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 NGO  Committee

Text Box: 16 June 2005               
 
 
Excellencies, Ladies and Gentlemen,
 
Re: NGO Statement on Progress Since the 2004 Consultative Group Meeting
 
Please find attached an NGO Statement on Progress Since the 2004 Consultative Group Meeting, and a slightly updated version of the NGO Analysis of Progress Against Selected CG Indicators.  
 
The former statement was originally drafted as an NGO Statement to the Mid-Term CG Meeting, before that meeting was cancelled.  It summarizes the main concerns of NGOs covered in more detail in the longer document.
 
Since the drafting of this statement, NGOs were most pleased to be informed of the Prime Minister’s Order on the Strengthening of the State’s Property Management.  Further measures are also needed to bring the management of Cambodia’s land and natural resources in line with the reforms agreed between the Royal Government of Cambodia and donors at last year’s Consultative Group Meeting.
 
NGOs wish to reiterate our commitment to work with the Royal Government of Cambodia and other development partners in the process of reform and the implementation of development activities.  Please accept, Excellencies, Ladies and Gentlemen, the assurances of our high regard.
 
Sincerely,
 
 
 
Russell Peterson
on behalf of the 
NGO Committee for the Monitoring of CG Indicators
 
         Leaders

                

Text Box:            
 
Koul Panha
              COMFREL
    ExecutiveDirector

 

 

Phnom Penh, June 2005            

                                                           

NGO Statement on Progress since the 2004 CG Meeting

Transforming promises and commitments into actions with concrete outcomes

 

At the Consultative Group (CG) meeting last December, “delegates noted that all – government, donors, civil society, private sector – were united behind the message that it is time to transform the promises and commitments into actions with concrete outcomes.”[1]  Six months on, while progress has been made in some areas, there are also a number of worrying developments that NGOs believe the Royal Government of Cambodia will need to firmly address, together with its development partners, if the agreed reforms are to remain on target.

On the positive side, NGOs commend the timely completion of the draft Strategic Framework for Decentralization. Civil society organizations at national and sub-national levels stand ready to participate in discussions over the draft Organic Law.  The Domestic Violence Law has now been passed to the National Assembly, though NGOs still have some concerns about some articles in the draft.  There has been good collaboration on the drafting of the Anti-Corruption Law.  Vigilance will still be needed to ensure that this law does not fall below international standards.

NGOs are concerned that corruption remains a significant cause of inequality in Cambodia, and that reported cases of financial corruption, mis-procurement and diversion of resources are not being brought before the courts under the existing criminal law.  There is currently significant public concern over the lack of transparency surrounding recent land swaps involving state land.  The government has recently brought to the courts judges and prosecutors who have wrongly enforced legal procedures and committed acts of corruption.  However, the process by which this was done has jeopardized the independence of the judicial system.  NGOs recommend that, to improve the effectiveness and independence of the judicial system, drafting of the Law on the Amendment of the Supreme Council of Magistrates needs to be prioritized. 

There is some anecdotal evidence to suggest that PAP[2] disbursements for education have improved; however in the health sector, PAP disbursements are still abysmally low, with only one percent of PAP funds disbursed to the provincial level by the end of April.  People continue to suffer and die due to inadequate health services caused by lack of cash flow to the local level.

Land grabbing and growing landlessness are significant causes of poverty and social unrest in Cambodia, and the Cadastral Commissions remain weak.  Contrary to the Rectangular Strategy, which puts the allocation of social concessions to landless farmers at the core of its land and agricultural strategies, the Royal Government seems more intent on providing land to companies, without consulting affected local communities.

Of particular concern is the fact that, six months after the CG meeting, the indicator requiring “immediate public disclosure of existing contracts and compliance status (royalties and other key provisions) of contracts governing economic land concessions, mining concessions, fishing lots and continued disclosure of status of review of forest concessions” has not been met.  Such public disclosure would be a welcome first step in reforming the management of state property.  The Ministry of Agriculture, Forestry and Fisheries and other relevant authorities need to release all relevant information currently in their possession without further delay.  In addition, the “process for termination of mining concessions, Military Development Zones, economic land concession and other development arrangements situated on forest land or in protected areas and inconsistent with law governing management of these areas” needs to be divulged.

