mitigate social tensions in rural areas
(IBON, 1988; Kerkvliet, 1974; Monk, 1990). The most recent attempt to change
the pattern of land ownership has been the 1988 “Comprehensive Agrarian
Reform Program,” usually referred to as CARP, which is still being implemented.
       CARP was legislated during the democratic government of Corazon Aquino,
who became president of the country in February 1986 after twenty years of
Marcos’ dictatorship. It was the first Philippine agrarian reform program not
entirely state-led, as grassroots peasants’ movements and NGOs exerted
tremendous pressures on the government during the legislative process (Bulatao,
2000). As a result, CARP presents both conservative and progressive
components (ROP, 1988). Conservative elements are a variable land retention
limit, a ten-year (then twenty-year) implementation schedule, a compensation
formula that may price the land above the market value (Putzel, 1992), the
deferred redistribution of commercial farms, a corporate stock-sharing scheme
that can replace land expropriation, and constraints on the transferability of land
titles for a ten-year period. But CARP is also progressive, at least with respect to
previous Philippine agrarian reform laws. First, it shifts from tenure regulations
in rice and grain lands to land redistribution; second, it covers all public and
private agricultural lands, so that over ten million hectares were projected to
benefit 3.9 million rural-based producers and workers. In January 1998 this
target was lowered to less than 8 million hectares, with around 21% of
the presumed beneficiaries losing out with this reduction (Borras, 2000).
Nevertheless, this scope is well above the targets of the successful Japanese,
Taiwanese and South Korean agrarian reform programs (Hayami et al., 1990).
Finally, CARP offers a range of alternative schemes of land redistribution, such as
voluntary offer for sale and voluntary land transfer.2
       The land acquisition and distribution component of the program is
administered by two Departments. The Department of Environment and
Natural Resources (DENR) is responsible for redistributing around 3.5 million
hectares of public agricultural lands; the Department of Agrarian Reform (DAR)
is in charge of acquiring and redistributing about 4.3 million hectares of private
agricultural lands and some government-owned lands (particularly those
managed by government financial institutions). As of December 2000, 67% of
the target has been accomplished, with 70% of the distributed land derived from
the public government. 3 On the whole, CARP has achieved something
significant, as the Philippines ranks third in the percentage of arable land
redistributed among those countries that carried out post-World War II agrarian
reforms.
       The program does not intend to simply distribute the land, but also to
ensure the benefits of becoming owner-cultivators. It is widely acknowledged

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      that in situations characterized by incomplete contracting, resource-poor
      farmers suffer competitive disadvantages in the sphere of production. It follows
      that changes in patterns of land ownership lead to an increase in agricultural
      income so long as adequate provision is made for the supply of necessary inputs
      and mandatory services to land reform recipients. The Philippine government is
      extensively involved in the provision of support services to smallholders, so much
      so that 27% of all agrarian reform funds so far have been devoted to “Program
      Beneficiaries Development” (e.g., irrigation facilities, credit, infrastructure,
      training, marketing and management assistance, support to cooperatives and
      farmers’ organizations). The delivery of support services to farmers is managed
      by eight governmental agencies, the principal being the Land Bank of the
      Philippines (LBP) and the Department of Agriculture (DA).
             As government will not provide production services indefinitely, agrarian
      reform beneficiaries have to be economically self-sustaining once public support
      subsides. Will they in fact be able to reap the benefits of private land property
      rights autonomously?4 If not, concentration of land, often associated with
      mismanagement, is likely to re-occur. The Philippine government has adopted
      two institutional strategies to trigger the sustainability of land redistribution: the
      1991 Local Government Code (LGC) and the 1993 Agrarian Reform Communi-
      ties (ARCs) approach.
             The rationale of the LGC is that local governments are better informed and
      more accountable to rural people than central authorities and, consequently, are
      likely to execute more effective and efficient policies. The Philippine LGC
      devolves to local government units (LGUs) responsibility and authority in
      agricultural research extension, social forestry, environmental management and
      pollution control, primary health care and hospital care, social welfare services,
      repair and maintenance of infrastructure facilities, water supply and communal
      irrigation projects, and land use planning (Manason, 1997). Although it is likely
      that devolution provides opportunities for improving the effectiveness and
      efficiency of local operations, in the early nineties most provinces and munici-
      palities failed to preserve their 1991 real expenditure levels on the social sector
      after adjusting for the cost of devolved functions (Alba, 1998; Manason, 1997).
      Furthermore, a growing empirical economic literature warns of the dangers of
      decentralization: in rural areas of developing countries local bosses and
      administrators may attempt to extract extra-rents from public resources, as they
      can exert their economic and political power more “efficiently” (Hsiao et al, 1998).
             The Agrarian Reform Communities (ARCs) approach, started in 1993, is
      the Philippine government’s main institutional strategy to make CARP
      sustainable in the long run. Section 36 of CARP, as amended by Republic Act
      7905, states “ . . . an Agrarian Reform Community shall be defined as a barangay
      (village) or a cluster of barangays primarily composed and managed by Agrarian
      Reform Beneficiaries (ARBs) who shall be willing to be organized and undertake
      the integrated development of an area and/or their organizations/cooperatives.

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In each community, Department of Agrarian Reform of the Government of
Philippines DAR shall identify the farmers’ association/cooperative that shall
take the lead in the agricultural development of the area.” In other words,
Agrarian Reform Communities are adjacent agricultural areas where land
distribution balances are relatively low, and where farmer beneficiaries are
organized in cooperatives. It is therefore likely that ARCs are more receptive to
and prepared for training, credit, marketing assistance and other support
services. By December 2001, DAR had established more than 1,400 ARCs
covering over two million hectares of land, and involving more than 0.7 million
beneficiary households. The ARC program is relatively small, as it covers just
about 3,500 barangays vis-à-vis almost 42,000 all over the country, and is biased
towards communities that present a sound institutional infrastructure and to
households that have access to land. However, it is not insignificant for rural
poverty alleviation as it is targeted to a section of the rural population, the
agrarian reform beneficiaries, who largely live below the poverty line (World
Bank, 1998).

Farming System Development Approach (FSD)
       The Local Government Code (LGC) and the Agrarian Reform Communi-
ties (ARCs) constitute the institutional setting of rural areas. The Farming
System Development (FSD) approach is a bottom-up development strategy built
around the LGC and ARCs. This strategy relies upon the existence of an equal
distribution of private land property rights, it requires the entire community to
partly direct and guide the individual management of farm and non-farm
activities, and it involves local actors and private investors in the development
process. Its short run goal is to reduce poverty and enhance the quality of life of
small farmers; its long run objective is to set up a socially and economically
sustainable development process.
       The Farming System Development (FSD) approach was introduced in the
Philippines through a project of the Food and Agricultural Organization of the
United Nations (FAO), and today it is the official government’s tool to develop
Agrarian Reform Communities (DAR, 1998a; 1998b). It is implemented in those
ARCs where land distribution has been mostly completed and where farmers’
organisations have reached an advanced level of maturity. This strategy is based
on the factual observation that: (i) each ARC presents distinctive institutional
infrastructures; (ii) each ARC is set in a different agro-climatic context; (iii) each
ARC is characterized by different and peculiar systems of production. The FSD
approach attempts to take in consideration this heterogeneity by involving in the
development process the following actors (Lourie, 2001):
       • Agrarian reform beneficiaries and their organizations.
       • Local government units at barangay, municipal and provincial level.
       • Government agencies, such as the DAR, the Department of Agriculture
          and the Department of Environment and Natural Resources.


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             • Non-governmental organizations (NGOs) active in ARCs and
                supportive of the agrarian reform program.
             • Some foreign assisted projects funded by donor governments,
                international banks and organizations.
             • Agribusiness enterprises representing the private sector.
             The central element of the whole process is the so-called FSD team
      comprised of selected farmers, DAR and Local Government Units field staff (e.g.
      the municipal agrarian reform officer, the municipal agricultural officer, the DAR
      development facilitator) and representatives of NGOs actively supporting the
      community. The FSD team, therefore, represents the interests and aspirations of
      all groups involved in the development process.
             The FSD approach consists of six phases.
             1. (Two days) DAR representatives explain the concepts of ARC and FSD
                approach to the barangay population. The FSD team is formed. The
                paramount activity of this phase is the Barangay Workshop Consulta-
                tion where barangay residents identify and prioritise their developmen-
                tal needs and constraints. The typical constraints that are pointed at by
                farmers are: (i) poor condition or non-existence of farm to market roads;
                (ii) inadequate or non-existent irrigation facilities; (iii) difficult access or
                lack of credit and capital; (iv) inadequate supply or lack of potable water
                (SARC-TSARRD, 2000).
             2. (Thirty days) The FSD team is in charge of preparing the ARC profile,
                which includes: location, agrarian situation (e.g., tenure and CARP
                implementation status), bio-physical features (e.g. topography, kind of
                soils and water resources), social features (e.g. population, health status
                and level of education), infrastructures availability (e.g. roads and their
                conditions, irrigation and post-harvest facilities), main economic
                activities (e.g. farm, off-farm and non-farm) and existing administrative
                and popular organizations (SARC-TSARRD, 1998a).
             3. (Five/six days) The FSD team is trained by DAR officers about the
                following concepts: farm household systems, farming system (FS) zones
                and gender issues. The concept of farming system zone is of paramount
                importance for the success of the entire process: it refers to a group of
                farm households that have similar objectives and resources (land, labour,
                capital, managerial abilities), and that undertake similar activities (farm,
                non-farm, off-farm work) to justify the development of packages of
                improvement specifically targeted for them. The FSD team is also trained
                to carry out farm household surveys and process the results. These
                surveys aim at gathering data about households’ characteristics and
                activities except for farming practices.
             4. (Thirty days) The FSD team conducts surveys at household level,
                identifies the FS zones and performs the so-called focus dialogue. In the
                focus, dialogue clusters of households belonging to specific FS zones

146   Rural Development in Lao PDR:
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         answer questions regarding their crop production system. A cost and
         return analysis and a cash flow scheme that estimates the average
         household income are the main outputs of this activity. On the basis of
         the ARC profile, the households’ surveys and the focus dialogue, the
         FSD team prepares an indicative ARC development plan. This plan
         presents a general development objective, indicates its main components,
         proposes strategies of implementation, and quantifies the budgetary
         requirement. In other words, it is a sort of business plan.
      5. (Five/six days) DAR officers suggest amendments and revisions to the
         ARC development plan, and train the FSD team about resources
         mobilizations for plan implementation. In particular, the training is
         focused on setting up cooperatives, exploiting market opportunities and
         establishing contract-growing arrangements with agribusiness enterprises.
      6. Presentation of the ARC indicative development plan to the community,
         which by a democratic vote decides whether to endorse the plan or ask
         for further amendments. Once the plan has been approved, mobiliza-
         tion of resources for plan implementation is the next, and most relevant,
         step. The process leading to the endorsement of the ARC development
         plan is partly driven by outside developers. However, insider
         knowledge and viewpoints are continuously sought so that the plan is
         likely to reflect the interests and aspirations of the entire community.
         Interestingly, community decisions not only refer to public goods, such
         as roads and irrigation systems, but also to cropping activities on
         privately owned land.
      The first tangible outcome of the FSD approach is the ARC Development
Plan that consists of:
      1. The ARC Profile.
      2. The Farming System Profile.
      3. An Indicative Development Plan that includes recommendations on: (i)
         On-farm improvements; (ii) Non-farm improvements; (iii) Infrastruc-
         ture development; (iv) Development and strengthening of cooperatives;
         (v) Development of forward and backward linkages with agribusiness
         firms.
      In particular, on-farm and non-farm improvements are short-run goals, as
they especially depend on the pervasive diffusion of knowledge and information
through the ARC development plan. On the contrary, infrastructure and
cooperative development are more likely to be long-run objectives, as they
require the continuous and joint efforts of heterogeneous actors.
      The successful implementation to the ARC development plan should
lead to outcomes that include enhanced households’ well-being, increased
agricultural production and productivity, and establishing the basis for
sustainable long-run rural development.



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             APPLICATION OF THE FSD APPROACH IN SELECTED
                    AGRARIAN REFORM COMMUNITIES

      The dataset
            The impact assessment of the FSD approach is based upon quantitative
      and qualitative, secondary and primary data collected in 83 selected ARCs, both
      in a baseline year (1995, 1996 or 1997) and in 1999, that have gone through the
      FSD approach, as well as on national statistics from the Philippine National
      Statistics Office (NSO, 2000). The sampling includes ARCs located in different
      agro-ecological zones (the three island groups), major crops, cropping patterns
      and different years of FSD application. In particular, 30 ARCs are located in
      Luzon, 20 in the Visayas and 33 in Mindanao. The analytic focus is on
      discernible average (or aggregate) differences and it is just descriptive, and it
      assumes that accrued benefits from the FSD approach can be properly reflected
      already after two years of program implementation. Households and community
      data were collected by the World Bank Agrarian Reform Communities
      Development Project5 (WB - ARCDP, 2000); agribusiness contracts data were
      collected by the FAO Project Sustainable Agrarian Reform Communities-
      Technical Support to Agrarian Reform and Rural Development (SARC - TSARRD,
      1999b). The data refer to:
            • Total real income per representative household per ARC, divided in farm
                income, off-farm income, livestock and poultry income and non-farm
                income.6
            • Quantitative data on agricultural production per farming zone per ARC:
                hectares planted, gross value of production, gross production cost, unit
                selling price, and total farm income.
            • Qualitative data on production practices per crop: land preparation,
                planting, weeding, fertilising, harvesting, post harvesting and
                marketing practices.
            • Qualitative and quantitative (some) data on agricultural inputs per
                farming zone per ARC: type of seeds, fertilizers and pesticides used.
            • Qualitative and quantitative data on credit availability per ARC: source
                of credit, purpose, monthly interest rate and terms of payment.
            • Qualitative data on extension services per ARC: type of service (e.g.
                livelihood, plant protection and veterinary), provider, year of availability.
            • Quantitative data on pre- and post-harvest facilities: number and kind
                of facilities, number of beneficiaries and providers.
            • Quantitative and qualitative data on cooperatives: number of coopera-
                tives, membership, type of services provided, level of savings generation
                and capital built-up.
            • Quantitative and qualitative data on local governments’ activities.
                Number of local government officials trained during the FSD approach,
                number and type of public goods provided.

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       Data for the base year were taken from the ARCs Development plans. Data
for 1999 were primarily collected at household level by interviewing survey
clusters. The clustering was made according to farming zone (lowland-upland,
irrigated-rainfed) and produce grown. Groups of households were required to
answer about their production technique, pre- and post-harvest facilities, and
credit availability. Data on cooperatives were gathered directly at the coopera-
tives. Interviews to privileged actors and field trips quantified the presence of
extension services (livelihood, plant protection, veterinary), basic social services
(health, water, power), and operation and maintenance of infrastructure. The
data referring to local governments’ funding activities were gathered in the
barangay, municipal, and provincial bureaus.

Household level analysis
      (a) Household income
      The immediate goal of the FSD approach is to reduce poverty and enhance
the quality of life of target beneficiaries. Real household annual income can be
taken as a proxy of agrarian reform beneficiaries’ well-being. Consequently, its
change over time indicates variation in farmers’ living conditions. The average
household real income in baseline year and 1999 are graphed here below, both
with and without taking into account implicit family labour costs.

      Figure 7.1. Average household real income, baseline year and 1999
                             (Philippine pesos)




       Average household income increased by over 25% in the period at hand,
from 33,730 to 44,438 Philippine pesos and from 27,261 to 38,248 Philippine
pesos when subtracting implicit family labor costs. An ANOVA and a chi-square
test for mean and median equality show that this change is even significant at 5%
level. The 1999 household average income, however, is just above the poverty

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      threshold, which in 1994 was set at 43,585 pesos (Collas-Monsod and Monsod,
      1999). Enhanced household income arises from on-farm, non-farm, off-farm
      and livestock and poultry activities. In particular, on the one hand, animal
      husbandry, off-farm and non-farm income have increased both in absolute and
      percentage terms; on the other hand, crop income has increased in absolute terms
      but decreased in percentage terms, pointing at a pattern of diversification in
      household survival strategies (see figure 7.2).

                                   Figure 7.2. Sources of income




                                  Source: baseline year and 1999.

            (b) Agricultural diversification
            The application of the FSD approach has also promoted a process of
      diversification of crops grown. Philippine farmers used to cultivate rice, corn,
      banana, coconut and some abaca. Households living in agrarian reform
      communities that went through the FSD approach have began to cultivate
      non-traditional crops as well, such as garlic, potatoes, peanuts and string beans.
      In particular, in the sampled ARCs, there has been a reduction of over 10,000
      hectares of land planted to rice, corn, coconut and banana, and a general
      increase in areas devoted to non-traditional crops. Specifically, the hectares tilled
      to banana and coconut combined decreased from 31.55% to 13.5% of the entire
      cultivated area between the baseline year and 1999. This contrasts with the
      aggregate trend of the whole country, where the area planted with rice and corn
      combined grew from 6,568 to 6,642 thousands of hectares between 1997 and
      1999, i.e., it did not change significantly. The area devoted to coconut produc-
      tion, instead, slightly diminished from 3,314 to 3,076 thousands of hectares.
      Finally, the agricultural area planted with non-traditional crops clearly
      diminished (except for mango and tobacco), showing an opposite trend vis-à-vis
      that of ARCs (NSO, 2000).

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         Figure 7.3. Average area planted (ha.) per crop per household




     (c) Agricultural productivity
     The decline in the area devoted to traditional crops has not been
accompanied by reduced self-sufficiency in terms of basic food staples. Increased
productivity in rice and corn production has more than counterbalanced the
reduction in the area tilled.

    Figure 7.4. Rice and corn average yield production per hectare (kilos)




      Rice production per hectare has increased by around 17%, while corn
production by almost 60% (see figure 7.4). In both cases, mean equality tests
reveal that these changes are statistically significant. Comparing these data to
country averages shows that, even though a general increase in production per
hectare is recorded at the national level, this has been smaller with respect to the
productivity increase registered in ARCs. For instance, aggregate national data

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      indicate that in the period 1997 to 1999 rice production per hectare increased by
      5% vis-à-vis 17% in the sampled ARCs (NSO, 2000).

            (d) Agricultural technology
            Production practices stayed unchanged over the period at hand. Land
      preparation is a combination of manual and animal labour; seeds used are of
      high yielding varieties; fertilizers and pesticides are chemical except for a few
      cases; seeding and transplanting (for irrigated rice) are labour-intensive;
      agricultural products are mostly sold to private dealers. This picture replicates
      that of other East Asian countries.7 However, although agricultural production
      practices stayed constant, farmers have started using new kinds and combina-
      tions of seeds (75.0% of households), fertilisers (61.8%), and pesticides (41.4%).
      This is an outstanding outcome. Farmers, in fact, are strongly risk-averse and
      their adoption of technological innovations over time is typically measured and
      distributed under a bell-shaped curve. Early researchers of the green revolution
      argued that, although modern varieties were scale-neutral, the larger and more
      commercialised farms had a higher adoption rate, mainly because of access to
      credit facilities and availability of information. Empirical studies do not support
      these arguments and conclude that farm size, tenure, and other institutional
      factors do not significantly affect the diffusion rate of modern varieties (David
      and Otsuka, 1994). The fast evolution of science, reflected in the more than 35
      new rice seed varieties engineered by the International Rice Research Institute
      between 1990 and 1999, (IRRI, 2000) poses an issue for risk-averse cultivators.
      Even though the early adoption of modern varieties was scale-neutral, the FSD
      application shows that innovative approaches can succeed in bridging the gap
      between the fast growth of new varieties and their actual use in cultivation by
      conservative resource-poor farmers.

      Community level analysis
             (a) Rural cooperatives
             The usual ARC development plan suggests setting up and strengthening
      existing agricultural cooperatives. The core task of rural cooperatives is to
      supply credit and capital to agrarian reform beneficiaries. In particular, through
      the “Credit Assistance Program for Beneficiaries Development” credit is made
      available to members of rural cooperatives for acquiring agricultural production
      inputs, pre-and post-harvest facilities and fixed assets (DAR, 2000). In the sampled
      ARCs the average cooperative membership grew from 77 to 99, i.e., it increased
      by 28% between baseline year and 1999. The growing membership was
      accompanied by increasing savings generation: average savings per member rose
      from 154 to 450 pesos per year—i.e., more than 50%—allowing access to credit
      to a rising number of agrarian reform beneficiaries.
             Table 7.4 shows sources of credit, purpose, interest rate and terms of
      payment for different lending actors, both in baseline year and 1999 in selected

152   Rural Development in Lao PDR:
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ARCs. The data indicate that (i) there has been growing credit availability for
small farmers, and (ii) loans have been primarily released for crop production,
whatever the provider. The cost of credit looks does not appear significantly
different between baseline year and 1999. As expected, the Land Bank of the
Philippines charges the lowest interest rate, followed by the cooperatives.
Private traders charge the highest rate.
       Cooperatives not only supply credit to their members, but also provide
farmers with pre-and post-harvest facilities. Pre-harvest facilities include
working animals (water buffalos, cattle and horses), machinery tractors and
hand-tractors (two wheels), ploughs, harrows, sprayers and water pumps.
Post-harvest facilities include threshers, rice and corn mills, solar dryers, storage
rooms and, in rare circumstances, mechanical dryers, moisture meters and
hauling trucks. Between baseline year and 1999 in the sampled ARCs, the
median number of pre-harvest facilities increased from 24 to 42, or about by
75%. Post-harvest facilities, on the contrary, rose from 2 to 4 per cooperative,
that is by 100%. The small ratio between post-harvest vis-á-vis pre-harvest
facilities indicates that households are above all interested in evening out their
agricultural production (and consumption) rather than in maximising profit.
Finally, as in each ARC there are around 700 to 1,000 households, each family
has limited access to pre- and post-harvest facilities, which do not usually boast
the property of “non-rivalness”.

      (b) Local governments and public goods
      The 1991 Philippine Local Government Code (LGC) has devolved and
decentralized functions from national to local governments in the fields of health,
social welfare, agriculture, and social and environmental infrastructure. The Code
also governs the relations among local governments, people’s organizations,
non-governmental organizations and private agents. The LGC mandates that:
      (i) barangays have to provide support services, namely distribution
            systems for inputs and collection of agricultural products through
            buying stations;
      (ii) municipalities have to provide agricultural extension services and
            on-site research centres. Municipal extensions services include
            dispersal of livelihood and poultry and other seeding materials for
            agriculture; establishment and maintenance of seed farms and seedling
            nurseries; enforcement of standards for quality control; maintenance
            and operation of inter-barangay irrigation systems; implementation of
            water and soil resource utilization and conservation projects;
      (iii) provinces have to provide extension services and on-site research.
            Provincial extension services include prevention and control of plant
            and animal pests and diseases; establishment and maintenance of dairy
            farms, livestock markets and animal breeding stations; assistance in
            organizing farmers’ cooperatives and other collective organizations;
            transfer of appropriate technologies (ROP, 1991).

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            The ARC development plan is a well-built device to encourage local
      governments to supply public goods and comply with the LGC. First, represen-
      tatives of local governments at various levels contribute to the drawing up of the
      development plan. This alliance generates consistencies between the develop-
      ment goals at household, barangay and municipal level. Second, more often
      than not, international organizations support the implementation of the FSD
      approach. For instance, in June 1999, 63% of ARCs were receiving technical
      and financial support from international organizations (DAR, 1999b). Local
      officers and mayors not only boast of dealing with reputed foreign actors, but
      also have optimistic expectations for activities supervised by foreign donors and,
      therefore, are more willing to supply local public goods, with obvious benefits
      for the entire community.

      Table 7.1. Source of credit, purpose, interest rate and terms of payment in
                 selected ARCs for baseline year and 1999.
        Source of Credit             Purpose                 Interest Rate   Terms of Payment
       Baseline    1999          Baseline 1999             Baseline 1999     Baseline    1999
                                    Crop         Crop
       Cooperative Cooperative                               1,25     2,00      Cash        Cash
                                 Production   Production
                                    Crop         Crop
       Cooperative Cooperative                               2,00     2,00      Cash        Cash
                                 Production   Production
                                    Crop         Crop
       Cooperative Cooperative                               1,42     3,00      Kind        Kind
                                 Production   Production
                                    Crop         Crop
       Cooperative Cooperative                               2,50     2,50   Combination Combination
                                 Production   Production
                                    Crop         Crop
       Cooperative Cooperative                               2,00    10,00      Kind     Combination
                                 Production   Production
                                    Crop         Crop
          LBP          LBP                                   1,50     1,50      Cash        Cash
                                 Production   Production
                                    Crop         Crop
          LBP          LBP                                   2,15     1,33      Cash        Cash
                                 production   Production
                                    Crop         Crop
          LBP          LBP                                   2,15     1,33      Cash        Cash
                                 production   Production
                                    Crop         Crop
          LBP          LBP                                   2,00     1,33      Cash        Cash
                                 production   production
                                    Crop         Crop
          LBP          LBP                                   1,33     1,33      Cash        Cash
                                 production   production
                                    Crop         Crop
       Rural Banks Rural Banks                               2–5      3,00      Cash        Cash
                                 Production   Production
                                    Crop         Crop
       Rural Banks Rural Banks                               5,00     5,00      Cash        Cash
                                 Production   Production
         Traders     Traders      Livestock    Livestock     6–10     5,00   Combination Combination
                                    Crop         Crop
         Traders     Traders                                 0–20    20,00   Combination Combination
                                 Production   Production

154   Rural Development in Lao PDR:
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  Source of Credit               Purpose         Interest Rate   Terms of Payment
 Baseline    1999         Baseline 1999 Baseline 1999 Baseline                1999
                             Crop       Crop
  Traders     Traders                           11,00     10,00 Combination Combination
                          Production Production
                             Crop
  Traders     Traders                           20,00     20,00 Combination Combination
                          Production Production
                             Crop
  Traders     Traders                           10,00     10,00    Kind        Kind
                          Production Production
                                        Crop
     -      Cooperative        -                  -        5,00      -      Combination
                                     Production
                                        Crop
     -      Cooperative        -                  -        1,16      -         Cash
                                     Production
                                        Crop
     -      Cooperative        -                  -        1,42      -         Cash
                                     production
                                        Crop
     -      Cooperative        -                  -        2,00      -         Cash
                                     Production
                                        Crop
     -      Cooperative        -                  -        n.a.      -      Combination
                                     production
                                        Crop
     -         LBP             -     Production   -        1,30      -         Cash
                                        Crop
     -         LBP             -                  -        1,33      -         Cash
                                     production
                                        Crop
     -         LBP             -                  -        1,50      -         Cash
                                     Production
                                        Crop
     -         LBP             -     Production   -        1,17      -         Cash
                                        Crop
     -         LBP             -                  -        1,30      -         Cash
                                     Production
     -         LGU             -      Livestock   -        n.a.      -         Cash
     -         LGU             -      Livestock   -        n.a.      -         Cash
                                        Crop
     -        Traders          -                  -       10,00      -      Combination
                                     Production
                                        Crop
     -        Traders          -                  -       10,00      -      Combination
                                     Production
                                        Crop
     -        Traders          -                  -       35,00      -         Kind
                                     Production
                                        Crop
     -        Traders          -                  -       20,00      -         Kind
                                     Production
                                        Crop
     -        Traders          -                  -       20,00      -         Kind
                                     Production

LBP = Land Bank of the Philippines          DA = Department of Agriculture
LGU = Local Government Unit                 DTI = Department of Trade and Industry



                                                           Rural Development in Lao PDR:      155
                                                Managing Projects for Sustainable Livehoods
             Aggregate data indicate that local governments have heavily invested in
      rural areas. Support is the highest at the municipal level and the lowest at barangay
      level. For instance, in the sampled ARCs, total funds released were 12,079,909
      pesos at barangay level, 115,261,964 pesos at municipal level, and 50,036,596
      at provincial level. The next three tables show some of the public goods financed
      by local governments in randomly selected ARCs. Unfortunately, benchmark
      figures exist, but prior municipal and provincial investments were approximately
      zero before development of the FSD approach.
             The tables show that local governments finance a wide variety of projects
      and activities in rural areas, from solar dryers to wells and swine dispersal, from
      road gravelling to health centres and chapels. The effects on farmers’ welfare of
      these investments are not easily quantifiable. However, on the one hand, they
      have had a positive impact on households’ non-farm income, as most of the
      workmen employed for building infrastructures or gravelling roads were the
      farmers themselves. On the other hand, in underdeveloped areas with
      inadequate infrastructure facilities and imperfect markets, supply elasticities with
      respect to the provision of public goods have been found to be significantly higher
      than price elasticities (Binswanger and McIntire, 1987).

            (c) Small farmers and big firms
            The lack of credit and capital due to market and institutional imperfections
      and failures counts as one of the foremost difficulties for agrarian reform
      beneficiaries. Prior to CARP, patron-client relationships were highly pervasive
      in Philippine rural areas. Landowners were responsible for providing tenants/
      sharecroppers/ labourers with physical and financial resources and for sharing
      price and production risk (Hayami et al.,1990). In ARCs this traditional source
      of credit and capital has been partly taken over by the cooperatives, the Land
      Bank of the Philippines, and private dealers and traders. However, private
      entrepreneurs could also find it profitable to invest in the rural poor (de Janvry,
      2000). In this regard, the setting-up of contract-growing arrangements in
      several ARCs is particularly instructive.
            DAR has recently formalized an overall strategy to trigger forward and
      backward production linkages in rural areas. In October 1999 the Philippine
      Government launched the MAGKASAKA (Magkabalikat sa Kaunlarang Agraryo:
      Partnership towards Agrarian Development) program that aims at bringing
      private investments to the countryside, especially in ARCs. “Its vision is to bring
      together the investors and the agrarian reform beneficiaries, merge their
      common interests, and encourage them to become partners in establishing rural
      business enterprises” (DAR, 1999a: 2). The DAR Administrative Order No.2
      Series of 1999, “Rules and Regulations Governing Joint Economic Enterprises in
      Agrarian Reform areas,” regulates a series of contracts to be possibly implemented
      in the countryside between small farmers and agribusiness enterprises (DAR,
      1999c).

