Free, prior and informed consent in customary tenure recognition: Learning exchange for the Mekong region

For almost a decade now, the Mekong Region Land Governance (MRLG) project has been working to strengthen customary tenure policies and practices in Cambodia, Lao PDR, Myanmar and Viet Nam. RECOFTC, an MRLG-partner, has been providing support to efforts aimed at improving land and forest resource governance in these countries as well as at the regional ASEAN level.

MRLG features a network of around 200 partners forming alliances to support the recognition, respect and protection of customary tenure rights. Its workstream on customary tenure helps improve land and forest resource governance. Currently in its third phase of implementation, MRLG continues to prioritize tenure recognition and the protection of customary tenure rights for local communities and smallholders in the Mekong region.

Practitioners coming together to share knowledge and improve collaboration 

The wealth of experience garnered over the years was shared at the ‘Learning exchange on customary tenure recognition in the Mekong region: Unpacking national lessons with regional partners’. Held in Siem Reap, Cambodia from 26 to 28 November 2024, the event brought together 37 participants, including 18 women. Among those attending were representatives from government, non-government and civil society organizations working on customary tenure in forestry landscapes across Cambodia, Lao PDR, Myanmar and Viet Nam. The goal was to exchange knowledge on strategies and methodologies to increase customary tenure recognition in both policy and practice, improve collaboration between regional and national customary tenure alliance members, and build a collective critical mass of customary tenure champions in the Mekong region.

During a session on ASEAN Guidelines on Recognition of Customary Tenure in Forested Landscapes (ASEAN CT Guidelines), participants unpacked the principles of customary tenure recognition. The adoption of the ASEAN CT Guidelines by the ASEAN Ministers on Agriculture and Forestry in October 2022 is a significant step forward in recognizing customary tenure. The ASEAN CT Guidelines emphasize the right to free, prior and informed consent (FPIC) (Principle 6), and underscore the importance of recognizing the rights of Indigenous Peoples (IPs) and local communities to FPIC.

Understanding FPIC contexts in the region

FPIC methods and tools used in the recognition of customary tenure practices include participatory resource use mapping (PRUM), which helps ensure meaningful community participation and obtaining consent from IPs and local communities for zoning and REDD+ activities. The participation of IPs and local communities in field data collection, verification of digitized maps and zoning, and finalization of draft report and zones through national consultation meetings and submission to relevant government authorities for approval ensure local people’s ownership.

At the learning exchange, participants discussed FPIC within the context of their countries’ customary land tenure practices and policies. The understanding of FPIC varies across the four MRLG countries. In all cases, the community is at the centre of decision making in relation to development projects. In the case of Lao PDR for example, the government uses “rights to ownership” while in Viet Nam, FPIC is commonly practiced via the 2007 Ordinance on Grassroots Democracy. Across the four countries, FPIC is institutionalized at different scales through the REDD+ projects through people’s participation or consultation in decision making.

A session on social integrity led to discussion on the significance of enhancing the credibility of carbon projects, which requires policy infrastructure, capacity, guidance and support to scale up climate finance that benefits people, nature and climate. These discourses highlighted the need for equitable benefit sharing and communicating grievances to ensure the rights of IPs and local communities to independently choose carbon trading options.

There was a field visit on the second day of the workshop. Participants interacted with local communities and the provincial Department of Environment and Local Authority (Commune Council) participating in PRUM processes in Tangyou community protected areas (CPA) and Dataveuk CPA, Preah Vihear province.

Reflection post the field visit revealed that Cambodia has extensive experience using participatory methods for customary tenure recognition. Resource use mapping ensures that FPIC is integrated into project activities. It successfully enhances communities’ ownership of decisions regarding resource use and management. Women’s participation and empowerment were notably strong, with many women contributing their knowledge on the use and management of non-timber forest products. This involvement is valuable to the PRUM process.

The participants also identified challenges, including time constraints and insufficient resources for ensuring comprehensive community participation in data collection. Developing communication materials in local languages to raise awareness about FPIC rights was seen as a possible way of addressing these issues.

Gender integration in the FPIC process

The panel discussion on gender integration in the FPIC process began with reflections from Cambodia, where inadequate funding poses implementation challenges even when affirmative policies exist. Male migration has led to increased responsibilities for women, exacerbating structural inequalities. While women are more able to participate in community activities, their involvement in decision-making processes remains limited.

Positive steps, such as establishing gender focal points from the Ministry of Environment to the commune level, have created spaces for women’s discussions. Developing gender equality and social inclusion policies at the institutional level is crucial for mainstreaming gender in project design and delivery. Empowering both men and women to understand gender equality while providing safe spaces for women to voice their concerns in public, is essential for meaningful gender integration into the FPIC process. The panel emphasized the need for intentional efforts rather than superficial ‘tick-box’ approaches.

Future learning areas

The learning exchange concluded with a strong desire to explore topics such as gender integration in customary tenure recognition, customary tenure recognition in carbon standards, and the relationship between climate change, customary tenure and livelihoods for the Mekong region.

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Srijana Baral is programme lead for gender equality and social inclusion at RECOFTC.

RECOFTC’s work is made possible with the support of the Swiss Agency for Development and Cooperation and the Government of Sweden.