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Báo cáo nông nghiệp:" Thực trạng và các quyền trên đất nông nghiệp và đất chưa sử dụng vùng đồi núi miền Trung Việt Nam"

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Nghiên cứu nhằm xác định hiện trạng việc quản lý và sử dụng đất nông nghiệp và đất chưa sử dụng vùng đồi núi miền Trung Việt Nam. Nghiên cứu dựa vào khung phân tích các gói quyền về sở hữu tài sản và tìm hiểu thực tế thông qua công tác điền dã và thảo luận cùng các nhóm đối tượng quản lý và sử dụng đất có liên quan gồm nhà nước, cộng đồng và hộ gia đình.

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Nội dung Text: Báo cáo nông nghiệp:" Thực trạng và các quyền trên đất nông nghiệp và đất chưa sử dụng vùng đồi núi miền Trung Việt Nam"

  1. J. Sci. Dev. 2011, 9 (Eng.Iss. 1): 63 - 74 HANOI UNIVERSITY OF AGRICULTURE CUrrent Situation and PROPERTY RIGHTS to agricultural and Unused LANDS IN THE UPLAND areas OF CENTRAL VIETNAM Thực trạng và các quyền trên đất nông nghiệp và đất chưa sử dụng vùng đồi núi miền Trung Việt Nam Huynh Van Chuong Hue University of Agriculture and Forestry Corresponding author email: huynhvanchuong@huaf.edu.vn Received date: 23.01.2011 Accepted date: 14.05.2011 TÓM TẮT Nghiên cứu nhằm xác định hiện trạng việc quản lý và sử dụng đất nông nghiệp và đất chưa sử dụng vùng đồi núi miền Trung Việt Nam. Nghiên cứu dựa vào khung phân tích các gói quyền về sở hữu tài sản và tìm hiểu thực tế thông qua công tác điền dã và thảo luận cùng các nhóm đối tượng quản lý và sử dụng đất có liên quan gồm nhà nước, cộng đồng và hộ gia đình. Kết quả nghiên cứu đã phân tích việc thực hiện và các hoạt động của gói quyền đối với người dân và nhà nước trên đất nông nghiệp và đất chưa sử dụng, xác định và phân loại được nhóm quyền chính thống và không chính thống nhưng vẫn tồn tại trên hai loại đất trên tại địa bàn nghiên cứu, làm rõ lý do của việc tồn tại và ảnh hưởng của các quyền trên đến việc khai thác sử dụng đất của người dân. Nghiên cứu cũng đánh giá được hiện trạng và sự biến động đất đai nói chung, đất nông nghiệp và đất chưa sử dụng nói riêng qua các năm từ 2000 - 2008, nguyên nhân của sự biến động đất sản xuất nông nghiệp và đất chưa sử dụng, cơ cấu cây trồng, bên cạnh lý do có sự thay đổi chính sách đất đai của Nhà nước, một lý do quan trọng nữa đó là sự chuyển đổi cơ cấu và khai thác đất tự phát để mưu sinh của người dân vì sự tác động của chuyển dịch kinh tế chung của huyện và nhu cầu của thị trường nông sản phẩm. Từ khoá: Bó quyền tài sản, chính thống, đồi núi, không chính thống, thay đổi sử dụng đất. SUMMARY The present research aimed at identifying the status of the management and use of agricultural and unused lands in the upland areas of Central Vietnam. This research was based on the bundles of property rights analysis framework and on field investigations. The research results demonstrated the implementation as well as activities of the bundles of property rights by the local people and the State for agricultural land and unused lands, identified and classified the existing formal and informal rights relating to the two types of land in the survey location. In addition, the reasons of the existence as well as the impact of the rights to the land utilization of the local people were clarified. The research has evaluated the status and changes of land in general and agricultural land and unused land in particular, from 2000 to 2008. The reasons are the changes in the land policies of the State, the spontaneous changes in crops and land utilization by people for earning their livelihood due to the general economic changes in the district and the demand of the agricultural product market. Key words: Formal and informal issue, land use change, property rights. 63
  2. Current Situation and Property Rights to Agricultural and Unused Lands in the Upland... management and use of agricultural land categories 1. INTRODUCTION in upland areas differ from other regions because Property is perhaps the most confusing term of largely different ecosystems and ethnic matters. in the literature; and yet an understanding of Unused land comprises land for which a use property and property rights, its complexity, and purpose has not yet been determined (Vietnamese its politics (Nguyen, 2005). The term property is National Assembly 1987, 1993, 2003). However, commonly used in the current daily language to various land users have accessed to and utilized refer assets, or things (Bromley, 1992; Hann, this type of land for diverse purposes, as well as 1998, MacPherson, 1978). Property theorists benefited from cultivation and utilization on it, define property as a right in the sense of a claim to except for un-cultivatable areas. The management a benefit stream (Commons, 1990; MacPherson, and use of unused lands are complicated and 1978; Meinzen-Dick and Knox, 1999) although changing in terms of management actors, the wording differs slightly from author to author. regulations, and benefit sharing and distribution The term property right is used to make the by laws. connotations of property clear (Bruce, 1993). In Studying changes in the management and use contemporary writing, however, these two terms of agricultural and unused land in combination are used interchangeably. with livelihood and natural resources management Bundles of property rights, according to will provide differences in policies, formal rights Schlager and Ostrom (1992), consist of five classes: and informal rights, and how local people manage rights of access, rights of withdrawal, rights of natural resources and benefit from