156   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
     These strategies consist of: (i) building up marketing-matching mechanisms
between rural cooperatives and agribusiness enterprises; (ii) training a network
of DAR staff at the central, regional and provincial level; (iii) publishing
and disseminating market and investment opportunities brochures. Market-
matching activities are forums where ARCs representatives, leaders of cooperatives,

          Table 7.2. Examples of barangay financial support in ARCs

Type of project/assistance provided      Amount released        Year funds released
Potable Water Supply                        70,000                  1998-1999
Solar Dryer                                 75,000                  1998-1999
Health Centre                               65,000                     1999
Community Centre                           116,000                     1999
Public Market                                3,600                     1999
Barangay Nursery                             5,000                     1999
Road graveling                              15,000                  1998-1999
Purchase of Medicines (CSRA Fund)           24,000                  1998-1999
Barangay Fishpond                            2,000                     1998
Barangay Stage                              25,000                     1999
Provision of Nursery                         5,000                     1999
Tree Planting                                5,000                     1999
7 Deep Wells                                89,000                     1998
Coop. Office                                 5,000                     1997
Electrification                             23,698                   1998-99

         Table 7.3. Examples of municipal financial support in ARCs

Type of project/assistance provided      Amount released        Year funds released
Garment manufacturing                       12,000                     1996
Micro-Enterprise (Consumer Store)           50,000                     1999
Const. Of Potable Water System             531,508                     1998
Medical Mission                             10,000                     1999
Planting Materials Distribution              2,000                     1998
Solar Dryers                               250,000                     1997
School Fencing                              11,000                     1999
Integrated Pest Management: Corn             8,400                     1998
Multi Purpose Drying Pavement              100,000                     1997
Swine Dispersal                             34,000                  1998-1999
Irrigation Pumps                           336,000                  1998-1999
Palay seeds (HYU) - 5 cav                    3,500                     1999
Multi-Purpose Pavement                      60,000                     1999
Purchase of Certified Seeds                 10,000                     1999
Post Harvest Facilities                    120,000                     1999

                                                        Rural Development in Lao PDR:      157
                                             Managing Projects for Sustainable Livehoods
                 Table 7.4. Examples of provincial financial support in ARCs

      Type of project/assistance provided            Amount released    Year funds released
      Production Loan                                     50,000               1999
      Barangay hall fence                                 72,000               1997
      School building                                    200,000               1998
      Drainage canal                                      30,000               1998
      Road Gravelling                               Use of Dump truck          1998
      Water Sealed Toilet                                  n.a.                1999
      Cultural Centre                                     50,000               1999
      Vaccination                                        100,000            1997-1998
      Coop Electrification                                17,000               1999
      Canalization                                      1,000,000              1997
      Carabao Dispersal Project                          151,000               1999
      Dispersal of Vegetable Seeds                        10,000               1999
      Public Market                                       20,000               1999
      Road Gravelling                                    100,000            1998-1999
      Barangay Chapel                                    100,000               1998

      and agribusiness enterprises and investors discuss the possibilities for doing
      business together. In these round-tables each party has to introduce itself, define
      its production process and its potentials and constraints. The forum can be held
      in the offices of the agribusiness firm, in the ARC or in a neutral place. During
      the application of the FSD approach, farmers have been trained about bargaining
      strategies and negotiation processes, i.e., to focus on issues and not on
      personalities, to concentrate on interests and not on positions, to look beyond
      the product price, to have an escape route, and so on (SARC-TSARRD, 1999a).
      The second activity is to set up a network of trained DAR Investment and
      Marketing Assistance Officers (IMAOs) at national, regional and provincial level.
      DAR constituted the IMAOs in 1994 and their task is primarily to promote
      agribusiness linkages (SARC-TSARRD, 1998b). The third activity related to
      agribusiness linkages is market information dissemination. This activity is
      generally carried out through workshops and publications.
             Past experiences show it is likely that ARCs cooperatives and agribusiness
      firms will conclude one of the following agreements: (i) a simple buyer-seller
      agreement where parties commit to sell and buy a certain product for a given
      price (or at the prevailing market price at the time of the exchange); (ii) a
      buyer-seller agreement of type (i) in which the buyer commits to provide farmers
      with physical and financial factor inputs as well; (iii) a buyer-seller agreement of
      type (i) where the buyer provides farmers with physical and financial inputs,
      technical assistance and conducts a monitoring activity as well (SARC-TSARRD,
      1998b). During the period 1997 to 2000, more than 75 marketing agreements
      were undertaken, involving more than 300 farmers’ organizations and 176
158   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
agribusiness enterprises. More than 260 ARCs were covered, involving more
than 35,000 agrarian reform beneficiaries (Lourie, 2001).
      To my knowledge there are no studies that have carried out an overall
assessment of contract growing arrangements in ARCs so far. Some particular
experiences can, however, give insightful hints about the relevance of these
schemes. In 1993 the Philippines imported 30,000 metric tons of peanuts, a
crop highly suitable for the agro-climatic conditions. Consequently, as a result of
simple market information dissemination, a multi-purpose cooperative in
Region II, Luzon, started planting peanuts on 15.5 hectares of its land. The
return per hectare ranged between 27,000 and 32,000 pesos, above the average
21,000 pesos per hectare of the yellow corn previously grown (TSARRD, 1995a,
1995b). Given this positive return, the following season 50 hectares were planted
with peanuts. Recently, however, the cooperative switched back to yellow corn
since it has signed a marketing agreement with an agribusiness enterprise.8 These
dynamics show that through “agribusiness linkages” there is an actual chance to
empower farmers, in the sense that they take control of their long-term
development. Another report presents the agreements between one feed milling
enterprise and two multi-purpose cooperatives. The related cost-benefit analysis
indicates that because of these agreements each cooperative obtained a net
benefit of roughly 300,000 PhP (SARC-TSARRD, 1998c).


                               CONCLUSIONS

       In the last decades rural development strategies based on local participa-
tion and empowerment have gained increased popularity among development
practitioners and academic economists. However, failed development efforts are
all too-common, often because of a top-down approach to development and a
dichotomy between outsiders’ visions and real local conditions. This chapter
illustrated the Farming System Development approach adopted by the
Philippines government as an example of a successful participatory development
and empowerment program. This approach relies upon the existence of an equal
distribution of private land property rights, it requires the entire community to
partly direct and guide the individual management of farm and non-farm
activities, and it involves NGOs, local governments and private investors in the
development process. Its short-run goal is to reduce poverty and enhance the
quality of life of small farmers; its long-run objective is to set up a socially and
economically sustainable development process.
       The principal actor in the FSD approach is the so-called FSD team
comprised of selected farmers, DAR and LGU field staff, and representatives of
NGOs actively supporting the community. Its main activity consists, according
to responses elicited by community and household questionnaires, in setting up
an ARC development plan that must be later endorsed and implemented by the

                                                        Rural Development in Lao PDR:      159
                                             Managing Projects for Sustainable Livehoods
      whole community. The agrarian reform community development plan indicates
      the structural and socio-economic features of the ARC and the bio-physical and
      economic characteristics of cropping zones. It then makes recommendations for
      on-farm and non-farm improvements, infrastructure development, establishment
      of cooperatives, and contract growing arrangements.
            Discernible average differences based on primary and secondary data
      collected in 55 Agrarian Reform Communities nationwide, both in a baseline
      year and in 1999, show a positive correlation between the FSD approach and
      increased income as experienced by a large number of rural households. First,
      enhanced income arises from on-farm, non-farm, off-farm, and animal husbandry
      activities, from diversification of agricultural activities, and from increased
      agricultural productivity. Second, the FSD approach has promoted the setting
      up and strengthening of rural cooperatives, which increasingly provide credit
      and pre- and post-harvest facilities to small farmers. Third, it has encouraged
      local governments to supply public goods, such as rural roads, bridges,
      small-scale irrigation systems and the like. Finally, in several ARCs rural
      cooperatives have agreed upon contract-growing schemes with private investors
      and agribusiness enterprises, with positive prospects for the economic
      sustainability of the land redistribution program.
            The FSD approach, however, is targeted towards communities with a sound
      institutional infrastructure and equal access to land, and therefore it is likely to
      partly bypass the poorest segments of the population, such as causal agricultural
      laborers in marginalized villages. Secondly, its implementation is conditional to
      the progress in the land distribution component of the Philippine Agrarian
      Reform Program, which is in its turn, dependent on the existence of strongly
      organized grassroots movements (Borras, 1999). It follows that it will be difficult
      to scale up the FSD approach to cover the entire country in a few years, as the
      weakest communities could be excluded. However, the application of the FSD
      approach in the Philippines looks to be a promising development strategy,
      both in the short and long-run, and it is worth monitoring it carefully, and
      subjecting it to rigorous and independent scrutiny in order to extract lessons for
      better application and extension to other contexts.


                                                NOTES
      1
        Chapter partly based on PhD dissertation and field activities in the Philippines. The
      author thanks Tomas Cabueños, Menachem Lourie, Marcello Gorgoni, Edguard Guardian
      and Aristeo Portugal. The usual disclaimers apply.
      2
          See ROP (1988) for details.
      3
       All the figures referred to, unless otherwise stated, were collected at the Presidential
      Agrarian Reform Council and the Department of Agrarian Reform in Quezon City, Philippines.


160   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
4
 The Philippine government has been oriented towards measuring land reform
accomplishment exclusively in terms of hectares distributed, disregarding the impact on
the income, technology and welfare of target beneficiaries (Morales, 1999, Reyes, 2000).
Recent studies conclude that in pilot areas the overall impact has been encouraging:
beneficiaries are not only better off, but have increased investments in human and
physical capital, with positive prospects for future growth and development (Deininger
et al., 1999, 2000; Riedinger and Kang, 2000).
5
  The World Bank Agrarian Reform Communities Development Project aims at assisting
ARCs in their economic development (World Bank—ARCDP, 1999).
6
 Off-farm and non-farm work refer to income generated as wage labourers in other farms
and by non-farm activities respectively, usually carried out in the same ARC or in a nearby
town.
7
  Low level of mechanization, labour-intensive technology and a widespread use of
modern seed varieties are typical conditions in East Asia. For example, according to the
International Rice Research Institute (IRRI, 2000), in the Philippines about 89% of the
rice cultivated area is planted with modern varieties; in Asia only Japan (100%), South
Korea (100%), Taiwan (100%) and Sri Lanka (91%) boast higher rates of adoption.
8
    Personal communication with Mr. A. Portugal, FAO/SARC-TSARRD National Expert.



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164   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
                                        8
     DOES DEVOLUTION REALLY INFLUENCE
        LOCAL FOREST INSTITUTIONS?
      TWO CASE STUDIES IN THE CENTRAL
          HIGHLANDS OF VIETNAM1
                                 Tran Ngoc Thanh


                               INTRODUCTION

       In recent years, Dak Lak province in Vietnam’s Central Highlands has
experienced more intense forest degradation, with adverse impacts on the
environment and the livelihoods of the local inhabitants. Results of the two most
recent forest inventories show that the provincial forest resources have lost 23,000
hectares annually during the last five years. It is estimated that around 2% of the
provincial natural forest area is destroyed every year (Tran, 2000). To reduce
deforestation, participation of local people in forest management has emerged as
a viable option in many countries of the world. The transfer of resource rights
and management functions from state agencies to local users has been seen as a
policy strategy for better protection and sustainable use of forest resources. Yet
the success of these policies depends upon the local capacity for collective
action, and the factors that encourage or inhibit collective action are insuffi-
ciently understood (Rasmussen and Meinzen-Dick, 1995).
       In 1999, following the suggestion of central government leaders, the
authorities of Dak Lak province in Vietnam initiated a program of devolving
authority over natural forest to local people, a policy called Forest Land
Allocation (FLA). Devolution of natural forest resources to local users is a radical
departure from previous government policy in Vietnam, since formerly the state
had reserved all control over forests. The major objective of FLA is twofold.
First, in handing authorities and responsibilities over to local villagers, the state
expected them to obtain additional benefits generated by their forest
management activities and forest resources. Second, by involving local people in
forest management, it is presumed that forest dependent communities will be
better forest protectors, replacing state forest enterprises and management boards.



                                                         Rural Development in Lao PDR:      165
                                              Managing Projects for Sustainable Livehoods
      To date, 14 initial trial villages have received legal titles to forests in their vicinity,
      including 6,739 ha of natural forest (Phan, 2001).




      Map 8.1. Dak Lak, Vietnam


             This chapter examines the changes in local forest institutions that have
      occurred after forest allocation in two villages of Dak Lak. The study suggests
      that although devolution has modified local forest institutions, it has changed
      them to a much lesser degree than expected. Local people have been eager to
      claim legal titles to local forests, yet they face significant problems translating
      legal rights into rights-in-practice. Above all, local people need support in the
      enforcement of their rights against encroachment by outsiders. In addition, gaps
      between forest management regulations and local forest institutions continue to
      exist, creating possibilities for conflicts, both within villages and between
      villages and the state. Thus, I suggest that although devolution does open up
      opportunities for local people to improve access to and control over forests, merely
      legal interventions are not sufficient to create supportive local forest institutions.
             Starting out with basic information about the two study villages, the
      chapter moves on to describe and compare the changes in local institutions.
      Hence I review property rights embedded in local community rules, property
      rights in-practice, and changes in governance structures. Next, I produce a
      detailed account of problems that local villagers face in translating legal rights
      into rights-in-practice. The resulting conclusions draw attention to the influence
      of customary rules, the problem of assuming local people will replicate state
      management staff, and the persistence of sources of conflict.

166   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
      BACKGROUND OF CHAM AND DIET VILLAGE AREAS

      Two villages with different characteristics were selected in order to
understand the different effects of devolution on local people and their different
reactions to policy intervention.
      • Cham B village, located in Cu Dram commune, Krong Bong district, was
         selected as an example of a remote access village with abundant forest
         resources and fertile soil. Its habitants are Ede, who established the
         village in 1987 by separation from Cham A village (the original village)
         under a state resettlement program. The current population is 42
         households with 278 persons. To this day the local people of Cham A
         and Cham B maintain close ties and kinship relations. The villagers of
         Cham B received the forest as a group. Householders cultivate an
         average of 3 hectares.
      • Diet village was selected as an example of villages with easy access. Its
         villagers are Jarai, comprised of 337 people in 57 households. The
         village was founded in 1973 under a settlement program by the old
         Saigon government. Recently the village forest resources have come
         under pressure from illegal loggers using the timber for pepper poles.
         Migration is another source of pressure. Forest resources and soil are
         poor. Cultivable land per household is only 1.5 hectares on average.
         Local villagers participated in FLA as individual households. The FLA
         program allocated land to only 30% of the village’s population.

     Forest resources developed differently in the two villages after devolution.
     • In Cham B, the allocated forest declined after devolution, with 71.1
       hectares of forest (18.8%) converted to shifting cultivation land by
       villagers from Cham A and Cham B. 29 out of 42 households in the
       village (69%) have at least one upland field in the allocated forest areas.
     • In Buon Diet village, the area of allocated forest increased slightly. Forest
       has regenerated on 21.1 hectares of previous non-forest land (7.5%).
       Forest has been lost to shifting cultivation fields on 7.3 ha of previous
       non-forest lands (2.6%). Deforestation has not taken the form of a
       reduction in forest cover, but a considerable loss in timber volume. Since
       FLA was completed, it is estimated that 1,268 trees (5% of timber
       volume) was cut, mainly by illegal loggers. 34 out of 53 households
       (64%) in the village used the trees for developing a pepper plantation.

This chapter concentrates on the overall patterns of change seen since FLA.
However, it is interesting to note that Ede/remote access forest declined while
Jarai/easy access forest increased. The difference seems attributable to different
land use demands rather than ethnic difference. In Cham B (Ede), demand for
arable land is the main pressure. The local people in this younger village (founded

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      1987) cleared rich allocated forests to increase their cultivable land area. In
      contrast, the allocated forests in Diet village (Jarai) face a problem of illegal tim-
      ber logging because the local people need timber poles to develop pepper
      plantations. Yet even with this challenge, allocated forest area increased slightly.
      This suggests that in this older village (founded 1973) with easy access forest,
      demand for cultivable land was nearer to saturation, while the quality of
      available soil was already poor. Without the new resource demand represented
      by the pepper plantations, allocated forest might have increased even more.


                             LOCAL FOREST INSTITUTIONS

             Local forest institutions are understood as property rights and governance
      structures in forest resource management. The term “institution” refers to
      generally agreed upon and enforced prescriptions that require, forbid, or permit
      specific action for more than a single individual (Ostrom, 1990). The
      institutions can originate from government laws (de jure rules), or from local
      community (de facto rules), to regulate operations related to forest resources.
      The distinction between de jure and de facto is important to understand the
      relations between ethnic minority groups in the central highlands and forest
      land tenure relations. While the government law for forest protection and
      development applies de jure throughout the whole country, each community has
      their own de facto local rules according to different ethnic traditions.
             Thus in the two village areas under study, de facto and de jure rules co-exist,
      and experiences with FLA have shown that communities apply both the state
      rules and the local rules. Besides state regulations, the ethnic minority people,
      Ede or Jarai, have their own village regulations. These rules shape the day-
      to-day activities of community members in relation to forests even though these
      rules have not been recognized by the state. The local rules may complement or
      conflict with the state regulations and laws for the Central Highlands. Local
      rules can be seen as crucial instruments for self-governance of forest resources,
      while in contrast, the effect of statutory law is still very limited in ethnic minority
      areas (Do, 2002).
             Other terms of importance in this chapter, “rights” and “duties,” are used to
      refer to social relations between actors concerning forest resources. To focus
      discussion, this chapter concentrates on institutionalized rights that refer to
      enforceable claims authorizing someone to undertake a particular action. Every
      right also implies that someone else has a corresponding duty. The classification
      of property rights developed by Schlager and Ostrom (1992) can be slightly
      modified to suit the local conditions in the study villages:
             Access             The right to enter a defined physical property (e.g., the
                                right to enter allocated forest, or to walk on a piece of
                                forestland)

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      Withdrawal     The right to obtain the products of forest (e.g., the right to
                     cut a tree, the right to collect NTFPs)
      Management The right to transform the resource by making improve-
                     ments (e.g., right to convert allocated forestland into
                     shifting cultivation land, right to plant trees in forest, right
                     to enrich forest)
      Exclusion      The right to determine who will have an access right, who
                     is allowed to cut trees (e.g., right to stop violators from
                     cutting trees without permission)
      Alienation     The right to sell or lease the above rights (e.g., right to sell
                     forest products, right to use forestland certificate as
                     mortgage)
      Source: Adapted from Schlager and Ostrom, 1992

       Another important matter in devolution concerns the enforceability of rights.
Property rights or forest tenure is an enforceable claim to make some use of or
take some benefit from forests, since a claim on forest needs to be enforceable to
be considered tenure right (Bromley, 1992). Without enforcement, property rights
have limited meaning. The potential ability to enforce rights may come from the
state or from the community. Hence enforceability can be understood not only
as the capacity to penalize those who break rules, but also the capacity to obtain
people’s respect for the rules.
       Finally, governance structures are understood in this paper as a system of
rules plus the instruments that serve to enforce them (Furubotn and Rudolf,
2000). The chapter will pay attention to changes in the roles of key actors in
local governance structures after devolution. In the study villages, there are
4 key actors who oversee compliance with rules: the traditional village
headmen and clan chiefs, as representatives of the local communities, and the
official village headmen and members of the commune people’s committee, as
representatives of the government.


                 CHANGES IN LOCAL INSTITUTIONS
                 AFTER FOREST LAND ALLOCATION

Legal rights before and after devolution
       Before forest land allocation, forest resources were declared to be common
property belonging to the whole people under the integrated management of the
state. The task of managing these valuable resources was mainly assigned to
state agencies, the state forest enterprises (SFEs) and the state forest management
boards (SFMBs). The state-based management system, however, largely excluded
participation by local people. The situation led to a rapid decline of forest
resources. The Dak Lak authorities reacted to this deforestation by pioneering a

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      new form of allocating forested areas to ethnic minority people. The Dak Lak
      policy differed from the practice in other provinces of allocating bare land only to
      local people. In Dak Lak, forest recipients are granted land use rights certificates
      for a period of 50 years, renewable for another 50-year extension. Rights-holders
      have five rights as defined by the Land Law. In addition, forest recipients have
      permission to convert 5-10% of allocated forestland into agricultural land for
      producing food or generating cash income. Moreover, households who need
      timber for housing can get permits to harvest up to10m3 per 20-year cycle.

      Changes in local institutions induced by devolution
           Devolving authority and responsibility in forest management to local users
      can be seen as a process of empowerment. The change in property can also be
      understood as a form of institutional change affecting the composition of the
      bundle of rights (Table 8.1).

            Table 8.1. Changes in property rights as regulated by the local rules

                                 Before devolution                  After devolution
              Rights                                       Non- Recipients
                                 A       B          C                            B     C
                                                         recipients   (A)
      Right of access          right    right right        right     right     right right
      Right of withdrawal      right    right right       no right   right no right no right
      Right of management      right    right no right    no right   right no right no right
      Right of exclusion       right    right no right    no right   right no right no right
      Right of alienation      right    right right        right     right     right right
      Note: A = inhabitant of study village; B = ethnic minority people from neighboring villages;
            C = migrants;
                                 Source: Interviews by the author

      The rights of access and alienation did not change after FLA, nor are they
      differently distributed among key actors. People living in the region can walk
      through forests and determine by perusal whether timber will be used by family
      or sold in the market. On the other hand, people are more concerned about the
      rights of withdrawal, management, and exclusion. These are the rights lost in
      the bundle after FLA.
            Before FLA, inhabitants of the study villages had rights to withdraw
      products from their territory and manage the forest falling within it (forests being
      communal property). Ethnic minority people from other villages also had
      similar rights, much like the people in the surveyed villages. In contrast,
      although migrants could access forests and cut timber for housing, local rules
      did not grant them the rights of exclusion and management. Furthermore, the
      ethnic minority also evaluated trees and land in different terms. In their view,
      trees are renewable resources, while land is non-renewable. This explained their

170   Rural Development in Lao PDR:
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willingness to share the timber resources with the migrants. But in comparison
with local traditions, this implied a radical innovation. It is not uncommon for
remote communities even today to strictly maintain the traditional rules
forbidding outsiders to collect timber in the village territory.
      After FLA, the rights of management, withdrawal, and exclusion held by
the inhabitants of the study villages changed. Only the forest recipients, the new
type of actor introduced by FLA, maintained the rights previously enjoyed by
village inhabitants. Indigenous minority people from neighboring villages
(non-recipients) have lost rights of withdrawal, and management. Only forest
recipients, not all villagers, hold the right of exclusion on the allocated forests.
Migrants now find themselves in the same situation of reduced rights as ethnic
minority people from neighboring villages.

       Table 8.2. Changes in property rights enacted by the government

                          Before devolution                       After devolution
       Rights                                            Non- Recipients
                         A          B          C                               B       C
                                                       recipients  (A)
Right of access        right      right      right        right    right     right   right
Right of withdrawal   no right   no right   no right    no right   right   no right no right
Right of management   no right   no right   no right    no right   right   no right no right
Right of exclusion    no right   no right   no right    no right   right   no right no right
Right of alienation   no right   no right   no right    no right   right   no right no right
Note: A = inhabitants of study village; B = ethnic minority people from neighboring
      villages; C=migrants;
                          Source: Interviews by the author

      The official forest regulations portray a different picture of local forest
institutions from the local rules. According to the de jure forestry regulations the
local villagers and migrants have only the right of access. Any activity affecting
forest resources must be approved by the government. State forest protection
organizations and state forest enterprises are the representatives of the state in
the locality given the duty to oversee and perform forest management tasks. The
state provides annual budgets for its agencies according to a financial plan.
However, the state bodies find themselves unable to perform their duty
effectively due to insufficient budgets, lack of staff, and an unsuitable
management system.
      In sum, devolution has endowed the local forest recipients with only the
rights specified by the government, a situation of reduced rights compared to the
bundle enjoyed under de facto rules. While the rights of other ethnic minority
people and migrants have not changed de jure, they too have lost rights in the
de facto bundle. FLA has primarily created a division between two new types of
actors, forest recipients and non recipients.

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      Changes in forest clearing and tree cutting
            Local villagers react to forest devolution in different ways. Before FLA,
      villagers cleared upland areas and extracted tress, although the government did
      not permit it. All actors, including inhabitants of the study villages, ethnic
      minority people from other villages, and migrants, harvested trees and converted
      forests to upland fields for shifting cultivation. This continued to be the case
      after FLA. 69% of households in Cham B have cleared allocated forest for
      upland fields and 64% of households in Buon Diet have cut trees in allocated
      forest for use as pepper poles. The migrants have reacted with a different
      strategy, focusing their efforts on illegal timber cutting. Table 8.3 provides an
      overview of local people’s use of allocated forests before and after FLA.

                    Table 8.3. Cutting trees and clearing forests in practice

                                    Before devolution                 After devolution
              Rights                                         Non- Recipients
                                     A       B      C                             B         C
                                                           recipients   (A)
      Walk into forest              yes     yes     yes       yes        yes     yes       yes
      Harvest timber                yes     yes     yes       yes        yes     yes       yes
      Clear forest for uplands      yes     yes     yes       yes        yes     yes       yes
      Stop other villagers          no      no      no         no        no       no       no
      Selling forest products       yes     yes     yes       yes        yes     yes       yes
      Note: A = inhabitants of study village; B = ethnic minority people of neighboring villages;
            C = migrants.
                       Sources: Observations and interviews by the author

      Change in governance structure
            Changes in the roles and duties of key actors in forest management under
      devolution have affected the relevance of traditional village headmen and clan
      chiefs, representing a complex shift of some power to official village headmen
      and members of the commune people’s committee.
            Table 8.4 shows that average scores of traditional village headman and
      chief of clan decline after FLA while the state village headman and Commune
      People’s Committee are more highly appreciated by the local users after FLA.
            The only major role for chiefs of clan is exercised in conflict resolutions.
      The traditional village headmen maintain important roles in identifying village
      boundaries, resolving conflicts, and providing information about forest and land
      use history (for more details see Table 8.5). The traditional village headmen,
      therefore, continue to be irreplaceable as sources of information about the
      communities’ history. Comparing the the two types of village headmen,
      traditional village headmen enjoyed the same significance as the state village
      headmen before FLA. After FLA, local villagers value the state village headmen
      more highly than the traditional village headman.
172   Rural Development in Lao PDR:
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                      Table 8.4: Changes in roles of key actors

                              Key Actor                 N     Mean score
Before               Traditional village headman        7         11.8        Significant =
devolution           State village headman              7         11.8            0.205
                     Chief of clan                      7          6.8
                     Commune People’s                   7         11.7
                     Committee
After devolution     Traditional village headman        7          8.0        Significant =
                     State village headman              7         13.1            0.004
                     Chief of clan                      7          5.0
                     Commune People’s                   7         17.0
                     Committee

Note: The mean score summarizes the evaluation of each actor’s significance elicited from
      local villagers. The ANOVA analysis provides two values. The first value before
      FLA is larger than 0.050 indicating that the difference in roles is significant. The
      value FLA is smaller than 0.05 suggesting that the difference in key actors’ roles is
      significant.
                          Source: Fieldwork by the author

           Figure 8.1. Roles of key actors before and after devolution




Note: A = Traditional village headmen; B = State village headmen; C = Chief of clan;
      D = People’s Committee
                          Source: Fieldwork by the author.

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                                                   Managing Projects for Sustainable Livehoods
            However, the most important actor in the locality, as evaluated by the
      villagers, has become the Commune People’s Committee (see Figure 8.1). For
      almost all activities related to forest resources, villagers have to seek permission,
      advice, and assistance from the Commune People’s Committee.

