City Hall and lakeside residents tussle over the lake’s ambiguous legal status

Sebastian Strangio and Chhay Channyda examine the Kingdom's 2001 Land Law and the conflicting claims about the legal status of the Boeung Kak area

Tracey Shelton

Private land or public land? Despite a recent sub-decree, the status of Boeung Kak lake remains ambiguous.

The Shukaku plan

The Master Plan for Shukaku Inc’s redevelopment of the Boeung Kak area

(see left) features zoning for residential and commercial buildings,

office buildings, recreation and entertainment complexes, banks, hotels

and resettlement areas for residents likely to make way for the

project. The new plan will also see the lake reduced to around 10

percent of its current size.

AS creeping waters start to force the

first Boeung Kak residents from their lakeside properties, housing

rights advocates maintain the planned development of a large-scale

commercial and housing project in the area is illegal under the

Kingdom's 2001 Land Law.

According to legal experts, ambiguities in the title status of Boeung

Kak and its surrounds have allowed City Hall to skirt the requirements

of the Land Law, which allows long-time residents to claim land titles

and prevents the private development of public land.

Employees from sand-dredging firm HSC began pumping sand into the lake

August 26, in the first stage of a 133-hectare commercial and housing

project that will see over 4,000 families evicted from their homes.

City Hall has long maintained the land surrounding the lake - parts of

which were a former Sihanouk-era park - was state public land and could

not be claimed by squatters under the Land Law.

Phnom Penh deputy governor Pa Socheatvong told the Post in August that

"[the residents] must understand that the lake belongs to the state. It

will be easy if they understand this, but it is a difficulty if they do

not understand it."

But David Pred, country director of international grassroots human

rights organisation Bridges Across Borders, said the Law also imposes

restrictions on the use of such land, meaning that the February 2007

lease agreement between the government and little-known developer

Shukaku Inc is essentially illegal. "[The law says] you can't lease

state public property for more than 15 years and you cannot destroy or

fundamentally change state public property," Pred said. "By filling in

the lake, you are fundamentally changing public property."

Public or private?

On August 7, however, the Council of Ministers backtracked, issuing a

sub-decree retitling the entire lakeside area as state private

property. Choung Choungy, an attorney challenging City Hall in court on

behalf of 120 Boeung Kak residents, said the sub-decree was a piece of

legal slight-of-hand designed to provide ex post facto legality to the

2007 lease agreement.

"The government has reclassified the state public land as state private

land so that it is legal for them to lease it to a private company," he

said. "But it is not legal for a lake to be changed into state private

land. The sea is also state public land and cannot be reclassified...

[just as] human beings, by their nature, cannot be changed into dogs."

A lake is by its definition state public land... [it] doesn’t lose its public benefit: it’s not like a

building that can be mothballed.

Matt Rendall, a partner at local law firm Sciaroni & Associates,

said that state public property could be retitled, but only if the

government demonstrated the property no longer had a clear public

benefit, something he doubted in the case of Boeung Kak.

"A lake is by its definition state public land," he said. "Once a state

public property - such as a government building - loses its public

benefit it can be transferred and sold, but a lake doesn't lose its

public benefit: it's not like a building that can be mothballed."

Phnom Penh deputy governor Mann Chhoeun declined to comment on the

sub-decree Monday, saying land titling was not his area of expertise.

But Nuth Narang, secretary of state in the Ministry of Land Management,

Urban Planning and Construction, said the government has the right to

reclassify state public land in order to develop it.

"There is no law saying it is illegal to reclassify state public land

as state private land," he said.  "The government has followed the

procedures."

Hallam Goad, an advisor for local housing rights advocacy group

Sahmakum Teang Tnaut, said the municipality is using a novel

combination of legal manipulations to deal with increasing scrutiny as

work goes forward at the lakeside.

"[Land retitling] is not something I've come across before as a

tactic," he said. "But it's interesting because it shows they've

actually been thinking about Boeung Kak, that they're aware of the

problems with the project."

Whatever its motivation, Pred said the August 7 sub-decree was legally

self-defeating: by retitling the area as state private land, the

municipality legitimised the possession rights of the lakeside

evictees, who now have the right to claim titles for lakeside

properties under the Land Law.