management management, rights of exclusion, and rights of and use. alienation. Right of access is defined as the right to enter physical property while the right of withdraw is 2. MATERIALS AND METHODS the right to obtain the products of a resource; right of management is the right to regulate internal use 2.1. Situation and geographical setting patterns and transform the resource by making The chosen target survey area for this research improvement; right of exclusion is the right to is Hong Bac commune, Thua Thien Hue province, determine who will have an access right and how bordering to the Laos People’s Democratic that right may be transferred; and right of alienation Republic (Fig. 1). Hong Bac is among the poorest is the right to sell or lease either or both of the both communes of A Luoi district in which 68% of the of the above rights (Schlager and Ostrom, 1992). households are the poor ones and almost 100% of Besides that, holders of property rights can be the the inhabitants are of the ethnic minority (Paco). state, communities or individuals. Depending on the Total natural area of the commune is 3152.99 ha, prevalent resource manager, these types of property in which agricultural land is 380.85ha, forestry can be classified into state property, communal land is 2352.60 ha, non - agricultural land is property or private property (Bromley, 1989, 1992; 130.00 ha, and the rest, 276.71 ha, is the area of Feeny et al. 1990; MacPherson, 1978). However, unused land. according to Vietnamese land law (Vietnamese The incomes of the local people depend National Assembly 1987, 1993, 2003), state property mostly on agricultural production, mainly wet rice and communal property are determined as common and upland rice. Only average households or those property of state. received fund supports from development projects Management and use of agricultural and have additional incomes by animal breeding. unused land have experienced several historical Therefore, it is extremely essential for A Luoi periods of Vietnam policies along with the socio- district in general and for Hong Bac commune in economic development of the country. Therefore, particular to properly utilize and use agricultural they are comprehensively affected by Government and unused land resources so as to obtain policies. sustainable livings and food safety for each Agricultural land plays a very important role household and the local community. Hong Bac to farmers and the local in economic and social commune has 5 villages. The basic information on development from central to localities. Hence, the natural and socio-economic conditions of the agricultural land has been taken into account by investigated villages of Hong Bac commune is Government’s policies leading to the well-regulated presented in Table 1. and stable management manner. However, the 64
  3. Huynh Van Chuong TH UA THIEN HUE PROVINCE VIETNAM A LU OI D IS TRICT Figure 1. Location of study site Table 1. Summary of background information at 5 villages participated in the case study Contents Le Ninh Le Loc 1 Le Loc 2 Tan Hoi A Soc Geographical conditions Distance to district center (km) 3.5 2.5 3.0 4.0 2.5 Distance to province center (km) 73.5 72.5 73.0 74.0 72.5 Population and demography Population 490 388 510 320 212 Number of households (HH) 117 92 111 68 48 Average HH size 4.2 4.2 4.6 4.7 4.4 Average number of labors 2 2 3 3 2 Ethnic group Paco Paco + Kinh Paco + Kinh Paco Paco Village leadership structure Five people in the position of village leader, vice leader, youth union leader, State system woman union leader and village police Traditional system One village oldman (Già làng) Agricultural land Average dry land per HH (ha) 0.3 0.5 0.3 0.2 0.3 (Upland and home garden) Average paddy rice per HH (ha) 0.1 0.15 0.1 0.1 0.12 Main crops Rice (dry and paddy), cassava, maize State salary, Work for coffee State salary, Major sources of off-farm State salary trading and State salary company, state trading and service salary service Number of very poor HHs 49 45 54 40 23 Number of poor HHs 25 10 13 16 13 Source: Field work 65
  4. Situation and Property Rights of Agricultural and Unused Lands in the Upland... 2.2. Methodologies belonged to the common ownership of the whole community and are under the management of the This research applied “Bundles of property government. Until the land laws promulgated in rights analysis framework” as a core direction to 2003, land in general was under the possession of the analyze management and use rights of agricultural government but the inhabitants have the right to use and unused land. Based on that framework, formal it. The conversion from common management and and informal management and use right for use as the common property of the locality to different actors are defined and specified. governmental possession and management in This study was analyzed based on the two accordance with land laws and related laws has main following documentary sources: the literature developed several issues relating to people’s source gathered from the available documents and awareness, management matters and life earnings . the data collected in the research areas. In order to This led to significant changes and fluctuation collect the data in the research areas, study applied among the various categories of land, especially the following methods: Agricultural and unused agricultural land, forestry land and unused land. The lands walks; Village walks, Participatory mapping; changes of land use structure, in one hand, brought Group discussion; Consultant meetings with