           Table 8.5. Changes in the roles of key actors as evaluated by villagers

                Activities                 Before devolution            After devolution
                                      A     B C D Score             A   B C D Score
      Identify village boundaries 15        14      6    7    42    10 13     2    13        38
      Issue permission                7     6       2    13   28    1   12    0    22        35
      Control forest use              7     7       3    12   29    2   10    0    21        33
      Penalize violations             9     10      3    13   35    4   11    1    22        38
      Resolving conflicts             22    22      19   17   80    21 22    19    14        76
      Developing regulations          10    12      6    13   41    7   12    4    17        40
      Provide information             13    12      9    7    41    11 12     9    10        42
      Total score for each actors 83        83      48   82   296   56 92    35 119 302
      Note: A = traditional village headman; B = state village headman; C = chief of clan;
            D = Commune People’s Committee
                               Source: Field research by the author

                  PROBLEMS OF TRANSLATING LEGAL RIGHTS
                         INTO RIGHTS IN PRACTICE

             To better understand whether or not devolution leads to better forest
      protection, the rights assumed under new policies must be translated into
      enforceable practices. At the onset of the program, the government simply
      presumed that FLA policies will be supplemented by local rules when property
      rights are handed to local users. The expectation was that forest recipients would
      play the role of forest guards against illegal encroachment on allocated forest. In
      practice, this has turned out to be a difficult task because the local rules were not,
      as the state had assumed, completely consistent with the state rules.
             Furthermore, there was not an enabling environment for the enforcement
      of rights, a necessary precondition for any new forest tenure system. In Buon
      Diet village, migrants cut trees though they had not participated in allocation.
      The forest recipients cannot exclude the migrants, however, as there is no legal
      enforcement structure to back up their rights and because the local authorities
      remain inactive. This experience underlines the importance of enforcement in
      forest tenure security, for it does not arise automatically from issuance of
      certificates. The Commune People’s Committee and local forest rangers do not
      have enough resources to provide effective enforcement of the rights.
174   Rural Development in Lao PDR:
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              Table 8.6. Number of conflicts before and after FLA

Types of conflicts                                        Before FLA          After FLA
Conflicts over timber logging area                      Mean     1.00           2.50
                                                         N         8             20
Conflicts over upland field                             Mean     2.13           1.88
                                                         N        17             15
Conflicts over procedure for logging and upland field   Mean     0.88           2.38
                                                         N         7             19
Total                                                   Mean     1.33           2.38
                                                         N        32             54
                                Source: Field survey

      Significantly, conflicts within villages and between villages and the state
continue and even expand, indicating that forest tenure may not be as secure as
desired. Conflicts over timber logging and upland field expansion are those of
highest concern to local people (see Table 8.6). The problems of upland field
appropriation were the major issue in the pre-FLA period. After FLA, conflicts
over upland fields, conflicts over timber logging and conflicts with forestry
offices over permits have all become significant. Lack of clear guidance for local
villagers on permissible timber harvest is a major source of the conflicts.

         Figure 8.2. Types of conflicts and actors before and after FLA




    Source: Field research                       Source: Field research

      One of the most important incentives for the local users to participate in
FLA is the opportunity to get access to cultivable land and timber for housing.
Yet, unequal selection of recipients and the complexity of forest regulations have
disappointed most local people. Only 20% of each communities’ population has
received the opportunity to participate in FLA, many of them rich and rather

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      well-off families. The complicated procedures for getting permits, and the lack
      of determination shown by local forest rangers when dealing with illegal loggers,
      have caused many local villagers to lose trust in state forestry policies.
            As for the actors involved in conflicts, Figure 8.2 shows that the incidence
      of conflicts between villagers has not changed. Conflicts between villagers and
      forest officials have increased. Another source of conflict is the unequal
      distribution of allocated forest between households including a state official and
      those without an official. Households including a state official have claimed
      larger upland fields and harvested more timber than common households. More
      generally, forest recipients have received privileges not shared by everybody in
      the village. The differences in forest holdings therefore fuel persistent conflicts
      among villagers.


              CONCLUSIONS AND POLICY RECOMMENDATIONS

            The FLA program in Dak Lak province devolves authority and
      responsibility over forest management to local villagers and should therefore be
      seen as an innovative policy of the local authorities. The program has created
      opportunities for local forest-dependent communities to gain control over forest
      and derive benefits from them. Endowing local villagers with property rights to
      forest resources has increased their confidence that they will reap the future
      benefits. Therefore, they have incentives to manage allocated forest resources in
      an effective manner. However, results from the two study villages also
      demonstrate that FLA still has to overcome many problems. Such results should
      help in understanding how to fill policy gaps and improve FLA.
            For devolution to be more successful, it is recommended that attention be
      given to the following issues:
            1. Almost all ethnic minority communities in the Central Highlands have
               their own village regulations. These are still valid de facto and exert
               strong influences on forest management in the communities. Therefore
               FLA should build on positive aspects of local rules to reduce gaps between
               them and the legal (de jure) rules.
            2. FLA is based on the assumption that the forest recipients will take on
               the roles formerly assigned to state forest enterprise and forest
               management boards. This will only happen, however, if people develop
               mechanisms for collective action to regulate forest management,
               monitor forest use, and sanction violators. Without such mechanisms,
               legal property rights may not be practically enforced and hence will fail
               to be translated into rights-in-practice, causing FLA to fall short of
               expectations. For villagers to receive adequate support in tasks
               of monitoring and sanctioning, commune authorities should be
               strengthened to support the forest recipients in the enforcement of their
               newly received rights.

176   Rural Development in Lao PDR:
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      3. Persisting conflicts in the communities should be reduced as much as
         possible because the conflicts tend to harm the security of forest tenure.
         Conflicts over forest tenure do not only originate from the gap between
         state policies and local rules, but are also generated by the lack of
         equality in distributions of forest plots, and lack of transparency in
         selections of FLA participants. Additional conflicts arise from
         misunderstandings about FLA policies due to lack of participation. To
         participate more actively in decisions about the form of allocation,
         division of forest plots, and selection of participants, local communities
         should not strand the traditional actors important in conflict resolution
         in an irrelevant past. Instead, long-standing social patterns need to
         develop new relevance for an inclusive and transparent effort to
         produce an equitable and enforceable devolution of forest tenure rights.


                                       NOTES

1
  The author would like to thank the TOEB program of GTZ project, for providing
financial support for the research on which this chapter is based; Dr. Thomas Sikor at
Humboldt University of Berlin, for his valuable comments, which have been useful in
revision; Tan Quang Nguyen, for sharing basic information of study villages as well as
helpful suggestions.
2
  Using the method of pebble scoring, villagers were requested to evaluate the importance
for each actor according to 7 major activities. A high score means very important and a
low score means less important.



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Bromley, D. W. 1992. The Commons, Common Property, and Environmental Policy. Envi-
   ronment and Resource Economic 1–17.
Do Hoai Nam. 2002. Local Rules, Local Regulation and Social Economic Development of
   Villages in the Central Highlands 3. Hanoi: Publishing House for the Humanities and
   Social Sciences.
Furubotn, E. G., and R. Rudolf. 2000. Institutions and Economic Theory—The Contribution
   of the New Institutional Economics. The University of Michigan Press.
Ngo Duc Thinh. 2002. Village, Local Institutions and Community Management of Ethnic
   Minority Groups in the Central Highlands of Vietnam. Hanoi: Publishing House for the
   Social Sciences.
Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective
   Action. New York: Cambridge University Press.
Phan Muu Binh. 2001. The Result of the Test Forest Land Allocation Program in Dak Lak
   Province in 1999–2000. Department of Agriculture and Rural Development, Dak Lak
   Province.


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      Rasmussen, L. N., and R. Meinzen-Dick. 1995. Local Organizations for Natural Resource
          Management: Lessons from Theoretical and Empirical Literature. Discussion Paper
          No. 11. Environment and Production Technology Division, International Food Policy
          Research Institute, Washington DC., U.S.A.
      Schlager, E., and E. Ostrom. 1992. Property Rights Regimes and Natural Resources: A
          Conceptual Analysis. Land Economic 68: 149–262.
      Tran Ngoc Thanh. 2000. Forest Land Allocation-A Prerequisite for Community Forest
          Management. Paper for the W orkshop on Sustainable Rural Development in South
          Asia Mountainous Region, 1–9.




178   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
                                      9
      RESOURCE MANAGEMENT INITIATIVE
          OF AN INDIGENOUS MINORITY
       VILLAGE IN NORTHEAST CAMBODIA
     LEADS TO CHANGES IN THE NATIONAL
                  LAND POLICY
                      Gordon Paterson and Anne Thomas


INDIGENOUS PEOPLES IN CAMBODIAN NATIONAL CONTEXT

      The northeast highlands of Cambodia have been isolated from develop-
ment for generations. Consequently, the region is relatively rich in natural
resources including valuable primary hardwood forests, semi-precious stones,
and rich volcanic soil. National borders with both Vietnam and Laos make
trans-boundary biodiversity conservation important, but also create pressure on
the forest and natural resources due to unregulated cross-border exploitation
       ,
(WWF 2000). The region is still characterized by low population density and
relatively high forest cover, although the forest has come under increased
pressure from unregulated logging over the past decade. The indigenous
highland peoples who have long inhabited the area live in a state of dynamic
dependence on the land and natural resources. Their livelihood is predomi-
nantly subsistence on swidden agriculture and the collection of various forest
products (fruits, vegetables, medicines, building, and handicraft materials). The
northeast provinces have only recently had year-round road access to other parts
of Cambodia, but many of the villages are still accessible only on foot or by
canoe. Northeastern Cambodia is also an important watershed area. Two major
rivers, the Sesan and Srepouk, flow from Vietnam through Ratanakiri. Together
with the Sekong from Lao PDR, they contribute over 15 percent of the Mekong
River delta flow. The Sesan and Srepouk are important spawning grounds for
species migrating from the Mekong delta and the Tonle Sap Lake, a highly
productive and biodiverse freshwater system (see Thuon and Vannara, this
volume).




                                                       Rural Development in Lao PDR:      179
                                            Managing Projects for Sustainable Livehoods
            Ratanakiri Province is home to a number of indigenous groups, including
      the Brao, Krung, Tampuan, and Jarai, as illustrated in the map below.

                   Figure 9.1. Ethnic Minorities of Northeastern Cambodia




                                        Source: Colm, 1997

             Ratanakiri’s relative isolation came to an end with the UN-brokered peace
      process in the early 1990’s and the democratization that followed the 1993
      elections. Ironically, democratization has resulted in the indigenous people
      being marginalized from both the political processes and access to social
      services. During the socialist era (1979-1991) education for indigenous people
      had been promoted, and representatives of local ethnic groups were chosen for
      government positions at District and Provincial level. Currently, however, the
      main criteria for government jobs are language proficiency in Khmer (the official
      national language) and a higher level of formal education.
             Ratanakiri and Mondulkiri are the only two provinces in Cambodia where
      indigenous minorities make up the majority of the provincial population.
      Seventy-five percent of the population of Ratanakiri is made up of indigenous
      ethnic minority groups, while indigenous minorities make up less than one
      percent of the national population of nearly 12 million. Many of the highland
      people (nearly all females and over 80 percent of males) are estimated to be
      illiterate. Most of their children have never attended school. These factors,
      together with a low level of access to education and low proficiency in the official
      Khmer language, combine to give them very limited opportunity for district or
      provincial government posts, or for entering political processes at the national
      level. The indigenous highlanders therefore hold almost zero political clout
      (Paterson: 2002b).
             This chapter will focus on pilot projects in Ratanakiri that affect the
      approximately 100,000 indigenous peoples of northeast Cambodia. These projects

180   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
are also relevant for the pockets of indigenous minority peoples scattered
throughout the country, as illustrated in the following map.

          Figure 9.2. Approximate locations of Cambodian minorities




                              Source: Blench, 2002

      We describe features of the land and forest management traditionally used,
and then discuss participatory land-use planning (PLUP) by a community
forestry association that was able to influence national land policy. Studying this
outcome of indigenous minority initiative, important lessons emerge for other
Cambodian communities seeking official recognition for their customary tenure
practices.


             TRADITIONAL LAND MANAGEMENT AND
                THE IMPACT OF DEVELOPMENT

      The rapid Cambodian transition to a market economy in the past decade
has had far-reaching consequences on the highland peoples. Traditionally,
indigenous people have depended on communal use of natural resources for
their livelihood and subsistence. H.E. Pen Darith, Advisor to the Council of
Ministers of Cambodia, affirms the important relationship of the indigenous
minorities to the forests by stating, “If the culture and livelihood of the highland

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      people is to be preserved, and if the forests in the northeast of Cambodia are also
      to be managed in a sustainable way, a comprehensive national policy . . . as well
      as implementation mechanism is needed” (Pen Darith, 2002). Without such
      policy guidance, commercial interests and the increased market activity have led
      settlers from lowland provinces to obtain land rights from indigenous groups for
      cash crop cultivation and land speculation.
             More and more, outside commercial interests exploit natural resources on
      private property to the detriment of the indigenous peoples who depend on
      commons land for their livelihood. The pursuit of logging concessions,
      industrial plantations, and hydroelectric projects by outside interests, both legal
      and illegal, has put escalating pressure on these traditional lands. The growing
      land market is also a significant force in alienating common land and creating
      inequalities. As noted in the conference “Knowledge Network on Land Tenure
      Rights” (IFAD Rome, Feb 1998): “Land markets consistently work on behalf of
      the rich and work against the poor.” The experience worldwide in developing
      countries is that free land markets, often in combination with rural debt, lead to
      a situation where poor/subsistence farmers are forced or tempted to sell their
      land at minimal prices to speculators or developers. This situation is already
      arising in Ratanakiri near the market centres. Plots of land were traditionally
      considered communal assets of the village, but now they are being sold by
      individuals without consultation with the community or the elders. The result is
      often that the remaining land is no longer able to support the village population
      for food production.
             In order to understand the impact of recent developments on indigenous
      culture and livelihood, some understanding of their livelihood system is
      necessary. In general, indigenous communities are 95 percent self-sufficient,
      using what they grow and collect from nature. Local people have little
      experience with credit apart from some traditional forms of self-help within the
      local community. The livelihood system may be divided into three components:
             • Land—for swiddens / slash-and-burn cultivation
             • Forest—collection of non-timber forest products (NTFPs) and building
                materials
             • Natural fisheries and water resources
      We shall concentrate on describing the land and forest components since this
      provides the backdrop to the case of community land-use planning in an
      indigenous minority village

      Swidden agriculture - equitable and sustainable?
           Swidden cultivation is the most important economic activity of indigenous
      people. Swidden agriculture rotates land plots so used parcels lie fallow,
      regenerating natural forest and restoring soil fertility. On the red soils of the
      Central plateau, each family may have 3–5 plots on which they rotate. Fallow
      periods of 10–15 years are observed, after which the forest regrowth is cleared

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and burned. While this practice appears visually destructive, it is a stable and
sustainable form of food production at low population levels, and keeps the
expansion of crop area at the expense of forest cover within communally
managed bounds. One effect of such a rotating and bounded system of shifting
agriculture is a tendency to level land distribution equitably.
       A study by Jefferson Fox of East West Centre (1996) found that in Poey
Commune, regardless of the size of a village, the ratio of population to the area
within traditional boundaries was more or less uniform, around 30 people/km2.
This indicates that the traditional system shares land between communities
achieving a level of equitability. Within the village boundary, around 8 percent of
the land may be under cultivation at any one time. The rest will be under fallow
and appear as a mosaic of secondary forest in different stages of regeneration.
Analysis of satellite images for Poey Commune indicate that under this
traditional system, old growth forest remains at 50 percent cover, secondary
forest is at 40 percent, and open fields (current cultivation) are only 5 percent of
the total land area. The sustainability of this system depends on maintaining a
low population density and the traditional (communal) tenure system;
otherwise, under conditions of strain, some criticisms of swidden have validity.1
In order to accommodate increasing populations, the traditional tenure system
may be used as the basis for land use planning in agriculture development, as the
case study will show.
       Besides achieving a measure of equitability and sustainability, the
communal land management system has other environmentally positive effects.
First, the traditional agriculture system is very high in biodiversity. Up to 48
upland rice varieties have been documented for Kavet communities alone. In
addition, 148 varieties of other crops were found integrated with the upland rice.
These traditional varieties could have tremendous potential for crop improve-
ment and scientists. This highly diversified agriculture system ensures that scarce
labour resources in the family are evenly spread throughout 10 months of the
year. It also minimizes the risks of crop failure due to drought and pest attack.
Second, no external inputs apart from human labour are used, keeping the
watershed free of contamination by pesticides and chemical fertilizers. The
resulting productivity per unit area may appear quite low, compared with
modern agriculture, but the resource costs incurred to maintain the high
productivity of modern agriculture also need to be counted. In contrast to the
destruction of resources, such as mining of phosphate on Pacific islands for
chemical fertilizers, the swidden system compares favourably, using forest
sustainably to replenish soil fertility in situ.

Forest protections in the traditional system
     Destruction of old forest is limited by sustainably practiced swiddening for
a number of reasons. Boundaries are recognized between adjacent communities.
Set by elders in the past, the village members may cultivate anywhere within

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      their own boundaries. Community membership is the primary pre-requisite for
      rights to cultivate land within the communal boundary. People will not cross
      into territory of neighbouring villages for fear of retribution from the spirits.
      Furthermore, Sacred Forests and burial grounds are protected areas since both
      are believed to be inhabited by powerful spirits. In addition, much old growth
      forest is maintained for collection of forest products. These areas are outside the
      village cultivation boundaries and form another large protected zone. Around
      50 percent of the total land area in Poey Commune is set aside this way.
            Watershed advantages are also observed where the communal management
      system balances land use for agriculture and forest gathering. Traditional
      cultivation has zero or minimal tillage, protecting the soil from erosion. Small
      plots are cleared for cultivation. These are surrounded by dense secondary forest
      to arrest runoff and reduce soil erosion during rainstorms. Forest rapidly
      regenerates when the field is fallowed, as the seed sources from the surrounding
      forest are close by.
            Thus, before introducing changes, agriculture development programs that
      aim to increase productivity and food security must necessarily take into account
      the complexity of the existing system in meeting the diverse needs of the local
      community.


               NTFPS AND COMMUNITY FOREST ASSOCIATIONS

             One approach to promote community resource rights is to publicise the
      relationship of indigenous peoples with the natural resources they use for
      subsistence, including non-timber forest products (NTFPs). In early 1996, Oxfam
      Great Britain and Novib supported a study of “Natural Resources and
      Livelihoods in Ratanakiri Province,” leading to the formation of the NTFP
      Project in mid-1996. The project works on resource tenure rights for highland
      indigenous communities through a local Cambodian NGO. Activities
      undertaken include community capacity-building, encompassing health,
      agriculture, non-formal education, and advocacy. By building community-based
      organizations among the indigenous peoples, the project enables them to
      effectively advocate for their customary land and resource rights. This mission
      has more recently broadened to include cultural rights, due to recognizing that
      the natural and cultural resources are integrally linked. The NTFP Project has
      collaborated with both government and non-governmental agencies to create
      space for local community voices in provincial and national level policy
      development.
             Developing working examples of community management has been an
      important NTFP strategy from the beginning. The action research process
      conducted in 1996, centered on natural resource use and management,
      and galvanized members of six Kreung villages to organize the Ya Poey Associa-

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tion. This community forest association was dedicated to protecting and
managing 5,000 hectares of the Ya Poey evergreen forest, which is rich in
wildlife, rattan, bamboo, medicinal plants, edible leaves, seasonal fruits, and other
resources upon which Kreung communities have depended for their subsistence
for many generations. In December 2000, the Ratanakiri Provincial Governor
entered into an official agreement with the Ya Poey Association granting
perpetual rights to protect, use, and manage the forest under a management plan
based on traditional practices. This development came after over three years of
waiting, during which the organization’s application was kept pending at both
provincial and national levels. The Ya Poey Forestry Association has thus become
a model for other indigenous communities, such as the Jarai, Tampuan, and the
Kavet, who have started associations for organising protection and management
of their customary forest in at least five other areas in Ratanakiri following the
Kreung example. This indigenous minority initiative has also led to changes in
the national Land Law that began in 2002 to recognize customary communal
management as a legitimate form of land tenure.


                   CASE STUDY OF KROLA VILLAGE

       Krola is a Village of the Kreung ethnic group, situated in a hilly watershed
area of northern O’Chum District, Ratanakiri Province. The villagers share a
common ancestry with four neighbouring villages who have all occupied this
area since the time of their ancestor “Ya Kaol.” Krola Village is made up of 80
nuclear families with a population of approximately 400, and is located in the
same subdistrict (Poey Commune) as the “Ya Poey” Community Forest
Association. In 1993 Krola villagers found that entrepreneurs and government
officials based in the provincial capital had placed signs along the road through
their land in a bid to claim it for land speculation. This attempt to encroach
upon their customary land was met by the villagers deciding to establish their
own internal policy to protect their land from sale or encroachment. The
villagers removed the signs, and this show of community solidarity discouraged
the outsiders from following through on their claims.

Choice of communal land tenure
      Motivated by rampant illegal logging and cases of land grabbing that were
taking place in nearby villages, Krola village elders approached the NTFP Project,
a local NGO, in December 1997. They requested help in securing official
recognition for their claim to customary land and forest. In 1998 Krola Village
became the first highland community to undertake a land use planning process.
At a village workshop that February, the Krola community considered a number
of options for land tenure including individual titles and a collective of
individual titles. The villagers chose the option of mapping user areas with

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      participation from local authorities in preference to legal title options. They
      reasoned that de facto recognition from the local authorities would provide
      better protection than legal title. The participatory land use planning (PLUP)
      process would enable them to continue to use some areas communally (e.g., for
      swidden farming), and allocate other areas for individual use (such as paddy and
      fruit tree orchards).
             The choice for communal tenure more generally is backed by research
      commissioned by the Council of Ministers in May 1999. The type of land tenure
      favoured by indigenous communities was studied, and they showed a strong
      preference for a communal type of tenure. The main reasons given were that this
      would protect the food security potential of the village for present and future
      generations. If any land sales had to be approved by at least a two-thirds
      majority of the adult members, they reasoned that the proceeds would be
      communally used. Villagers agree that such a system will protect the common
      good of the community from temptation or the greed of individuals. As Pliah
      Yia, an elder from Krola village, said during the consultation in 1999, “If anyone
      offers us $100, or even $20, for our upland fields, we would think this was a lot
      of money, as we have never seen so much cash. We would forget to consider that
      the value of the rice and other crops from that land may be worth more than
      $300 each year.” Communal tenure can thus be seen as one mechanism,
      acceptable to indigenous communities, that may buffer them against the excesses
      of the land markets.

      Land-use mapping process
            The Central Land Titles Department in conjunction with the GTZ Land
      Management Project provided technical expertise in producing a participatory
      land use map of the village user areas. This was based on overlays using aerial
      photographs and topographic maps. The total area covered by the land-use map
      is approximately 1,200 hectares. Of this, about 35 percent is agricultural land
      (swidden, fallow, paddy, and orchard). All communities with user areas adjacent
      to Krola Village sent representatives to join the process at all crucial steps. Krola
      representatives attended meetings in all of the neighbouring villages in order to
      ensure understanding of the process and to resolve any outstanding disagree-
      ments about the boundaries. All of the neighboring villages were of the same
      ethnic group as Krola. The negotiations were therefore held using the Kreung
      language. Elders from each of these villages walked the boundaries together
      with Krola leaders, and thumbprinted on minutes (written in Khmer) describing
      the agreed upon boundaries.
            Some potential conflicts were averted by this comprehensive participation.
      In the case of Gres Village, land had been borrowed from Krola since 1985. Gres
      elders insisted that they needed this land to support their population for swidden.
      In the end a compromise was reached, where some of the land was handed back
      to Krola, and has been designated for “cash crop production” or “share cropping

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investment” which can benefit both villages. Vong Village also posed an
interesting dilemma. Since the Khmer Rouge era, Vong was resettled along the
Sesan River, but in 1996, some of their families returned to ancestral land that
had been occupied by Krola since the early 1980s. The 1992 Land Law in effect
at that time required 5 years uncontested, continual use in order to qualify for
occupancy rights. Rather than adhering to the letter of the law, however,
negotiations between the elders followed traditional conflict resolution
protocols. Through this native process, Krola Village ceded approximately 100
hectares.
      After all negotiations were completed, elders and leaders from the
neighbouring villages placed their thumbprints on the land use map to signify
their support. Twelve micro-zones or user areas were identified and mapped.
These are 1) Old forest for collection of NTFPs 2) Spirit (sacred) forest 3)
Bamboo forest (for collecting building materials) 4) Watershed protection forest
5) Burial forest 6) Buffer forest (around the village) 7) Village (residential) area
8) Paddy (rice field) 9) Swidden (cleared and fired land plots) 10) Fallows
(regenerating secondary forest) 11) Perennial (fruit) orchards and 12) Invest-
ment zone for cash crop production Figure 9.3 shows both their distribution of
user areas in Krola Village, and the surrounding context of Poey Commune.

Regulations
      Internal regulations on use and management were developed for each of
the 12 user areas in the PLUP map. These were produced by a village working
group on land use, with technical assistance provided where needed by NTFP
and a technical counterpart from the Central Land Titles Department. The
process of formulating regulations included regular review at a meeting of all
village members. Again, all consultations were held in the local Kreung
language, a key to full participation of the community, especially elders and
females.
      As in all PLUP processes, active female participation in committees and
other decision-making is critical. Widows expressed concerns that they would
be marginalized from the best lands due to their lack of labour resources for
clearing and developing land. For this reason a ceiling on perennial crops (such
as cashew) was set (see point 3 below) and has been adjusted twice in 5 years
(from five down to two hectares). On the other hand, in the case of the limited
area with potential for paddy development, there was strong consensus among
the villagers that this resource should be allocated on the basis of the number of
able-bodied adults available in the family unit for clearing and preparing the
land.
      The land use plan allocates plots along the road to all village members.
Most of these have now been planted in cashew and other perennial tree crops.
This is a strategic move, because the land with road frontage is the most
vulnerable to encroachment and speculation by outsiders. The younger

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      Figure 9.3. PLUP Land Use Micro-zones and Land Use Plan for Krola Village and Poey
         Land Use of Poey Commune




      generation considered moving the residential part of the village to their
      individual roadside plots, following unofficial Government relocation policies.
      After analysis of the advantages and disadvantages, village elders facilitated a
      consensus decision to maintain the traditional village site including the circular
      layout, in order to preserve the social cohesion of the community.
            Krola set up comprehensive regulations, based on participation including
      the women and elders. Some examples of the regulations include:
            (1) Sale of land (even small parcels) must be endorsed by consensus of at
                least 80 percent of the voting members of the village. Villagers see that
                this will help protect the food production potential of the village for
                future generations.
            (2) Access and user rights are allocated by the community to individuals or
                families who are members of the village. Productive activities are
                primarily carried out by individual families.
            (3) Swidden land may be converted to permanent land uses, such as
                perennial fruit orchard or cash crops. Any family who develops a
                parcel of land is recognized as having exclusive rights to harvest the
                produce, and may pass these rights on in inheritance. A ceiling of five
                hectares per nuclear family is placed on conversion of swidden land to

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         permanent uses. This helps to protect widows and other families with
         limited labor resources from being marginalized by more aggressive
         community members. Note: The 5 hectare provision encourages families
         to engage in perennial cash crop production, according to the provincial
         development policy. Villagers can expand their area of perennial crops year
         by year, according to their capability. As these crops come into production,
         one may expect a corresponding decrease in dependence on shifting
         cultivation.
     (4) As the village population increases (and the number of nuclear
         families), the situation may arise where all swidden land has been
         allocated to individuals. At this stage, parcels may begin to be divided
         to children by inheritance. This situation would differ little from
         having private land title, with the exception that sale of the land would
         not be permitted.
     (5) Old growth forest areas and Spirit Forests are protected from further
         encroachment.
     (6) Some areas have been set aside for joint investment in cash crop
         production. The community welcomes any investors who are
         interested in developing this land for cash crops. An agreement would
         be required, defining the period of cooperation and provisions for
         sharing of responsibilities and benefits between the investment
         company and the local community. Note: the joint investment provision
         allows for the government priorities of encouraging investment for
         commercial production to be realized, while at the same time protecting
         community interests.
     These regulations effectively recognize that government, local community,
and any investing parties, are all legitimate stakeholders in the land. The
approach introduces a new tier of decision-making in development of and
investment in customary land—that of consultation, participation, and
negotiation with the local community. It can help to ensure a more transparent
process in decision making about development projects.

Internal management structures
      The process of mapping and developing user regulations took approxi-
mately four months, and was overseen by a temporary working group of seven
members. At this stage, the working group was formalized into a “Land and
Natural Resources” Committee. Bylaws were formulated to include provisions
for re-election of the committee and principles of its operation. Elections
were initially seen as an alien process, since most community decisions are
traditionally made by discussion and consensus. However, it was perceived by
the community that some turnover of committee members every two years was
an advantage, as it ensured that the responsibility and experience of land
management is spread more widely in the community. It also helps to reduce the

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      chances of vested interests taking control of the committee. The bylaws require
      that the three most senior members of the committee be replaced, by election,
      every two years. In practice, however, this principle has not been followed.
      Committee members have only been replaced when they have requested to step
      down, or when they are no longer able to serve their duties. The Krola
      Community claim that the successful operation of the committee results from
      the inclusion of traditional elders who are familiar with the customary
      management systems, and their close cooperation with younger literate
      committee members. The committee is set up as a working group under the
      existing “Village Development Committee” which was established by CIDSE
      (Cooperation Internationale pour le Development et Solidarite), a community
      development NGO, in 1995.

      Participation of government
            Since support and recognition by the authorities is a crucial factor in
      ensuring land or resource security, relevant authorities and line departments were
      involved in the process at all crucial steps. These included: the Provincial level
      Forestry Office, Land Titles Department, Environment Department, and
      Provincial Secretary General; the District and Commune authorities; and Central
      Level counterparts from the national Land Title Department and Forestry
      Department. All government counterparts received a field per diem for their
      work supporting the PLUP process, thus providing them an incentive for their
      involvement. The technical assistance from the Central Level Land Titles
      Department was particularly crucial for mapping the village resources.


