Circular No. 37/2014/TT-BTNMT dated June 30, 2014 of the Ministry of Natural Resources and Environment detailing compensation, support and resettlement upon land recovery by the State

CIRCULAR

Detailing compensation, support and resettlement upon land recovery by the State[1]

Pursuant to the November 29, 2013 Land Law;

Pursuant to the Government’s Decree No. 21/2013/ND-CP of March 4, 2013, defining the functions, tasks, powers and organizational structure of the Ministry of Natural Resources and Environment;

Pursuant to the Government’s Decree No. 47/2014/ND-CP of May 15, 2014, on compensation, support and resettlement upon land recovery by the State;

At the proposal of the General Director of Land Administration and the director of the Legal Department,

The Minister of Natural Resources and Environment promulgates the Circular detailing compensation, support and resettlement upon land recovery by the State.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Circular details some provisions on compensation, support and resettlement upon land recovery by the State.

Article 2.Subjects of application

1. Agencies performing the state management of land; specialized agencies in charge of natural resources and environment; and organizations in charge of compensation and ground clearance.

2.Land users defined in Article 5 of the Land Law whose land is recovered by the State.

3. Other organizations and individuals involved in compensation, support and resettlement upon land recovery by the State.

Chapter II

DETAILED PROVISIONS ON COMPENSATION, SUPPORT AND RESETTLEMENT UPON LAND RECOVERY BY THE STATE

Article 3.Determination of remaining land investment expenses

The determination of remaining land investment expenses prescribed in Article 3 of the Government’s Decree No. 47/2014/ND-CP of May 15, 2014, on compensation, support and resettlement upon land recovery by the State (below referred to as Decree No. 47/2014/ND-CP), must comply with the following provisions:

1. Dossiers and documents proving investments on land may only serve as a basis for proving that land users have made investments on land.

2. Dossiers and documents proving investments on land include the following:

a/ Documents or contracts on hire of labor for or payment upon completion of ground leveling and fill-up or elevation, for land allocated or leased by the State, to improve soil quality, prevent erosion, build or reinforce ground base for use as production and business ground;

b/ Contracts and liquidated contracts; invoices and payment receipts for each land investment expense prescribed at Point a of this Clause;

c/ Other land investment-related documents and contracts made at the time of investment.

3. In case a person whose land is recovered does not have one of the documents prescribed in Clause 2 of this Article but has actually made investment on land, the provincial-level People’s Committee shall base itself on practical local conditions to decide on the determination of remaining land investment expenses.

4. Formula for calculation of remaining land investment expenses prescribed in Clause 4, Article 3 of Decree No. 47/2014/ND-CP is as follows:

a/ The determination of the value of remaining land investment expenses must be based on unit prices or techno-economic norms prescribed by competent state agencies;

b/ For land investment expenses with investment made in many times and many years, expenses of all such times or years shall be aggregated upon determination of remaining land investment expenses.

Article 4.Resettlement on remaining areas of land parcels with houses upon land recovery by the State

The change of the land use purpose from agricultural land to residential land for resettlement in case the land parcel with a house is recovered and has an area of agricultural land not recognized as residential land, which is prescribed in Clause 5, Article 6 of Decree No. 47/2014/ND-CP, must comply with the following provision:

1. In case the land parcel to be recovered has an area of agricultural land not recognized as residential land, change of the use purpose from agricultural land to residential land for resettlement may be effected only when the remaining area of the recovered land is eligible for parcel split under regulations of provincial-level People’s Committees of localities where the recovered land exists.

2. In case the remaining area of the land parcel with a house is ineligible for parcel split under regulations of provincial-level People’s Committees of localities where the recovered land exists, a competent state agency shall decide on recovery or the land user may continue to use the remaining area under land use master plan and plans.

3. Funds for compensation, support and resettlement for remaining areas in land parcels with houses ineligible for parcel split upon land recovery by the State must be stated in plans on compensation, support and resettlement.

Article 5.Determination of agricultural land areas for calculation of support for stabilization of livelihood upon land recovery by the State

1. Agricultural land areas recovered for calculation of support for stabilization of livelihood prescribed at Point b, Clause 3, Article 19 of Decree No. 47/2014/ND-CP shall be determined under each land recovery decision of competent People’s Committees, without aggregating agricultural land areas recovered under previous land recovery decisions.

