Indeed, throughout much of Asia it is not always easy to identify who is indigenous and who is not. As Charles Keyes pointed out in his 2002 Presidential Address to the Annual Meeting of the Association of Asian Studies, “The efforts by others to classify peoples of Asia by race all have failed because of the fact that all humans can interbreed, and physical characteristics do not remain unchanged among the same people from one generation to the next” (Keyes 2002: 1,166). Nevertheless, most governments in Asia have adopted variations of what has become known in scholarly circles as the “saltwater theory,” which involves recognizing the concept of indigenous peoples in places where European settler colonization has occurred, but not in Asia where it happened to a much lesser extent. Thus, for many governments in the region, the designation of indigenous peoples is relevant globally, yet not in their own particular circumstances. It was with this understanding that many governments in Asia agreed to sign the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in September 2007 (Baird 2011b, 2015). The debate regarding who should be considered indigenous and who should not has been coined by Benedict Kingsbury as the “Asian controversy” (Kingsbury 1998, 1999).
Nevertheless, over the last couple of decades, the concept of indigenous peoples has become increasingly accepted in parts of Asia, with some governments recently legally recognizing the existence of indigenous peoples in their countries, including the Philippines, Taiwan (Republic of China), Japan, and Cambodia (IWGIA 2009, 2010). In each of these countries, the legal recognition of indigeneity has been relevant in relation to cultural protection and language-use rights issues, but it has also been particularly significant for gaining access to, or excluding others from, land and other natural resources (Hall 2013; Hall, Hirsch, and Murray Li 2011). That is, the recognition of indigeneity has had important implications in relation to nature–society relations, including land and resource tenure. For example, in the Philippines the designation of “ancestral domain” for indigenous peoples has given them significant rights over land and resources (Bertrand 2011; Bryant 2000; Theriault 2011, 2013), and in Taiwan increased rights over particular lands and resources have been granted to indigenous peoples since their indigenous status was recognized (IWGIA 2009).
In this chapter, however, I focus on just three countries in mainland Southeast Asia—Cambodia, Thailand, and Laos—and the role that the newly developing concept of indigenous peoples has had, and is having, on land and resource access and tenure issues over the last couple of decades. Indeed, despite the governments of all three countries having signed the UNDRIP, the concept of indigenous peoples has been accepted to varying degrees, with differing impacts in each country. In Cambodia, the legal designation of indigenous peoples was first established in the 2001 Land Law and 2002 Forestry Law, which have had significant impacts on land and resource tenure issues (see Baird 2011b, 2013; Keating 2013; Milne 2013; Padwe 2013; Swift 2013). In Thailand, however, “indigeneity” has not been officially recognized by the government, but is nevertheless becoming increasingly utilized among academics, non-government organizations (NGOs), and some government officials and rural peoples (Morton and Baird forthcoming). Due to a lack of official recognition, though, the concept has so far had limited influence on natural resource management, although it has been evoked during some contentious debates and claims regarding land and natural resources over the last couple of decades. There have been attempts to employ the concept of indigeneity to protect land and resource rights of indigenous peoples, albeit sometimes with limited impact (Baird 2015, 2016; Milne 2013). Still, indigenous leaders are increasingly conceptualizing and articulating their concerns within an indigenous peoples framework (Morton and Baird forthcoming). In Laos, the government has recently shown increased resistance to the idea of indigeneity, despite earlier efforts by NGOs, multilateral banks, and the United Nations to introduce the concept, often in the context of natural resource management (Baird 2015). Here we examine in further depth the varying ways that the concept of indigeneity is impacting land and natural resource management in these three countries.
Cambodia
When the present constitution of Cambodia was adopted in 1993, there was no mention of indigenous peoples, “ethnic minorities,” or even more generally “ethnic nationalities.” It referred only to “Khmer people” and the “Khmer nation.” However, by the end of the 1990s, international NGOs working in Cambodia were able to effectively introduce the concept of “indigenous peoples” (chunchiet doeum pheak tech in Khmer) to the country, and through advocacy efforts which I have described in detail elsewhere (Baird 2011b) successfully had the concept inserted into Land Law in 2001 and Forestry Law in 2002.4
The most significant aspect of the 2001 Land Law for Indigenous Peoples was the establishment of precedent for recognizing indigeneity at the community level. Indeed, Article 23 of the law explicitly defined the term “indigenous community,” a first for Cambodia, as “a group of people that resides in the territory of the Kingdom of Cambodia whose members manifest ethnic, social, cultural and economic unity and who practice a traditional lifestyle, and who cultivate the lands in their possession according to customary rules of collective use.” The spatiality of the term and its link to customary forms of land and natural resource use is clearly evident.
The most important practical aspect of the 2001 Land Law has been the provision of the right for those defined as indigenous peoples to obtain communal land titles.5 Article 25 states: “The lands of indigenous communities are those lands where the said communities have established their residences and where they carry out traditional agriculture … The lands of indigenous communities include not only lands actually cultivated but also includes reserved land necessary for the shifting of cultivation…” Critically, the law does not allow ethnic Khmer people to obtain communal land titles. This distinction has been crucial in legally separating people in Cambodia based on ethnic background, and providing these different groups with different rights by law. At the time the 2001 Land Law was enacted, there were no standards for how to legally distinguish between indigenous and non-indigenous peoples. Thus, in 2009, the Government of Cambodia (GoC) adopted a sub-decree regarding communal land titling for indigenous peoples that includes steps for registering communities as indigenous, making them eligible to receive communal land titles (Baird 2013).
Since the adoption of the 2009 sub-decree, various communities have made efforts to navigate the sometimes frustrating multi-step process for registering indigenous communities. Because of the complex and expensive nature of the process, communities engaged in this registration process receive support from NGOs and international donor agencies. While few communal land titles have been granted so far, as of January 2012 there were 153 villages at various stages of either being registered as an indigenous entity or receiving a communal land title as a registered indigenous community (Baird 2013).
It might actually be more advantageous to allow all Cambodians—not just the 1–1.4 percent of the population who are classed as “indigenous”—to obtain communal land titles, as this could lead to greater societal support for communal land titles in the country (Baird 2013). In Laos, for example, communal land titling has also been introduced, but is permitted for all citizens regardless of ethnicity (Bounmany, Phommasane, and Greijmans 2012). In addition, while in Cambodia communal land