                    KROLA PLUP PILOT PROJECT INFLUENCES
                            NATIONAL LAND LAW

             The pilot case for customary land use planning by Krola village was
      instrumental in galvanizing a network of NGOs, legal groups, and human rights
      organizations to lobby for inclusion of its provisions in the national Land Law
      recognizing communal land tenure for indigenous people’s customary lands.
      Initially it was thought that a sub-decree could be attached to the existing 1992
      Land Law. However, in October 1998 it was announced that the 1992 law would
      be rewritten as required by Asian Development Bank for investment in the
      Cambodian agriculture sector. Strong pressure from the network that coalesced
      around Krola, with coordination from the Oxfam Land Study Project, resulted in
      a comprehensive public participation process reviewing the national Land Law.
      The resulting inclusion of local communities has been an exemplary experience
      in Cambodian legislative history.
             The Governor, non-governmental and international organizations (NGO/
      IOs), and community representatives from Ratanakiri organized two workshops

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on the topic of “Sustainable Land and Natural Resources Management by
Indigenous Communities” in late 1998 and in early 1999. These provided
opportunities for exchange between government, community and NGO/IO
representatives—one at the regional level for the five northeastern Provinces,
and another at the national level. Following the Consultative Meeting of Donors
to Cambodia in Tokyo of March 1999, the Council of Ministers announced
that the new Land Law would include a section on Communal Land Rights of
Indigenous People. They commissioned a consultation with indigenous
communities to determine what kind of land tenure was being requested.
      The indigenous communities consultation took place in May 1999, with
collaboration from several NGO/IOs, and covered 42 villages in Ratanakiri. The
results demonstrated that almost all of these communities were overwhelmingly
in favor of a communal form of land tenure. The exceptions were two villages
that requested a mixture of communal and private tenure. On the strength of
this result, articles were drafted by the Council of Jurists, based largely on the
experience of PLUP work in Krola Village.
      The lawmakers and relevant ministries had been impressed by a presenta-
tion of the comprehensive PLUP regulations and bylaws by representatives of
Krola Village at the national Conference in March 1999. This played a key role in
convincing them that indigenous communities have the capacity to manage
collective land in an equitable way. How an indigenous community defines their
own membership, and how they define their collective territory in agreement
with neighboring communities, were two of the issues with which the
lawmakers were grappling. Legal experts from the University of San Francisco,
UNDP, and the Oxfam Land Study Project, made a number of trips to Ratanakiri
during the process of drafting and review, playing a strong role that informed the
drafting process.

  Figure 9.4. King Sihanouk’s support for PLUP by indigenous communities




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                                            Managing Projects for Sustainable Livehoods
            The NGO/IO community in Ratanakiri also appointed an advocate to deal
      directly with the Council of Jurists, during 1999–2000, when crucial articles of
      the section were under review. Periodic review by community representatives
      and NGO/IOs in Ratanakiri, and a public statement of support by King Sihanouk
      in June 2000, prevented the process from being coopted by vested interests. The
      new Land Law was accepted by the Council of Ministers in July 2000 and
      approved by the National Assembly in August 2001, including the section
      consisting of six articles, entitled the “immovable properties of indigenous
      ethnic minorities.”
            On the strength of these policies, four organizations are now carrying out
      PLUP work with indigenous communities in northeast Cambodia following the
      Krola model. As of 2003, this work has replicated and adapted the PLUP model
      in 21 communes within subdistricts of Ratanakiri. In 2003, the Ministry of Land
      Use Planning, Urbanization and Construction (MLUPC) initiated three pilot sites
      (two villages in Ratanakiri and one in Mondulkiri Province) for registering the
      communal land claim of the local indigenous community. This registration
      process is being led by the Ministry with support from a joint GTZ-World
      Bank-Finnmap funded project and Swedish SIDA. NGOs and IOs working in
      the locality, such as CIDSE, WCS, and PLG, are also playing a supporting role.
      The pilot registration process, in turn, informs the development of a sub-decree
      to the section on indigenous immovable property that involves the implement-
      ing laws and procedures that will apply. Krola Village was not included as one of
      the three initial pilot sites, but will likely be included in the second wave of
      communal land registration during 2005, after the sub-decree has been approved.


                ADVANTAGES, LESSONS, AND LOOKING AHEAD

            There are several advantages we have seen in the PLUP process conducted
      by a whole community through a forestry association or other cooperative format.
            • Local people can easily adapt to this approach
            • Rapid mapping is possible since it covers a whole community at one
              time. The mapping is not bogged down in cadastral surveying of
              individual titles. Thus, some level of protection for land rights can be
              quickly delivered to local people.
            • The productive potential and hence the food security of the village is
              protected for present and future generations.
            • Labor force already existing in the community is applied to agriculture
              development of areas they have chosen. The local community is not
              marginalised or disadvantaged by that development as they participate
              and foresee the benefits.
            • Private investment can be allowed through joint agreements with the
              local community.
            • Important forests are conserved; watershed is protected.

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      Other advantages reflect the harmonization of PLUP with policy goals in
Cambodia. Many regional governments, however, share at least some of these
policy orientations.
      • The PLUP process describes actual de facto tenure (current use and
         occupation) and that is sufficient for recognition of possession rights
         under Cambodia’s Land Law.
      • Participation of all stakeholders is an effective form of conflict
         prevention. Neighbouring villagers, local authorities, etc. are all involved,
         reducing civil conflicts. This outcome is a major priority of the Ministry
         of Interior. PLUP will greatly reduce the time that Cambodian
         authorities spend on resolving land conflicts.
      • PLUP encourages individual families to gradually convert swidden land
         to more productive uses such as fruit trees or perennial crops, consistent
         with priorities of the Cambodian government. Conversion to sedentary
         agriculture is able to unfold at a pace the community can handle. This
         may take up to15 years.

      The experience in Ratanakiri shows that single communities working
together can provide a strong basis for changing national policy. As the model of
Krola shows, there are some key lessons for communal land use planning. First,
there should be a clear choice for communal tenure. Second, inclusive,
multi-expert teamwork in land-use mapping should be part of the consultations.
Third, a transparent and accessible process to forge community regulations is
important, as is use of local language, recognition of native conflict resolution
methods, and giving voice to women and elders. Fourth, appropriate and
cooperative internal management structures need to be created, with elections
and ways to spread governance experience throughout the community. Fifth,
securing supportive participation from state authorities in concert with
knowledgeable and effective NGO/IO assistance helps ensure results are
recognized and even replicated.
      Despite the successful incorporation of the Krola experience into national
laws, a number of serious threats to indigenous land security have become
apparent. Starting in late 2003, the pilot land registration process triggered a
wave of land speculation that threatens to undermine indigenous collective land
in Ratanakiri and Mondulkiri provinces. The speculators are primarily domestic
business interests, government officials and immigrants from other provinces.
They are taking advantage of the ignorance of local indigenous communities
regarding their rights under the new Land Law. Communities are being told that
the land belongs to the State and they will lose it unless they sell it. The wave of
speculation has been fueled by unofficial policies from the national Government,
to convert Northeast Cambodia into a “Pillar of Development,” with the develop-
ment goals being industrialization, cash crop production, and cross border trade
with the Lao PDR and Vietnam. This is apparently in conflict with other state


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      policies of poverty reduction and land security for the rural population (see
      Leonard and Kingkorn, this volume for pauded on Northern Thailand).
            Two local community networks in Ratanakiri have mobilized to meet this
      new challenge. The Highlander’s Association (HA) and Natural Resources
      Management Network (NRMNet) and the human Rights organization ADHOC,
      are working overtime to provide community education on their legal rights
      regarding land and natural resources. In some Communes or subdistricts, the
      local populations are pre-empting the communal land registration process, by
      thumb-printing collective inter-village agreements to manage the land and
      natural resources communally, and prevent land sales. Such agreements may be
      seen as a first step in application for communal title, as well as activating legal
      protection for their customary land and natural resources.
            Another crucial issue is the titling of forest land. This has yet to be resolved
      by the sub-decree still being prepared for legislative consideration. Ideally, all
      forest types associated with the agricultural and residential land of indigenous
      communities should be included in their application for communal title. These
      lands include swidden fallows, spirit (sacred) forests, burial forests, watershed
      protection forests (and water sources), sanitation/windbreak forest around the
      village, bamboo forest, etc. (i.e., all the land use areas in Figure 9.3, mapped
      by the community for use of the community). Most of such forested areas are
      tree-bearing islands in the swidden agriculture landscape. It is therefore, very
      practical, both for mapping and management, for them to be included in the
      collective title of the community. However, inclusion of forest is being contested
      by the State forest administration. They insist these forests must be registered
      under separate community forest agreements, subject to review and renewal
      every 15 years.
            With the executive branch contending to subtract forest from communal
      and indigenous immovable property, elected Commune Councils at the
      subdistrict level are proving to be important for protection of community
      interests, especially regarding land security. Occupying the lowest level of
      popular representation in local government, Commune Councils are mainly
      composed of indigenous people in Ratanakiri and Mondulkiri. Thus, they can
      be responsive to the local community needs and priorities. However, their hand
      would be strengthened by a vigorous civil society at the grassroots level so that
      Commune Councils continue to work on behalf of their constituency and are not
      coopted by other interests.
            Finally, future challenges to building on the success of PLUP will involve
      choices for appropriate agricultural development on community land. In order
      to enable the local communities to sustainably use and develop their resources,
      several features for agricultural investments would be desirable. Some criteria
      for future development:
            • Highly biodiverse crops should be cultivated. These would be based on
               the existing agriculture systems and incorporate native varieties. In this

194   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
          way, the watershed and other ecological advantages of the traditional
          system can be maintained.
      •   Perennial tree crops should be a major component. Perennials stabilize
          the system and replace some of the ecological functions of the secondary
          forest.
      •   Family food production should be the first priority. Marketing of
          surplus products would be secondary.
      •   A diversified range of products would be desirable to avoid over-
          dependence on the market for a single crop.
      •   Labor-intensive agriculture will be preferred over capital and inputs-
          intensive farming. Labor is one of the main limiting factors for the
          highland family in implementing agricultural change, therefore
          appropriate ways of saving labor will need to be found.
      •   Markets for crops should be developed along with local processing
          technologies for the marketable products using the fruits of indigenous
          communal lands.


                                       NOTES
1
  Many of the criticisms of swidden farming have some basis. For instance, in Yiak Lom
Commune, near the Provincial Centre of Ban Lung, where land pressure is intense, there
is virtually no old growth forest left, and the swidden farming system is breaking down
with weed invasions, and decreasing soil fertility. In Kok Lak Commune in the north of
the province, forest areas in the buffer zone of the Vireachey National Park are being
converted to unproductive imperata grasslands by a combination of slash and burn
farming, and uncontrolled burning. This unsustainable situation can be traced to the
relocation of these farmers from their traditional lands in the Core zone of the national
park to much less fertile lands where they had no established tenure system.
The main factors which are observed to undermine sustainability are:
     (1) Relocation from traditional lands where tenure and management system have
         been already established, to new lands where there is no clear tenure or viable
         management system. Management systems take several generations of trial and
         error to develop, by which time much damage to the environment can take
         place.
     (2) Proximity to the market: In communities which are located close to the market
         centres of Ban Lung and Bokeo, the advent of cash economy has brought with
         it an increasing spirit of individual profit. This combined with intense pressure
         from immigrants and business people to buy up land, has led to loss of much of
         the productive land of the communities (as in Yiak Lom Commune), escalating
         internal conflicts and breakdown of the social structure and decision making
         capacity of the local community (e.g. elders are no longer respected or
         consulted about matters affecting the whole village).
     (3) Land squeeze: diminishing land is a result of in-migration by lowland Khmer,
         informal land sales, encroachment and granting of land concessions on

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                                                 Managing Projects for Sustainable Livehoods
                indigenous land, and natural population growth within the communities.
                Diminishing land per capita results in unsustainably short fallow periods,
                increasing weed invasion and decreasing crop yields. Under these conditions,
                communities will be tempted to clear areas of old forest to supplement their
                yields.



                                           REFERENCES

      Baird, Ian, Kaneungit Tubtim, and Monsiri Baird. 1996. The Kavet and the Krung:
          Observations of Livelihoods and Natural Resources in two Highlander Villages in the
          Districts of Veun Say and Ta Veng, Ratanakiri Province,Cambodia. NTFP, Ratanakiri.
      Baird, Ian. 1997. The Ethnoecology of the Brao-Kavet in Koklak Commune, Ratanakiri,
          Province. Unpublished report. NTFP Ratanakiri.
      Blench, Roger. 2002. The Status of Cambodia’s Minorities in the Context of Ethnolinguistic
          Self-Determination in Southeast Asia. World Bank Study.
      Gregerson, Kenneth, Charles Keller and Jacqueline Jordi. 1999. Brao Dialects. Manuscript.
          Ratanakiri.
      Keller, Charles E. 2001. Brao-Krung Phonology. Mon-Khmer Studies: A Journal of Southeast
          Asian Languages 31: 1–13.
      Paterson, Gordon. 1997. Traditional Resource Tenure: Response to Rapidly Changing Economy.
          Paper presented at the ILO and Inter-ministerial Committee Conference on The
          Development Policy for Sustainable Development of Indigenous People in Cambodia.
          Phnompenh, Cambodia, 6–8 April 1997.
      Paterson, Gordon. 1998. Animist Cosmology and Environmental Initiatives in Northeast
          Cambodia. From Proceedings of a Regional Seminar “Towards an Environmental Ethic In
          Southeast Asia”. Phnom Penh 5–7 November 1997. Phnom Penh: The Buddhist Institute.
      Paterson, Gordon. 2002a. Cultural Documentation Using Local Languages. Paper presented
          at the Bilingual Education Seminar, Ratanakiri, Cambodia. 29 July–1 August 2002.
      Paterson, Gordon. 2002b. Social, Economic and Environmental Rights Of Indigenous People
          In Northeast Cambodia: Sustainable Utilization of Forest and Natural Resources through
          Community-based Management. Unpublished paper circulated at the UN Sub-regional
          Seminar, Minority Rights: Cultural Diversity and Development in Southeast Asia”,
          Chiangmai, Thailand, 4–7 December 2002.
      Pen Dareth. 2002. Cambodia and its Ethnic Minorities Policy. Paper presented at UN
          Sub-regional Seminar, Minority Rights: Cultural Diversity and Development in
          Southeast Asia”, Chiangmai, Thailand, 4–7 December 2002.
      Phuong, Sith. 2002. Briefing Note on Minority Situation in Cambodia. Paper presented at the
          UN Sub-Regional Seminar, Minority Rights: Cultural Diversity and Development in
          Southeast Asia”, Chiangmai, Thailand, 4–7 December 2002.
      Thomas, Anne E. 2002. Bilingual Community-based Education in the Cambodian
          Highlands: A Successful Approach for Enabling Access to Education by Indigenous
          Peoples. Journal of Southeast Asian Education 3(1): 26–58.
            .
      WWF 2000. Transboundary Conservation in Indochina: 1995–1999 and Beyond. Hanoi: WWF
          Indochina Programme.




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      Managing Projects for Sustainable Livehoods
         4
PART FOUR:       FLOW-MOBILITIES
                 AROUND WATER




                        Rural Development in Lao PDR:      197
             Managing Projects for Sustainable Livehoods
198   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
                                    10
         HYDROPOWER DEVELOPMENT
     OF THE LOWER MEKONG RIVER BASIN:
    PAK MUN DAM, NORTHEAST THAILAND
                                Maarit Virtanen


                             INTRODUCTION

      Dams have contributed significantly to human development, according to
the World Commission on Dams (WCD), an independent, international process
that addressed controversial issues related to large dams, and was supported by
54 organisations, including, for instance, the World Bank. Despite considerable
benefits, however, WCD found dams have often come with an unacceptable cost,
from the point of view of those concerned with major environmental and social
impacts caused by dams (WCD, 2000: xxviii). A major shortcoming of
large-scale projects has been the unequal distribution of project risks and
benefits. Typically, people enjoying the project benefits are not the same people
bearing the social and environmental costs. Large dams, in a sense, “export”
rivers and associated lands (Ibid: 123-5). By removing them from the productive
domain of one community to make them available for another, large-scale projects
privatise the river commons utilised by local communities and erode
subsistence-based livelihoods. The emphasis on equity in the development
discourse has underlined the unacceptability of forcing this kind of sacrifice on
specific communities (Ibid: 98).
      Despite acknowledged problems, dams and large-scale hydropower projects
continue to be seen as essential for development in many instances. For
example, World Bank’s Water Resources Sector Strategy emphasizes the role of
major water resources projects in fostering regional development and alleviating
poverty, as well as the need to actively support hydropower as a renewable source
of energy (2003a: 3, 17). In the Mekong Region, the Asian Development Bank
(ADB) likewise promotes hydropower via the Greater Mekong Subregion (GMS)
Program (GMS includes Cambodia, Lao PDR, Vietnam, Thailand, Myanmar, and
China through the Yunnan Province). A part of GMS will create regional power
interconnection and trade arrangements between the Mekong region countries,


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                                            Managing Projects for Sustainable Livehoods
      with hydropower playing a central part (ADB, 2002: 1-2). In addition, ASEAN is
      developing its policy for power interconnection and electricity trade in the
      region (http://www.aseansec.org).
            In Thailand, a process of community empowerment has focused attention
      upon the negative consequences of government development policies since the
      1960’s geared to industrialisation. For the rural villagers, development
      meant material gains in the form of social services, education, etc. but also
      disempowerment. New market-oriented agricultural practises caused many
      villagers to fall into debt, while at the same time many natural resources were
      enclosed to benefit the urban economy (UNDP, 2003: 64). In the 1980s, the
      dam issue became a major concern for Thailand’s emerging environmental
      movement, the first victory of which was forcing cancellation of the Nam Choan
      Dam project in western Thailand (Sretthachau, 1999). Since the conflict on the
      Nam Choan, only one large hydropower dam, Pak Mun, has been built in
      Thailand (Interview N1).1 According to the Electricity Generating Authority of
      Thailand (EGAT) and Ministry of Energy officials, no major hydropower dams
      are planned in Thailand for the coming 15 years because of opposition and the
      lack of appropriate locations. However, Thailand is interested in developing
      hydropower together with neighbouring countries, where production costs are
      cheap and NGOs are not protesting against dams as in Thailand (Interviews E1
      and M2).
            In this chapter, I attempt to approach the complex issue of hydropower
      development by analysing the argumentation and story-lines that took on
      significance in the public outcry against Pak Mun dam. Hajer has described a
      story-line as a “generative sort of narrative that allows actors to draw upon
      various discursive categories to give meaning to specific social and physical
      phenomena” (1995: 56). I will analyze the Pak Mun debate in terms of the ways
      actors define the main problems related to the dam, how actors legitimise their
      arguments, and why it has proved so difficult to find common understanding on
      problematic issues. As an emblem of the problems in hydropower development,
      the case of Pak Mun also has implications for other current hydropower projects
      in the Mekong Region. Thus, I also examine whether the Pak Mun project has
      generated institutional learning, especially regarding the need for the participation
      of stakeholders in development project planning and implementation.


                          THE PAK MUN HYDROPOWER DAM

      Planning and implementing a controversial development project
           The 136 MW Pak Mun Hydropower Dam is located in the Northeast of
      Thailand, near the confluence of the Mun and the Mekong Rivers. The
      construction of the Pak Mun began in 1991, at a time when Thailand’s economy
      was one of the fastest growing economies in the world. The Pak Mun was built

200   Rural Development in Lao PDR:
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as a run-of-river plant with a storing capacity basically equivalent to the
pre-existing river channel (Amornsakchai et al. 2000: 1, 12). EGAT, the state
owned electricity utility, executed the project with financing from the World Bank
(23 million USD, or about thirteen per cent of the total project cost). The World
Bank financing was provided to assist Thailand with meeting growing demands
for electricity, and to increase the domestic renewable power generation capacity
(World Bank, 2000a).

Map 10.1. Location of Pak Mun Dam, Thailand




      The first study for the plant had been conducted as early as 1970. The
feasibility report judged the project beneficial, not only from the point of view of
electricity production, but also for navigation, irrigation, and especially for
fisheries (Sofrelec, 1970: n.p.). Later studies also reflected a view that major
benefits would accrue for fisheries, so that fishing was expected to become an
increasingly important occupation, despite the alterations in the aquatic biology
caused by the dam (e.g., EGAT, 1982). However, the original project was judged
unfeasible due to the large area inundated by the dam, and the ensuing costs for
resettlement of inhabitants whose lands would be submerged. Subsequently, the
project site was moved by one and a half kilometres and the height of the dam
was reduced to lower the reservoir water level. Another aim of modifications was
to preserve the Kaeng Tana and Kaeng Saphue rapids, which had additional value
as tourist attractions. The revised project was then carried out without new
feasibility studies (Amornsakchai et al. 2000: 12; EGAT, 1985). Additional
studies of the revised impacts were considered unnecessary, because “the

                                                        Rural Development in Lao PDR:      201
                                             Managing Projects for Sustainable Livehoods
      environmental and social impacts earlier assessed were substantially reduced”
      (World Bank, 2000b).
             Contrary to the dam’s estimated benefits for fisheries, Pak Mun has been
      blamed for a drastic reduction in the amount of fish in the Mun River and,
      indeed, for the loss of local fishing culture and the disintegration of communities
      (Progress Report 2002: 8). While early studies had found no evidence that the
      fish in the Mun and Mekong Rivers were “truly migratory,” later studies claimed
      that of 152 fish species found in the Mun River, 134 are migratory species (EGAT,
      1982: 44; Progress Report 2002: 2). However, the dam’s impact on fisheries can
      be hard to separate from other causes of decline. According to data provided by
      the World Bank, the number of fish species had already fallen radically before the
      construction of dam. Reasons for this include increased pollution, intensifica-
      tion of fishing, and also upland deforestation and resultant soil erosion (World
      Bank, 2000b: Annex 2: 26). Besides the Pak Mun, there are also several major
      hydropower and irrigation dams on the Mun River. Such constructions affected
      the quality of water and changed the river’s hydrological regimes ahead of the
      construction of Pak Mun (Amornsakchai et al. 2000: 5–7).
             Besides the effects on fisheries, the fundamental benefits and economic
      justifications for the Pak Mun have been questioned. Given the irregularity and
      unpredictability of the Mun River, and the operational constraints imposed to
      prevent permanent flooding of upstream rapids (Amornsakchai et al. 2000:
      22–35), the Pak Mun may not be able to deliver as projected. It was designed as
      a peak power demand plant, but the dam’s generating capacity is at its lowest
      during the hot season, exactly when peak power demand is at its highest. (Ubon
      Ratchathani University, 2002: 15) Furthermore, since the Pak Mun project was
      not implemented as a multipurpose project with irrigation options, it becomes
      difficult to factor in such changes to the calculated benefits (Chalotorn, 1994:
      119). Nevertheless, according to the World Bank, the project was economically
      viable as a part of EGAT’s wider hydropower plant system, and the economic
      benefits gained fully justified the construction of the dam (World Bank, 2000b).
             Prior to the construction of the Pak Mun Dam, the livelihoods of
      communities living along the Mun River consisted primarily of subsistence
      practises, rice growing and fishing, combined with selling surplus at the market.
      Even though rice farming was the main source of livelihoods, villagers
      considered themselves fishermen and fishing the main mode of generating
      income. The proportion of households involved with fishing is estimated to
      have been as high as ninety-five per cent (Amornsakchai et al., 2000: 50–51).
      The dam has affected these fishing practices as well as agriculture on riverbanks
      and the collection of natural vegetables along the river (Progress Report, 2002: 8).
             According to the study done by Ubon Ratchathani University, the
      proportion of village households with incomes below the poverty line increased
      after the construction of the dam and was still 57.6 per cent in 2001 (2002:
      14–15). The figure is very high compared with national estimates of poverty,

202   Rural Development in Lao PDR:
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even among the poorest regions and among villagers belonging to the lowest
income groups (cf. UNDP Thailand, 1999). However, villagers have not been
unanimous in their approach to the dam. Some villagers have utilized the
employment opportunities provided by, for instance, the construction of the dam
and government fish cultivation schemes, while others have refused these
options. In addition, the booming economy affected the livelihood options, so
that agriculture became a less attractive livelihood option during the period of
dam building. Few of those resettled were interested in buying replacement land
at the time they were moved in 1994 (World Bank, 1998).
       Weak points of project preparation that the World Bank does acknowledge
include inadequate base-line information on local fisheries and the dependence
of local population on that resource. World Bank also recognizes a lack of
consultation with affected persons. Yet it also maintains that despite a slow start
and initial difficulties, the resettlement project itself evolved into a best practice
in many respects (World Bank, 2000b: Annex 3: 35). However, difficulties in
assessing the level of compensation for both the loss of land, and especially on
loss of fishing income, have increased mistrust between different actors. While
villagers claim they have been cheated with false promises of the dam’s benefits,
they themselves have been accused of fraudulent claims for compensation. (World
Bank, 1998, 2000b) When the construction of the dam begun, only 241 families
were counted as displaced and entitled to compensation. By the time the dam
was completed, this number had risen to 1,459 households. (WCD, 2000: 104)
According to the World Bank, the dam affected as many as 1,700 households,
who lost their house, part or all of their land, or both (World Bank 1998, 2)
Likewise, according to EGAT’s own research, there were only around 300 to 370
full-time fishermen in the area, but when the compensations for the loss of
livelihoods were paid, over 6,000 fishermen were reported (Interview E2).

Protesting against the Pak Mun Dam—Networks, protest villages, research
       The first local protest against the Pak Mun Dam took place in 1989 as the
villagers demanded information on the project. As the construction of the dam
proceeded and its impacts began to be felt, opposition became more organised
and demands were made for the cancellation of the project, and later, for
compensation of the loss of livelihoods. Due to limited consultations with
villagers, actions such as the blasting of rapids for dam construction came with
little warning (Sharma and Imhof, 1999). The Pak Mun question also received
attention at a forum for international NGOs running parallel with a World Bank
meeting in Bangkok in 1991. At the time, however, the World Bank seemed to
be more concerned with implementing the project than engaging in a dialogue.
A part of the rationale to approve the Pak Mun loan was that, in the words of dam
proponents, “blocking this project would give non-governmental organisations
momentum to prevent much needed dam projects in the Mekong Basin” (Mitchell,
1998: 86).

                                                          Rural Development in Lao PDR:      203
                                               Managing Projects for Sustainable Livehoods
            EGAT has paid compensation to the affected villagers for the loss of land
      and property, and after community protests, also for the loss of livelihoods
      during the construction of the dam. In addition, a fish ladder was built into the
      dam as a mitigation measure in 1994. The fish ladder’s amelioration has been
      insignificant, though, since the ladder built was not designed for local conditions
      and few fish are able to pass it. For the fish migrating downstream, there are no
      bypass facilities at all, except for passing through the dam’s turbines (McCully,
      2001: 53). The Department of Fisheries has therefore begun a program of
      stocking the reservoir with prawn and fish to restore the possibility of fishing.
      The results achieved have been modest, and regular restocking of fish is needed
      to sustain fishing yields (Amornsakchai, et al. 2000: 47).
            In 1995, villagers opposing the Pak Mun Dam, together with several other
      community groups, formed a network called the Assembly of the Poor. The
      network has organised various mass demonstrations urging the government to
      solve problems faced by Assembly of the Poor members. One of the largest
      protests took place in 1997, when the demonstrators set up, for a second time, a
      makeshift village in front of the Government House, as the government had failed
      to act despite earlier promises. The demonstration lasted for 109 days and
      involved as many as 20,000 people (Assembly of the Poor, n.d.). The protest was
      an extraordinary event in Thai history of political action and attracted daily
      coverage in the media. The demonstrators brought rural conflicts from their
      local sites directly to the centre of state power and authority, the Government
      House (Missingham 2002: 1647, 1652). One result of the demonstration was a
      government promise of fifteen râi (equal to about 2.4 hectares) of land as a
      compensation for the permanent loss of income from fisheries for families
      affected by the Pak Mun Dam (Assembly of the Poor, n.d.). However, the
      compensation was never realised. The new government that came to power in
      1998 renounced all previous commitments for compensation (World Rivers
      Review, 1999).
            In 1999, a protest village called Mae Mun Maan Yun was established next
      to the Pak Mun Dam site. At its highest, the number of protestors at Mae Mun
      has been about 5,000. But consultations between protestors and the govern-
      ment only continued in mid-2000, after protesters laid siege to the dam. A panel
      was set up to assess protestors’ demands, but it failed to achieve solutions to
      problems (Bangkok Post, 3 June 2000). The publication of the WCD report on
      dams and development, and a related case study on the Pak Mun Dam in 2000,
      gave new credibility to the protestors. The international study questioned the
      economic justification of the project, and estimated that the project would not
      have been executed, if all its costs and benefits had been adequately assessed
      (Amornsakchai, et al. 2000). Both EGAT and the World Bank denounced the
      findings, and stressed that the project planning and implementation had
      followed all regulations and laws existing at the time (Bangkok Post 21
      September 2000, World Bank, 2000b).