2. Agricultural land areas eligible for supports for stabilization of livelihood prescribed at Point a, Clause 3, Article 19 of Decree No. 47/2014/ND-CP are those currently used by households and individuals in communes, wards and townships where recovered land exists at the time of issuance of land recovery decisions, including:

a/ Agricultural land allocated by the State to households and individuals who are directly engaged in agricultural production under the Government’s Decree No. 64/CP of September 27, 1993, promulgating the Regulation on allocation of agricultural land to households and individuals for long-term and stable use for agricultural production; Decree No. 85/1999/ND-CP of August 28, 1999, amending and supplementing a number of articles of the Regulation on allocation of agricultural land to households and individuals for long-term and stable use for agricultural production, and adding the allocation of land for salt production to households and individuals for long-term and stable use; allocation of forest land under the Government’s Decree No. 02/CP of January 15, 1994, promulgating the Regulation on allocation of forest land to organizations, households and individuals for long-term and stable use for forestry purposes; Decree No. 163/1999/ND-CP of November 16, 1999, on allocation and lease of forest land to organizations, households and individuals for long-term and stable use for forestry purposes; and Decree No. 181/2004/ND-CP of October 29, 2004, on implementation of the Land Law;

b/ Agricultural land acquired, inherited, donated or reclaimed in accordance with law and currently used by households and individuals that are eligible for agricultural landallocationin accordance with the land law but not yet allocated agricultural land and certified as directly engaged in production on such agricultural land by commune-level People’s Committees of localities where the recovered land exists;

c/ Agricultural land received by households and individuals in the form of contractual assignment from state-owned agricultural or forest farms for use for agricultural, forestry or aquaculture purposes (excluding special-use forest and protection forest land) and these households and individuals are directly engaged in agricultural and forestry production and earn stable incomes from agricultural production on such land upon land recovery by the State.

3. In case land-using households and individuals prescribed at Clause 2 of this Article have under 30% of their agricultural land areas recovered and the recovery affects their livelihood and production, chairpersons of provincial-level People’s Committees shall base themselves on practical local conditions to decide on other appropriate support measures as prescribed in Article 25 of Decree No. 47/2014/ND-CP.

Article 6.Compensation and support when the State recovers agricultural land currently used by cadres, civil servants and public employees (who are working or have retired due to old age or loss of working capacity or have been laid off with allowance)

1. Cadres, civil servants and public employees (who are working or have retired due to old age or loss of working capacity or have been laid off with allowance) other than the subjects defined at Point d, Clause 1, Article 19 of Decree No. 47/2014/ND-CP, who are currently using agricultural land acquired from the transfer of agricultural land use rights in accordance with law, may receive land compensations but are not eligible for supports for stabilization of livelihood and production, training, occupation change and job seeking upon land recovery by the State.

2. In case a household’s members are cadres, civil servants and public employees (who are working or have retired due to old age or loss of working capacity or have been laid off with allowance) and those who are not cadres, civil servants and public employees but currently use agricultural land for the agricultural production purpose, when the State recovers agricultural land of such household, its members who are not cadres, civil servants and public employees may receive support for stabilization of their livelihood and production, training, occupation change and job seeking. The provincial-level People Committee shall base itself on practical local conditions to decide on appropriate support levels.

Article 7.Papers certifying the payment of charges for use of land allocatedultra viresbefore July 1, 2004

1. The certification of the payment of charges to agencies and organizations for use of land allocatedultra viresbefore July 1, 2004, under Article 11 of Decree No. 47/2014/ND-CP must be based on one of the following papers:

a/ Receipts or invoices on collection of charges for land use or land compensation under the Ministers’ Council’s Decision No. 186/HDBT of May 31, 1990, on compensation for damage to agricultural land or forest land upon change of land use purposes.

b/ Receipts or invoices on collection of charges as prescribed by the Ministry of Finance at the time of collection;

c/ Receipts, invoices or other papers made by commune-level People’s Committees, agencies or organizations allocating landultra viresat the time of collection.

d/ Receipts issued by commune-level People’s Committees, cooperatives, agencies or organizations allocating landultra vires(or their representatives) to households and individuals at the time of collection of charges.

2. In case land has been allocatedultra viresand persons allocated land have paid charges for land use but receipts are kept only at charge-collecting agencies and organizations or other related agencies and organizations, such agencies and organizations shall provide these papers to organizations in charge of compensation payment and ground clearance or to land users so that the organizations in charge of compensation payment and ground clearance can finalize plans on compensation, support and resettlement.

Article 8.Arrangement of compensation, support and resettlement contents in separate sub-projects

The arrangement of compensation, support and resettlement contents in sub-projects which can be independently implemented must comply with Clause 1, Article 29 of Decree No. 47/2014/ND-CP, and is specified as follows:

1. Compensation, support and resettlement contents shall be arranged in sub-projects at the time the investment project is considered for approval.