local about certain benefits for both the people and the authorities and other stakeholders and interview land administrator. On the other hand, they revealed with land officials; and household survey. several problems, especially when the local conventions or customs were no longer valid and 3. RESULTS AND DISCUSSION were completely replaced by government laws and policies, while the local people were lagged behind 3.1. Policies on agricultural land and unused land in approaching the information. to be applied at the study area From the 1980s to the first few years of the Hong Bac commune was established in 1993 1990s, the area of forestry land and agricultural with 4 villages, including Le Ninh, Le Loc 1, Le Loc land dropped significantly, whereas the area of 2 and Tan Hoi. By the end of 1993, A Soc village unused land rapidly increased due to uncontrolled was separated from Hong Nam commune (currently utilizeutilization and quick land degradation. known as A Luoi town) and merged into Hong Bac Facing this situation, the government issued commune. Before the promulgation of governmental several laws and policies so as to enhance the laws and policies on land, in the 1980s and in the governmental management of land, to maintain first years of the 1990s, most of the natural resources and reduce the rate of loosing forests, especially like cultivated land, timber forest, rivers, springs, natural forests, and to find ways to utilize unused lakes or wild animals,… were considered as land. The objective of all these policies was to common properties of the whole community. The bring about effects and benefits in terms of management and utilization of these resources were economy, society and environment. Some policies based on the spontaneity of each family line and on had great impact to the management and use of the customs or convention approved by the local agricultural and unused land at Hong Bac people. Through interviewing the elder people at the commune, as presented in Table 2. villages, most of the interviewees stated that at that By analyzing the policies and laws applied to time they were bound by no policies of the land in general, and agricultural and unused land in government or rare management of the local particular, at Hong Bac commune, it shows that the authorities. The agricultural cultivation was mainly land law of 1993, the decree 64/CP , and the decree by nomadic farming or utilizing wild products in the 02/CP which was later replaced by decree 163/CP forests for living. have significantly changed the management and use Since the promulgation of the land laws in 1993 of agro-forestry land and unused land resources of and the laws on forest protection and development the commune. These policies have partially helped in 1992, the utilizeutilization and use of agricultural the local people to have sustainable and long-term right to use agricultural and unused land for other and unused land at the locality have been affected. purposes, particularly for agro-forestry purposes Most of the land resources as well as properties on which are approved by the government. land were inventoried by the government. They 66
  5. Huynh Van Chuong Table 2. Policies on agricultural land and unused land to be applied at the study area Year Documents 1992 Forest protection and development law 1993 Land law Decree No 64/CP Regulating the allocation of agricultural land to organizations, households, and individuals 1993 for long term and stable use for agricultural purpose Decree No 02/CP Regulating the allocation of forestry land to organizations, households, and individuals for 1994 long term and stable use for forestry purpose. Decree 01/CP Regulating the allocation of land for agricultural, forestry, and aquacultural productions in State 1995 Enterprises. 1999 Decree 163/CP Regulating the allocation for forest and forestry land (replace the Decree 02/CP) 2003 Modified land law 2004 Modified forest protection and development law 2004 Decree 181/CP Instructions for implementation of land law 2003 Source: A luoi district and Hong Bac commune Table 3. Situation and fluctuation of land resources at Hong Bac commune 2000-2008 Unit: ha Content 2000 2005 2007 2008 2000/2008 Total area 3151.00 3151.00 3152.99 3152.99 +1.99 Agricultural land 389.00 410.20 374.70 380.85 -8.15 Forestry land 1825.28 2069.90 2352.60 2352.60 + 527.32 Non-agricultural land 88.63 99.87 138.66 138.00 +49.37 Unused land 848.09 567.03 283.18 276.71 -571.38 Source: Hong Bac statistic office 3.2. Practices of changes of agricultural and unused these two categories of land. Because every year, in land in Hong Bac commune (2000 - 2008) order to increase the food supply so as to meet the demands for 12 months, the local people have the The data in Table 3 and Figure 2 show that tendency to use forestry-oriented area to grow total area of natural land of the commune is agricultural crops, especially upland rice and 3152.99ha and is slightly different from that of cassava. Whereas, those households with better 2000 due to shifting from manual measurement and economic conditions or realizing the value of calculation methods to modern methods. There is a forestry economy have shifted the area from relative difference between the areas of agricultural upland rice and cassava to acacia. Therefore, the land in 2005 with that of the other years. The annual statistics of land use forms can only reflect reason is in 2005, many households utilize fallow the actual situation. In reality, there are still other land for growing upland rice and cassava, differences due to spontaneous land use shifting however, a few years later, these land areas were by the local people. And this is one of the things planned by the government and converted to that local people think they have the right to do. forestry . The fact is there is a rotation of forestry This issue will be analyzed and clarified in latter land and agricultural land, and it is very difficult for part of the paper. the government to identify and control the areas of 67