Sub-decrees have now been drafted with respect to State Land Management and Economic Concessions; but the latter will do little to improve the governance of state property without significant rectification.  Contrary to the intentions of the Land Law and the related CG indicators, tree plantations “such as acacia, pine, teak and rubber” are inexplicably excluded from the Sub-Decree.  Under the Sub-Decree as it stands, plantations would remain insufficiently regulated by either the Land Law or Forestry Law.  NGOs fear that this may facilitate the continued large-scale conversion of biologically diverse natural forestland to mono-cultures of commercial tree species, thereby reducing the access of local communities to the diverse range of forest products on which they currently rely for their livelihoods and food security. 

The “suspension/moratorium on logging, transport of logs, and new economic land concessions pending completion of applicable review processes and/or a legal framework” has so far been violated in a number of cases.  These moratoria need to continue, including suspension of the granting of new commercial tree plantations, until an adequate legal framework is provided.

There has been no progress reported on the undertaking to enforce the ban on illegal private sales of state land; and there is substantial evidence that the practice is continuing.  Of particular concern is the escalating number of illegal sales of state land eligible for indigenous communal title.

As Samdech Hun Sen, Prime Minister of the Royal Government of Cambodia, rightly concluded, “the prosperity of our country depends on our ability to implement reforms at all levels. In this context, the biggest challenge for us is to strengthen government institutions and improve governance.”[3]  It is with this challenge in mind that NGOs raise the above concerns.  As mentioned by Mr. Ian Porter, World Bank Country Director for Cambodia, at the last Consultative Group meeting “Cambodia… needs to demonstrate that it has chosen this road to improved governance and poverty reduction – and members of the Consultative Group stand ready to support, both financially and technically, this reform agenda.”[4]  NGOs also wish to reiterate our commitment to work with the Royal Government of Cambodia and other development partners in the process of reform and the implementation of development activities.


[1] Consultative Group meeting press release, 7 December 2004

[2] Priority Action Program

[3] Consultative Group meeting press release, 7 December 2004

[4] Ibid.

GDCC Meeting, 14 June 2005            

 

NGO Analysis of Progress Against Selected CG Indicators

 

(1) Fighting Corruption and Increasing Accountability

(2) Legal and Judicial Reform and Protection of Human Rights.

(3) Decentralisation & Deconcentration (D&D)

(4) Cross-cutting indicators for Agriculture and Natural Resources Management

(5) Gender, Poverty, and HIV/AIDS.

(6) Health & Education.

(7) Harmonization and Alignment

CASE STUDY: CG Indicators and the Wuzhishan Economic Concession. 

(1) Fighting Corruption and Increasing Accountability

Indicator 1:  Within the existing criminal law, reported cases of corruption shall be brought before the courts for investigation and hearing; a consistent and strategic approach shall be employed by law enforcement authorities to the prosecution of cases of corruption. Data shall be collected to enable monitoring of progress.

There has been little progress toward this benchmark.  The Ministry of National Assembly and Senate Relations and Inspection (MoNASRI) has reported the identification of possible corruption amounting to more than US$26 million.  Although the report recommended that those responsible return the money, no cases have been brought to the courts.  Other reported cases of financial corruption, mis-procurement and diversion of resources have also failed to result in any prosecution.  There is currently significant public concern about the lack of transparency surrounding recent land swaps involving state land.  The government has recently brought to the courts judges and prosecutors who wrongly enforced legal procedures and committed acts of corruption.  However, the process by which this was done has jeopardized the independence of the judicial system, as explained below in the section on legal and judicial reform.

Indicator 2:  The existing draft law on anti-corruption shall be brought into compliance with international best practice (such as reflected in the United Nations Convention against Corruption) and enacted.

