Guidebook Written by Celine Allaverdian, Julia Fogerite, Natalia Scurrah, Si Thu, Htike San In cooperation with the Learning and Alliance partners, including Farmers and Landworkers Union (FLU), 88 generation, Development Center for Grassroot community (DCGC), Point, Kachin Youth Organisation (KYO), Ta’ang Students Youth Organisation (TSYU) Reviewed by: Jean Christophe Diepart and Christian Castellanet Acknowledgements: The authors and partners would like to acknowledge the substantial contribution made by Kirsten Ewers who led the training of customary documentation with local organizations and laid the groundwork for the development the guidebook. We would also like to acknowledge the contribution of Yadana Than Htaik, Aung Tin Moe and Htet Kyaw for their support in the development and piloting of the guidebook. Finally, we would like to thank Ko Myo Thant as well as Ma Ngwe and Ko Win Shane Myint for their long term commitment to the learning process since the beginning. T` For more information, contact: Celine Allaverdian : [email protected] Julia Fogerite : [email protected] Natalia Scurrah : [email protected] Si Thu Htike San : [email protected] Suggested citation: Allaverdian, C., Fogerite, J. Scurrah N. and Si Thu Htike San (2017). Documenting Customary Tenure in Myanmar. A guidebook. MRLG guidebook #1. Vientiane & Yangon: Mekong Region Land Governance. This work is licensed under a Creative Commons Attribution- NonCommercial-ShareAlike 4.0 International License Contents LIST OF FIGURES 5-6 LIST OF TABLES 7 LIST OF ACRONYMS 7 EXECUTIVE SUMMARY 8-9 1 INTRODUCTION 10 WHY WAS THIS GUIDEBOOK DEVELOPED? 10 HOW TO USE THIS GUIDEBOOK? 11 2 LEGAL CHALLENGES AND OPPORTUNITIES FOR 15 CUSTOMARY TENURE RECOGNITION IN MYANMAR 2.1 CUSTOMARY LAW IN HISTORICAL CONTEXT 15 2.2 CUSTOMARY TENURE IN THE CURRENT LEGAL FRAMEWORK 16 2.3 INTRODUCTION OF LEGAL LAND CATEGORIES AND STATUTORY AUTHORITY 23 2.4 FORMAL RECOGNITION AVAILABLE FOR DIFFERENT LAND USE TYPES 27 2.5 OPPORTUNITIES FOR IMPROVED RECOGNITION OF CUSTOMARY TENURE 28 The National Land Use Policy (2016) 28 Peace Process and Politic al Dialogue 30 3 International law and UNDRIP 30 3 CUSTOMARY TENURE DOCUMENTATION: OVERVIEW AND APPROACH 32 3.1 FUNDAMENTAL PRINCIPLES FOR THE DOCUMENTATION PROCESS 32 Basic principles of the documentation approach 32 Key principles to obtain quality information 35 Ethical principles of research 37 3.2 BASIC CONCEPTS OF CUSTOMARY TENURE 38 Land covers many dimensions 38 Tenure and the diversity of rights 39 Different classes of right holders in customary systems 40 Different forms of tenure and management 41 What does management imply for customary tenure? 42 Different tenure arrangements under customary tenure 43 Co-existence of non-customary and customary tenure 43 Changes in customary tenure 44 Diversity of customary tenure in Myanmar 44 CONTENTS 4 DOCUMENTATION PREPARATION STAGE 45 OVERVIEW OF KEY STEPS IN THE PREPARATION STAGE 45 STEP 1: TRAINING OF CSO FACILITATORS 47 STEP 2: COLLECT EXISTING INFORMATION AND LEARN ABOUT THE TARGET AREA 47 STEP 3: CLARIFY YOUR OBJECTIVES 48 Evidence-based advocacy for law and policy 49 Developing Policy and Law 50 Advocating for the recognition of customary tenure 50 Redress land grabs or prevent future land grabs 53 Strengthen community land and resource management 54 Summary on clarifying documentation objectives 55 STEP 4: IDENTIFY WHO WILL BE INVOLVED IN THE DOCUMENTATION PROCESS 56 Government Involvement 57 STEP 5: UNDERTAKE A COMMUNITY CONSULTATION PROCESS 58 Assess potential risks and how to minimize or mitigate them 59 How to develop a conflict mitigation strategy 60 Obtaining free, prior and informed consent (FPIC) 66 Select village sites and identify community facilitators 67 STEP 6: TRAIN COMMUNITY FACILITATORS AND DESIGN 68 THE CUSTOMARY TENURE DOCUMENTATION STUDY STEP 7: PRESENT THE DOCUMENTATION DESIGN WITH BROADER 68 COMMUNITY AND OTHER STAKEHOLDERS TO GET FEEDBACK 5 TRAINING 69 5.1 INITIAL TRAINING OF DOCUMENTATION “RESOURCE PERSONS” 71 5.2 TRAINING OF LOCAL CSO DOCUMENTATION FACILITATORS 72 5.3 TRAINING OF COMMUNITY FACILITATORS 72 6 CUSTOMARY TENURE DOCUMENTATION 77 6.1 INTRODUCTION TO KEY DOCUMENTATION COMPONENTS 78 Core components of customary tenure 81 6.2 DOCUMENTING THE KEY COMPONENTS OF CUSTOMARY TENURE SYSTEMS 81 Basic village information 82 Local history 83 Land use and land management 85 Resource tenure and transfer 88 CONTENTS Institutions 89 Customary Conflict Resolution 91 Livelihoods 93 Cultural Dimensions of Land: Feasts, Festivals, Stories, Art, Dance, Song 95 6.3 STEPS FOR DOCUMENTING CUSTOMARY TENURE 96 6.4 WHO SHOULD BE INVOLVED IN THE DOCUMENTATION PROCESS? 