  6. Situation and Property Rights of Agricultural and Unused Lands in the Upland... Figure 2. Current land use in Hong Bac commune in 2000 and 2008 Figure 3. Current unused land in Hong Bac commune in 2000 and 2008 daily livings. Reality investigation shows that the There were great changes in the area of unused utilizeutilization of unused land is spontaneous. land from 2000 to 2008 (Figure 3). According to Regarding unused land, in reality, it is impossible statistics, in 2000, the area of unused land at the to identify its specific border in order to relegate commune was 848.09ha, the number dropped down the management to each village. In effect the steadily every year and by 2008, there was only management is general for the whole commune. In 276.71ha of unused land. The reasons for the rapid terms of state management, people of village A decrease are that: in one hand, unused land was have the right to utilize unused land of village B for planned by the government and transferred to the agroforestry purposes and generation of income if forestry land; in the other hand, the local people the unused land of village B is still unutilized and reclaimed themselves for plantation and after that not owned before that and under the condition that these areas were regularized by the government as the communal and district authorities have given agricultural land. The fact that the area of unused permission. However, this is usually done in a land decreases is a positive signal and the local different way – the people automatically utilize people mainly utilize this land for improving their 68
  7. Huynh Van Chuong utilize the land and do farming if they know that the are working on. In order to enhance the awareness of the people about registering land use right and unused land is not owned by anyone and after some receiving land use certificate, authorities of all croppings or some years of farming, the state shall levels must organise propaganda programs about formalize the right of land use for them or they land laws to clearly explain the rights in the land inform the authorities of this to be granted with the use certificate. land use certificate. This makes the In terms of unused land, the local people still utilizeutilization of unused land in Hong Bac have not been granted with land use certificate, they commune differed among the households and it is mainly set the boundaries and localiseby themselves, the household having the intention of utilizing then utilize or work on that land, some even localise unused land that decides on the quantity, location the land and then leave fallow with the hope that if and area of the utilized land. they do have the capability to utilize now, they will 3.3. Property rights of agricultural and unused leave it to their children later when they get married. land As for the area of unused land which has been reclaimed and utilized for a long time, the 3.3.1. Situation of granting land use certificate for government will regularize by measuring the area, agricultural land and unused land identifying the name of householders and then The agricultural land area is now being assigning the land to them with clear production surveyed, measured and set boundary for separated purposes so that they can work for long term. paddy fields on the map by the government. However, as for the local people, the fact that the However, currently, the map is still at district level, land is assigned for agricultural purposes or forestry not commune level, and the area has not been purposes is not important. The demands and price of granted with land use certificate. When being asked the market determine which agricultural crops or whether they wanted to have Land use Certificate for forestry trees to grow, as analysed above. This the area of dry crops, most of them showed the indeed creates so many difficulties for the unconcernedness. If the government issue, they will management work as well as overall and detailed get it. However, it is not so necessary because it is plan of the commune and district. their land with clear actual landmark and no one are The allocation of agricultural land and unused allowed to change it. However, there are still some people who are aware of the importance of the land land for long-term stability in this household almost use certificate in settling any arising dispute about impossible under the general policy of the state as a land later on, without this certificate, they do not plain piece of land must be "have good soil, poor know how to sue due to no availability of proof. As soil, have near land, have far land" which is mainly for the Government, the expense for surveying work the land according to history, voluntary state as and issuing the land use certificate at the research land which has been the exploitation of land to area is taken from the state budget, the local people household production over the years, state only do not have to pay anything when receiving the measures and immediately transferred the land certificate or when their land is being surveyed. which previously did households, there is no