The NGO Pact and a team of international experts have worked with MoNASRI over the past four plus months in building their capacity to

understand international standards. MoNASRI expects to submit the final draft from their technical working group by the end of June for one last assessment by the international experts before holding a public consultation in July/August and before it is submitted to the political parties and Council of Ministers. Although there has been significant progress made, there is still a long way to go. Civil society organizations, specifically representatives from the Cambodian Defenders Project and the Center for Social Development, have been included in the drafting team and this is a very encouraging sign of transparency and partnership with civil society.

From NGO’s initial assessment, vigilance will be needed to ensure that the law does not fall below international standards regarding the following aspects:

  1. Independence of the Anti-Corruption Body (ACB) mandated with fighting corruption;

  2. The investigative powers of the ACB should rest with the Secretary General who heads the Anti-corruption Secretariat and not the Supreme National Council (SNC);

  3. Checks and balances should be in place on the SNC for nominating the Secretary and Deputy Secretary General of the Anti-corruption Secretariat;

  4. Civil society and women should be represented on the SNC;

  5. The ACB should have an autonomous budget;

  6. Civil society should have participation in Advisory Committees attached to the Anti-corruption Secretariat;

  7. There should be a minimum level of procedures in the law so that the ACB can be functional within 6 months after the enactment of the law and not rely on sub-decrees to start investigations if necessary;

  8. The Anti-corruption Secretariat should have full investigative powers as headed by the Secretary General to carry out its investigation mandate including the powers to search, seize and arrest;

  9. All corruption offenses should have clear definitions and a corresponding penalty;

  10. There should be whistle blower protection;

  11. The law should link with UNCAC, ADB-OECD, other international instruments and local laws.

·        NGOs recommend that all development partners closely monitor the development of the Anti-Corruption Law to ensure that international standards are fully incorporated.

Indicator 3: The Government should commence preparatory work on establishing a legislative framework (such as a Freedom of Information Law) to facilitate access to information held by public authorities. In the meantime, public authorities must change current practice by displaying a preparedness to share information with the general public and with other institutions in Government. The different TWGs will monitor specific indicators of access to information (see Annex for examples).

There is currently discussion between NGOs and government authorities regarding the preparation of a Freedom of Information Law.  Which Ministry or government authority will be responsible for drafting the law and facilitating access to information is not yet clear.  While some government authorities are already willing to share information, NGOs are not aware of any specific indication that preparedness to share information with the general public has increased since the last CG Meeting. 

 

(2) Legal and Judicial Reform and Protection of Human Rights 

Indicator:  In all benchmarks listed below, the law shall be consistent with the Constitution and international best practice (such as reflected in international human rights treaties, and by instruments such as the Basic Principles of the Judiciary and the Guidelines on the Role of Prosecutors) and prepared through a satisfactory participatory process.

Fundamental Legal Framework (new - but includes laws from previous unmet benchmarks)

Adoption of the drafts of the 8 fundamental laws by the Council of Ministers and submission to the National Assembly as a matter of urgency:

1. Penal Code

2. Code of Penal Procedures

3. Civil Code

4. Code of Civil Procedures

5. Organic Law on the Organization and Functioning of Courts

6. Law on the Amendment of the Supreme Council of Magistrates (reflecting transparency in appointment,

promotion, transfer, remuneration and disciplining of judges and prosecutors, and ensuring the

independence of Judges and Prosecutors) - rolled over

7. Law on the Status of Judges and Prosecutors - rolled over

8. Law on Anti-Corruption - rolled over

Progress on the adoption of the 8 fundamental laws continues to be slow. Seven of the laws are with the Judiciary Secretariat of Government for consideration. Only the Civil Code has progressed to the Council of Ministers. The Criminal Procedural Code, which was returned to the French expert for reconsideration, has now been sent back the Judiciary Council. Unfortunately, no action has been taken on the Law on the Amendment of the Supreme Council of Magistrates. 

The independent status of the Cambodian Judiciary is more fragile than ever since the Prime Minister issued an order to the Supreme Council of Magistracy to punish judges and prosecutors who wrongly enforced legal procedures and committed acts of corruption. While taking action against corrupt judges and prosecutors is important, this interference by the Executive with the judicial system is a serious compromise to the independence of the court. Furthermore in May 2005, the government decided to move the Secretariat of Supreme Council of Magistracy (SCM) to the Ministry of Justice, thus further undermining the independence of the Judiciary.

