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Myanmar fails to pass New National Land Use Policy before elections

November 6 2015

Indigenous wet-rice padi fields in Chin State, Myanmar. Photo by Christian Erni/IWGIA
Myanmar’s parliament was expected to pass a new national land-use policy before the general elections of 8 November 2015. However, this has not happened. Thus, a key policy decision which would pave the way for more social justice in rights to land and resources, and as part of this the recognition of customary rights of indigenous peoples, has been postponed

By Chris Erni and Cæcilie Mikkelsen

When Myanmar goes for general elections on 8 November, 31 percent of the seats of parliament will be elected from States largely dominated by ethnic nationalities (the term use in Myanmar for those peoples, many of which self-identify as indigenous peoples). One of the issues of greatest importance to indigenous peoples in Myanmar is the lack of land tenure security.

Struggle for control over land and natural resources related to large scale development projects is driving violent conflict and human rights violations in Myanmar’s seven so-called ’ethnic States’.  Militarization, land grabbing and threats to traditional and sustainable livelihoods are daily occurrences in indigenous communities with negative effects on their health, food security and environmental resilience. 

The proposed new National Land Use Policy is likely to form the basis for the revision of laws pertaining to land and forest use and tenure (article 37). The Draft National Land Use Policy clearly provides for the recognition and registration of land use and tenure rights of ethnic nationalities in the Land Law, and it provides for the recognition of land tenure rights of communities.

Draft policy recognises the land use rights of ethnic nationalities
Of crucial importance to indigenous communities is that the current (6th) draft of the policy includes a whole chapter on land use rights of ethnic nationalities. It refers to the traditional land use system of ethnic nationalities, traditional land use rights and land tenure right, including establishing of a process for recognition of the rights of communities (not just individual men and women) to hitherto unrecognized and unregistered land.

It also provides for the preparation and revision of customary land use maps and records of ethnic nationalities in a participatory manner with involvement of representatives and elders; for the reclassification of customary lands of ethnic groups in accordance with the expected new National Land Law, and for the temporary suspension of any allocation of land until existing ethnic nationality land users register these customary lands.

It also provides for support to improve the land tenure security and agricultural practices of ethnic nationalities, “in order to protect the environment, increase climate change resilience and improve their food security” (para. 69).

An important improvement over the earlier (5th draft) is the addition of article 72 on the restitution of land lost “due to civil war, land grabbing or natural disasters”. It states that “desire to resettle to their original lands, adequate land use rights and housing rights shall be systematically provided in accordance with international best practices”.

The formulation “in accordance with international practices” is often used throughout the text. This is one of the weaknesses of the current draft policy since it thereby avoids referring to existing international human rights law like the International Convention on the Elimination of Racial Discrimination, International Convention on Economic, Social and Cultural Rights, International Convention on Civil and Political Rights, or the International Convention on the Elimination of Discrimination Against Women.

Improved protections of local communities against land grab   
Although the draft national land use policy also fails to make clear references to key international human rights instruments on the rights of indigenous peoples, like the United Nations Declaration on the Rights of Indigenous Peoples or the International Labour Organisations’ Convention 169, it will provide for some protection and compensation of local communities in situations where their territories are targeted for public or private investments.  

Article 27 of the current 6th draft provides for the protection of existing land users in local communities from negative impacts of proposed individual land use changes, and, among others, for Environmental and Social Impact Assessment (ESIA) before considering a grant for individual land use right or lease of land, and, also new, it provides for protecting lands that are under rotating and shifting cultivation, and customary cultivation practices.

With regards to the amendment and enacting of relevant laws in line with the land use policy (article 38), it provides for “public participation management process and fair, equitable and systematic procedures”, for defining “measures to prevent and control corruption, and misuse of power”, and for an ”effective, consistent and fair valuation system when providing compensation and relocation for people affected by land acquisitions”.

The drafting of the National Land Use Policy began in 2013. In October 2014 the government initiated a process of public consultation. The policy was expected to be officially adopted before the general elections of 8 November

Myanmar – an ethnically diverse country
Myanmar is one of the most ethnically diverse countries in Asia with approximately 108 ethno-linguistic groups. Officially, they comprise around 40 percent of the population of 51.41 million. The country is divided into seven, mainly Burman-dominated Divisions and seven ethnic States, populated by indigenous peoples or so-called ’ethnic nationalities’ such as the Shan, Karen, Rakhine, Karenni, Chin, Kachin and Mon and many more.

Myanmar’s indigenous peoples are concentrated in the mountainous areas of the east, north and west of the country. These are the least developed areas with the highest poverty rate. Since Myanmar’s independence in 1948, many of the ethnic nationalities/ indigenous peoples have fought armed struggles against the Burman-dominated central government, initially for secession and independence, but today, in almost all cases, for autonomy, equal rights and federal democracy within the Union of Myanmar.

Ceasefire agreements were made with all except a handful of ethnic armed groups and a draft nationwide ceasefire agreement was signed on 30 March 2015. Lasting peace is a precondition for sustainable development and poverty alleviation in Myanmar, and one of the key issues that need to be addressed to bring about a permanent solution to ethnic conflicts is control over land and resources.

Myanmar has ratified only very few international human rights instruments (e.g. CEDAW).  It did vote in favour of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007. The government, however, claims that all full citizens of Myanmar are ‘indigenous’ and on that basis dismisses the applicability of the UN Declaration to any specific groups in the country.   

The 6th draft of the National Land Use Policy can be downloaded here