204   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
        In November 2000, protestors residing at the village by the Pak Mun Dam
were attacked, and their shelters were set on fire. About thirty villagers were
injured in the attack, which some villagers blamed on the EGAT (The Nation, 20
November 2000). After the incident, the Assembly of the Poor coordinated a
new protest in Bangkok. Once again they set up a village by the Government
House, in which they eventually stayed until the new government announced
plans for a temporary opening of dam gates in May 2001 (Bangkok Post, 27 May
2001). By Cabinet resolution, the gates of Pak Mun Dam were to be opened for
four months to allow fish to spawn, and to conduct research on the impacts of
the dam. The decision provoked a demonstration involving about 1,000
villagers who opposed the decision because of adverse effects on fish cultivation
(Bangkok Post, 3 June 2001).
        Despite opposing views, the dam gates were opened, and a decision was
made to keep them open for one year. During this time, the government
assigned Ubon Ratchathani University to conduct research on the dam’s benefits
and its effects on ecosystems and communities’ livelihoods. Their final report
provided four alternatives for managing the dam, and recommended that dam
gates should be opened for a period of five years, to allow time for further
assessment of options. According to their findings, there are alternatives for
fulfilling energy demand, whereas solutions for the problems imposed on the
Mun Basin ecosystems and communities are limited. The opening of dam gates
would benefit fisheries and forest ecology, and would revitalise the fishing
culture (Ubon Ratchathani University, 2002).
        Besides the government, both local villagers and the EGAT have conducted
their own research. Villagers’ research was organised by the Southeast Asia
Rivers Network (SEARIN), and it focused on assessing the impacts of opening
dam gates on the riverine ecosystems and its society and culture. This study also
provided evidence on the revitalisation of the river and livelihoods after the
opening of dam gates (Progress Report 2002). However, to the dismay of
protestors, the government made a decision to keep the dam gates open only for
four months a year, from July to October. The cabinet decision was based on the
work of a special committee set up to find a compromise between electricity
generation and restoration of river ecosystems. (Bangkok Post, 30 October 2002)
Villagers renewed their protests in Bangkok, and tensions grew as the protest
village by the Pak Mun Dam was demolished. The Assembly of the Poor blamed
the EGAT for the incident, whereas the government accused NGO activists
supporting villagers of raiding the village themselves (Bangkok Post, 17
December 2002).
        Thai Prime Minister Thaksin, for his part, claimed that the University study
was incomplete and included only the views of dam opponents. Therefore, an
additional study team was set up to gather more information, and the Prime
Minister himself visited the dam to view the issue (Bangkok Post, 25 December
2002). Finally, the Prime Minister confirmed the earlier decision to keep the

                                                        Rural Development in Lao PDR:      205
                                             Managing Projects for Sustainable Livehoods
      dam gates open for four months a year, in a decision declared final with no
      further deliberations. This was said to reflect the views of a majority of people as
      presented in a survey made by the National Statistics Office (The Nation, 16
      January 2003). Of 3,750 villagers interviewed for the survey, over 83 per cent
      said they would not be affected, whether the dam gates would be open or not
      (The Nation, 21 January 2003). Yet, the majority of respondents (70.3 per cent)
      were farmers, and 76.1 per cent of them lived away from the Mun River (Bangkok
      Post, 21 January 2003).


                                   THE PAK MUN DEBATE

      Story-lines on Pak Mun and opposing narratives of development
             Hajer describes story-lines as narratives of social reality through which
      fragmented elements from different domains of life are combined (1995: 62).
      Story-lines have an essential role in the clustering of knowledge, the positioning
      of actors, and ultimately in creating coalitions of actors in relation to complex
      social phenomena. Story-lines have three different functions. First, they
      facilitate the reduction of discursive complexity and create possibilities for
      problem closure. Second, as actors utilise a story-line, it provides symbolic
      references for them and brings a certain permanence to the debate. Third,
      story-lines allow different actors to expand their own understanding of an issue
      beyond their own discourse of expertise (Ibid: 62–3). A discourse coalition can
      thus share a particular discourse, a particular way of talking and thinking about
      a certain policy issue, even though actors can interpret the story-line differently
      and have their own individual interests (Ibid: 13).
             Story-lines help both to construct a problem in an understandable way and
      to play a role in creating social and moral order in a given domain. Through
      story-lines actors are positioned as, for example, victims or problem solvers, and
      blame and responsibility can be attributed to certain actors (Hajer, 1995: 64–5).
      In the case of Pak Mun, two main story-lines can be detected: the story-line
      about how large dams destroy local livelihoods and ecosystems, and the
      story-line about the importance of large-scale projects to national development
      and poverty reduction. Even though these story-lines are related to the Pak Mun
      case, they are reflected in and nurtured by the wider debates on the role of dams
      in development objectives and priorities.
             The story-line opposing the Pak Mun forms a narrative for how the dam
      project destroyed local livelihoods, fishing culture and ecosystems, and
      meanwhile the villagers were given no opportunity to participate in
      decision-making on issues affecting them. Local villagers are depicted as victims
      of the project, who were forced to react as a group to a collective injustice. This
      story-line gives a unified picture of villagers opposing the dam, and attributes
      the blame on the disintegration of local communities to the government and the
      World Bank as the financier of the dam.

206   Rural Development in Lao PDR:
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       Even though large dams have raised concern in Thailand since the 1980s,
the planning and construction of Pak Mun initially attracted little attention. This
can be explained by the rising environmental movement’s focus on forest
degradation at that time, especially the protection of “pristine forests.” The
urban middle class-based movement showed little interest on rural livelihoods
in its early stages (Laungaramsri, 2002: 4–5). However, with the involvement of
various international NGOs and the establishment of the Assembly of the Poor,
the dam project received widespread publicity. An important element in the
construction of the story-line was provided by the involvement of WCD in the
debate. Hence, discussion on Pak Mun became closely connected to the wider
debate on development priorities, a debate in which Pak Mun itself would
become a symbol of injustices. Local concerns have therefore been presented as
a part of a global problem, the widespread lack of access for local communities to
the decision-making processes that affect their livelihoods (Mitchell, 1998: 86).
       Consequently, the Pak Mun Dam has been blamed for violating villagers’
basic human rights: the right to natural resources, food sources, work, and
culture (The Nation, 16 December 2002).

       We assert that local communities are being sacrificed in the name
       of “development.” “Development” in the present day is destroying
       the lives, livelihoods, cultures and natural ecosystems of the local
       communities of the Mekong region . . . We state that we refuse the
       “development” projects such as the Pak Mun dam; standing here
       at the Mun River, we hope for the Mun River to wash away this
       kind of destructive ‘development’ and its artificial “civil society”
       (Local Communities of the River Basins of Thailand, 2002).

      It can be said that the dam has impoverished villagers not just in terms of
slashed income, but also in the sense that the project increased perceptions of
powerlessness and insecurity (cf. Tammilehto, 2003). From the point of view of
villagers involved in protests, poverty and powerlessness are closely connected:
“We have no money. We have no power [amnat]. We have no position or high
status . . . ” (quoted in Missingham, 2002: 1653).
      On the other side, the second story-line for supporting the Pak Mun
describes the project as an essential part of development efforts, a key measure
for securing energy production, economic growth, and poverty reduction. This
pro-development narrative on Pak Mun acknowledges certain failures in the
planning and implementation of the project, but maintains that problems can be
solved with better co-operation of all stakeholders and proper management of
environmental and social issues.

       As a result of what one would today classify as project deficiencies,
       the project is now blamed for anything and everything that is
       affecting the fisheries . . . The focus must shift from removing dams
       and removing protestors to removing poverty (World Bank, 2000c).

                                                        Rural Development in Lao PDR:      207
                                             Managing Projects for Sustainable Livehoods
            Whereas opponents blame the disintegration of fishing culture on the dam,
      Pak Mun proponents stress that local livelihoods would have changed anyway,
      regardless of the dam. They also question the real importance of fishing to the
      local livelihoods, pointing to various projects for the mitigation of social and
      environmental impacts instead, and stressing provision of alternative livelihood
      options (e.g., EGAT, 1996). As an EGAT official explains:

              No, they [local villagers] are concerned about their way of life
              changing, that is the main reason. . . . I can say, if we don’t build
              the dam, their way of life also changes. . . . The environment itself
              is also changing, it is not stopped like that they said. When
              convert to the changes in the way of life, yes dam also makes them
              change, but we have the policy to change; to be, you know, better
              off, not change worse off (Interview E3).

      While the story-line against the Pak Mun positions villagers as victims and the
      government as the party to blame for problems, the narrative supporting the
      dam attributes the blame for continuing conflict to NGOs. In fact, most EGAT
      and Ministry representatives interviewed maintained that the conflict would have
      been solved if the NGOs had not been involved.

              Actually, according to the Thai culture, it should be very easy to,
              you know, communicate to the people, especially in the country,
              because they are very friendly, very sincere towards each other.
              But in Pak Mun case it is different, because there are some of the
              Thai NGO group that introduce some misleading material to the
              people . . . They try to use the wrong material, wrong information
              and try to convince the people against the project (Interview E2).

             Perhaps partly due to the high publicity of the Pak Mun project, the
      government and EGAT have found the position of NGOs most problematic. NGOs
      have been blamed for purposefully maintaining the protest and encouraging the
      villagers to continue fighting (e.g. The Nation, 3 July 2000; Interview E1). The
      government and EGAT have found it difficult to define the stakeholders in the
      debate, but yet have wanted to somehow limit discussion only to those directly
      affected. For instance, the Prime Minister has stated he will only discuss conflict
      solutions with “real” villagers: “I don’t want protest leaders because I’d really like
      to hear from the affected parties” (Bangkok Post, 18 December 2002). NGOs
      also absorb criticism for their role in what an EGAT offical has come to call “the
      paradox of resettlement.” Poor people (often encouraged by NGOs) seek
      benefits from resettlement and compensation schemes by presenting themselves
      as affected people, even if the project was not strictly relevant to their livelihoods
      (Interview E3). However, some critics see the emphasis on finding fault with the

208   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
NGO advocacy role as a way of shifting attention from problem to process, a
means for downplaying local struggles and protests as merely instigations by
NGOs receiving money from the West (Laungaramsri, 2001: 230).
      The story-line emphasizing the importance of large-scale development
projects is supported by institutions like the ADB and the World Bank. World
Bank’s Water Resources Strategy promotes small and large-scale hydropower as
an untapped renewable energy source, provided that hydropower is the most
appropriate option and that good environmental and social practices are
followed (World Bank, 2003: 22). Likewise, the ADB facilitates the GMS process
with its massive infrastructure projects under the framework of poverty
reduction. Especially in the past, large dams have symbolised human progress
and also the power of the state building them (McCully, 2001: 237). It is this
symbol of state progress and monument of technical prowess, not the symbol of
massive injustice and great wall of bureaucratic exclusion, that inspires loyalty to
the pro-development story-line.
      Thus, as narratives of social reality, story-lines necessarily simplify
complex issues. Few actors can thoroughly understand a phenomenon in all its
complexity, but the knowledge that becomes politically relevant is often that
transcribed into higher order discourse. In effect, the interpretive process
aiming at discursive closure acts to selectively pass up to higher authorities
reductive formulas rather than rich nuance. An initially complex issue is often
reduced into catch-phrases that are easily understood, but actually entail a loss
of meaning and omission of uncertainties (Hajer, 1995: 61–2). In the case of Pak
Mun, various research projects have been undertaken to reach a conclusion on
what is really at stake, yet stakeholders have not been satisfied with the research
results and the methods of conducting research. For instance, EGAT has
denounced the findings of the WCD case study as biased since it did not tackle
the lack of baseline data with some systematically objective methodology, but
instead relied on interviews with local people whose possible involvement in the
dam protest made them, in EGAT’s view, insufficiently disinterested sources
(Amornsakchai et al. 2000: 101). EGAT representatives also felt their views were
not taken into consideration by the research method, but the research results
were decided beforehand (Interview E3).
      The research done by villagers plays a role in the story-line critical of
development practices. Thai Baan, or villagers research, arose from the need of
dam-affected people to document themselves, the impacts of dam opening on
their lives, instead of relying on outsiders conducting research. Altogether 200
villagers from 65 communities assisted by SEARIN staff and volunteers
undertook the research effort (The Return of . . . 2002: 1–2). The research can be
seen as an attempt to translate local knowledge on dam impacts into the form of
written documents, which would then provide local people with access to
discussions with experts on equal terms. Thus villager’s performed their own
research study to serve two purposes: to investigate the effects of opening the

                                                        Rural Development in Lao PDR:      209
                                             Managing Projects for Sustainable Livehoods
      dam gates, and to empower themselves by promoting local knowledge on
      resource management. Their research was an effort to challenge the expert
      knowledge and provide for true participation by the affected people (Bangkok
      Post, 12 November 2002; Progress Report, 2002: 1). However, the dismissal of
      the Ubon Ratchathani University research also entailed the rejection of villager’s
      research for use in decision-making. Instead, the closure of debate was legitimised
      by the government survey that reduced the question of Pak Mun into a set of
      polling figures for and against the dam. Thus while all stakeholders in the debate
      seem to perceive knowledge provided by research as essential for the legitimisation
      of arguments, the question on how the research should be done remains open.
      Dam affected people do not trust EGAT or government in presenting the
      situation accurately, while these perceive the information provided by local people
      too biased. In addition, as commented by an EGAT official, foreigners should not
      get involved with the whole dam issue as they cannot understand the situation
      the same way as Thai people do (Interview E7).

      The legitimisation of arguments—domestic vs. civic-industrial
             The power of a story-line is essentially based on the idea that it sounds
      right. What sounds right is influenced by the plausibility of the argument itself,
      the trust that people have in the actor uttering the argument, the practice in
      which it is produced, and the acceptability of the story-line to one’s discursive
      identity. (Hajer, 1995: 63) According to Boltanski and Thevenot (1999), people
      refer to different “regimes of justification” in legitimising their critique in public
      discussions. These regimes all have their own orders of worth, their usefulness
      in grounding justifications may differ in various situations, and so a person may
      utilise different regimes of justification in different circumstances.
             Arguments against the Pak Mun Dam have mainly been legitimised by what
      I call, following Latour, the regime of domesticity. What is being valued by this
      discursive coalition is a specific tradition and a territory, or a commons, against
      the impersonal, rootless flow of commercialisation and technology. Within the
      domestic world, worth is related to roots and familiarity. (Latour, 2002: 77). In
      the context of Mun River communities, the domestic regime can be seen as
      encompassing also the environment and natural resources essential for
      livelihoods. The local communities perceive the river as a commons belonging to
      villagers. Fisheries in particular have been cooperatively used, but other
      resources, such as forest resources growing on islands and banks of the river,
      have been shared by communities (Ubon Ratchathani University, 2002: 13–14).
      Villagers’ descriptions of dam impacts have underlined both the loss of common
      resources and the fragmentation of communities, whether because of
      resettlement into different locations, migration outside the village in search of
      employment, or conflicts within communities between dam supporters and
      opponents (Sharma and Imhof, 1999). While some villagers have been satisfied
      with new employment opportunities and the compensation offered, others have

210   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
declined these and emphasise that their main concern is not monetary
compensation, but getting the river and livelihoods back (The Nation, 3 July
2000; personal communication 1).
       The loss of fisheries reflects the environmental consequences of the dam,
but also, and perhaps more significantly, the loss of livelihoods and fishing
culture. For instance, when fish cultivation is revived in the form of contract
fish-farming, some villagers have opposed it as betraying traditional livelihood
by becoming “employees for life” (Bangkok Post, 4 February 2003). Further-
more, villagers’ research describes the connection between villagers’ fishing gear,
ecosystems, and the way of life. The fishing gear can be seen as having multiple
functions besides simply catching the fish: the seventy-four types of fishing gear
reflect, for instance, the history of the area, the knowledge of ecosystems, the use
of common resources, and the passing of knowledge to future generations
(Progress Report . . . 2002: 3–5).
       Whereas argumentation against the dam has underlined the traditional
fishing culture and local livelihoods, the World Bank and EGAT have justified
the project through civic-industrial values. Promoting the dam as a response to
the needs of a growing economy, and phrasing their defense of development in
terms of the national interest, their regime of justification is the civic regime,
oriented to collective interests that override the personal dependencies on which
domestic worth is based. In the civic world, persons must give up their personal
interest to support the common good (Boltanski and Thévenot, 2001: 371). The
emphasis on the productivity, efficiency, and progress associated with successful
development also relates their mode of justification to the industrial regime, where
professional competence and measurable criteria are valued (Ibid: 368). From
these perspectives, progress may entail some losses, but they can be compen-
sated to the satisfaction of all stakeholders.
       The ability of civic-industrial rationalizations to sound right has been
jeopardized by the Assembly of the Poor. The movement has questioned whether
Thailand’s development policy, based on economic growth and industrialisation,
has truly benefited the majority of people. The Assembly emphasizes that the
people must direct development and be the real beneficiaries of it, and that the
poor must participate in decision making on projects affecting them. (Assembly
of the Poor, n.d.) From their point of view, the Pak Mun campaign has been
positive: it has influenced institutions and politics in Thailand, even though all
actors have made mistakes and the problem itself has not been satisfactorily solved.
(Interview N1) However, the Prime Minister closed the discussion on Pak Mun
with a strong emphasis on progress that does not necessarily accommodate
diverging views on the direction of development: “You can’t bring the whole
society to a standstill just because a handful of people are protesting. This must
be understood. The nation must keep progressing. There must be development.
Lives must change” (Quoted in Bangkok Post, 16 January 2003).



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                                             Managing Projects for Sustainable Livehoods
                          THE MEANING OF PARTICIPATION

      Participation in Thai context after Pak Mun
              One of the acknowledged problems related to the Pak Mun project was the
      lack of participation by affected people in the project’s decision-making. At the
      time of planning the Pak Mun, there was no legislation for public participation or
      guidelines related to the rights to obtain information on government projects.
      The mass demonstrations can be seen as an instrumental strategy of pursuing
      political goals for people who have been excluded from institutionalised avenues
      of participation. However, the demonstrations and the establishment of protest
      villages at Government House can also be perceived as creating common ground
      to assert a unifying political identity for the groups, ultimately creating a
      community with its own claims to discursive legitimacy. The Village of the Poor
      created in Bangkok not only symbolised a community in crisis, it brought rural
      issues into the middle of the city, representing “national development” and its ills
      (Missingham, 2002).
              Since the building of Pak Mun, Thai legislation on both environment and
      public participation has developed. The Constitution of 1997 guarantees for the
      first time community rights, including rights of access to natural resources. The
      Constitution enshrines the right of access to public information, the right to
      receive information and explanation for projects affecting a community, and
      the right to participate in the decision-making process. In addition, the state is
      mandated to strengthen local communities and promote community
                                                  ,
      participation in decision-making (UNDP 2003: 36–7). However, as a ministry
      spokesman stresses, the implementation of new legislation and directives will
      take time. Government officials need to change their practices and, indeed, their
      mentality on how to work together with other stakeholders (Interview M1). In
      addition, as acknowledged by an EGAT official, the trust of communities has
      been broken with conflicts over the Pak Mun and other controversial projects,
      and it will take time to rebuild the trust (Interview E6).

              . . . in general, you see, the governmental staff do it by themselves.
              And when the people just do it by themselves, separately, [that is]
              because that is the way of thinking. It is a concept that we do for;
              we just take care of our natural resource, is our authority, but in
              fact it is not. It is all people concern. So the kind of public
              participation come; this concept I think come because we met
              problem . . . But I think you need to change some concept of the
              governmental staff. If the people can change, it is easier, but if they
              are in the old concept, it is quite difficult for them to change
              (Interview M1).

          Public participation processes are seen as important for increasing
      common understanding and mitigating conflicts of interest. But participation

212   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
may remain meaningless for the affected parties if the process is only
implemented to get approval for decisions already made. According to an
activist, meaningful participation can be hindered because of the centralised power
structure in Thailand, and the traditional patron-client system. While
government officials will have to adopt new concepts, it also takes time for people
to realise they have rights and that decisions are not only made from the top
down (Interview N2). Furthermore, NGO activists, among others, doubt, whether
the existing elite is willing to relax its hold on power. Despite reforms on public
participation, those in power can create conditions that in effect make
participation difficult (Interviews N1 and N2). If the underlying concepts of
decision-making are not altered, participation may become only a tool for
lessening opposition and ensuring project implementation, as reflected in
comments of an EGAT official:

       So every development project should involve many people to
       participate and I agree that we should let them participate. But
       very hard to convince . . . Because the local people not so much in
       opposition, but the NGO people they try to manipulate.
       Everywhere they try to make some problem and convince people
       to oppose these projects. So very difficult even if we have good
       projects, or not so good projects. No one listens to any good, but
       stop developing is better (Interview E1).

      The legislation on transparency and the availability of information on
government projects has meant better possibilities for local communities to get
information on projects affecting them. In practice, the usability of information
may still prove to be a problem. For example, in the case of Pak Mun, the
villagers would not have been able to learn about the actual energy production of
the dam if the WCD expert had not personally gone through the figures
provided (Interview N2). Evidently, the process of public participation still needs
to be developed, and institutional change needs to be supported by, for instance,
the proposed new law on participation. Within the context of Mekong Region,
Thailand must implement improved modes of participation to remain at the
forefront of promoting community involvement in decision-making.

Implications of participation for the Mekong Region
      Since the building of Pak Mun, the World Bank and the ADB have reviewed
and revised their policies and guidelines on environmental and social
issues. Both have also been involved in the work process of the WCD and
acknowledged WCD guidelines. The World Bank even names the WCD report as
one of the main reference points in the debate on dams and their role in
development. Yet while the World Bank adheres to the core values and strategic
priorities presented in the WCD report, it will not comply with the 26 guidelines

                                                        Rural Development in Lao PDR:      213
                                             Managing Projects for Sustainable Livehoods
      in the report. The main disagreements with the WCD guidelines concern the
      participation of affected people. According to the World Bank, the required
      “prior informed consent” of affected people on planned projects would in effect
      amount to a veto right for local communities that could prevent states from
      implementing development projects. Furthermore, “the multistage, negotiated
      approach to project preparation recommended by the WCD is not practical and
      would virtually preclude the construction of any dam” (World Bank, 2003a: 40).
             ADB has also revised its policies. For instance, the earlier GMS focus of
      infrastructure development has been complemented with an emphasis on
      capacity building, resource mobilisation, stakeholder participation, and social
      and environmental dimensions of development. In addition, the ADB explicitly
      states that the poor must be shown to have become categorically better off as a
      result of ADB programmes (ADB, 2002; Öjendal et al. 2002: 34–5). In the
      indicative master plan on power interconnection in the GMS, it is acknowledged
      that, for example, in Lao PDR available information on environmental impacts of
      planned hydropower projects is “at different levels of study” and that some
      information may already be outdated. Furthermore, there is no official policy for
      resettlement and compensation in Lao PDR. However, according to the plan,
      social and environmental impacts must be seen in relation to a project’s output:
      as Lao PDR is less densely populated than neighbouring countries, resettlement
      will accordingly affect fewer people than it would in other countries (Norconsult,
      2003: 2).
             It seems that despite such information gaps to meet new standards of
      participation and poverty reduction, both Banks are in a key position to ensure
      that social and environmental issues are duly considered in projects, given the
      lack of government resources in countries like Lao PDR. The buyer of electricity,
      like Thailand, can be unwilling, or uninterested, in interfering with projects in
      other countries, except for requiring the application of guidelines set by
      financing institutions in new projects (Interviews E5 and E6). The position of
      financiers is by no means an easy one, if they are expected to ensure the
      implementation of their policies mandating participation, informed consent, and
      positive social outcomes in recipient countries. On the other hand, private
      investors are not likely to take such responsibility for environmental and social
      issues that belong to the domain of the state. The position of Thailand in relation
      to hydropower development in neighbouring countries adds to the ambiguity, as
      Thailand supports building elsewhere, the very projects that are strongly criticised
      within its own borders. Meanwhile, for countries like Lao PDR, the experience
      with handling more public participation is lacking, and the obstacles related to
      providing opportunities for meaningful participation are even greater than in
      Thailand. Finally, the legitimisation of projects can change over time even within
      one country. What began as a part of national infrastructure, justified by direct
      benefits for the whole country, later becomes the electricity sold as a market
      commodity, and the distribution of profits must find new justifications

214   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
(Interview N1).
      As the case of Pak Mun shows, there are controversial issues related to
project impact assessments and people’s participation in the decision-making
processes. Pak Mun is hardly unique in having neither highly diverging
story-lines and claims for truth introduced by different stakeholders, nor highly
varied availability and usability of information. For this reason, it has been an
exemplary tale and Pak Mun as an image has condensed notions of development
injustice and the blockage of mass participation. At the regional scale, the
situation is even more complicated than the controversial image, for impacts of
proposed Mekong dams may reach into neighbouring countries, as well as
provide for contending story-lines in the project vicinity.


                               CONCLUSIONS

       From the perspective provided by story-lines, the two narratives for and
against the Pak Mun Dam appear very dissimilar. Yet what is common to both
narratives is the suspicion towards other stakeholders and a strong attribution of
blame to certain actors. As the story-lines represent a coherent, and simplified,
picture of a complicated phenomenon, they simultaneously polarise the debate.
Dams can be seen as symbolising either the injustices of development or the
necessity of facilitating economic growth to reach development objectives, but it
seems most difficult to find common ground for discussion between these views.
In fact, it seems that the arguments based on different story-lines and views of
development hardly meet. Overall, with the Pak Mun dam symbolizing injustice
in the dams debate, this image is not likely to facilitate bringing actors of every
stripe into finding common possibilities to solve still-open questions.
       Still, participation of all stakeholders in planning and implementation
has emerged as a kind of panacea for the discordance reflected by clashing
story-lines. All the various stakeholders do agree that failures of Pak Mun project
spring from the lack of participation. But will participation come to merely mean
a new process of justifying big development projects, instead of serving as an
inclusive dialogue aimed at assessing and even innovating development options?
Even in the new Constitutional environment of Thailand, it is maintained that it
will take time and effort to create truly participatory practices. In neighbouring
Mekong Region countries, the experience with and resources for participation
are even more limited. Since the building of Pak Mun Dam, legislation, policies
and guidelines on participation and transparency have started to develop in the
Mekong Region. Real political will and resources are needed to translate these
measures into action, and to facilitate productive discussion, especially with the
most vulnerable and affected, on development objectives and means.




                                                        Rural Development in Lao PDR:      215
                                             Managing Projects for Sustainable Livehoods
                                                NOTES
      1
       Interview sources will be characterized by N for an NGO source, M for Ministries of
      government, and E for EGAT officials.



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    V. 14(2), April.


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                                                  Managing Projects for Sustainable Livehoods
      Öjendal, J., M. Vikrom and M. Sithirith. 2002. Environmental Governance in the Mekong:
         Hydropower Selection Processes in the Se San and Se Pok Basins. SEI/REPSI Report Series
         No. 4. Stockholm Environment Institute.


                INTERVIEWS AND PERSONAL COMMUNICATION

      According to the wishes of interviewees, they are presented here anonymously and are
      coded by their affiliation.
      Interviews E1–E7: interviews of representatives of middle management at EGAT
      Environmental Division, Hydropower Construction Division and Foreign Power Purchase
      Division, conducted in June 2003.
      Interviews N1–N2: interviews of representatives of Assembly of the Poor and TERRA,
      Conducted in June and July 2003.
      Interview M1: interviews of officials from the Ministry of Natural Resources and the
      Environment, Thailand, conducted in July 2003.
      Personal communication: visit to the Mae Mun Maan Yun village and a Mun River fishing
      village in November 2002.




218   Rural Development in Lao PDR:
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                                     11
     MAKING SPACE FOR FISHERIES ACCESS
      AND COMMUNITY MANAGEMENT
        IN STUNG TRENG, CAMBODIA
                           Try Thuon and Tek Vannara


                              INTRODUCTION

      Over the previous decades, Cambodia has moved from a command and
control economy to a market economy. Meanwhile, market access to common
property resources such as fisheries has spawned conflict between the different
actors involved. In addition, serious pressures and externalities from other
economic sectors impinge upon the resource base or its flow of products.
Fisheries therefore, have been characterized by tensions such as the use of illegal
fishing gears and other stock-damaging practices, the struggle over assignment
rights and resource entitlements, and the absence of efficient law enforcement
with the consequent use of privatized enforcement and violence.
      However, besides these limitations, there are other external factors shaping
Cambodia’s fisheries management system, such as mega-projects of other states
in the Mekong Region and growth-oriented development prescribed by
international development agencies. This economics-oriented development
philosophy considers natural resources such as water, fisheries, forests, minerals
and biodiversity to be simply factors of production in many large-scale
development strategies. In effect, this monetizes the natural resources, exerting
pressure for profit maximization in a country in uncertain transition from a
socialist state to market economy. As a result, the quantity of fishery resources
has declined from year to year, with negative impacts on livelihoods of local
people who are powerless and marginalized in Cambodian society.
      In this chapter, we explore how the complex ecology of the upper Mekong
in Cambodia interacts with local knowledge and practices of fishing groups, and
we reveal local experiences with community-based regulation and management
in two places, Koh Sneng and Au Svay. Both case studies come from Stung Treng
province where the Mekong is a conservation zone for fish and biodiversity
resource management. We begin by describing this environmental context in


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      terms of Mekong River geography, the provincial hydroecology, and diverse
      wetland system. An overview of the human community adaptations to this
      context leads to the specific research findings for Koh Sneng and Au Svay.
      Comparing the two areas shows the interaction between institutions,
      knowledge, social structures, and power dynamics as each community
      adapted to changing policy regimes with mixed results in terms of ecological
      conservation and social conflict. For each community, we investigate livelihood
      strategies and cultural practices, describe the context of fishery policy and
      regulation imposed by the state, and assess the strategies developed by different
      actors (including NGOs) to garner access to fisheries management. Koh Sneng
      and Au Svay thus provide insights into the complexity and dynamism of local
      fishers as they make their own space for community fisheries in the Cambodian
      upper Mekong.