(3) Decentralisation & Deconcentration (D&D)

Indicator 1: The RGC National Policies, Strategic Framework, Action Plan and relevant appointed committees formulated by March 2005 and submitted to Council of Ministers for approval, resulting in a Government program for D&D at a Provincial, District and Commune Level.

Indicator 2: The first draft prepared for consultation of the D&D organic Laws on the Management of Provincial & District, Municipalities and the Capital, produced within the D&D strategic framework.

Though developed without any significant civil society participation, NGOs still commend the timely completion by the government of the draft Strategic Framework for Decentralization and Deconcentration. The drafting process was very much driven by the government resulting in stronger ownership of the policy formulation process. Consequently, in April the national government initiated a national consultation of government ministries and sub-national officials as well as other development partners, including a few NGO representatives, to review and provide recommendations on the draft government policy.

NGOs feel that greater civil society involvement could have been made in the national review process. We consider the very process of meeting, sharing, and discussing with government partners key issues and policies is in itself an excellent example of civil society participation in decision-making.

On the other hand, NGOs consider that a centralized consultative process on a very significant government policy is not adequate. It has always been the case that development partners in rural Cambodia lack sufficient knowledge and understanding of key government policies, thus resulting either in misunderstanding of these policies or eventually to barriers in gaining a broader support base to policy implementation.

The vision and principles of the draft government policy expresses the government’s position to promote democratic representation, popular participation, public sector accountability, service delivery effectiveness, and overall efficiency. The draft policy however should be regarded as a starting point to increase civil society and citizens’ participation in state life. Visions and principles need to be translated into operational guidelines and mechanisms to have fuller meaning. The clarity of the institutional framework in translating D&D visions and principles into structures and mechanisms in order to enable civil society and citizen participation is crucial to the successful implementation of the policy document.

The creation of provincial and district councils is commendable if only because it provides a check and balance to the new power and roles of the governors at both levels. However, NGOs are concerned that if the system of setting up these councils is not based on democratic election processes, the ability of the district and provincial councils to exercise these check and balance functions may be compromised.

Overall, NGOs consider the draft policy as another arena for dialogue and engagement with the government on promoting principles of participation, transparency, accountability, effectiveness and efficiency in the government. NGOs commit to continually work with the government to ensure that organic legislation uphold the cherished visions and principles of the policy framework.

(4) Cross-cutting indicators for Agriculture and Natural Resources Management

Indicator 1:  Pass/enact key laws and sub decrees, governing natural resources management, including fisheries law and community fisheries sub decree (rollover), state land management and economic land concessions sub decrees and enforcement of Article 18 of Land Law, that private sales transactions on state lands are illegal and hence should not be validated by officials.  Joint development of a medium term sector strategy for agriculture, including irrigated agriculture, has been commenced by March 2005, with an overall policy and strategic framework completed by December 2005.

The Community Fisheries Sub-Decree has been passed, following a lengthy process, which included very thorough public consultation.  The Fisheries Law, which is still under preparation, has also enjoyed an extensive period of consultation.   There has been progress on the development of an agricultural strategy.

The Sub-Decrees on State Land Management and Economic Concessions are currently under preparation, and there appears to be a rush to get them finalized.   Time for comment on the drafts was limited, though NGOs did manage to submit a comprehensive set of preliminary comments.  In its current form, the Sub-Decree on Economic Concessions will do little to improve the governance of state property and to prevent unaccountable and arbitrary decision-making by state agencies.   The whole concept of allowing unsolicited proposals without a bidding process, as described in the draft Sub-Decree on Economic Concessions, requires further consideration.  Contrary to the intentions of the Land Law and the related CG indicators, tree plantations “such as acacia, pine, teak and rubber” are inexplicably excluded from the Sub-Decree.  Under the Sub-Decree as it stands, plantations would remain insufficiently regulated by either the Land Law or Forestry Law.  NGOs fear that this may facilitate the continued large-scale conversion of biologically diverse natural forestland to monocultures of commercial tree species. Local communities may thereby lose access to the diverse range of forest products on which they currently rely for their livelihoods and food security.  Further, there are no articles in the draft sub-decree protecting communities from involuntary resettlement or from loss of their current livelihoods.