However, this still does not make the people more disturbance, such as common policies on land. enthusiastic in registering land use and receiving This, in one hand, can avoid conflicts and certificate. The basic reason is that the local people contradictions among the inhabitants. On the other do not understand the benefits of properties rights as hand, it shows that the government has respected well as do not have the needs of using these rights. the local conventions. Moreover, the assigning of Even with inheritance and transfer to their agricultural land and unused land here can not descendants, it is just verbal agreement without any apply the same rule of household and number of notice or information for the local authorities so as to people in the household as that in the plain area, split or transfer the land use certificate. because as mentioned above, we cannot take the land of this person to give to another one while the In terms of land management aspect, the land fund reserve is no longer available. Thus, measurement and issue of land use certificate can some big households have smaller land due to the partially stabilise the uncontrolled land fact that they did not utilize fallow land before. utilizeutilization and use situation, and the local According to the survey, most of the area of land of people can feel secure once receiving all kinds of each household is less than the limit of government’s recognition about the land that they 69
  8. Situation and Property Rights of Agricultural and Unused Lands in the Upland... 30ha prescribed by the government, thus it is very raise the commune fund. According to the local difficult to withdraw their land. people, it is obvious that they can utilize their land and enjoy all the benefits it brings about. The more 3.3.2. Description of property rights of agricultural or less the benefits are depends on the capability of and unused land at Hong Bac commune intensive cultivation of different households. Some Right of access: When being asked about the households can utilize the land of other people right of access, both the local people and with either of the 2 conditions: the land owner governmental cadres are surprised about this lends his land to another person for 1 crop or 1 year question because according to them this is not a or 2 years, then the borrower can utilize and harvest right, they obviously can access as a matter of on that land without paying any fee to the lender; course. Investigation shows that this right is not or, the land owner rents his land to the lessee for a clearly stated in governmental documents, couple of years, and the lessees has to return the however, it is implicitly understood that this right is land back if required by the land owner, in this case legal for both the government and local people. As the lessor has to pay rental fee. However, the latter for the government, land access is to check, hardly happens, normally, the local people lend or supervise, measure and perform the land borrow the land together for cultivation. The land management right or obstruct any object who goes borrowing often occurs among the relatives or against the land use purposes. When being asked children within 1 clan or family. Unused land can whether he often visited the land of the local people also be utilized for the purpose of breeding cattles. for performing his land management work or not, However, one person cannot use other people’s Mr Nguyen Van Sen – a land administration unused land for breeding and grazing and gaining official of the commune – said that he seldom did profits from it. This is really a big obstacle for so, except when there were conflicts or disputes or breeding cattles. Some households, though if required by the authorities of upper levels or by available with money, cannot breed cattles because any projects implemented at the commune that they do not have unused land for cattle grazing. need the support from the land administration This can be understood that formerly unused land is officials. Remembering the paddy fields of of common ownership, so daily grazing of cows, different households are also a very difficult task buffalos is free and everyone has the right to find a for the land administration officials at Hong Bac suitable place for grazing, but when the land is commune whereas this is a prerequisite for the utilized by a household or maybe assigned to professional management capability of the officials. households, they do not let strange cows, buffalos According to the local people, it is obvious in any more, which makes free grazing impossible. that they can access the land of their own and of Therefore, investment in husbandry should take other people at the commune. However, access here into consideration whether the grazing land is means that they can enter or pass by without available without trespassing on other people’s land damaging or creating any losses for the land owner. because it is difficult to let their animals trespass on If accessing and creating losses to the properties of other people’s land. other people, the invaders will be strictly punished Right of withdraw for agricultural land is in accordance with local conventions, that is they among the 9 legal and formal rights that the have to offer chicken or pigs or something else so government assigns to the local people when as to apologize; or the victim can ask for the granting the land use certificate to them. However, interference and help from the local authorities. as for unused land, the right of withdraw of local However, the