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Navigating Land in Myanmar: An Analysis of Land Reform, Related Laws, Instruments and their Implications (Federal Culture Series-4) Navigating Land in Myanmar: An Analysis of (zuf'&,f,Ofaus;r_pmpOf - 4) - (zuf'&,f,Ofaus;r_pmpOf ,if;wdk‹. &dkufcwfr_rsm;udk pdppfavhvmjcif; &dkufcwfr_rsm;udk ,if;wdk‹. ajr,mjyKjyifajymif;vJa&;/ qufpyfOya'rsm;/ pmcsKyfpmwrf;rsm;ESifh pmcsKyfpmwrf;rsm;ESifh qufpyfOya'rsm;/ ajr,mjyKjyifajymif;vJa&;/ jrefrmhajr,mvrf;n$ef jrefrmhajr,mvrf;n$ef Navigating Land in Myanmar An Analysis of Land Reform, Related Laws, Instruments and their Implications Federal Culture Series-4 Printing Record Printing Period - 2018, July (1st Edition) Copies - 1000 Cover & Design - Pao Hom Distributor- Pyidaungsu Institute Publication Series- P0718PI08 – A Authors- Pauline Eloff & Michèle de Aquino Copy Editing- Adam Jarvis-Norse (English Version) Zam Khan Thang & Sa Lin Ko Hlaing (Burmese Version) Research Director & Advisor - Dr. Sai Oo Translator- Myanmar Knowledge Society Acknowledgement We would like to express our thankfulness to the United States Agency for International Development (USAID) for funding this publication and the Euro-Burma Office – Myanmar for funding our researchers. We also would like to thank PI Research Team who collaborated in this research report. “Navigating Land in Myanmar: An Analysis of Land Reform, Related Laws, Instruments and their Implications” (Federal Culture Series - 4) Foreword The relationship between humans and land is wide-ranging and complex, and these phenomena are often evident in our everyday political, economic and social settings. In contemporary Myanmar, a great number of laws, by-laws, rules and regulations originating from colonial times continue to be used, as if the country is still living in an old fashioned era. Constructive land reforms and changes that are coherent to a modern governance system are yet to be made. Myanmar’s land reform process has been highly problematic, and land-related issues have been steadily increasing over time. The transition from military rule to quasi-civilian government, which started in 2011, has brought with it many disputes and conflicts relating to land, highlighted inefficiencies in land management and weaknesses in the rule of law - all of which have caused significant impacts to both rural and urban populations. Furthermore, the refugees and internally displaced persons (IDPs) resulting from Myanmar’s internal armed conflicts have also faced the loss of their lands. There is no easy remedy for solving these intricate problems. The purpose of this report is to try and shed light on the relationship between humans and land, the problems that are entrenched by Myanmar’s current land laws, rules and regulations, and the practices which have been used from colonial times up until now. Pyidaungsu Institute v “Each blade of grass has its spot-on earth whence it draws its life, its strength; and so is man rooted to the land from which he draws his faith together with his life.” (Joseph Conrad) vi Executive Summary In the last few years, Myanmar has experienced various economic and political developments. There have been efforts to introduce a more democratic form of government and a more liberal economy. There have also been notable advancements in the peace process with the country’s ethnic armed organistions (EAOs). But nevertheless, there is a recurrent issue causing tension and standing in the way of peaceful co-existence: land rights and land use. A vast majority of Myanmar’s population are peasant families that depend on land and natural resources for surviving, therefore when there is a lack of it, they become especially vulnerable. Today, Myanmar’s land conflicts are rooted in land confiscations, rule of law deficiencies, and weak governance, which has led to poor tenure security and a traditional strong state approach (exploitative and predatory) to natural resources. Myanmar has poor government policy coherence and a plethora of laws that are complicating matters even more. Changes that were made, such as those aiming to attract (foreign) investment in, for example, mega infrastructure and agribusiness projects, have led to more human rights violations and land appropriation, and precluded the return of internally displaced persons and refugees – a problem at the heart of Myanmar’s conflicts. This report tries to give a broad and simple overview of a complex situation. The first Chapter provides an insight into the meaning of land in Myanmar. Agriculture is fundamental: it is not only an important part of the country’s economy, but also a primary source of income for the majority of the population, especially those in rural areas who are disproportionally