There has been no progress reported on the undertaking to enforce the ban on illegal private sales of state land; meanwhile there is evidence that the practice is continuing.

Indicator 2:  Maintain suspension/moratorium on logging, transport of logs (except those which have been already inventoried and for which royalties have been paid in full), and new economic land concessions pending completion of applicable review processes and/or a legal framework.

The transport of old logs has occurred and while there has been an attempt to monitor this process, it remains unclear whether royalties have been paid in full for all those logs transported. Certainly SGS, responsible for the monitoring, has not provided evidence confirming the payment of royalties. 

The Prime Minister announced on 14th March that he was ending the moratorium on new economic land concessions. The Country Representative of the World Bank, Ms Nisha Agrawal gave the following comment to the press in response to this announcement: “We were really hoping this would be the year Cambodia would honour its commitments… If they want people to take them seriously, they have to follow through on what they say they will do.”

Indicator 3:  Increase transparency of state management of natural resources through immediate public disclosure of existing contracts and compliance status (royalties and other key provisions) of contracts governing economic land concessions, mining concessions, fishing lots and continued disclosure of status of review of forest concessions.

There has been no progress reported on the undertaking on immediate public disclosure of contracts governing economic land concessions, nor mining concessions.  Information that the government could easily divulge without delay include:  the location, size and function of all relevant concessions, including the related investment agreements and contracts, along with information pertaining to registration and shareholders.[1] 

There has, however, been transparency in the granting of fishing lots.  There is as yet no final decision on the review of forest concessions.

Indicator 4:  Application of sustainable management planning, including ESIAs, investor evaluations, consultation with local communities, public disclosure and comment period prior to entering into new contracts for private use/management of state managed natural resources (land, fisheries, forestry, and mines).

There is some evidence to suggest that new contracts for the private use of state managed natural resources have been made without the prior steps agreed above having been taken.

Indicator 5:  RGC disclose the location and legal status and process for termination of mining concessions, Military Development Zones, economic land concession and other development arrangements situated on forest land or in protected areas and inconsistent with law governing management of these areas.

No progress has been reported on the disclosure of information on various development arrangements in forest land or protected areas.

See also the Case Study on the Wushizhan Economic Concession in the annex of this report for further information on the implementation of the indicators for Agriculture and Natural Resources Management.

(5) Gender, Poverty, and HIV/AIDS

Indicator 1: These will be treated as cross cutting issues to be addressed under the broader umbrella of formulating the next5 year National Strategic Development Plan (NSDP) for 2006-2010

The 18th Technical Working Group has had its first meeting, with government, donor and NGOs partners in attendance.  A very tight timeline for completion of the NSDP has been proposed.  NGOs are concerned that this may result in limited time for public discussion and civil society participation in choosing development priorities.  Efforts need to be made to ensure that adequate consultation takes place, so that the NSDP may be a truly national document with broad acceptance and ownership.

Indicator 2: Gender Equality. Put in place the Legal Framework for Protection:

Draft Domestic Violence Law is adopted by the Council of Ministers and submitted to the National Assembly and a Prevention Plan adopted.

Draft Anti Trafficking Law is adopted by the Council of Ministers and submitted to the National Assembly and a Prevention Plan adopted.

Under the Constitution of the Royal Government of Cambodia, gender equality has been recognized.  Cambodia is a signatory to the Convention on the Elimination of Discrimination Against Women (CEDAW) and has committed to achieving the United Nations Millennium Development Goals (MDG) under which women's empowerment has been recognized as a global issue. The key focus areas include: poverty, education, health, violence against women, conflict, inequality in economic power structures and decision-making, the promotion of the advancement of women, human rights, women and the media, environment, and rights of the girl child.  The Cambodian government has also recognized the need to mainstream gender into all national policies and plans, as the first step in empowering women and enabling their full participation at all levels of the social, economic and political spectrum.