negative access has never been people is illegal and informal. Because, legally occurred in the survey area, according to the local speaking, in order to formally utilize unused land, people, because people here are highly aware of the local people have to apply to the local protecting the properties for each other. authorities. But, in reality, the local people assume that it is an obvious right. Unused land is the Right of withdraw: The right of withdraw for common land of the village or commune, and if agricultural and unused land belongs to the local they have enough capability, they can utilize more people since the land has been assigned to them. land for life earning. According to statistics and The government does not charge any kinds of taxes reality observation, there is almost no unused land or fees on the land from 2005 till now. Before, the left to the commune which can be used for local authority charged the tax for wet rice land to 70
  9. Huynh Van Chuong agricultural purposes. What is left is mainly the is rigidly applied, it is likely to create conflicts rocky mountain and is too far away from the between the local authorities and land owners. residential area. This leads to a severe problem As for individual households, the right of which is difficult to control the deforestation under exclusion only exists when other people invade or the management of the government for making utilize their land without their permission. The fields to grow upland rice. local people understand that they have the right to Right of management: At governmental level, obstruct when the government or any organisation the management of agricultural land involves the withdraw their land without clear agreement, measurement, map establishment, and land use so compensation and support. This happened once as to comply with the governmental projecting. As when a coffee planting company wanted to for the land administration work, it manages the cooperate with the local people to use agricultural land on papers and in reality of each paddy field. land for growing coffee trees. However, as the As for the local people, they think the direct compensation and payment of work day was management of the land is their responsibility, they inadequate, the local people did not allow that already set the boundaries for their land by fence or company to grow coffee plants on their land no pond’s edges. Right of management is the formal matter how the government interfered. As for and legal right for both the government and local unused land, the local people assume that they have people. However, as for the local people, whether the right of exclusion once the land is marked in the government manages their land or not is so reality with specific signal like fence, growing trees important because they think that this is their land at the four corners of the land. Then, no one else and no one have the right to invade it. Although the can utilize and work on their land. In terms of laws, government projects and assigns it to them for 20 this is an illegal right. However, the local people years, it is still their land forever. really respect this convention and customs, thus, few conflicts occur. Therefore, the formal and This way of thinking is partially legal, however, informal rights of exclusion exist together. it can create difficulties if later the government wants to withdraw the land and changes to other purposes Right of alienation: This is among the 9 rights or transfer to other households. of local people after being assigned with land and granted land use certificate. Thus, the government Right of exclusion: The government has the cannot alienate agricultural land after assigning. right of exclusion once the people do not follow the The government can only manage the legal purposes of agricultural and unused land use, like alienation of the local people using agricultural land on upland rice fields to grow acacia, or exchange land from one household to As for families who have agricultural land and another without the permission from the authorities. unused land, most of the people do not know what However, it is very difficult to enforce this right in the legal right of alienation is. , They think that Hong Bac commune because most of the local once the agricultural land is assigned and granted people do not inform or pass the authorities of with land use certificate, they have the right to give commune and district level when changing using and exchange without the approval of the commune purposes or changing land use right to other person, and district. The land alienation here is mainly in whereas, land administration officials of the the form of inheritance from parents to children. commune cannot supervise all things happening out After getting married and making a separate home, on the fields. The local people think that it is their parents will give part of their land to them and land with the acknowledgement of local authorities, certainly, both parents and children understand that thus, they have the right to grow whatever they that part of land belongs to the children without any want and give to whoever they like. In order to documents or papers or any notification to the local solve this, the government in the past years has not authorities. The land alienation in the survey area performed the right of exclusion or interference does not pass to the local authorities of commune directly. They mainly mobilize and popularize all and district level for approval. It is because local the regulations in the land laws so as to make the people do not understand the land laws. Moreover, local people aware of them. Exclusion is the legal in order to perform a legal alienation, they have to and formal right of the government in land do complicated procedure. It seems to be management, however, in the survey area, it is very impossible to them because of their low level of difficult to implement this right and once the right education, whereas, for generations, they follow 71