2. A sub-project on compensation, support and resettlement approved by the state competent agency shall be independently implemented according to the investment project implementation schedule.

Article 9.Examination of the policy framework on compensation, support and resettlement

The examination of the policy framework on compensation, support and resettlement (below referred to as the policy framework) prescribed in Clause 2, Article 17 of Decree No. 47/2014/ND-CP shall be conducted as follows:

1. Before submitting the policy framework to the Prime Minister for consideration and decision, a ministry or sector having an investment project shall send the policy framework’s dossier to the Ministry of Natural Resources and Environment for examination. Such a dossier comprises the following principal documents:

a/ A written request for examination of the policy framework;

b/ A draft report to the Prime Minister;

c/ A draft policy framework;

d/ A decision or an approval of investment of the state competent agency.

2. Within 30 days after receiving a complete and valid dossier, the Ministry of Natural Resources and Environment shall give its written examination opinions to the ministry or sector having the investment project.

Article 10.Contents of plans on compensation, support and resettlement elaborated, examined and approved by ministries and sectors having investment projects

A plan on compensation, support and resettlement elaborated, examined and approved by a ministry or sector having an investment project as prescribed in Clause 3, Article 17 of Decree No. 47/2014/ND-CP must have the following principal contents:

1. Area of each category of land to be recovered.

2. Estimated number of land users in the area subject to land recovery.

3. Estimated amounts of compensation and settlement support.

4. Expected place and land area in the area for resettlement or resettlement house and method.

5. Estimated expenses and funding sources for plan implementation.

6. Schedule of plan implementation.

7. Estimated time and plan on relocation and handover of ground for the project.

The plan on compensation, support and resettlement must show the above contents for the whole project and be detailed to each locality (if any). In case of recovery of land for building a concentrated resettlement zone for implementation of the investment project, the contents specified in this Article must specify the area subject to land recovery for building of such concentrated resettlement zone.

Article 11.Relocation of land-attached works managed and used by organizations, population communities and religious institutions upon land recovery by the State

People’s Committees competent for land recovery of localities where to-be-recovered land exists shall inform the time and schedule of land recovery to organizations, population communities and religious institutions that are managing and using land-attached works for relocating them; the time of notification of work relocation is the time of notification of land recovery. Persons who currently manage and use land-attached works shall organize the relocation and hand over the ground according to the set schedule.

Article 12.Handling of cases in which organizations have land recovered but are not entitled to compensations

1. If the State recovers land of organizations and causes damage to land-attached assets assigned by the State to these organizations for management and use and these organizations have to move to new locations, they may use compensations for asset damage to make investment in their new locations under investment projects approved by competent authorities.

2. Upon land recovery by the State, organizations allocated land by the State with land use levy or leased land with one-off rental payment for the entire lease period with the paid land use levy or land rental originating from the state budget; or organizations allocated land by the State without land use levy or leased land with annual rental payment, are not entitled to compensations. In case they have to move to new locations, they are entitled to monetary supports under investment projects approved by competent authorities with the maximum level not exceeding the level of compensation for land recovery and payable by organizations and individuals allocated or leased land by the State.

Article 13.Appraisal of plans on compensation, support and resettlement

Provincial-level Natural Resources and Environment Departments and district-level Natural Resources and Environment Divisions shall assume prime responsibility for, and coordinate with related agencies in, appraising plans on compensation, support and resettlement before submitting them to the People’s Committees at the same level for approval.

Chapter III

IMPLEMENTATION PROVISIONS

Articles 14.Transitional provisions

1. For investment projects for which land recovery decisions and decisions approving plans on compensation, support and resettlement have been issued by competent state agencies but for which no compensation is paid before July 1, 2014, the handling of the late compensation payment must comply with the land law before July 1, 2014.

2. For investment projects for which a compensation, support and resettlement policy framework has been approved by the Prime Minister but plans on compensation, support and resettlement of the whole projects are not yet approved by July 1, 2014, ministries and sectors having these investment projects shall review such plans before submitting them to the Prime Minister for decision.

Article 15.Effect

This Circular takes effect on August 13, 2014.

Article 16.Implementation responsibility

Ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees shall organize the implementation of, and implement, this Circular.

Any problems arising in the course of implementation should be reported to the Ministry of Natural Resources and Environment for consideration and decision.-

For the Minister of Natural Resources and Environment
Deputy Minister
NGUYEN MANH HIEN