However, despite the government's commitment to end violence against women, the draft domestic violence law is yet to be passed and a number of loopholes in current legislation enable perpetrators of violence to remain above the law.

Domestic violence has become more serious and cruel in Cambodia, at times amounting to torture; for example, using acid, severe beatings leading to miscarriage and death of both the baby and the mother. The efforts of the NGO community and other agencies in dealing with domestic violence are often been undermined by the reality that corruption, and a weak judicial system impede the fight against violence against women.  Only when there is proper law enforcement and an effective judicial system will we be able to make progress towards ending violence against women.

The draft Domestic Violence Law, combined with an effective Prevention Plan, will go some way to protecting women and children from domestic violence.  However, NGOs still have concerns about some articles in the draft law that may serve to weaken implementation of the law.

·        NGOs recommend that the National Assembly consider NGO comments and fully debate the draft Domestic Violence Law, with an aim to passing the law as an urgent priority.

There has been no progress on the Anti-Trafficking Law and, despite improved cooperation between government and development partners in the past, there are grave concerns about the government’s commitment to anti-trafficking measures.  Passing an Anti-Trafficking Law and implementing an effective anti-trafficking National Plan of Action would go a long way to help strengthening the collaboration between government, international partners and national organizations in the effort to prevent trafficking and protect victims.

·        NGOs recommend that the Council of Ministers make the adoption of an effective and broadly supported Anti-Trafficking Law, and its submission to the National Assembly, an urgent priority.

(6) Health & Education

Indicator: Timely disbursements of the budget for Health and Education as agreed in the PFM Action Plan.

Health.

According to the CG benchmark, the Ministry of Health (MoH) PAP disbursement rate for the first semester of 2005 should be 35% of the total budget.  The report by end of April 2005 indicated that PAP cash disbursement to the central level had been 6%. Only 1% of PAP funds had been disbursed at provincial level.

These figures show that PAP cash disbursement from the Ministry of Economy and Finance (MoEF) is far from reaching its target. This is particularly acute at the operational levels where it results in poor health service delivery to the public.

People continue to suffer and die due to inadequate health services caused by lack of cash flow to the local level. This is inexcusable and government must do all it can to improve the situation.

·        Medicam, on behalf of its members, recommends that the MoH and the Technical Working Group on Health (TWGH) consider this situation very seriously and take immediate action to encourage the MoEF to accelerate the payments.  NGOs would like to also call on the MoEF, particularly the Cash Management Committee, to take emergency actions to speed up the pace of cash disbursement to the operational level.   

Education.

Despite strenuous efforts the NGO Education Partnership (NEP) has been unable to obtain any figures on PAP disbursement from the Ministry of Education.

The figure of 35% PAP disbursement by 30 April 2005 of monies from 2004 is quoted in the recent JTWG report.  However information from the field suggests that disbursement is becoming more timely. Payments have been made almost every month, the last payment being on 18th May, and to date, in one province at least, just over 50% of funds have been disbursed. It is expected this year that up to 60% of funds will have been received by the end of the school year July 2005.

Although this is a great improvement on previous years the payments are erratic and unreliable. This makes planning difficult. The delays and unpredictability are a challenge for schools and many of the smaller rural schools find it hard to manage.

In some provinces delays in disbursement of the scholarship funds, PAP 12, have resulted in students dropping out although this may not be the sole factor contributing to the drop out.

·        NEP and EDUCAM, on behalf of its members, welcome the perceived improvements mentioned above, but recommend that the Ministry of Education Youth & Sports (MoEYS) continue to work with the MoEF to further improve the reliability, timeliness and percentage of PAP disbursement, so that schools may receive predictable and adequate funding.

·        NGOs request that PAP disbursement data and information on disbursements to the provinces be made available to NGOs and the wider public on a regular basis.