                 BACKGROUND FOR STUNG TRENG PROVINCE

            Stung Treng is one of the remote provinces situated in the northern part of
      Cambodia about 455 km from Phnom Penh. The province covers an area of
      11,092 km2 and this total territory has been divided into five categories of land
      use patterns. The forest land covers an area of 928,000 ha (83.66%), the
      residential land covers an area of 103,217ha (9.31%), and the water surface and
      infrastructure cover an area of 45,783 ha (4.13%), while fourthly the agriculture
      land is 19,000 ha (1.71%), and fifth, some 13,200 ha (1.19%) are considered
      unused land (Department of Planning, 2000). Stung Treng is also divided into
      five administrative districts (Stung Treng, Thalaboriwat, Siembok, Se San and
      Siem Pang) comprised of 34 communes and 128 villages. According to the
      National Institute of Statistics (1998), Stung Treng has 14,126 households with
      81,074 inhabitants (an average household size of 5.6 persons). A little over half
      (50.5%) of the population is female, while the whole population of the province
      constitutes less than 1 percent of Cambodia’s national population. Compared to
      the national population density of 64 person/km2, that of Stung Treng is only
      seven.
            Recent hydropower construction plans would affect the Stung Treng area.
      Three locations have been identified for dam construction. Two locations are
      situated along the Se San River, both upstream and downstream. The upstream
      catchments cover an area totaling 18,555 km2 with water discharge of 120m3/
      second, and are expected to produce 112 MW. The downstream catchments
      cover areas of 18,550 km2 with water discharge of 120m3/second, which can
      produce 207 MW of power. The third location in Se Pok River has a catchment
      area of 30,620 km2, water discharge rate of 120m3/second, and an electricity
      production potential of 222 MW (Cambodian Wetland Team, 1999). Based on
      this electric power potential, Cambodia in the future expects to be a regional

220   Rural Development in Lao PDR:
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exporter of energy. But at the same time, the potential negative impacts of
unsustainable or destructive development disproportionately affect not only fishery
resources, but also the poorer groups in the country.
      Besides contributing to the potential for hydropower development, the
annual flow of the water in the province has naturally created a complex
ecosystem, providing important resources to Cambodians far inland from
riparian settlements. Fisheries play a significant role in the economy of
Cambodia. Next to rice, fish is the most important component of the diet. People
living throughout the river basin consider fish a major feature of the natural
environment, while the trans-boundary political regimes and hydro-electric dam
plans form a less than natural environment to be confronted. Nevertheless, based
on the ecological setting, the sustainable management of Cambodia’s
freshwater fisheries remains profoundly important for all riparian countries in
the Mekong.


               THE COMPLEX ECOLOGICAL SETTING
                     OF THE MEKONG RIVER

      Historically and geographically speaking, the Mekong River flows through
Cambodia and passes into Stung Treng through Khone Falls in Lao PDR where
the elevation drops 21 m. From there the Mekong flows down to Kratie, Kompong
Cham, and then upon reaching Phnom Penh, divides into three channels: the
Tonle Sap, which is the inlet and outlet of the Great Lake, and two outlets to the
sea, namely the Bassac, and the (lower) Mekong River (Rainboth, 1996). In the
area under discussion, the upper Mekong with reference to Cambodia, the Mekong
at Stung Treng town meets the Se Kong river which has two more tributaries: Se
San and Se Pok. The confluence of the Mekong and its three tributaries create
vast natural resources for both human and fish ecologies-a riverine ecosystem
from Kratie town to Stung Treng extending to the Cambodia-Lao border (see
map 11.1).
     Thuok and Van Zalinge (2000) have shown that the confluence of the rivers
provides an inland capture fisheries yield of at least three to 400,000 tons per
annum. This means Cambodia ranks fourth among the world’s top freshwater
fish producers. Indeed, the average per capita consumption of fish is 27–38 kg
per year (Van Zalinge et al., 2000). Furthermore, a part of this area is considered
wetland of international importance, serving as habitats for fish spawning,
nursery, and feeding. A 1995 survey found 58 deep pools, of which 39 are in
Sambor District, Kratie province, and 19 are in Stung Treng at points that extend
to the Lao border. Many other deep pools along the Se Kong, Se San, and Se Pok
rivers are under study (MRC, 2000).
      As the Mekong meets and blocks the flow of the tributaries in Stung Treng
town, the river water backs up into the seasonally flooded forests, wetlands, and

                                                        Rural Development in Lao PDR:      221
                                             Managing Projects for Sustainable Livehoods
      Map 11.1. Stung Treng Province, Cambodia

      rice fields of the low-lying floodplains along the tributaries. The most well-
      known, and by far the most dramatic example of this flow reversal and flooding
      occurs in the middle Mekong along the Tonle Sap River and the Great Lake. In
      the upper Mekong vicinity, from Khone Falls to the Stung Treng stretch of river at
      Kratie, the Mekong itself seasonally floods into forests of the plain. The rising
      levels of Mekong water often initially follow small tributaries inland, but also
      enter forest areas directly at points along the mainstream itself. Such seasonal
      variations of water level along the Mekong River and its tributaries in Stung
      Treng create a variety of ecological zones, including highly biodiverse wetland
      systems.
             The annual round of river ebb and flow enters an environmental
      choreography involving weather pattern and fish migration. In this area of
      Cambodia, the Mekong calendar goes through the following phases:
             • May and June—The southwest monsoon arrives and the water level in
                the Mekong River in Stung Treng increases gradually. The water starts to
                become very muddy, but the river does not widen noticeably. Fish
                migrate to spawning grounds, while some fish also start spawning and
                migrating downstream.
             • July to October—The Mekong rises to its highest levels, ranging from
                10.3m to 12.2m, and flooding a large area of forest. Many fish, large and
                small, enter the forest as soon as it is flooded. There they feed heavily on
                leaves and fruits, earthworms, insects and other terrestrial invertebrates,
                aquatic invertebrates including shrimp, crabs, and mollusks, and other
                fish. Another stream originating on part of the Dangreks Mountainous

222   Rural Development in Lao PDR:
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        Chain is also able to join the river through tributaries in the province.
        The water reaches its maximum level in September and starts to flood
        the areas along the river. It then flows downstream through Kratie and
        Kompong Cham province, then reaches Phnom Penh where the volume
        of water divides into three, forming the area known as Charkto muk (four
        arms). The flow of the Bassac runs side by side with the Mekong until it
        spreads out into “the nine tailed dragons” of the delta in Vietnam. Water
        also flows northwestward through Tonle Sap River into the Great Lake,
        inundating the forest on a huge floodplain of 70,000 km2 and creating
        habitat and spawning grounds for a multitude of fish species during the
        wet season (Öjendal 2000).
      • November and December—Water level falls dramatically (see Figure
        11.1). The level of the Mekong drops suddenly below the level of its
                                            eas
        tributaries, draining the flooded ar along the river and its tributaries,
        streams, and creeks in the province. Meanwhile, fish start to migrate out
        from the tributaries and creeks into the Mekong mainstream, and con-
        tinue their migration upstream or downstream.
      • January to April—The water level subsides slowly until levels range
        from 3.23m to 2.63m in February, and then continues receding through
        March and April, when the level of water decreases from 2.46 to 2.36m.
        Continued drainage off the floodplain and the lake increases the flow
        downstream in the lower Mekong River, improving the condition of the
        Mekong estuary after the saline intrusion of the dry season.

  Figure 11.1. Monthly water levels of the Mekong in Stung Treng Province
               showing its maximum, average, and minimum.




          ar
               y
                        ar
                           y            ch      ril    ay      n   e     ly          us
                                                                                          t
                                                                                                         be
                                                                                                              r         er      be
                                                                                                                                  r
                                                                                                                                           be
                                                                                                                                              r
                                   ar         Ap      M     Ju         Ju        g                                    ob
     nu               ru       M                                              Au                  te
                                                                                                     m             ct         em        em
   Ja              Feb                                                                        p                   O         ov       ec
                                                                                     Se                                    N       D



                                             Source: Cambodian Wetland Team, 1999

      In terms of water resources, then, the Mekong in this area conducts 53.3%
of the average annual total volume of water, and the Se Kong, Se San, and Se Pok
rivers account for approximately 16.7% of additional annual volume. Together,

                                                                                                 Rural Development in Lao PDR:                    223
                                                                                      Managing Projects for Sustainable Livehoods
      all four channels annually bring water down to Cambodia at an average rate of
      approximately 37,484 m3/second (Provincial Department of Water Resource
      and Meteorology, 2002).


                    THE WETLAND SYSTEM IN STUNG TRENG

             The environmental choreography of water level, weather pattern, and fish
      migration along the webs of Mekong tributaries create a highly biodiverse
      wetland system. In Stung Treng, the wetlands can be identified as one of three
      main wetland habitats: (1) riverine (in-stream) habitat, associated with the
      complex river morphology; (2) floodplains, seasonally wet habitats; and (3) the
      rice field paddy, ponds, or lakes.

      Riverine wetland
            This includes several types of riverine habitats, differentiated by morpho-
      logical features and flow conditions within the riverine channels. Perennial river
      channels range from the wider branches to the maze of sandbars and channels
      among the islands in the river center. The wide river channels contain deep
      pools and generally have steep sandy banks, most of which are eroded and
      unstable. The sandbars and rocky outcrops emerge from the riverbed when the
      water level decreases. Minor alluvial deposits of sandbars and banks provide an
      ever-changing substratum only partially stabilized by the growth of riparian
      vegetation tufts. Rapids areas are widely scattered along the rocky channels whose
      shores and rocky outcroppings are seasonally submerged by fast-flowing water
      during the wet season. In general, the rapids alternate with deep pools, in some
      places up to 60 meters deep (Hubbell, 1999).
            From northern Lao PDR to Kratie province, fishers remark on the
      importance of rapids and deep pools for the fish in the Mekong and its
      tributaries. While the seasonally flooded forests are the source of food and
      habitat for reproduction, local fishers explain that during the low flows of the
      dry season, water flowing over these rapids has more oxygen as well as food, and
      makes both more available to fish living in the deep pools. Hill and Hill (cited in
      Hubbell, 1999) also remark that deep holes in the mainstream of the Mekong
      would appear to be the primary rearing and dry season holding habitat for large
      catfish and carp. Fishers describe certain species as primarily living and/or
      feeding in the rapids, while others are believed to reproduce in the rapids, and
      the young fish of still other species seek refuge and food in the rapids. Local
      fishers have accumulated an impressive body of ecological knowledge and
      developed an assorted range of fishing gear and techniques to adapt to the
      environmental choreography of hydrological conditions, local and seasonal, and
      to the Mekong fauna, with its diversity of species and life cycles.


224   Rural Development in Lao PDR:
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Floodplain wetland habitats
      The seasonal floodplains of the Mekong River in Stung Treng give rise to
habitats involving the seasonal streams or creeks and the tributaries. Seasonal
streams or creeks (O’ in Khmer) drain the floodplains and also the larger islands.
They often dry up after the rainy season, but small pools may retain humid
conditions for a longer period. Flat alluvial land on both the mainland and larger
islands is crisscrossed by a web of such streams, which often retain only a very
narrow fringe of vegetation along their edges. According to the Cambodian
Wetland Team survey (1999), there are 47 streams and creeks in Stung Treng
along the Mekong and its tributaries, the Se San, Se Pok, and Se Kong. At the
peak of the flood season, river water may back up into these streams and flood
the adjoining plain behind the steep banks. These streams and creeks play an
important role in the reproductive behavior of laterally migrating fish species.
On the islands lying in the river and tributaries within the province, there are a
series of valleys corresponding to the fault lines. These can also shelter humid
habitats formed by seasonal streams and pools that are sometimes retained into
the dry season. The conspicuous vegetation cover observed on these islands
adds to the attractiveness of such habitats for both local people and outsiders.

Rice or paddy fields
       The rice fields or paddies are human-made wetlands. Until recently they
were exclusively rain-fed, but irrigation is rapidly expanding throughout both
the river plain and the larger islands. Scattered throughout the agricultural lands
are the lakes and ponds, again present on both the mainland floodplain and the
larger islands. Paddy and lakes or ponds form typical agricultural landscapes
throughout the upper Mekong. The wetlands and Ramsar Site in Stung Treng
have remarkable natural landscapes and a variety of agricultural activities, and
can be described as the best-cultivated part of the province.
       Farming and fishing are a very important economic source for local
livelihood. About 95% of the provincial populations are farmers and fishers,
while the remaining are traders, government, and non-government officials.
Farmers along the river, tributaries and streams generally adjust their farming
systems according to the water level. Traditionally, food supplied by the rice
harvest is supplemented by seasonally harvesting pond fish. These ecological
conditions provide vital resources for most of the Khmers and other ethnic people
living along the rivers and tributaries. The diversity of habitats is still retained
despite some human pressure, providing the local farmers and fishers with a
range of resources harvested according to the rhythms of a still relatively intact
hydrological and ecological cycle.
       Vannaren (2002) contends that about 90% of the population in Stung Treng
Province has scattered and lived along the river and its tributaries so their source
of livelihood is not coming from only a single activity. Livelihood strategies
involve combinations of rice growing, livestock care, forest product collection,

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                                             Managing Projects for Sustainable Livehoods
      vegetables and fruit cultivation, seasonal migration, and fishing (DoP, 2001). Fish
      is the second most important source of the diet of the people in this province,
      but is rarely undertaken as the primary economic activity. Fishing is one
      component of household resource strategies that involves all members moving
      in and out of different activities. Vannaren also explains that the people catch
      fish every day for daily consumption as well as for sale of the surplus. Fishing is
      most intense in the dry season, from November to May. In this period, people
      can fish from 1.5 to 10 kg per day per household. Fishing activities become
      occasional in the rainy season because local people are engaged in agriculture
      and the water level is high. Such occasional fishing provides about 0.5 to 5 kg of
      fish per day per household. Hence in the rainy season people make use of the
      processed fish that they had made in the dry season to supplement daily food
      intake (Vannaren, 2002).


                           THE ECOLOGICAL ADAPTATIONS
                            OF FISHERS IN STUNG TRENG

              The incorporation of communities into wider economic and political
      systems has had dramatic consequences for human-environment relations, so
      that human ecologists have increasingly turned to examining the environmental
      processes affected by population growth, technological innovation, the expan-
      sion of markets and political changes (King and Wilder, 2003). As the immediate
      context for the case studies, we provide background on the main fishing ecology
      in this particular province and the fishers’ adaptations.

      The main fishing grounds
             The movements of fishers in Stung Treng are strongly determined by the
      cycle of fish spawning and migration and the availability of other aquatic
      products in the area. Local communities along the rivers and tributaries
      traditionally depended upon the fish migrations, and often identify themselves
      as seasonal and non-fixed fishers. There are at least two types of seasonal fish
      migrations found in the province. Pangasid catfish [Trey Pra in Khmer] are thought
      to use deep pools and areas with rapids in the Mekong, and possibly its
      tributaries, for spawning. Each female fish lays an enormous amount of eggs to
      counteract the very high mortality of eggs, larvae, and juveniles. Thuok and Van
      zaling (2000) explain that every year these long distance migratory fish species
      drift (fish fry) or swim (adult fish) from their spawning ground in the upper
      Mekong of northern Cambodia and southern Lao PDR to their feeding ground in
      Tonle Sap Lake and the Mekong floodplain and delta in Vietnam, and then back
      again. This shows that the Mekong and its tributaries in Stung Treng are not an
      isolated entity, but are linked to Laos and the Tonle Sap Lake just as the fisheries
      in southern Phnom Penh are linked to the Vietnam Mekong Delta (MRC 2002).

226   Rural Development in Lao PDR:
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      The other unique fish found only in Stung Treng also migrates along the
Mekong and its tributaries, particularly along rapids and the fast-flowing
mainstream. This fish is commonly known as Pa Se Ee2 [Mekongina erythrospila].
Rainboth (1996) shows that this fish species could attain sizes up to 45cm. It is
considered a Mekong endemic, inhabiting rapid water in medium and large sized
rivers and feeding on periphyton and phytonplankton. It is a valuable and highly
desired food fish not only in northern provinces like Stung Treng, but in Phnom
Penh. The species can be caught by using seines, gill-nets, cast-nets, and traps,
and is then sold fresh or sometimes dried and salted. The local fishermen
explain that every year, these fish have to migrate from Se San and Sre Pok through
Se Kong tributary and then upstream along the Mekong until reaching the Khone
Falls and the Cambodian-Lao border. They believe that every year this fish
arrives in large schools to pay respect to the leg of a god called Chuerng Preah
Bath, located in Phuchung, Preah Bath commune, at the confluence of Mekong
and Se Kong. Here is found stone shaped like Buddha footprints in the riverbed.
The oral tradition goes on to relate that this stone is linked to the mountain
pagoda in the provincial town known as Wat Phnom, highly revered by local
residents for its spiritual power. Every year in December, as the Pa Sa Ee fish
come to pay respect to Cheurng Preah Bath in Phuchung, and then continue to
the Cambodian-Lao border to pay respect to the other gods at Khone Falls, their
migration pattern fulfills a spiritual pilgrimage.
      Besides this special species, one of the most eye-catching, and at the same
time, one of the most threatened mammals in the Mekong depends on the deep
pool areas. Mekong dolphin are restricted to the river area from Kratie in the
south to Stung Treng and the Cambodian-Lao border in the north, including the
lower stretch of the Se San sub-catchments, which also abound in deep pool
habitats. The Mekong dolphins are known to spend most of their time in the
deep, for they frequently undertake “hunting” migrations following groups of
migratory fishes, which constitute their prey (Poulsen and Jorgensen, 2001).
      The local people depending on fish match their movement to the patterns
of fish migration in the province. There are at least 11 main fishing grounds
where people come to fish seasonally (see Table 11.1.).
      In brief, the seasonal migration of fishers is a traditional practice for both
fishers from inside and outside the province. The seasonal fishing can draw a
large kinship group together in certain places. For instance, in O’Talash, a
seasonal stream off the Mekong, people settle down in temporary huts to fish
from September to January, drawing together large groups of Laos, Chams, and
Vietnamese from the province. This moving pattern of fisher livelihood follows
the environmental choreography of fish movement and hydroecological shifts.
However, modern fishing activities are also strongly influenced by the force of
the market.




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          Table 11.1. The main seasonal fishing grounds in Stung Treng province

      Name of district      Name of fishing site                  Seasonal fishing
      Se San                Near Se Pok bridge and Se Pok River   January to June
                            Voeun Chan in Se San River            October to December
                            Srekor commune in Se San River        January to June
      Stung Treng           The confluence between Se Kong and    November until January
                            Mekong River
      Siem Bok              Koh Sampeay commune                   January to June
                            Koh Preah commune                     January to June
                            O’Mras in O’Mras commune              January to June
      Thalaboriwat          Koh Tonle Mouy in Koh Sneng           January to June
                            O’Talash in Koh Sneng and Preah       August to January
                            Romkel communes (open access)
                            Vield Ksach in Kang Memai commune     January until June

      The social network of fishers, ethnic groups, and markets
             The social networks of fishers that link their immediate community to the
      outside are critical for development of market channels. The small-scale fishing
      economy in the commune involves farmers, fishermen, and a few small traders.
      In the small-scale and face-to-face communities, individuals, neighbors and friends
      interact not merely in economic terms as producers, consumers, owners, and
      coordinators of production, but also as actors embedded in social networks with
      a more “personal” and “social” content. Thus networks that relate this local scale
      to outside groups form the basis of market relationships trading in surplus fish
      catch.
             During the open season, there are fishers from other places coming down
      to settle along the riverbank, the channels, and the corridor of the island in the
      commune. These fishers from the outside can be categorized by legal status into
      the non-licensed fishers and licensed fishers.
             The non-licensed fishers are not only those from inside the village, who
      depend on agriculture and fishing, but also the seasonal fishers. These fishers
      use smaller boats to collect fish from their traps and gill nets around evening or
      early in the morning at the edge of the inundated forest or along the deep pools.
      Most often they have their moys (fish buyers or dealers) come to buy fish on the
      spot. However, they bring their fish to the market only if they have to go there
      for additional purposes. Seasonal fishers tend to divide labor by gender, men
      fishing along the river channels, island corridors, and deep pools, and women
      staying in huts, rearing children, and making foodstuffs, clothes, and nets, with
      some gutting the fish, or operating as small-scale vendors of cigarettes, wine, or
      beer.
             The licensed fishers include the target and the mobile seine net fishers, the
      drifting gillnet fishers and the nomadic Cham fishers. This group can catch

228   Rural Development in Lao PDR:
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more fish with their advanced fishing nets and equipment and organized labor
forces, which are needed, for example, to work the seine nets [ourn] that must be
pulled by approximately ten people. They most often work at night, preferring
this time because there are no other boats and it is quieter. This situation lures
large fish that stay in deep pools and flooded forest to emerge to feed and migrate.
       Fish at the market are categorized according to their type and size, and sold
at differing prices according to these categories (grade 1, 2 and 3). The fish
market in provincial town begins at around sunrise and continues until 8 or 10
in the morning. However, most of the fishermen now have to sell to the moys
whose fish stations are in the provincial town and in every district office, dealing
particularly in big and valuable fish. The moys run fish buying companies
that receive exclusive rights from the provincial office and the Ministry of
Agriculture, Forestry and Fisheries in Phnom Penh. Most of the time, these
companies create conflict with the local fishermen by setting low prices for the
catch compared to the market price they charge in markets such as Vuen Kham
in Lao PDR.
       However, all fish sold to moys come from diverse ethnic groups involved in
fishing. The major ethnic groups are: the Khmer-Lao (Cambodian fishers), the
Vietnamese, and Chams [Khmer Islam]. In general, the Cambodian people in
Stung Treng often refer to themselves as Nek Srok Leu (literally uplanders),
meaning people who inhabit the agricultural zone and who grow rice and cash
crops for either their own consumption or for sale. Since the Mekong River in
Stung Treng is known in Cambodia as the Upper Mekong, almost all Nek Srok
Leu “uplanders” are also involved in fishing activities upstream from central
Cambodia. In the national center are found Nek Srok Krom (literally lowland
people), meaning those generally engaged in fishing or other water-related
livelihoods, including navigation and transport, or new settlers. In terms of
political and economic relations, Nek Srok Krom are the more powerful people of
the center, while Nek Srok Lue are looked upon as less-developed, less-civilized,
less-powerful people living in the periphery or marginalized regions.
       The Chams are mostly full-time fishers. They also live in the provincial
town and number less than 50 households. They have been almost totally
dependent on fishing for many generations and have developed a range of skills
and knowledge more extensive than many Cambodian fishers. They normally
live apart from the Khmers, either in their own land-based communities or on
boats, but for the most part they have no land for agriculture. The Chams came
from Kompong Cham and Phnom Penh. Most often they fish in Stung Treng
from June to December, with some returning home when the fishing season is
closed, and some staying to fish in Koh Key for the last two to three years. Some
Chams come from Chroy Changva of Phnom Penh where the fishing lasts from
May to November. Thus these Cham fishers are nomadic in the sense that their
livelihood is fishing and they travel great distances from place to place all year to
sustain their catches. They are found in fishing grounds throughout Cambodia

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      and amass great knowledge regarding fish species and local ecologies. However,
      the Cham people in Stung Treng along with the Vietnamese (see below) are often
      blamed for catching big and endangered fish species such as Trey Reach
      (Giant-catfish), Trey Koul Raing (Giant-barbs), Trey Trawsak (Probabus jullieni),
      and Trey Pra (Iridescent shark-catfish) and small fingerlings. These fish species
      were reportedly caught in large numbers during the anarchic period (1992–98)
      when the law and its implementation were ineffective.
             The final ethnic group involved with fishing in the province are Vietnamese.
      The ethnic Vietnamese are relative newcomers, having mostly arrived after
      Vietnam’s intervention in Cambodia in 1979. These families are not entitled to
      land ownership under the Cambodian law because of their citizenship status.
      They mostly live along the riverbank at the confluence of Se Kong and Mekong,
      next to the landing port. By early 2003, the community consisted of 175
      households, with 45 families involved in farming snakehead fish and Trey Kes
      (Glass catfish) in the river, for the confluence creates an ideal habitat and is also
      visually attractive. Many of the households also raise pigs in cages under their
      houses and run small shops. The Provincial Fishery Office invites the fish
      farmers to apply for permission and instruction to run their fish cultures
      according to the laws, but only 19 families have applied for permission. Some
      families can have three fish raising cultures. Chan Samorn, Acting Director of
      Fishery Office, explains that according to the law, permission is required for fish
      cultures greater than 15 m2 in size, but most Vietnamese fish farms are usually
      about 12 m2. Each fish culture of this size can raise 300 to 1,000 kg of fish.
             Vietnamese fish the whole open season. They move from one place to
      another irregularly, and so grow knowledgeable about fish migration and river
      places. They sometimes go to Koh Key, Koh Hep, and O’Talash in the Mekong
      River, and sometimes fish in Se San, Sre Pok and Se Kong rivers. If they cannot
      catch much in Se Kong they go to Vueng Chan, the part of the Mekong
      mainstream leading up to Lao PDR. Such movement from place to place along
      the river and tributaries explains the lifestyle of those in residential house-boats
      or temporary settlements on the banks. With these dynamic economics and
      livelihoods, the Vietnamese are also clever operators. For instance, they buy fish
      from small-scale fishers and pack them in the same ice used for transportation of
      the big fish they have caught for sale to moys waiting in the market. After selling
      the big fish, they recover the small fish for their farms. Local fishers claim
      Vietnamese are also involved in illegal fishing activities, particularly catching
      undersized fish (fingerlings of Trey pra), catching fish in preservation areas or
      zones, using destructive equipment, and introducing fish electrocution into
      Cambodia.




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                 FISHERS AND ACCESS IN THE SPACE
                     OF STATE ADMINISTRATION

       Political dimensions and power relations are often involved in the process
of decision-making when the state has a keen interest in conserving and
maintaining the political alliances it needs to remain in power (Buckles and
Rusnak, 1999). In this context, competition over natural resources spurs the
state to claim authority over resource tenure through creating administrative space
ruled by its powers and laws. Local people stake their own claims on existing
customary practice to create their own space. In Cambodia, the recent evolution
of fishery resource management from the period of transition to the era of market
economy has led to the formation of fishery communities.

Present fishery management policies
      The current fisheries management in Cambodia is based on the Fisheries
Law Management and Administration No.33 Kro Chor passed by the Council of
Ministers and the Ministry of Agriculture and Fisheries (MAFF) in 1987. It was
formulated by a group of former staff of the Department of Fisheries who
survived the radical communist time. Tana (cited in TERRA, 1999) explains that
the content and essence of the Fisheries Law are based on a socialist political
reform, but most restrictions relating to fishing practice were copied from a 1956
decree. Since then, mechanisms for enforcing the law were issued sequentially.
The privatization of fisheries occurred in 1989, with fishing lots available for
re-bidding in Tonle Sap Lake, but not in Stung Treng province which then had
no fishing lots.
      Apart from this law, complementary decrees, sub-decrees, and specific
declarations contain additional guidelines for fisheries management (Degen et
al., 2002). The Provincial Fisheries Office is responsible for the day-to-day
management of all fisher’s activities, maintaining close liaisons with the Central
Department of Fisheries and Agriculture Committee of their respective
provinces. The fishery office in Stung Treng was not active until commercializa-
tion began in the 1990s and different types of fishers emerged in Stung Treng.
      In the 1987 Fiat Law, Article 1 states that the fisheries resource belongs to
the state. In addition, Article 10 and 11 state that the exploitation system of the
freshwater fishery capture is formally divided into three types of scale: large scale
fishing, referring to the fishing lots, middle scale fishing or licensed fishing, and
family fishing also called subsistence fishing (see Table 11.2).




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        Table 11.2. Summary of fishing equipment and scale in Stung Treng 2003.

                          Fishing equipment employed by scale
                   The middle scale                     Family-scale/small-scale
      Gill-nets             74,500 m          Gill-nets               460,000 m
      Seine nets (4 sets)   1,150 m           Cash-nets (790 sets) 32,065 m
                                              Long Line Hooks         46, 000 hooks
                                 Labor employed by each scale
      Middle-scale/ aquaculture               Small-scales
      Families              Total manpower    Families                Total manpower
      285                   454               4,970                   9,200
      Note: Aquaculture is considered as middle-scale, which includes 38 families with 72 people.

                             Source: Provincial Fishery Office, 2003

      Both large-scale and middle-scale fishing serve the purpose of collecting
      national revenue. These types of fishing can operate only during the open
      season, November to May. The middle-scale fishing gear has to be licensed and
      registered by the fishers or the group of fishers every year. Family fishing gear, in
      contrast, can be operated everywhere during the entire year.
             In Stung Treng, fishery resource management falls into the second and third
      type, family-scale and middle scale. The fishing gear used by the fishers in the
      province in 1998-99 include; Morng (gill nets), Lorp (Fishing Traps), Saiyoen,
      cast-nets, long-line-hooks, Chan, Tom, seine nets and paong. People use this
      equipment according to the time and place, and depending on fish migration. In
      Stung Treng, fishing ground was divided under a Fishery Law of 1999 into three
      types: (1) fishing ground (open access) where everyone can fish; (2) the fish
      spawning grounds and migration areas which need to restricted to certain types
      of fishing gear and seasonal fishing practices, and (3) the protected fishing grounds
      where fishing is strictly prohibited (Vannaren, 1999).
             In 1992, the first icebox arrived in Koh Sneng as well as other communes
      in the area, and fish started to be exported from the village in response to market
      demand. In 1999, the Ministry of Agriculture issued a proclamation to define all
      deep pools along the Mekong River in Sambor district, Kratie and Stung Treng
      provinces as Reserve Area in which all fishing practices were prohibited.
      However, this did not work because of inadequate surveillance by fishery
      officers. The use of large mesh monifilament gillnets (20–35cm) has increased
      dramatically in recent years. This has led to the decline of many large species. In
      addition, approximately 8,000 explosives per year were used by armed forces
      and local people during 1993–1997 to catch fish in the pools in the dry season.
      These activities have seriously destroyed a lot of fisheries resources and their
      habitats (MRC, 2002).
             Moreover, the Mekong mainstream starting from the provincial town and

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north up to Lao PDR border has also been designated as the Ramsar Site since
1999. The objective of Ramsar Site is to promote activity that leads to achieving
conservation, management, and sustainable development according to the Ramsar
Convention (International Convention on Wetlands) which promotes the
concept of wise use: “for the benefits of the human beings at the present time and
future generations, we all must know how to use those resources in the right
ways” (Iwama, 1999). Ramsar involves a host of state institutions, in particular
the Ministry of Environment (MoE), and the Ministry of Agriculture, Forestry
and Fisheries (MAFF). In practice, the Ministry of Environment (MoE) has a
mandate in the management of Protected Areas in Cambodia (by Royal decree),
but its role in the wetland management is less clear. The MoE is the contact
agency for the Ramsar Convention and the focal point for the Convention on
Biodiversity. In contrast, the MAFF has a wide range of power in relation to
management of natural resources. Jurisdiction over crocodiles, turtles and other
aquatic species is also claimed. Other relevant departments including the
Department of Forestry, Department of Irrigation, and Department of Agriculture
are also involved in the management of wetland in the province.
      This brief outline of institutional arrangements for the monitoring and
regulation of fishery laws in Stung Treng posits the administrative space claimed
by the State. In practice, state fisheries resource management concentrates on
export and the demarcation of fishing grounds for commercial exploitation. The
provincial fisheries office has the task of securing state revenues from fishery.
Since these regulations and laws have been enacted, however, there have been
ongoing conflicts among stakeholders.