  10. Situation and Property Rights of Agricultural and Unused Lands in the Upland... current convention in inheritance without any but as for the survey area, all policies must be problems or conflicts. applied flexibly so as to avoid conflicts or disputes between the local people and the local authorities as As for unused land, according to the local analysed above. For example, in the survey area, people, they have the right to alienate, give or lend land cannot be assigned and divided as per the the unused land to another person if they have number of people in the household in accordance already reclaimed it before then without noticing with Decree 64/CP of the government. the commune’s authorities or asking for their permission. This is an informal and illegal right The limitations of formal rights are that they because according to government regulations, the are applied on large scale and overall situations land is still under the general management of the and conditions, thus, when applying to a specific People’s Committee of the commune. If the local locality like the surveyed commune, these rights are people want to use it for any purposes like not so effective. For example, the right of cultivation or forestry, they have to apply to the management of agricultural land belongs to the local authorities and explain the reasons why they government, whereas, the local people think that need more land. Once receiving the permission, this right belongs to them, thus, they do not need to they have to use it as per the orientation of the ask for the permission from anyone else. It is district and commune. However, it is just normally difficult and complicated for the local theoretically. In reality, the households do freely people to access to the guidelines for the and then the government will regularize the land by performance of formal rights, whereas, the local measuring and granting land use certificate. conventions and custom generate from the agreement of the inhabitants in the villages and 3.4. Discussion on property rights for agricultural commune, thus, they are easy to understand, and unused land at Hong Bac commune remember and implement. Before the promulgation of the policies One big challenge in the performance of the relating to agricultural and unused land, most of the formal and informal rights is how to interlace the local people applied informal rights agreed by the regulations in local conventions and in inhabitants named as “local conventions or governmental policies together because in reality, custom”. All the utilizeutilization of common sometimes, it is faster to settle a conflict by local resources had to follow these rules. The violation conventions than by general governmental was strictly punished, and the local people could regulations. For example, formerly, before the clearly remember the local conventions and the promulgation of regulations on penalty for clearing punishment rules. forest to make fields, if any household utilized the To the local people, no matter what the fact is, forbidden forest without the approval of the whole they always bear in their minds that they have lived village or utilized the land of other people, that here for years, the land,the forests are theirs and the household had to bare the punishment following the natural resources in the forests and under water are rules of the village to be headed by the village theirs. Thus, no matter what the governmental laws leader. Minor penalty was to offer pig or chicken; are, the land is still theirs and this fact is and serious penalty was to offer ox. Thanks to this unchangeable. However, the people here are aware penalty, the deforestation was rare and the local that the spontaneous and uncontrolled people only practiced the shifting cultivation in utilizeutilization of land and natural resources can reclaimed land in lowland. Nowadays, according to lead to the devastation of living environment and the punishment sanctions of the government, through the years, their community will meet many deforestation for making fields is fined VND 1.5 to difficulties in earning their livings because shifting 2 million. However, this punishment does not affect cultivation can no longer happen. Therefore, they much the local people and they continue to deforest understand that the governmental policies are to because the punishment is hardly applied to them make their lives more stable. But the harmonisation and if yes, they do not have enough money to pay. between the currently existing rules – the local Therefore, obviously in this case, if the government conventions – and the new ones – policies to be assigns the right of management to each village and introduced and applied in the locality – encounter allows them to apply local conventions in so many obstacles. As for the people in plain areas, punishing violation cases, under the supervision of these policies can be applied strictly and inflexibly, the government, the situation will be much better. 72