(7) Harmonization and Alignment

Indicator: Implement--and monitor implementation progress on a six monthly basis—the Harmonization Action Plan and the Partnership Principles

NGOs note significant progress in the harmonization and alignment plans by both the Royal Government and the Donor Community, including preparation for a single National Strategic Development Plan, the re-organization of the 18 Technical Working Groups and full reporting on Cambodia's Harmonization and Alignment Action Plan at the High Level Forum in Paris in early 2005.  NGOs believe that the challenge now is for the Government to build on this progress by demonstrating its full commitment to transparent systems, procedures and practices so that the donor and NGO community can confidently support the national development framework, and where appropriate, more effective use of ODA through better management policies.

The RGC recognizes that "NGOs can contribute much to poverty reduction plans based on their development experience and are in a strong position to convey the needs and concerns of vulnerable groups to policy makers." [2]  NGOs welcome their inclusion into many of the TWGs and other national and sub-national led planning processes that demonstrate government ownership and leadership. NGOs believe they themselves could better contribute to these processes through clearly defined and strengthened partnership arrangements, so that they can in turn support the participation of the poor and vulnerable groups in the monitoring of poverty reduction efforts.[3]   An example of the government's true commitment to partnership with NGOs and Associations would be a clearly defined, recognized and open consultation process with NGOs in the drafting of any proposed legal framework for NGOs and Associations. 

 

CASE STUDY: CG Indicators and the Wuzhishan Economic Concession

Over five months ago, the RGC and international donors committed themselves to work together to monitor and meet indicators for various sectors in Cambodia. In the area of "Cross-cutting for Agriculture and Natural Resources Management," the indicators included, inter alia, immediate public disclosure of economic land concession contracts and their locations; consultation with local communities; and the production of ESIAs. Despite the clear language of these indicators, no progress has been made with respect to economic land concessions.

This report illustrates the consequences these failures have had upon the community living on and around the Wuzhishan L.S. Group (“Wuzhishan”) economic concession in Mondulkiri province. NGOs respectfully request donors to raise these issues and the RGC to take action to meet the indicators and goals they agreed upon in December 2004, in the hope of alleviating the problems caused by the Wuzhishan economic concession.

In August 2004, Wuzhishan began operations in Oreang district, Mondulkiri. Its economic land concession is situated in a area of mixed-deciduous dry forest and grassland between Phnom Prich and Phnom Nam Lyr Wildlife Sanctuaries. Although sparsely populated, the area is home to the indigenous Phnong, who use the area for livestock grazing, practice traditional swidden agriculture on their chamkar fields, and whose culture and animist religion is embedded in the surrounding landscape. Wuzhishan began activities without notice or consultation with community members or local authorities, severely disrupting the livelihoods of the local populace. Requests for information and formal complaints submitted by the Commune Councils have not resulted in any disclosure of information or change in Wuzhishan operations. Meanwhile villager lands and resources continue to be dispossessed by the company.

Indicator

RGC disclose the location and legal status and process for termination of mining concessions, Military Development Zones, economic land concession and other development arrangements situated on forest land or in protected areas and inconsistent with law governing management of these areas. [emphasis added]

Status

(1)   RGC has not disclosed the location or boundaries of the Wuzhishan concession

(2)   RGC has not disclosed the legal status of the Wuzhishan concession.

(3)   RGC has not disclosed the process for termination of the Wuzhishan concession.

Results

Although the government and Wuzhishan have made no disclosures regarding the size, location, and area of the concession, the company continues to claim lands, clear fields and plant pine seedlings in Mondulkiri.

  • Indigenous burial areas and ancestral graves have been destroyed;

  • Livestock grazing areas have sprayed with herbicide and taken by the company;

  • Spirit forests have been destroyed;

  • Chamkar (swidden fields) have been dispossessed.

20,193  ha of the concession area is located inside the Seima Biodiversity Conservation Area, 6,345 ha in the core protected zone (as defined by Prakas in 2002).

 

Indicator

Application of sustainable management planning, including ESIAs, investor evaluations, consultation with local communities, public disclosure and comment period prior to entering into new contracts for private use/management of state managed natural resources (land, fisheries, forestry, and mines). [emphasis added]

Status

(1)   No ESIA has been produced for the Wuzhishan concession.

(2)   No investor evaluations have been disclosed.