Fishery commercialization in Stung Treng
      The prolonged civil war conflict and instability in Cambodia over the last
several decades have undermined the opportunities for the Mekong corridor to
take advantage of its strategic position as a trading route. However, with political
and economic isolation and self-reliance changing since the mid-1980s, and
prodded by political reforms, Cambodia has started to promote private invest-
ments and closer relations with neighboring countries. These factors combined
with recently achieved peace in Cambodia and the proximity to the much more
developed Thai economy, now place the northern part of the country in an
entirely new regional context, which offers a wide range of opportunities for the
strategically located people of Upper Mekong of Cambodia (Daconto, 2001).
      Fish resource exploitation and commercialization in the country started in
1989 when the macro-economic government policies began to shift from a
socialist, centrally planned economy to a market-based economy. This transition
was accelerated by increasing international support and integration with
international market forces during the administration of the UN Transitional
Authority for Cambodia (UNTAC from 1991–1993). The emergence of fish
export from the province to foreign countries had started since 1991 and a

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      company was granted the legal right from Phnom Penh to buy and export fish
      from Stung Treng through its own line companies to Phnom Penh and Lao PDR.
            At the same time, modern fishing equipment and techniques were
      introduced, including small mesh-size and big-size nets, explosives, poisons
      and electro-fishing. These types of equipment are considered illegal according to
      the Fiat Law of 1987. However, people still used them to catch big fish in the
      deep pools, rivers, streams and creeks. The practice was used by armed forces in
      the province and the local people in their own areas. Mr. Soy, a former soldier
      who fought against the Khmer Rouge and is now a farmer and fisher in Koh
      Sneng, recalled that:

              Every morning I got up, I heard the sound of grenades used in the
              river everywhere, in which I can estimate around hundreds
              grenades per day at that time. Some local fishers in our village
              were also involved with these activities because there were not any
              controls from the central government. Most fish caught were sold
              at the provincial town market and sometimes sold to Veun Kham,
              the market at the Cambodia-Lao PDR border.

            The report by the Provincial Fishery Office (1999) showed that illegal
      fishing began in the period 1993 to 1997, and about 8,000 incidents of fishing
      with explosives took place throughout the four rivers in the province each year.
      These infractions have occurred for nearly twenty years. Electro-fishing has
      operated for the last four years, but its incidence increases from year to year.
      Fishing with these two types of illegal fishing gear were the major cause of the
      decline in the fisheries of Stung Treng. Other factors contributing to the decline
      were closed-season fishing, a large increase in use of nylon gillnets, and fishing in
      deep pools with mesh-size gillnets of only 25–35cm (Vannaren, 1999).
            In the mid 1990s, fish buying companies started to operate in the province.
      Throughout his interview, Mr. Chan Samorn of Provincial Fishery Office explained
      the evolution of fish buying and exporting in the province:

              The fish export companies have been licensed since 1995 through
              the coordination from the Provincial Office. Since then any fish
              buying transaction has to ask for permission from these companies,
              if not, they are considered as illegal. From 1995–2000, fish
              product had been exported to Phnom Penh through the line of
              companies rather than the provincial fishery office. In 2001,
              another company (state-owned company from Department of
              Fisheries in Phnom Penh) came and set up their stations in
              provincial town and the Cambodia-Lao border to buy fish from
              local fishers and then export to Phnom Penh (Chan Samorn, Stung
              Treng, April 3, 2003).



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       The license gives exclusive right to those who win the bidding process. But
throughout the process of licensing, different classes of people compete for these
resources both legally and illegally. One form of the license is the selling of a
particular section of tributaries and is mostly done by the soldiers and policemen.
The blockage of streams and creeks in 1999 was protested strongly by local people
and the incident was reported in the Phnom Penh Post that year.
       The other form of giving legal license is through fish exporting and
importing companies that obtain direct entitlement from the central government.
The access to this bidding process has been strongly linked to political
connections and kinship relations. In this way, the local people who do not have
a license have become illegal fishers and excluded from their access to fishery
resources through a superficially legal process. However for them, their practice
is not illegal because it derives from their customary practice.
       One of the cases is Mr. Mai Chanthy from Koh Seng commune who was a
fish dealer and retailer from 1993 to 2001. In 2001, he was arrested for his fish
trading business because he did not apply for legal license from the provincial
office. He was also accused of firing a gun at the police checkpoint while
transporting his fish from Kratie province to Vuen Kham in Laos. As a result, he
was put in jail for seven days at the provincial town. He was released after he
paid a fine for his misconduct with three million Riel ($750). This case shows
that the official control of fishing activities has paved the way for fish buying and
exporting companies to exclude others from operating in the province. The
policy of state expansion has functioned in practice to open up the way for
outsiders rather than secure opportunities for local customary livelihoods.
       Thus in 2003, there are two fish buying and exporting companies (Moy)
operating in the province. The first company is known as SAMBOMALINE
Import and Export Co. Ltd., which has been registered with the Ministry of
Commerce as having total capital of 20,000,000 Riel (twenty million Riel), and
its license covers all types of business in the provinces. The mandate of this
company is for 99 years. The second company was TRY PHEAP Co. Ltd. (total
capital not listed) whose mandate extends until March 2009. The objective of
this company is to respond to and promote the market mechanisms and the
“open sky” policies of Prime Minister Hun Sen (since 1997) in order to reduce
poverty in all provinces and rural areas. Their license allowed TRY PHEAP the
right to buy all types of fish species both in Stung Treng and Kratie provinces in
order to meet consumer demand in the Kingdom of Cambodia, and to export the
surplus to Lao PDR. Based on this procedure, exported taxes will be paid to the
government according to the exact amount of fish.
       In brief, since the 1990s, access to fishing grounds became more chaotic
with foreseeable fish degradation reflecting the “tragedy of the commons.” From
1998–99, there were some efforts by NGOs to advocate changes to the new
institutional arrangements and educate all stakeholders such as government
officials and local communities. NGOs started discussions about the fishery

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      crisis at village and province levels. Using the idea of the Village Fishery
      Community, local fishers and NGOs bargained for setting up regulations to stop
      illegal fishing. Consequently, the anarchic management of fishery resources has
      been reduced as some part of the fishing grounds have been returned to local
      control. In 2000, most local fishers in Stung Treng formed themselves into a
      fishery community to manage and eliminate illegal fishing in their areas. Since
      then fish have started to increase in the province, as reflected in the annual catch
      in the province rising from the level of formerly anarchic institutional webs to
      the current level with more fishery management restored to local communities
      (Figure 11.2).

      Figure 11.2. The trends of annual fish production from anarchic situation to
                   the formation of Community Fishery Management (1995–2002).




                             Source: Provincial Fishery Office, 2002

             Data provided by the Provincial Fishery Office show that fish catch
      production trended downward from year to year during 1995–1997 before the
      formation of Fishery Community Management. During that time, there were a
      lot of illegal fishing activities, especially the use of explosives and electro-fishing,
      which only started to decrease from 1998. By 1999, the illegal fishing and
      destructive equipment use in the province had been reduced by 70%. Mean-
      while, the fish production also started to increase compared with the 1995–1997
      catch. In 2000, when some fishery communities in the province were established,
      peak fish catch production was achieved–1,460 tons or three times higher than
      the catch from 1995–1997.
             Since the formation of the fishery community in the province, private fish
      operations have also been introduced in the same territory. The local authorities
      have divided up fishing grounds into fish conservation and commercial fishing
      areas, according to the ecological terrain in some areas, but not in others. In this
      situation, the formation of the fishery community and its effectiveness in making
      space for local fishers has proved critical, leading us directly to the comparison of
      the two community case studies in Stung Treng.


236   Rural Development in Lao PDR:
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              THE POLITICAL FORMATION OF FISHERY
                    COMMUNITY—KOH SNENG

       Koh Sneng means Horn Island. The name derives from the gun made from
horn used by a hunter of wild pigs who lost this gun on the island while hunting.
Later on people preferred to call the village Koh Sneng. It is situated along the
Mekong about 25 km north of provincial town and 20 km from the district office
(Thalaboriwat). This commune is about 25 km long and 20 km wide. The
commune consists of four administrative villages: Koh Sneng, Koh Sror Lao, Koh
Key, and Chorm Thom. These communities are all located in the Ramsar Site
wetland area and on the body of the Mekong River. The total population in the
commune is 2003 with 355 families. About 97.5% of people are farmers, 2% are
government officials, and 0.5% are traders in the commune. The majority of the
people are able to speak both Khmer and Lao.
       In terms of its ecological setting, the village is situated along the channel of
the Mekong River surrounded by 39 other islands where rich natural resources
and biodiversity can be found. The flooded forest, water birds, reptiles and
amphibians, and fish are the main source of local people’s livelihood. Diversified
livelihood activities include rice cultivation, fishing, farming collecting non-
timber forest products (NTFP), animal raising, and conducting small trade. Boats
are the most important transportation as the commune is surrounded by islands.
       The whole area is also under the Ramsar Site designation where wise use
philosophy is supposed to prevail over the entire protected area. The implication
of wise use is that the areas could be used only for small-scale fishing with
traditional gear in order to avoid resource degradation. But this is not a clear
goal since some parts of the rivers have been demarcated and leased for the
exclusive private operation of seine nets and mobile seine nets. In addition, the
whole body of the river has been used by different fishers, as the local fishers
revealed. Every year during the open season, there are around 50 fishing boats
using their drifting nets on this river body, while in other parts fishers come to
settle, with temporary huts for fishing made permanent for the whole season
even though the area was designated for conservation and management by the
local fishers in the commune.
       By early 2000, the Village Fishery Community (VFC) in Koh Sneng was
formed in response to the crisis of fishery resources. There are five people
selected by the villagers as the Committee of this local institution. In principle,
the elected committees must not work for any political parties or any other
individual interest, which means they have to work for the interest of the local
villagers. The overall duties of the VFC are to extend and disseminate information
related to fisheries, take action against offenders who violate the Village Fishery
Community Regulation (VFCR), contact concerned agencies and local authorities
for technical assistance, and report monthly to the provincial fishery office through
line institutions such as the commune council. These people have the right to

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      solve any problems and conflicts happening within the fishery community. If the
      conflict is more serious, they need to consult with village elders or the chief of
      village and commune for their judgment. The committee organizes a monthly
      meeting among themselves, and meetings every three months with villagers.
            Under the facilitation of local NGOs, the representatives of these local groups
      have been asked to attend workshops, training courses, and study tours at the
      district, provincial and national levels as well as at regional levels such as in
      Thailand and Lao PDR. In March 2000, the representative of VFC in the commune
      was invited to visit the Fishery Community in Sihanouk Ville in order to
      exchange and share experience. Since then, representatives have visited other
      provinces: Pursat, Battembang, Kg.Cham, Kratie, Kg.Chnang. Their visits are
      varied, and have included attending the consultation on the newly drafted
      sub-decree on fishery community, and attending the training on fishery conser-
      vation organized by MRC-Fishery Department in Phnom Penh and in Kratie.
            This process of raising awareness of the VFC is consistent with returning
      rights to the local community so they gain an equal share in resource distribu-
      tion. With assistance from NGOs, the Village Fishery Community Regulations
      (VFCR) were developed for their own management and submitted for the local
      authority to recognize. However, this mechanism is only approved at the
      commune level, while from the district level up to the provincial, the govern-
      ment is hesitant to recognize VFCR since they await the official law from the
      government, in the absence of which their own discretion can be exercised.

                      Table 11.3. Summary of Village Fishery Regulations

            • Ban on using explosives to catch fish.
            • Ban on using electro-fishing and any kind of poisons.
            • Ban on using fishing nets to block the streams and creeks.
            • Ban on cutting inundated forest, commonly known as Prey Lung Tuek.
            • Ban on catching fingerling fish, endangered fish species such as: Trey Reach
              (Giant-catfish), Trey Traw Sawk (Probarbus jullieni), and Trey Koul Raing
              (Giant barbs). Ban on using big size gill-nets to catch endangered fish
              living in the deep pools, which are the fish habitat during dry season
              (gill-nets which is from 18 cm up are considered as illegal).
            • Ban on pumping the creeks/streams.

      Since the formation of this local institution, no destructive fishing was conducted
      by villagers in the commune. However, VFC alone cannot easily stop the illegal
      fishing. Throughout field visits to other communes, there were reports that
      villagers from Koh Sneng came to use poison to kill fish, in particular in O’Talash
      in the deeper forest where few people could get access to the area.
            At the same time, other activities after the formation of the VFC reinforce
      the conservation and wise use principles. In June 2001, World Environmental
      Day was conducted for the second time in Koh Sneng in order to raise awareness

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of environmental issues. The first time was in 1998 when 100 trees were planted
in the commune as the symbol of environmental awareness. The villagers
admitted that it was the first time they have seen the provincial governor come to
visit their village. Now after the rise of VFC and coordination from local NGOs,
World Environmental Day garnered participation from the provincial governors
and the representatives from line departments of the provincial office. On the
same day, a signboard was installed in the landing port of the village to symbolize
conservation of three endangered fish species: Trey Reach (Giant-catfish), Trey
Traw Sawk (Seven-line Barb or Probarbus jullieni), and Trey Koul Raing (Giant barbs).
The signboard says, “Please help to save and to protect these endangered fish
living in the deep pools in the river.”


           CONFLICTED ACCESS AND THE DISCOURSE
                  OF FISHERY COMMUNITY

       To enforce the VFC regulations, the committee takes action against
whomever commits offenses against the rule, whether they come from inside or
outside the village. For the first mistake, the penalty is an initial warning and
promise by the local people not to repeat this mistake. Meanwhile, the confiscation
of illegal fishing gear will be applied. For the second mistake, a 500,000 Riel fine
is levied, and the fishing gear are also confiscated. At the third mistake,
the committee will send the offender with proofs of illegal instruments to the
provincial fishery office. Some idea of the local events surrounding enforcement
can be gained from the following cases.
       In January 2003, one group of fishers from Khe village came to pump one
stream (O’Kambor) in Koh Han. The offenders claimed that this O’ belongs to
their village and they need to pump and catch fish to share with their villagers.
Their claim did not work, as villagers in Koh Sneng could demonstrate to them
on maps dating back since the Sihanouk Regime (1953–1970). The representa-
tives dispatched to the conflict included the village fishery committees, the
commune policemen, the environmental rangers and the chief of commune. The
offenders were asked to come to the commune chief in order to talk and clear up
the entire mistake. The local representative knew of the illegal pumping since
the first day, but thought it was good to let them pump until the stream was
empty so that they could swoop in to arrest and confiscate everything. The
pumping took four days until the water was shallow enough to catch fish. Then
the Koh Sneng representatives came to arrest the offenders. Coincidentally, the
offenders and the local elites know each other, as they are from the same
province (Preah Vihear). One offender was a former Khmer Rouge (KR) soldier
in Preah Vihear, but since the KR defected to the government, he had gone to
Stung Treng and married a woman of a nearby village. He said he is not good at
fishing, but only knew how to pump the stream. Based on the Preah Vihear

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      connection, punishment was negotiated into being handled through patron-
      client relations. The local elites came up with an explanation to the villagers,
      saying the offenders had spent too much on petrol (60 liters) and needed to
      catch fish to pay the cost. Therefore they allowed the stream to be pumped
      empty to enable the offender to catch all types of fish.
             Another case concerns electro-fishing in Koh Tonle Moy. The illegal
      practice was conducted at midnight in the upper part of the village by local
      fishers from Koh Hep. The representative of VFC, environmental rangers, and
      the commune militia went out to arrest them. Coincidently, the offender threw
      his electro-fishing equipment into the water to claim lack of evidence once he
      saw he could not escape. The offender was kept in the commune office
      overnight awaiting the opening of local court the following day. However, he
      reportedly managed to escape.
             A third case shows the issue of fishers from outside, in this case, from Sre
      Kor in Se San district, who come to fish in the Bungs. They used to fish in the
      commune along the deep pools and flooded forest before the formation of the
      VFC in 2000. These fishers claimed that fishing here is their seasonal practice
      and they do not know what is VFC. They asked whether official law recognized
      this fishery community. The villagers could do nothing with these offenders, as
      they are the relatives of the policeman in the district office.
             Throughout these events, the villagers have noticed that the enforcement
      of Village Fishery Community Regulations is insufficient, but they still recognize
      that fishery regulation enforcement in their areas is very important and they
      really need it. Fishery community discourse, however, can still be used to contest
      inequities of access and legal rights. Thus, the seine nets operation in Koh Tonle
      Moy of Koh Sneng was authorized by the provincial fisheries office, in particular
      the Provincial Department of Agriculture, Forestry and Fisheries. These
      institutions allowed catches in the assigned fishing ground but not the use of
      fishing gear, which is not mentioned in the contract. Furthermore, fishing was
      to be limited to designated areas within the fishery. During the open season’s
      seine net fishing, the lessees can reduce common pool losses by enforcing the
      rule of a rotational system, or through assignment of fishing grounds by the
      provincial fishery office. The problem was that during the lowest water level, the
      seine net fishers held exclusive rights on the richer water bodies, while poorer
      bodies were left for the local fishers and other groups of fishers from outside.
      The relationship between the seine net fishers, as the holder of property rights
      over the water bodies, and the local fishers, as members of a VFC, is contested.
      Fishing community discourse is an important counterweight to the bureaucratic
      legality privileging the seine net fishers over local users of the common pool.
             Local fishers argue that the initiative of the VFC has played an important
      role stabilizing daily fish consumption and sale of surplus fish. For them, the
      strength and the resistance of villagers using such an alternative community-
      based approach serves to assert a political space for maneuver in order to avoid

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the tragedy of the commons. Since the fishing ground in Koh Sneng has been
used by different groups of fishers, it is hard to exclude other user groups.
Instead, the fishing grounds are easily enclosed by fishers from outside, whether
through legal license, illegal practice, or customary claim. The local discourse of
VFC has helped mitigate the tragedy of the commons not only by efforts to
restrict access, but by distinguishing community management from enclosure of
open access fishing ground.


                 GOVERNMENT INTERVENTION AND
                   LOCAL RESPONSE STRATEGIES

      The recent development of village fishery communities is inevitably
conflicting and subversive because they pose a challenge to established economic,
social or political power structures. In 2001, the government adopted the
Second Socio-economic Development Planning (SEDPII) for accelerating growth
in the rural economy, which could result in a large reduction in poverty.
Meanwhile, decentralization of state power has been undertaken to offer new
opportunities for political representation. To facilitate direct participation of the
poor in the local public decision-making process, the coping strategies of the
poor are a matter of interest in order to channel local governments’ resources to
their support and diversification (RGC, 2002).
      In 2002, to respond to this decentralization program, the first communal
election was set up in which the candidates are the agents from each political
party: the Cambodian People’s Party (CPP), the Funcinpec, and the Sam Rainsy
Party (SRP). The result was CPP won the majority; the chief, the first deputy, and
secretary general are from the CPP. The second deputy is from Funcinpec and
the third deputy from SRP. Throughout the process of communal administrative
work, then, SRP has been powerless and excluded from decision-making. It has
become the opponent, while Funcinpec has entered an alliance with CPP.
      Because of these unequal power relations, every decision related to resource
management is coming from the coalition parties. For instance, leasing of
fishing ground to private operators is done by the decision of CPP agents with
support from Funcinpec, while the Sam Ransy Party disagrees and demands that
all these resources should be controlled and managed by local people. As a
result, SRP has been accused of trying to conspire with the people against the
local government, and considered the troublemaker of the commune. This
accusation has been used coercively to control people, not only SRP members.
      The leasing of fishing ground in the village to the seine net operations dates
back to the anarchic period of fish management crisis. Before the existence of the
commune council in 2002, the seine net operation had been granted fishing
rights directly from the provincial level. Nevertheless, some villagers could still
ask for some fish from the seine nets for their consumption and for making fish

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      paste. With decentralization, fishing rights may be granted from the commune
      up to the provincial level, while the seine net fishers must apportion a share of
      their minimal taxes to the commune council. Due to these changes, the seine net
      fishers believe that they now have exclusive right to fish in the areas assigned by
      local government. They have stopped sharing fish for local needs and excluded
      all other fishers from their territory.
             How does the privatization of the fishing ground come about? The format
      of the licensing process shows that the decision on private leases of fishing ground
      is coming from the chief of commune who signs the letter to the top level
      requesting approval. But when asked about this process, the chief of commune
      admitted that he was not the main decision-maker. The content of the letter is
      already set up and he just adds a signature because he is not the big boss. Mr. Sai
      Soy, one of the VFC committees, also explained that the structure of communal
      council administration reveals the chief of commune to be more of a general
      manager waiting for approval, while the most powerful is the commune
      secretary who is in charge of both finances and day-by-day administrative work.
      The secretary commonly explains to villagers that the money is used for the
      officials on travel, participation in meetings, or training courses outside the
      commune.
             On the other hand, because of the absence of legal framework, local
      officials and the provincial governor are not willing to support the Community
      Fishery Management (CFM) without a clear legal mandate or policy. They are
      reluctant to act openly and publicly even if CFM has been debated and
      interpreted at the provincial, district, and local levels. The government officials
      accept that this CFM concept is very new to them, but not the local people. Thus
      in the meeting between the chief of district and NGOs on 24 December 2002,
      the district authority claimed that setting up the fishery communities is not wrong,
      but laws or other trustworthy principles are needed:

              If the government has approved the sub-decree on fishery
              communities, the village fishery community by-law could be signed
              and approved at the commune level without the approval from the
              district and provincial level. The are two reasons that we do not
              offer the exclusive management for the local community: (1) there
              is no official law to recognize their community establishment, and
              (2) they the local community do not have enough capacity to
              manage their own resources and most often they don’t understand
              their roles as well (Mr. Chea Thavarith, December 24, 2002).

      Throughout this process, most of the local elites realized a new law on fishery is
      being drafted with a sub-decree on community-based fishery resource manage-
      ment. In practice, they ignore this potential and produce a system for privately
      leasing fishing ground. The chief and secretary of commune are the main actors

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since higher level officials can do nothing but wait for approvals based on
hierarchy.
      On the other hand, the fishery officials who are responsible for fishery law
enforcement rarely came to the village because of its remoteness and security
problems. Interviews with local fishers revealed that the fishery official from the
provincial town came occasionally to control fishing activities around two to
three times per year (there are only 7 people working in fishery office). Again
due to lack of a clear legal mandate or policy for fishery community, the local
enforcement authority is also reluctant to show support.
      For these reasons, it is important to gain informal support for community-
based processes, to illustrate the strength of such an approach, and to bring
policy makers over to the side of village fishery communities. In the absence of
legal framework, some NGOs in the province like CEPA and CAA have used
informal methods such as training, field visits, group dinners, informal
discussion and provincial workshops to engage policy makers and influential
persons as well as garner support for local level activities. Attention needs to be
given to drawing policy-makers at all levels into the field to see just what a
difference local participation can make.


        TAKING BACK SPACE AT THE BORDER - AU SVAY

      Au Svay commune or borey (city) is the neighboring commune of Koh Sneng
within the same administrative district of Thalaboriwat. The commune was
created on January 1, 1964 during the Sinhanouk regime, with an initial
population of about 300 families, mostly soldiers who came to protect their
country’s border. Inhabitants of Au Svay can be identified as Nak Srok Krom or
lowland people, and are mostly Khmers, especially the retired soldiers from Takeo,
Kam Pot, Prey Veng, Svay Rieng, Kampong Speu, Kandal, Kratie, Kampong Cham,
and Svay Rieng provinces, as well as Khmer Kampuchea Krom (Participatory
Natural Resource Appraisal of Cultural and Environment Preservation
Association Report, 2001). At the moment, Borey Au Svay consists of five
administrative villages: Koh Phnov, Au Svay, Au Run, Voeun Sean and Koh Heb
villages with a total population of 445 families and 2,339 people (Data and
Administrative Statistics of Au Svay Commune).
      Au Svay is also located along the Mekong River about 43 km from the
provincial town. People prefer to use boats for transportation and for travel to
the provincial town even though it is dangerous. National road No.13 is the one
overland route, and stretches about 60 km to lead from Stung Treng town to the
Lao border. Built during the French colonial era, its main use throughout the
civil war and the transition period was rampant illegal logging. The road was
since destroyed and now awaits renovation to promote economic integration
within Cambodia and with neighboring countries. Relying on the river for

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      production and navigation, however, local people participate in a flourishing
      trade at Vuen Kham market across the Lao border. The planned road
      development in the province, as well as expected population growth, will only
      boost demands and pressures on the natural resources in the commune. Yet this
      is occurring just as the trend toward a free market economy and privatization
      policies in Cambodia have led to a rapid degradation of the natural resource
      base.
             The objective of the Au Svay study was to analyze and compare the living
      standards, fisheries, and other natural resources among communities of the area.
      Semi-structured interviews guided by questionnaires were used to collect both
      qualitative and quantitative data from different sources—families and groups.
      Families were selected to reflect a range of situations, for example, rich families
      and poor families partly selected by village chief. In a two-month period,
      researchers interviewed families fairly often, talking to 18 families in each village
      that represented the whole village. For group interviews, researchers organized
      sessions in five villages (Koh Phnov, Veoun Sai, Koh Heb, Au Run, and Au Svay)
      in order to assess the different ideas, experiences, and understandings of men
      and women in natural resource management. Groups were designed to ensure
      women had enough opportunity to provide ideas themselves, since generally
      men talk more than women in mixed groups. Although interviewing five of the
      52 communities in Stung Treng province cannot yield comprehensive data for all
      of them, the intensive study in Au Svay area revealed key issues. To supplement
      family and group interviews on these issues, technical staff, authorities, and NGO
      staff who work in the area were also interviewed.
             The key issues related by study participants concerned long term
      community use of fisheries and natural resources. Factors such as changing
      occupations, the risk of relying solely on fisheries, and the uncertain implemen-
      tation of laws to protect fisheries and other natural resources (forest, wildlife,
      land, etc.) were seen as obstacles to sustainability. On the other hand, people
      around Au Svay have also taken back space in a variety of ways. They have
      organized for community resource management, created incomes while creating
      community fisheries, and, through protests against state land concessions,
      recovered 1,200 ha of forest and the rights to collect non-timber forest products.
      Their struggle for livelihood space at this edge of Cambodian state territory also
      reveals the roles State authorities and technical institutions, as well as NGOs and
      communities, play in natural resource protection.


                      DEPLETIONS AND CONCESSIONS PRIOR
                           TO COMMUNITY FISHERIES

            Since the formation of Au Svay in the 1960s, local people have used
      traditional gear to catch fish, hunt wild animals, and harvest other resources.

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The area began to be depleted due to the strong dependence of the inhabitants
upon the fisheries and forestry resources, since these supported their second
main occupation after farming rice fields and chamkars (plantations). The
greatest destruction of fisheries and forests in Au Svay, however, was inflicted
after the civil strife that had preoccupied state and populace subsided. Between
1995 and 1999, due to lack of laws, a high degree of corruption, and limited
legal implementation and enforcement, groups of powerful men combined to
extract considerable resources from the area, as local authorities in five villages of
Au Svay commune related to researchers in 2001. In contrast with the legal
loopholes, Sub-decree Number 33 Kro To, issued on May 9 1989, curtailed
access for the local people who are the real owners of the natural resources. The
sub-decree denies or limits local rights to take benefits from fishery and forest.
       Among the tragedies of the rampant violations from 1995 to 1999 were
extreme forms of illegal fishing, including grenades and dynamite, poisons, and
electric shock. Explosions and chemical agents affected the streams and deep
pools which serve as fish spawning grounds and seasonal migration. Such illegal
practices have caused a major decrease in fish stocks along the Mekong River
close to the Cambodia-Laos border. For example, people in Au Run describe
how prior to the illegal fishing methods, they could catch 10 kg of fish per night,
but later they could only obtain 2 kg. These steep declines made it hard for
people to support their families and livelihoods using the traditional fishing tools
such as chan, hook, traps, and nets. Unable to turn to the government to protect
legal means of catching fish and traditional management practices, 50 percent of
the people in that area decided to buy illegal tools like electric shockers. They
felt that only by poaching with the same gear as violators and powerful men
could they ensure survival and support for their families. Hence the chief of
community fisheries in Au Run can also demonstrate that 60% of its people have
electric shocker tools.
       The tragedy on land was symbolized for Au Svay by the 1999 government
approval of a concession handing over 7,400 hectares of forestland to Potato
Powder Co. Ltd.. Between 1995 and 1999, rights of community forest resource
use came under increasing prohibitions as forest concessionees asserted that
the government had granted them exclusive rights. Au Svay interviewees
explained that before concessions, local people could go to the forest and collect
non-timber forest products (NTFPs) such as mushrooms and traditional
medicines. Now they had to ask permission from forest guards whereas they
used to enter the forest freely. Moreover, as five villages of Au Svay commune
related, people whose rice fields fell inside concession areas could no longer
enter to farm their own rice fields. The concession owners claimed legal proof
that all the land, whether rice field or forest, belongs to them. The 7,400 ha of
forestland given away to Potato Company Limited overlapped both forest
surrounding Au Svay commune and their local rice fields. Therefore, the
concession effectively displaced local farmers who then had to find new
occupations and incomes. In this way, the secondary reliance on fishing has

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      become primary for more villagers. Yet the intensification of demand on
      fisheries came at the same time as illegal practices were causing staggering
      depletion. In this critical situation, Au Svay inhabitants sought community-based
      alternatives, and hoped both government institutions and NGOs would play
      supportive roles in protecting the balance of sustainable natural resource use in
      Au Svay.