affected by poverty. Myanmar’s history is marred by land conflicts. Such conflicts arise on the grounds of how land is classified, used, and managed by those in charge, and their unclear and overlapping authorities. Many of the existing and emerging land conflicts are rooted in what this report refers to as ‘land grabbing’. The issue is multi-layered, and the various ways and “waves” of land grabbing that have taken place since colonial times have made it difficult to solve. It is a serious problem that has exacerbated poverty and ethnic conflicts in Myanmar. Myanmar’s geographical layout is an additional factor adding to the complexity of the situation. The possibilities for land-use differ in the various areas/zones, and so do the interests of investors. Ethnic minorities are mostly concentrated in uplands areas, where land dispossessions and loss of resource-use rights are most prevalent. Historically, tenure in these areas has been regulated by customary law. But customary law is not formally recognised by the current government. The government regularly creates uncertainty, and often leaves farmers – who have few resources to use the laws for their own benefit – effectively without rights. Statutory systems of land classifications further complicate land reform. The different classifications of land (e.g. farmland, virgin land, vacant and fallow land, etc.) are either poorly defined or missing in the existing legal frameworks, and there is a lack of legal harmonisation. This report offers a basic overview of land classifications under the existing legal framework and shows how it complicates the administration of land resources. There is no concordance between rural land classifications and actual use of land on vii the ground, which creates a great deal of legal uncertainty. Even when farmers have legal land tenure documents, their land can still be appropriated by the State. A very problematic concern, especially regarding the use of ethnic minorities’ land, is that laws and definitions largely fail to recognise customary rules or traditional use of land. This leads to appropriation (e.g. when land under active cultivation by farmers and communities utilising customary cultivation practices is classified as ‘vacant and fallow’) or to unlawful use of land (e.g. when rural farmers cultivate land that is still classified as Reserved Forest on existing maps). The recurrent discrimination of ethnic minority groups and the exploitation of their lands is intrinsically linked to the ongoing conflicts between the Myanmar Government and EAOs. Adding to the tension is that various Union Government bodies have direct, indirect, or overlapping responsibilities for the administration of land. Chapter II provides an insight into the international legal and normative framework relating to land. The Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security include essential rules regarding land tenure and land management (see table 1) and are the highest international standards on land tenure. They represent a political agreement on the minimum standards for land governance and have the characteristics of soft laws, i.e. they are not legally binding. Their aim is to ensure the right to food, poverty alleviation and sustainable environmental management. Other relevant instruments at the international level, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Social Economic and Cultural Rights (ICESCR), the ILO Convention 169 and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons are briefly discussed. They support various rights connected to land. Myanmar has so far only ratified the ICESCR (in October 2017). The current national legal framework is mainly a remnant of Myanmar’s land reform history, which is detailed in chapter III. The British colonisers (1824-1948) introduced the idea of individual land ownership, land-related taxes, a system of cadastral surveying and land registration. Land was classified for the first time, and land that was not cultivated permanently (even if it was under active fallow cycles or used for livestock grazing) was deemed ‘waste land’ and could, in line with the 1984 Land Acquisition Act, be appropriated by the state. In 1947, the constitution of an independent Burma (Myanmar) was adopted, which held that the State was the ultimate owner of all land. Laws enacted during this time set the tone for how land issues would subsequently be addressed in the future. They gave the state the right to appropriate land categorised as fallow, and gave private rights to land contingents for land being used ‘productively’, as defined by the State. This opened the doors to widespread land confiscation by a legally empowered

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