(3)   Local communities had no consultations prior to the implementation of the Wuzhishan concession, nor consultations subsequent to the negative impacts on their livelihoods.

(4)   Provincial, district, and commune authorities have had little to no consultation regarding the Wuzhishan concession.

(5)   There has been no public comment period regarding the concession, nor has the public received any information upon which it could comment.

Results

Despite the lack of an ESIA, public disclosures, or lack of consultation with local communities, Wuzhishan has sprayed large areas with herbicide and dispossessed villager lands. Attempts by local villagers to consult with the company and remedy the situation consistently result in intimidation and threat of violence. The herbicide use is suspected to have been the cause of recent cattle deaths; human illnesses including vomiting, headaches and diarrhea; and health problems to villagers' cattle, pigs, chickens and ducks.  Its effects on the two bordering wildlife sanctuaries and the Seima Biodiversity Conservation Area are not yet fully understood.

 

Indicator

Increase transparency of state management of natural resources through immediate public disclosure of existing contracts and compliance status (royalties and other key provisions) of contracts governing economic land concessions, mining concessions, fishing lots and continued disclosure of status of review of forest concessions. [emphasis added]

Status

(1)   Wuzhishan economic land concession has not been publicly disclosed.

(2)   No compliance status of the Wuzhishan economic land concession has been publicly disclosed.

(3)   Provincial Departments of Agriculture, Forestry and Fisheries, and Land Management, Urban Planning and Construction have not been consulted with, nor have they any information about the concession.

(4)   Provincial Department of Labor has twice requested, and twice been denied access to Wuzhishan plantation sites for inspection.

(5)   Other provincial authorities who have been denied access to information regarding the Wuzhishan concession include the Department of Tourism, and the Department of Education.

(6)   Requests from local communities for information regarding the Wuzhishan concession have been ignored.

Results

Despite repeated requests to governmental authorities and the company, the contract and compliance status of the economic land concession remain out of public view.  Provincial authorities have been unable to properly plan for the areas taken by the concession, nor the resultant problems created by Wuzhishan.  Local community lands have already been taken without notice, explanation, or compensation, leaving villagers with the expectation that any or all of their lands will be taken away.

 

Recommendations:

In sum, the lack of notice, consultation, and information about the Wuzhishan economic land concession has severely disrupted the lives and livelihoods of people in Mondulkiri. NGOs respectfully request donors to raise these issues and the RGC to take action to meet their indicators in the “Cross-cutting for Agriculture and Natural Resources Management” area by immediately implementing the following recommendations:

Lack of transparency in the process of granting and implementing economic concessions means there is no accountability or recourse to the situation for affected communities. Without any discourse between companies and locals, there is little hope that economic concessions will offer any meaningful economic integration or benefit to the community. NGOs hope that the donors will work with the RGC to review both the procedural and substantive deficiencies of economic land concessions. Meeting the aforementioned CG indicators will be an important first step in this process.


[1] To fully comply with this indicator, including disclosure of “compliance status (royalties and other key provisions) of contracts”, the following would need to be made publicly available:

a)     List of all economic concessions (including tree plantations), mining concessions (whether for exploration or exploitation) and fishing lots, awarded by the SOC and RGC, up until May 2005, whether active or inactive.

b)    The following related information related to each of these concessions:

·   Investment agreements and contracts.

·   Maps of boundaries, containing coordinates.

·   Demarcation and survey reports.

·   EIA reports.

·   SIA reports.

·   Reports on consultation with affected local people.

·   Proof of payment of deposits, taxes and other applicable monies, such as rent and royalties.

·   Company registration, including names of shareholders.  (continued over page)

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·   Details concerning mother or affiliated companies and financing arrangements.

·   Company links to government officials or their relatives, including the nature of these links, such as managerial control, assistance provided to the company in an official capacity, and financial arrangements and other remuneration from the company’s activities.

·   Inspection reports.

[2] Chapter 4.4, p. 22, Building Partnerships for Development: An Update, CDC, Dec 2004.

[3] Chapter 4.4, p. 22, ibid

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