       ACHIEVEMENTS OF COMMUNITY FISHERY ORGANIZATION

             Due to the problems of 1995-1999, there were large protests of fishers in
      Cambodia against the owners of big fishing lots and the powerful men who
      violated laws and extracted resources solely to enrich their own group. In
      response, Prime Minister Hun Sen declared he would cut the total area of fishing
      lots by 56 percent and transfer this resource to local people who would manage
      it by creating community fisheries in 1999. A decade after Sub-decree 33 Kro To
      had limited or denied benefits to local people, a new disciplinary measure
      was announced to rid Cambodia of the anarchy in fisheries—Government
      Announcement number two Bro Ko issued on May 10, 1999. Thus many
      villages and communes organized Village Fishery Communities by 2000.
             For Stung Treng province, community fisheries had actually been created
      since 1998, before the government reformed fisheries policy. These early
      creations came through the facilitation of Stung Treng Fisheries Department and
      Oxfam Community Aid Abroad (CAA) in Australia (CAA Annual Report, 2001).
      By now, Oxfam CAA and Stung Treng Fisheries Department facilitate 43
      community fisheries (Annual Report CAA, 2002 of CEPA and Oxfam). In Au
      Svay, community fisheries in six villages were set up in 2000 under the
      facilitation of Culture and Environment Preservation Association (CEPA). In five
      of these, CEPA co-facilitated with Stung Treng Environment Department as well
      as the Ministry of Environment. Overall, out of the 52 communities in Stung
      Treng (47 located along the upper Mekong and 5 more on the Se San), CEPA
      facilitated fisheries for 18 communities in two districts—Thalaboriwat and
      Stung Treng. Notably, Stung Treng district is in the Ramsar wetlands site, close to
      the Cambodia-Lao border.
             The major finding of Au Svay is the restoration of higher fish catches after
      the creation of community fisheries. Typically, fishers experience a doubling of
      production: “Before creation of the community fisheries, fishers could catch only
      2-4 kg of fish, but now we can catch from 5-8 kg per night in May,” said
      Mr. Kong Vuthy, a fisherman of Au Run village in Au Svay commune
      (interview January 2003). Fishers are proud of increasing the catch, and
      90 percent of fishers in Au Svay answer that before VFC (village fishery
      communities), they could catch only 3 kg of fish per night, but now they can
      catch 8 kg per night.

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        The increase of fish reflects overall environmental improvement, including
a rise in forestland. According to Village Fishery Communities interviewed, total
forestland increased by 15% due to a greater area of flooded forest. Although
ecological data are still being collected, 72% of the population in 2003 responded
that increasing the flooded forests in their area has increased numbers of fish and
birds as well.
        VFCs have resulted in increased incomes. Most families (90%) note that
after rice field and chamkar, they depend on fisheries for food and income. In Au
Svay, 85% of the population in the five community fisheries lack agricultural
sources of food for five months a year and must turn to fishing to meet their
nutritional needs. Au Svay commune authorities in 2002 estimated that fishing
fills the lack of food for four months, and the rest of the local needs are filled by
supplementary livelihood strategies such as collecting NTFPs, vegetables, and
traditional medicines. The increased fishing yield has increased food security,
and with it, income generation. According to villagers, “Now, we can find
income of 8000R per night, while in the past we could earn only 4000R per
night” (Nature and Life Newsletter 52, July-August 2002).
        Restoring fish schools in VFCs also translates into more Cambodian
children going to school. Before VFCs, 45% of children in the poor families did
not go to school (Authority Communal Report, 2002). The income increase
from fishing livelihoods has meant an increase of 22.5% in the number of
children going to school from the poor families. In other words, the data show
that 50% of children who did not have the chance to study before are now taking
this opportunity because of poverty reduction from community fisheries. Support
for infrastructure including schools from both NGOs and the government has
also contributed to higher school attendance.
        The role of Cambodian women in VFCs is also positive, since 40% percent
of women participate actively in community fisheries work. Women are helping
to create regulations and standards for communities. Two women were voted to
stand as community commissioners in one community with five commissions
(Culture and Environment Preservation Association Report, 2002). Besides
management roles, women also actively participate in fishing for the support of
their families after taking care of children.
        Fishing production in Stung Treng is part of local-level international trade.
Fishers sell their increasingly products at Vuen Kham market in Laos, close to
the Cambodian border. Research demonstrates that 70% of products used by
villagers are bought from Vuen Kham market, and only 30% are bought from
Stung Treng province. As 90% of interviewees explained, however, the prices
they can obtain for fish and agricultural produce in order to finance their
cross-border purchases are limited to market prices for customers in Laos. Local
people lack access to markets that command better prices.
        During the last two years, after the creation of community fisheries, local
people in the upper Mekong River were able to make use of knowledge about

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      fisheries management and community-based natural resource management.
      Members have used their rights to sustainably catch more fish for better
      livelihood and family support. The sustainability results from respecting the
      community criteria, which are recognized by local authorities and technical
      institutions. To combat violations, patrol forces of community fisheries protect
      their fishing area, and brought violations down 80%. When the community
      arrests violators, they provide advice so the violator understands the purpose
      and concept of the community regulations, then the violator must sign a contract
      promising not to repeat the violation. Consequently, as everyone in Au Run
      village relates, 60% of people in communities that used to fish with illegal means
      such as battery shock have now abandoned those tools to adopt the catch
      methods stipulated by community standards. The remaining 20% of incidents
      violating the law, however, are attributed to fishers coming from outside the
      commune or district who do not yet have adequate knowledge and appreciation
      for the community-based fishery resource management.
             With these successful outcomes in community-based fisheries resource
      management in mind, people in the five villages with VFCs have initiated
      demands to create community forestry. In particular, they want to take back
      from the concession-managed zone their 7,400 ha rice field and plantation, and
      the right to enter the area to collect NTFPs (Resettlement Action Network
      Report, 2002). Responding to protests from local people, the company decided
      to cut back the area under their management and give 1,200 ha of rice field back
      to local people in an effort at appeasement. As shown by Stung Treng provincial
      authority and Director of Department of Agriculture on January 21, 2003, the
      local land claim is much bigger, so the people are not satisfied with the fractional
      concession from the concession. Nevertheless, rice farming, chamkar, and
      harvest of NTFPs are now possible in 1,200 ha of former commons. Taking back
      space in solutions like this was not possible until after the community fisheries
      movement developed local means of defending their natural resources.


                                            OBSTACLES

            Although community-based fisheries resource management is successful,
      research also shows a number of problems or obstacles. Approximately 15% of
      local people have only limited knowledge and this constrains their ability to
      follow community regulations and participate in forming the rules. As mentioned
      above, the incidence of fishing violations remains around 20%, with the
      continued use of tragically destructive methods like fish shocking.
            One major obstacle for these community fisheries was the lack (up to May
      26, 2003) of a sub-decree or law to allow people to create the community
      fisheries as well as community-based natural resource management. Since there
      is no official written approval, policy on VFCs was supported only by verbal

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speech of leaders such as Prime Minister, Deputy Prime Minister, and Minister of
Environment. For example, the speech of Prime Minister Hun Sen and leaders
in some ministries (2000–2003) approved of creating fishery communities,
yet local authorities often do not follow this at all since this is merely a
pronouncement and not a law.
       Research revealed that this lack of clearly accepted legal support intensifies
the practical issue of community enforcement. Since the territory of fishery
communities can be large and without clear boundaries, members really find it
difficult to control the illegal conduct of outsiders. In addition, they do not have
enough funds to buy petrol for patrol boats. Cooperation between technical
institutes and the community is still limited.
       Besides the difficulty of enforcing community standards within their
boundaries, outside activities cross boundaries and upset the environment.
Speedboats traveling back and forth from Vuen Kham to the provincial town,
carrying tourists, local traders and commodities, has risen. These speedboats
create loud noise driving fish away from their natural habitats to other places.
The speedboat noise pollution can be heard at distances of 15 km, disturbing
local residents while rendering wildlife panic-stricken as well.
       Other obstacles are posed by projects transcending national boundaries,
such as the influence of a shipping projects from China to Laos, and other big
dam projects along the length of the Mekong River. Mega-projects along the
upper Mekong can impact local livelihoods and sustainability of fisheries, yet
local people have little voice in opposing or mitigating the effects of these projects.
       The ecological treasure of the Ramsar Site also poses a problem in Au Svay.
The commune could certainly create an ecotourism opportunity because the area
is rich with waterfalls, coral reefs, beaches, forests, wildlife, and flooded forest as
well as fisheries. These attractions can draw tourists to visit, as mentioned by
90% of interviewees, and the 2002 report of the Department of Agriculture,
Environment, and Tourism. Communication about community culture and
management would be critical for coordinating all the units and groups involved
in developing any ecotourism. However, there is a difficulty in language since
60% of the total population use Lao and only 40% of them use Khmer language
in general speaking.


                                CONCLUSIONS

      The empirical evidence from both study sites has shown that access to
fishery resources since the 1990s became more chaotic, with a foreseeable
degradation of fish stocks reflecting the “tragedy of the commons.” In response
to this crisis, the government reformed fish tenure in late 2000, and most fishing
grounds in conflict have been placed under local control as a solution. Thus
Fishery Community Management (FCM) became established with recognition

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      from the commune level, yet without a clear legal regime, FCM is not officially
      recognized from the district level to the national level. Local authorities claim
      the idea of community-based natural resource management (CBNRM) is very
      new to them, but as a revitalization of traditional practice, it is not new for the
      local communities under their administration. Technical departments such as
      the Department of Fisheries (DoF) and the Ministry of Environment (MoE)
      created in 1993 continue to officially manage natural resources, but in reality
      little attention has been paid to isolated communities because of conditions in
      the bureaucracy: internal conflicts, capacity limitations such as limited funding,
      and lack of accountability and trained personnel.
             In Koh Sneng, fishing grounds have attracted different groups of fishers
      which can be classified as the licensed and non-licensed fishers. The licensed
      fishers, using target seine nets, mobile seine nets, and drifting gillnets, come
      from outside. The non-licensed fishers come from inside the village and also
      include seasonal fishers who periodically set up their fishing camp next to the
      village. The study found that fish tenure and fishing practices on each scale of
      fishers in the study area are diverse and adaptive. The various situated or
      indigenous knowledge systems of the fishers are used to deal with the complex
      ecology of river and its tributaries, as well as the seasonal variation of the water
      levels and migrations of fish. This capability and skill to develop and choose
      appropriate fishing equipment is of more profound importance than the
      existence or lack of a license.
             On the other hand, throughout the process of privatization, fishing grounds
      have been divided into conservation areas for local fishers while the same space
      is also allocated by local elites for commercial exploitation by seine net fishers.
      This reflects power relations among these stakeholders over access to fishing
      grounds. Conflicting access results from these unequal social relations. Local
      fishers see seine net fishers as the clients of local elites who pay for protection
      when their mode of resource exploitation is in need of support. In addition,
      allocation of fishing grounds to private exploitation has reflected the state
      function of territorializing property regimes in order to enclose and claim
      valuable common resources by changing legal status.
             In contrast to state governance, fishery community procedures generated
      by NGOs and local communities as a means of reasserting local control are
      derived from a communal territorial claim. The political character of the VFC
      movement is revealed in its function as a non-state space, representing
      decentralized nodes of political and social power that construct a political space
      within the nation-state boundaries. In so doing, local fishers have responded
      with different strategies to create this space: consultation, negotiation, diversified
      occupations, self-organized meetings and neighbor-networks. In Koh Sneng,
      these have mobilized protest against the seine net fishers in their territory; in Au
      Svay, protest against land concessions was facilitated by strengthening the
      community management of riparian resources, and villagers have begun taking
      back space.

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       Sharing the same river in Stung Treng district, Koh Sneng and Au Svay
have mobilized the potential of the Village Community Fishery concept to
respond to the ecological crisis of the 1990s, and to contest particular social
forces, whether commercialized seine net fishing, commercial land concessions,
or the issues of community enforcement given contradictory government stances
in a chaotic market transition time. The VFC movement reflects the dynamism
of common property regimes, since the community fisheries have fluctuated
depending on shifting property relations, environmental circumstances, and
social conflicts among actors both inside and outside commune boundaries.
       For the VFC in Koh Sneng and Au Svay, although there are some geo-
graphical differences, local fishers have struggled to maintain control over
fishing grounds vis-à-vis state authority and private actors. The behavior of the
two communities has changed the landscape, as illustrated by the political struggles
since the late 1990s. These struggles represent a critical historical moment for
determining whether the nation-state or the local community would maintain
territorial control over fishing grounds. There is no exclusively correct system
for fishery resource management. But without support and recognition of higher
levels of government, co-management arrangements like fishery communities
are unlikely to be successfully implemented strategies. This is not to say that
provincial and central government agencies do not have important roles to play,
but their limitations need to be recognized.


                     POLICY RECOMMENDATIONS

      While many laws and policies regarding natural resource management are
being developed, policy makers based in Phnom Penh are often not aware of
local reality and complexity in rural Cambodia. We hope that research findings
documenting local realities will be useful for the Department of Fisheries as well
as the Ministry of Environment, who are the main agencies in this sector.
      The fishery community represents an important option for improving the
management and equitable distribution of natural resources. The co-manage-
ment system allows for the full participation of villagers in terms of village
solidarity, increased natural resource management capacity, and observed/
perceived increase of fish catch and stocks. Government should give increased
attention and support to appropriate aquatic resource co-management systems
in Cambodia. The efforts to develop the new fishery law and sub-decree on
fishing are positive and appreciated by the civil society and NGO sectors.
However, the law is still evolving and much more work remains to be done.
      Since the research site was designated a Ramsar Site, multiple stakeholders
including the government agencies, the NGOs and the International Conserva-
tion Agencies (IUCN), the Development Agencies (MRC, UNDP) have rated the
biodiversity conservation and ecotourism development potential of the areas.
The ecotourism potential of these sites is almost entirely untapped at present,

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      due to lack of promotion and difficult access. The area is well suited to host a
      wetland interpretation center, focusing on the Mekong River ecology and lifestyle.
      The wetlands at the border of Cambodia-Lao PDR form an ecological common
      place where local people on both sides of the border share traditions, kinship,
      and social links along with the migrating fish, dolphins, and diverse natural
      habitats. A long-term vision for the border area could also consider the
      establishment of a trans-border cooperation authority to share resource manage-
      ment issues, and even the creation of a trans-frontier space recognized with a
      special status, such as one of the IUCN designations.


                                                NOTES

      1
       Following the Ramsar Convention, we define wetlands as: “the areas of marsh, fen, peat
      land or water, whether natural or artificial, permanent or temporary, with water that is
      static, flowing, fresh, brackish or salt, including areas of marine water, the depth of which
      at low tide does not exceed six meters” (Cambodia Wetland Team, 1999).
      2
       The term Pa Se Ee is not the Khmer word; it is a Laotian word since there are more ethnic
      Lao living in the province.


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      Baird, Ian. 2001. Towards Sustainable Co-management of Mekong River Aquatic Resources:
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      Bryant, R.L and Sinead Bailey. 1997. Third World Political Ecology. London and New York:
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          between Property Institutions and the State in Guatemala. Space and Polity 6(3):
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      Tana, S.T. 1999. An Interest in Conservation and Sustainability of the Fisheries has Emerged:
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                             AFTERWORD
             SOCIAL POWER, CONTESTED
             BELONGING, AND THE LOCAL
             GOVERNMENT OF COMMONS
                              K. Sivaramakrishnan


      It is now, perhaps, commonplace to think of nature as a problematic
concept—riddled with assumptions and prejudices that have to be confronted
and then discussed to reveal competing interests, partial perceptions, and
dangerous hubris in the minds and acts of powerful scientists, managers, and
financiers. The commons, in many ways an aspect of nature, or at least its most
socially marked face, are no less problematic as a concept. Far too often
commons are seen as readily recognized products of human collective action or
cooperative institutions. It is, however, hard to capture complex relationships
between human-cultural and biophysical processes quite so easily, in any
instrumental language of design, action, outcome, and aftermath. Apart from
incommensurable moral perspectives that several contributors to this volume
highlight when considering struggles over land tenure and titling, or the creation
of protected areas and local forest councils, there are always questions of
definition that are themselves immensely controversial. Contention is
particularly acute when political conditions for commons management are being
recast as part of larger political transformations inherent in processes like
democratization and the grant of regional autonomy in frontier zones.
      The troubled cetologist in Amitav Ghosh’s novel, set in the mangrove
“commons” of Bengal, alludes to this difficulty in a rumination that rewards
extended recapitulation. She remembers keystone species, and biomass, and by
that reckoning possibly the common pool, as terms applied to things and species
other than the human. Nature, she recalls, was explained to her as everything not
formed of human intention. She wonders, then, what brought her to the
mangrove in a leaky boat precariously riding over crocodile infested waters. It
was, she concludes, “the crabs—because they were Fokir’s livelihood and
without them he would not have known to lead her to the pool where the


                                                       Rural Development in Lao PDR:      255
                                            Managing Projects for Sustainable Livehoods
      Orcaella came. Maybe the ancients had got it right after all—perhaps it was the
      crab that ruled the tide of her destiny.”1 Nature, this skeptical scientist seems to
      suggest, is embedded in the nooks and crannies of land and waterscapes where
      human livelihoods are procured. Looking from below, from the perspective
      offered from those almost forgotten corners in which nature is spawned, life and
      its hierarchies look quite different from the picture available to the eye in the sky.
      This celestial gaze is, of course, increasingly assumed omniscient with the
      availability of satellite imagery, remote sensing, aerial photographs, global
      positioning systems, and the ubiquitous cartographic modeling of Geographic
      Information Systems.2
             The essays collected here are, happily, less reliant on the stratospheric
      vantage point and more informed by what is happening, or has recently
      happened in the woodlands, marshes, estuaries, fish ponds, rice paddies, and
      pastures of southeast Asia. But they are not merely content to relay close-to-
      the-ground accounts of struggles over land and water. They focus in particular
      on the question of rights held by various entities—individual, collective,
      corporate, and governmental—in these natural commons identified by
      terrestrial or aquatic nomenclature. Questions of rights are addressed with a view
      to elucidating the legal and governmental powers at work, remarking along the
      way on the formation of social identities occurring with and through these
      property relations.3 But specially important is a third dimension that can be
      elaborated as a series of questions: how do the politics of the commons shape,
      and how are they in turn shaped by, notions of belonging to land or within
      specific territorial boundaries? How do these belongings or attachments generate
      conflicts? Lastly, how does all this affect livelihood and ecological security?
      Historically specific and culturally nuanced accounts of these conflicts, their
      consequences, and representations in popular and scholarly modes of
      recollection have become vitally necessary.4 Not least because explanations in
      terms of resource scarcity, the endemic nature of violence, and malign or
      ill-informed agency on the part of rural poor, displaced minorities, and other
      politically subjugated people are proliferating in quantity and influence.5
             Culled from the rich and diverse proceedings of a sprawling conference on
      the politics of the commons, the papers selected for this volume are admirably
      focused on some of the most important, continuing issues faced by scholarship
      on the question of commons, and public-spirited environmental management,
      in Asia. How users and other claimants hold tenure in land, water, forests,
      fisheries, and marine resources remains a persistent question for inquiry. How
      states, as they move from authoritarian and socialist avatars to post-socialist and
      relatively democratic incarnations, manage tenures and claims is a related and
      enduring question. How all of this is foreshadowed by colonialism and
      influenced by its social traces in postcolonial Asia remains a key part of the puzzle
      for all scholarship grappling with the impact of history, social memory, and
      institutional path-dependencies on the politics of the commons. If I have one

256   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
quibble it would be that this last aspect is the least developed in the essays
collected here, even as they acknowledge its importance in the way they are cast
and constructed at the outset. A new colonial history has emerged, largely from
the sites of south Asian historiography. This body of work suggests ‘the
importance of elaborating the fluid interplay between forms of representation,
terms of culture, practices of history, processes of political economy, strategies of
empire, and imperatives of state formation in the metropole and in the colony.’6
It is not without its advocates and practitioners in Southeast Asian studies. But
there is scope yet for students of environmental politics and related cultural
struggles to engage the new colonial history and postcolonial theories connected
with it.7
       With the occasions separated by nearly a decade, this has been my second
opportunity to participate in deliberations seeking to provoke an explicitly
comparative discussion with cases drawn from both South and Southeast Asian
forest and land management projects of the twentieth century. Such a discussion
can take up many valuable threads of connection. Territorialized land
management policies, including massive transfer of common lands into state
ownership, was a colonial legacy in all of South Asia and many Southeast Asian
nations as they emerged from direct colonial rule or its proximate influences. On
the other hand, key natural resources like forests and grasslands have been
subject differently to national state-led economic development priorities. The
variable pressures of the tropical timber trade and the manner in which
nation-states have adopted conservation and eco-development policies have
shaped specific intra-national outcomes for forests, local communities in
forested areas, and the processes whereby common lands have become a site of
nation-building. Over the last two decades, from a range of democratic and
authoritarian national governments, the management of natural resources,
especially forests, has devolved to local governments or various types of citizen
groups and local communities defined by ethnicity, ties of historical belonging,
or administrative unification. Here again there are common trajectories in South
and Southeast Asia, with fascinating similarities in the kinds of struggles waged
or problems dogging projects. But regional differences have also predictably
emerged in the way stratified local societies relate to institutions of local
government.
       Scholarly debate on the ever-multiplying initiatives for participatory
development or community-based conservation has now reached a point where
certain things are readily recognized. For one, most researchers are well aware of
the troubled and shifting nature of the notion of community so central to all
schemes based on collective action or devolution.8 Differences of power or wealth
and divisions in the cultural definitions of being native employed by various
people bundled into any purported community are widely recognized. The bases
of social power, and the cultural forms of contested attachments, are being
thoroughly investigated, whether in the social scientific language of historical

                                                         Rural Development in Lao PDR:      257
                                              Managing Projects for Sustainable Livehoods
      institutionalism and social capital, or in the more humanistic language of
      identity claims, subject formation, and representations of belonging and
      otherness.
             At the same time scholars are beginning to analyze the contradictions that
      have emerged between concurrent and often mutually antagonistic forms of
      devolution and deconcentration of government. Panchayats and village
      committees in South Asia (India and Nepal, in particular); and local land boards,
      district councils, and stakeholder organizations in Southeast Asia (Indonesia, the
      Philippines and Thailand, for example) are competing to define legal and
      cultural norms of property, resource access and management principles. This has
      led to conflict within state agencies and different levels of government, while
      land tenure and jurisdictions for resolution of disputes over rights become more
      contested domains of policy and legal authority. A crisis of confidence in the
      basic tenets of justice and due process that must govern the transactions
      involved in multi-agency, consultative, land management is manifest in different
      ways from the fisheries of Cambodia to the forested highlands and lowlands of
      the Philippines, Thailand and Vietnam.9
             I would argue that this volume raises no more important question than that
      of the categorical and ecological violence committed by obdurate nation-states in
      the face of a twinned set of challenges. The first challenge may be broadly
      construed as that posed by the call to take into consideration a constellation of
      political institutions and social flows, conjured by the term globalization, that
      constituted a condition beyond the nation-state.10 The second challenge can be
      described in terms of the coagulation of regional identities and political
      formations that inhere in nations but trouble them in various intra-national,
      federal, autonomy-seeking tendencies driven by dislocations, mobilities, and
      governmental strategies unleashed by nation-states in their turbulent twentieth-
      century lives in Asia.11
             In the face of immense pressure from donor agencies and powerful effects
      of economic globalization, only mildly tempered by the East Asian economic
      crisis of the late 1990s, countries in Asia have experimented with all manner of
      devolution, decentralization, and deconcentration in the management of natural
      resources—or the political re-institution of the proverbial commons. These
      experiments have fed a frenzy of enumeration, cartographic anxieties, and
      participatory research. The impact of numerous schemes for community
      forestry, people and parks, community-based fisheries management, and
      irrigation cooperatives is largely unassessed—be it on ecological conditions or
      social upheaval. Studies, of even the most popularized models for devolving
      resource management, are scant and limited in their ability to ascertain historical
      influences and future potentials.12 What exists, often works in the narrow and
      self-limiting parameters of project evaluation. What is sorely needed is the
      careful study of the fragmentation and reconsolidation of families or villages,
      new sedentarizations and even newer displacements of communities and ethnic

258   Rural Development in Lao PDR:
      Managing Projects for Sustainable Livehoods
groups, and the impact of cultural stigmatization on environmental and social
orders caught up in the politics of the commons. The essays in this volume get us
started in this direction. They begin with the salutary recognition that the
construction of identities—of individual and groups—is intimately woven into
the social construction of landscapes targeted for sustainable management, or
the conservation of nature. Additionally, they remind us that the task of studying
these entanglements must be carried out in the long shadow of resurgent
nationalisms, new and old. For, “in the non-Western world today invocations
of nationalism and evocations of national culture . . . engender ideologies founded
on a cultural rhetoric of innate difference.”13 Obscured, sometimes, by the little
struggles of village committees and watershed managers, these ideologies do
construct the world of minute differences in which petty struggles often find
their occasional lethal edge. This most commonly happens as nature and natural
resources are nationalized and submitted to the sustenance of particular
heritages and futures.14 Multivalent commons and their contentious politics, then,
are newly caught up in the nation, its states of imagination, and new world
orders—a situation well illustrated in the essays assembled here.


                                         NOTES

1
    Amitav Ghosh, The Hungry Tide (New Delhi: Ravi Dayal, 2004), p. 142.
2
  The dangerous fallibility of these views from the beyond is illustrated, among other places,
in the Indian desert commons by Paul Robbins, ‘Paper Forests: Imagining and Deploying
Exogenous Ecologies in Arid India’ Geoforum 29, 1 (1998): 69–86.
3
  Here one can observe the salutary influence of seminal writings like Nancy Peluso and
Peter Vandergeest, ‘Genealogies of the Political Forest and Customary Rights in Indonesia,
Malaysia and Thailand’ Journal of Asian Studies 60, 3 (2001): 761–812; and engagement
with current debates on post-socialist societies and their natural resource management,
captured well in Conservation and Society, special issue: ‘Property, Land and Forests in
Post-socialist Societies’ 2, 1 (2004).
4
  It is heartening to note that they are being produced, and not a moment too soon. A fine
example is Pamela McElwee, ‘Lost Worlds or Lost Causes? Biodiversity Conservation,
Forest Management and Rural Life in Vietnam’ unpublished Ph.D. thesis (Yale University:
Anthropology and Environmental Studies, 2003).
5
 See, for instance, Thomas Homer-Dixon, Environment, Scarcity and Violence (Princeton:
Princeton University Press, 1999), p. 12, for but one illustrative statement among many.
6
  Saurabh Dube, ‘Terms that Bind: Colony, Nation, and Modernity’ in Saurabh Dube (ed).
Postcolonial Passages: Contemporary History Writing on India (Delhi: Oxford University Press,
2004), p. 11.
7
  See Paul Greeenough and Anna Tsing, ‘Introduction’ in idem (eds). Nature and the Global
South (Durham, N.C.: Duke University Press, 2003).
8
  Arun Agrawal and Clark Gibson (eds). Communities and the Environment: Ethnicity,

                                                              Rural Development in Lao PDR:      259
                                                   Managing Projects for Sustainable Livehoods
      Gender, and the State in Community-based Conservation (New Brunswick, N.J.: Rutgers
      University Press, 2001).
      9
        In addition to the various essays in this volume, see also, Tania Li, ‘Engaging Simplifica-
      tions: Community-based Resource Management, Market Processes and State Agendas in
      Upland Southeast Asia’ World Development 30, 2 (2002): 265–283, for an excellent
      Southeast Asian instanciation of the problems faced in mapping notions of local
      community, ethnic identity, and political inclusion onto the same administrative terrain of
      government-led participatory development.
      10
       Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis:
      University of Minnesota Press, 1996); and Anna Tsing, ‘The Global Situation’ Cultural
      Anthropology 15, 3 (2000): 327–60.
      11
        Exemplified in India, along with a critique of Appadurai’s arguments, by various essays
      in K. Sivaramakrishnan and Arun Agrawal (eds). Regional Modernities: The Cultural Politics
      of Development in India (Stanford: Stanford University Press, 2003).
      12
        A basically sound, if frustratingly limited, evaluation of joint forest management, the
      scheme I am referring to as the single most popularized model, can be found in Nandini
      Sundar, Roger Jeffery, and Neil Thin (eds). Branching Out: Joint Forest Management in India
      (Delhi: Oxford University Press, 2001).
      13
           Dube, ‘Terms that Bind’, p. 15.
      14
       K. Sivaramakrishnan, ‘Nationalism and the Writing of Environmental History’ Seminar
      522 (2003): 25–30.




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