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Burma Policy Briefing Nr 11 May 2013 Access Denied Land Rights and Ethnic Conflict in Burma* The reform process in Burma/Myanmar1 Conclusions and Recommendations by the quasi-civilian government of Presi- dent Thein Sein has raised hopes that a The new land and investment laws bene- long overdue solution can be found to fit large corporate investors and not small- more than 60 years of devastating civil war. holder farmers, especially in ethnic minor- ity regions, and do not take into account Burma’s ethnic minority groups have long land rights of ethnic communities. felt marginalized and discriminated against, resulting in a large number of The new ceasefires have further facili- ethnic armed opposition groups fighting tated land grabbing in conflict-affected the central government – dominated by the areas where large development projects in ethnic Burman majority – for ethnic rights resource-rich ethnic regions have already and autonomy. The fighting has taken taken place. Many ethnic organisations place mostly in Burma’s borderlands, oppose large-scale economic projects in their territories until inclusive political where ethnic minorities are most concen- agreements are reached. Others reject these trated. projects outright. Burma is one of the world’s most ethnically Recognition of existing customary and diverse countries. Ethnic minorities make communal tenure systems in land, water, up an estimated 30-40 percent of the total fisheries and forests is crucial to eradicate population, and ethnic states occupy some poverty and build real peace in ethnic 57 percent of the total land area and are areas; to ensure sustainable livelihoods for home to poor and often persecuted ethnic marginalized ethnic communities affected minority groups. Most of the people living by decades of war; and to facilitate the in these impoverished and war-torn areas voluntary return of IDPs and refugees. are subsistence farmers practicing upland Land grabbing and unsustainable cultivation. Economic grievances have business practices must halt, and decisions played a central part in fuelling the civil on the allocation, use and management of war. While the central government has natural resources and regional develop- been systematically exploiting the natural ment must have the participation and resources of these areas, the money earned consent of local communities. has not been (re)invested to benefit the lo- Local communities must be protected by cal population. the government against land grabbing. The Land confiscation for agribusiness has been new land and investment laws should be on the rise since the late 2000s, with a total amended and serve the needs and rights of of nearly two million acres allocated to the smallholder farmers, including all ethnic private sector by the then military govern- regions. Burma Policy Briefing | 1 ment of the State Peace and Development At the same time the government has initi- Council.2 Since the advent of the Thein ated a peace process in an attempt to finally Sein government in March 2011, land resolve the country’s long-standing ethnic issues (among other pressing concerns) conflicts. New ceasefire agreements have have risen to the top of the national politi- been signed with 13 ethnic armed opposi- cal agenda, as easing restrictions on media tion groups, most of whom already had a and people’s rights to organise have led to truce with the previous military govern- increased news reports on protests by ment. But the new ceasefires have yet to farming communities across the country lead to a political dialogue, and the recent against land grabbing. large-scale government offensive against the Kachin Independence Organisation While some of the protests are aimed at (KIO), an ethnic armed opposition group past land grabs, others involve fresh cases calling for ethnic rights and autonomy, happening amidst what appears to be a new raises serious questions about the goals of wave of land grabbing on an unprecedent- the government and its ability to control ed scale since a new round of government the national armed forces (Tatmadaw).3 reforms. The reforms include several new laws on land and investment that change THE NEW LEGAL LANDSCAPE the legal basis for land use rights, especially in the uplands, while establishing a legal The Thein Sein government is moving to land market in order to encourage domes- introduce a new economic development tic and foreign investment in land. model for the country. In his inauguration speech in March 2011, the President de- There are serious concerns that these clared his intention to invite foreign invest- changes will further exacerbate land tenure ment to develop the country and its peo- and food insecurity for the majority popu- ple.4 Declaring poverty reduction as the lation in Burma who rely on their farm cornerstone of its economic reform pack- fields and forests for their livelihoods. This age, the government sees stimulating in- is because the new laws do not take into dustrial agricultural production – especially account the existing land tenure situation for rubber, palm oil and paddy rice – in ethnic areas where shifting cultivation in through massive foreign investment as one the uplands is common and where few have of its main strategies to achieve this. formally-recognized land titles, not to men- tion national identity cards. Indeed, the The government has yet to produce a de- new laws do not recognize customary and tailed development plan. But the new land communal land rights at all. Nor do they and investment laws are clearly key pillars, consider the right of return of hundreds of meant to facilitate the agrarian transforma- thousands of ethnic villagers who have tion from subsistence rural farm liveli- been displaced from their ancestral lands hoods to an industrial cash-crop economy. due to the decades-old conflict and eco- However, these laws passed through the nomic marginalisation. Consequently, the parliaments very quickly, without benefit of new laws are seen as exclusively benefitting broad public debate or serious considera- the private sector, particularly large foreign tion of their political, economic and social investors, at the expense of smallholder ramifications. They are widely seen as farmers, who make up three-quarters of the benefitting mainly, if not exclusively, local population. cronies and ex-generals – some of whom 2 | Burma Policy Briefing were involved in drafting and/or passing LAND GRABBING these laws as newly-elected MPs.5 Land grabbing is understood here as the Passed in March 2012, the new land laws undemocratic capture or control of both set the legal framework for further land the physical resource (e.g., land, water, grabs. The Farmland Law stipulates that forests etc.) and the power to decide how land can be legally bought, sold and trans- these will be used and for what purposes. ferred on a land market with land use cer- Land grabbing needs to be seen in the tificates (LUCs). This is significant because “context of power of national and trans- national capital and their desire for profit, it signals the government’s wholesale em- which overrides existing meanings, uses brace of a Western-style (individual) pri- and systems of management of the land vate property rights regime that (re)values that are rooted in local communities.”8 At land and other associated natural resources the global level, land grabbing is an “on- as an economic asset, versus a more human going and accelerating change in the mean- rights based approach to the use, manage- ing and use of land and its associated ment and governance of land and natural resources (like water) from small-scale, resources. The legalisation of a land market labour-intensive uses like peasant farming without strong government safeguards is for household consumption and local extremely problematic. First, anyone with- markets, towards large-scale, capital inten- out an official land use title no longer pos- sive, resource-depleting uses such as indus- sesses legal land use rights. Yet the highly trial monocultures, raw material extraction, restricted opportunities and mechanisms and large-scale hydropower generation – integrated into a growing infrastructure that were made available to get such a title that link extractive frontiers to metropo- have ended up excluding the vast majority litan areas and foreign markets”.9 of occupants. Second, the law puts mono- polistic power over the allocation of farm- Land grabbing thus not only includes land with the Farmland Administration illegal land confiscation from individuals or Body (FAB), chaired by the minister of the communities that results in forced relo- Ministry of Agriculture and Irrigation cation. It also entails other kinds of what (MOAI). Although centralising power to some might consider legal shifts in control allocate land is not necessarily problematic, over land, whereby sometimes local com- munities can remain on the land but have it is especially so in Burma because of the lost effective control over its use. Other larger context of high inequality, combined such cases include deals that lack free, prior with endemic corruption and extreme con- and informed consent (FPIC – although centration of political power more general- this is also not without problems, see text ly. Third, the FAB is beyond the judiciary box below), or through other undemocratic branch, meaning that aggrieved farmers are and/or non-transparent decision-making deprived of any legal recourse.6 processes and deals involving corruption and abuse of power. According to the in- The Vacant, Fallow, and Virgin Land Law ternational peasants’ movement Via Cam- (VFV Law) legally allows the government pesina: “Land grabbing displaces and dis- to reallocate villagers’ farm and forestlands locates communities, destroys local econo- (both upland shifting land, especially fal- mies and the social-cultural fabric, and lows, and lowlands without official land jeopardizes the identities of communities, title) to domestic and foreign investors.

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