  11. Huynh Van Chuong In fact, in the bundle of 9 land use rights types of agricultural land and unused land to be acknowledged by the government, the local people converted to agricultural land are now being in survey area only perform 3 out of them, namely measured and have not been granted with land use right of alienation, right of exchange and right of certificate. However, the land assigning and inheritance. However, when performing these issueing of land use certificate in the localty do not rights, they perform in accordance with traditional greatly affect the production and living of the way. That is to say they decide everything without people, because, according to them, whether the the approval of the government. The land use rights government assign the land to them and grant the are considered as permanent, whereas the Certificate to them or not, it is still their land and government only allows them to be applied in the they can permanently utilize on it through period of 20 years as for agricultural land reserving generations. for short-day crops and 50 years for agricultural The local people normally perform the right of land reserving for long-term crops or for growing management, right of exclusion and right of forestry. alienation in accordance with their ways of Reality investigation and observation in the thinking, rather than following the regulations of survey area show that crop productivity, people’s the government policies. Therefore, it is very income and livings are better, especially in the past difficult to apply formal laws in these cases and it 5 years. However, the relationship between the is likely to occur conflits about land between the improvement of people’s lives and the issue of land government agencies and the local people. use certificate is vague. According to the local Acknowledgement people, thanks to new policies on agriculture, agro- This research was funded by the International forestry encouragement programs, and the support Development Research Center (IDRC 2008-2011) of the government in terms of crop varieties, and get a lot of support of Hue Center for fertilizers, they can improve the productivity of the Agricultural Forestry Research and Development crops, thus, improving their lives. Besides, thanks (CARD), Hue University of Agriculture and to marketdemands and advantageous commodity Forestry (HUAF). exchange, they have other income sources in addition to the rice. As for the Properties Rights, the performance of these rights are not clear and it is REFERENCES very difficult to expand the cultivated area because there is no fallow land left, whereas forestry land is A Luoi Statistics Office. Statistic Yearbook (2000, under strict management of the government. 2005 and 2008). A Luoi distict, p.25-40 Bromley, D. W. (1992). The Commons, Common Property, and Environmental Policy. 4. CONCLUSION AND RECOMMENDATION Environmental and Resource Economics No.2, All the rights in the right bundles about p.1-17. Cited 5/2010. properties on agricultural land and unused land are Bruce, J. W (1993). Do Indigenous Tenure Systems really exist. However, as for the government, these Constrain Agricultural Development?. In: Land rights are formal and admitted by the laws, but as in Afican Agrarian Systems. T Bassett and D. E. for the local people, they are informal rights and Crummey, eds.,. Madison, Wisconsn: The they follow the traditional customs which have University od Wisconsin Press, p. 35.56. Cited great impacts on their lives. 8/2010. Although the local conventions no longer exist Commons, J. R. (1990). Legal Foundation of and be valid in the locality, in the minds and Capitalism. Madison. University of Wisconsin actions of the local people, there are still overlaps Press, 1968. between the formal governmental laws and the Feeny, G., F. Berkes, B. J. McCay, and J. M. traditional local conventions when they perform the Acheson (1990). The Tragedy of the Commons: rights. In Many rules in the local conventions, like Twenty-Two Years Later. Human Ecology punishment and ways to identify the boundaries of No.18, p.1-19. reclaimed land, are more effective. Government of Vietnam (1995). Decree No 02/CP Regulating the Allocation of Foestry Land to Currently, only agricultural land for growing Organizations, Households, and Individual for wet rice are granted with land use certificate, other 73
  12. Situation and Property Rights of Agricultural and Unused Lands in the Upland... Long Term and Stable Use for Forestry Purpose. Rights and Devolution of Natural Resource Ha Noi.15 Jannury 1994. Management: Exchange of Knowledge amd Hann, C. M (1998). Introduction: The Implications for Policy. R. Meinzen-Dick, A. Embeddedness of Property. In: Property Relations: Knox, and M. Di Gregorio, eds., 41-47. Germany, DSE. 1999. Renewing the Anthropological Tradition. C. M. Hann, ed, 1-47. Cambridge, UK: Cambridge Nguyen. Q. T (2005). What Benefits and for University Press. Whom? Effects of Devolution of Forest Management in Dak Lak, Vietnam. PhD MacPherson, C. B. The Meaning of Property Dissertaion, Shaker Verlag, 2005: 247-10. (1978). In: Property: Mainstream and Critical Position. C. B. MacPherson, ed., 1-13. Toronto: Schlager, E. and E. Ostrom (1992). Property Rights University of Toronto Press, 1978. Regime and Natural Resources: A Conceptual Analysis. Land Economics No. 68 (August Meinzen-Dick, R and A. Knox (1999). Collective 1992): 249-62. Action, Property Rights, and Devolution of Natural Resource Management: A Conceptual Vietnamese National Assembly (1987, 1993, 2003). Framework. In: Collective Action, Property Land Law. National Publishing House, Ha Noi. 74
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