"In an attempt to provide legal cover for an illegal [development]...

they basically countered their own argument that the residents are

living illegally on state public land," he said. "It's theft on a

massive scale. The municipality had no right to lease it."

But Pa Socheatvong told the Post that despite the reclassification, the

status of Boeung Kak's residents was unchanged. "The reclassification

[of the lake] was pursued through a legal process," he said. "Even

though it is now state private property, villagers cannot request land

titles because it is still state land."

Retitling the city

source: phnom penh municipality/ reproduction by Khun Vantha

The municipality's apparent confusion over Boeung Kak's status

highlights the difficulties of the land titling system that has been

employed in Phnom Penh since 2001 - often to the disadvantage of urban

poor living on valuable "disputed" land.

Since the passage of the Land Law, the Ministry, through the World

Bank-funded Land Management and Administration Project (LMAP), has

undergone the long process of systematically issuing fresh titles for

all of the land in Cambodia.

LMAP's 2002 project appraisal document aimed for the creation of

1,002,000 new property titles nationwide, including 198,000 in the

capital, over five years.

But Pred said the project was lagging behind in Phnom Penh, hampered by

LMAP's reluctance to issue titles for disputed land. According to the

LMAP appraisal document, "the project will not title lands in areas

where disputes are likely until agreements are reached on the status of

the land," meaning, he said, that no titles can be issued for Boeung

Kak until the resolution of the dispute.

"[Systematic titling] is an incredibly problematic process, because

poor people - particularly the urban poor - are being left out," he

said. "The people who need tenure security the most are the people who

are caught up in so-called land disputes, and those sites are

off-limits to the LMAP project."

Urban titling more challenging

Peter Jipp, a Natural Resources Management Specialist at the World

Bank, admitted that while the LMAP program had exceeded its

country-wide targets, it had failed to meet its 2007 target of 18,000

titles for Phnom Penh because the capital presented challenges not

present elsewhere in the Kingdom.

"The achievement for 2007 in Phnom Penh was only 15,054 land parcels surveyed and adjudicated," he said by email.

"This can be attributed to the complexity of titling in urban areas."

Such complexities, Rendall said, meant the process of transferring

Phnom Penh title deeds from the old municipal registers to the Ministry

could take up to 15 years, and that most of the city still remained

untitled.

"There doesn't seem to be rhyme or reason to the process," he said,

adding that the Boeung Kak area - like many municipal plots - has been

left with an ambiguous legal status as a result. "Most land is not yet

registered, so you probably won't find [the lake] on any lists."

Jipp added that the municipality had not described the land around

Boeung Kak lake to LMAP as disputed. "In June 2008, the Mission toured

the area around Boeung Kak lake since it had been reported that land

parcels there could not be issued titles under systematic land titling

because they [we]re on state land.  It was not presented as a land

dispute case," Jipp said.

Overall, Pred said that the boom in land prices and the unclear status

of much municipal land had given birth to an ad hoc system of municipal

land titling, which allowed the government to reclassify land at will

to accommodate powerful economic interests.

"They pick and choose what is state private land and what is state public land in a matter that is convenient to them," he said.

2001 LAND LAW SOCIAL LAND CONCESSIONS

The Land Law, passed by the

National Assembly under donor pressure in August 2001, recognises a

distinction between state public land – public properties such as

roads, schools, parks, rivers and lakes – and state private land. While

Article 17 of the law confirms that private state private properties

“may be the subject of sale, exchange, distribution or transfer of

rights as it is determined by law,” Articles 16 and 19 forbid the sale

of state public land. The Law also recognises that any person who has

lived peacefully on state private land for five years prior to the

law’s passing has the right to claim private titles to the land

(Article 30) – a clause that originated in an October 1992 land law

easing the transition from the anarchic state ownership of the 1980s to

the current system of private land titling. NGOs claim most of Boeung

Kak’s residents are long-time residents eligible to claim private

ownership under Article 30.

TIMELINE Phnom Penh's decade of land evictions