97 Community Leaders 98 Diverse perspectives and specialized knowledge 98 Vulnerable Groups 98 Gender Considerations 99 6.5 METHODOLOGY AND TOOLS FOR DOCUMENTING CUSTOMARY TENURE SYSTEMS 101 Mapping 101 Focus Group Discussions 111 Individual interviews 112 Household Interviews 113 Field observation 114 6.6 VISUAL AND AUDIO DATA 115 6.7 KEEPING A RECORD 115 6.8 DATA COMPILATION 116 6.9 VERIFYING INFORMATION 116 7 COMMUNICATING FINDINGS, COMMUNITY OUTREACH AND COLLECTIVE ACTION 117 7.1 WRITING UP THE INFORMATION 117 7.2 GIVING BACK THE RESULTS TO THE COMMUNITY AND 120 DEVELOPING A PLAN FOR DISSEMINATION AND ACTION Data ownership 121 7.3 TAKING ACTION 121 Advocacy 122 Land tenure defense 122 Community land use and management planning 122 8 APPENDIXES 123 APPENDIX 1: USEFUL RESOURCES 123 APPENDIX 2: STAKEHOLDER ANALYSIS 125 APPENDIX 3: DOCUMENTATION DESIGN 126 APPENDIX 4: MASTER LIST OF QUESTIONS 126 APPENDIX 5: EXAMPLE OF OUTLINES FOR REPORTS 143 LIST OF FIGURES Figure 1: Step by step diagram of the entire process documentation process 14 Figure 2: Poster with land uses and responsibles Institutions 24 Figure 3: “What is not PAR?” 33 Figure 4: Action research cycle 34 Figure 5: Spending time accompanying villagers in their daily tasks on the farm. 37 Figure 6: Bundle of rights 39 Figure 7: Bundles of rights associated with positions 40 Figure 8: Process and steps for the preparation 46 Figure 9: Maps on Google Earth can be projected onto a screen or 48 printed out to facilitate discussions with communities. Figure 10: The Google map application on smartphones allows to you to “drop a pin” 48 where you are standing to find its location on a map, including on Google Earth Figure 11: Key components to successful advocacy 49 Figure 12: Community consultation process led by Local CSO leader 58 Figure 13: Key criteria when assessing risks 59 Figure 14: “Forced” consent is not consent. 66 Figure 15: Trainings for Customary tenure documentation 70 Figure 16: Training process 70 Figure 17: Different working and training options for community facilitators 73 Figure 18: Example of documentation plan and schedule 76 Figure 19: Crosscheck with google map and sketch map 77 Figure 20: Key components of Customary tenure documentation 78 5 LIST OF FIGURES Figure 21: Core components of customary tenure with land use, tenure and institutions 81 Figure 22: Example of time line combining information on changes in resources availability 84 Figure 23: Example of transect block diagrams showing land use changes over time 84 (source: E. Le Gal, N. Molinier – Agrarian diagnosis, region of Wolayta/Damot Gale. CNEARC 2009) Figure 24: Example of mapping on the ground as a first step 86 Figure 25: Land use map from customary documentation process by 88 the Farmers and Land Workers Union (FLU) in Shan state Figure 26: Example of social mapping 91 Figure 27: Household economy map 94 Source:http://www.slideshare.net/imranahmad131/pra-tools-imran-ahmad-sajid Figure 28: A villager as an integrated land-man-spiritual world relationship. 96 Figure 29: Group discussions on different aspects of customary tenure, 97 as per your objectives and documentation plan Figure 30: illustration on Gender considerations 100 Figure 31: Sketch map of land management and use. 102 Figure 32: Mapping on the ground 105 Figure 33: First step of sketch mapping with the villagers 105 Figure 34: Example of a map showing the way different villages use 108 different common natural resources, without showing boundaries Figure 35: Househole interview on Livelihoods, land use and ownership. 113 Figure 36: Walking around the village and observe the crops, villagers’ activities, and 115 the natural environment and landmarks Figure 37: Information flows 118 6 `L IST OF TABLES Table 1: Forest Types under Permanent Forest Estate (PFE) 20 Table 2: Land ownership rights under different land use types 27 Table 3: Common arguments in support of customary tenure recognition 51 Table 4: Examples showing how customary tenure documentation has different objectives and focus 55 Table 5: Examples of potential risks and how to minimize and manage them 64 Table 6: Common types of participatory mapping 110 Table 7: Example of ways to communicate findings 119 LIST OF ACRONYMS CF Community Forestry CFI Community Forestry Instruction (CFI) CSO Civil society organisation ECDF Ethnic Community Development Forum’s EIA Environmental Impact Assessment FPIC Free, Prior, and Informed Consent GIS Geographic Information System GPS Global Position System IDP Internally displaced people KEAN Kayah Earthrights Action Network’s NGO Non-Governmental Organisation MRLG Mekong Region Land Governance project PAR Participatory Action Research PFE Permanent Forest Estate LUC Land Use Certificates MIMU Myanmar Information Management Unit MONREC Ministry of Natural Resources and Environmental Conservation NLD National League for Democracy NLUP National Land Use Policy VFV Vacant, Fallow and Virgin (land) VGGT Voluntary Guidelines on the Governance of Tenure (). UNDRIP United Nations Declaration on Rights of Indigeneous People 7 Executive Summary This guidebook provides conceptual, legal and practical tools and resources to help civil society organizations guide communities through the process of documenting customary tenure at the local level. It also provides suggestions for how to build on the momentum generated by the documentation process to develop strategies and actions to defend, strengthen and promote customary rights at community, regional and national level.