Executive Summary

In October 2014 the Myanmar government unveiled a draft National Land Use Policy (NLUP) and announced it would take public comments for a limited time before finalizing the document. Once it is finalized, the new policy will determine the distribution, use and management of the country’s land and related natural resources like forests and rivers, for years to come. It promises to make profound changes to the current land-related economic, social, and political-institutional landscape.

This is an important – and bold – step for Myanmar, with its complex history of political and armed conflict and protracted displaced pop- ulations. More so because land policymaking also tends to involve simplification – that is, putting aside real-life facts and phenomena
that have the potential to derail formal-legal standardization agendas. Some simplification is unavoidable. But policies that too narrowly follow overly neat categories of land use will be unable to detect, adapt to or address many of the most significant and “messy” details of actual

land based social relations. These are often the very facts that need to be understood and taken into consideration in the first place.

So the big question at the heart of the NLUP process is: whose details
are going to count? This briefing examines this question with a particular

emphasis on an ethnic minority perspective.

An inclusive land use policy-making process that allows for - and en- courages - full and meaningful participation for all rural working people is essential for ensuring a policy outcome that is widely and e ectively accepted by society. It is a significant and welcome development that the public is invited to submit comments and recommendations. If the government is to make this step matter, then it must follow through.
It must ensure that the issues, concerns, and aspirations expressed by those whose lives and livelihoods are most a ected or threatened by forced eviction and dislocation, land confiscations and large-scale land deals, leave a substantial imprint on the policy that finally gets adopted.

The English version of the draft NLUP (as uploaded onto the gov- ernment website) is positive in some ways and includes several key provisions that would improve Myanmar’s current land governance arrangements. But it still needs improvement especially in terms of some fundamental principles in order to be better positioned

to address these key and urgent land policy challenges.

Overall, for Myanmar’s land policy to succeed, it must seek to: (i) ensure benefits to the landless and near-landless working peoples; (ii) remedy historical injustices; (iii) promote the distinct right of women to their own land rights; (iv) promote the distinct right of ethnic minority groups, and other customary communities such as Mon villagers in Karen State, for example, to their territorial claims as rural working people1 and as indigenous peoples; (v) support ecological land and labor uses in pursuit of productivity; (vi) ensure state/public support for building diverse and sustainable livelihoods; and (vii) advance the rights of rural working people and peoples to access and use land for purposes and in ways of their own choosing.

This is because the current land problem plaguing Myanmar society today is rapidly increasing land polarization, which in turn, is tied to
a deeper set of problems related to three main and broadly distinct types of situations a ecting rural working households and peoples:
(i) some already have access to land but this access threatened or
is vulnerable to threat, (ii) some currently have little or no e ective access to land and control over land-related decisions, and (iii) some previously had access but lost it due to armed conflict and also natural disasters (such as Cyclone Nargis. It is these three dimensions of the land problem in Myanmar today that define the type of policy response that is needed, and which the NLUP can and must try to address.

General Recommendations

The NLUP could be further improved in line with international standards. Given this urgent situation, we make the following overall recommendations:

1. An immediate moratorium on all current and planned land concessions and land confiscations as an interim measure to address current land conflicts;

2. Adoption of an across-the-board land size ceiling (not only on land concessions) with land redistribution and land restitution, along with recognition of informal and customary land users rights, as a core pillar of the new NLUP;

3. Adoption of a public and private investment strategy that promotes and supports rural working people to stay on the land in a self-determining manner, that supports robust local economies and local food production systems and enables them to reach local and regional markets as a core pillar of the new NLUP;

4. Revision of the draft NLUP in line with and incorporating these and the other more specific recommendations outlined in this briefing;

5. Explicit commitment to review and amend all other relevant existing laws to be in line with the above.

The NLUP process presents a strategic opportunity to act on these core recommendations toward achieving a solid social foundation for peace, development and democracy after six decades of war and a resurgence of armed conflict.

In support of making these improvements to the NLUP draft, the Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (hereinafter referred
to as “Tenure Guidelines”) are indispensable. The Tenure Guidelines

are the highest international standard on tenure of land, fisheries and forests to date and must be read in conjunction with other relevant international human rights instruments. The Myanmar Government is a signatory to these guidelines, which makes using them as the standard by which to improve the NLUP policy especially relevant and appropriate.

On the need to protect existing democratic access to land where this already exists but is or may be threatened, through legal recognition and allocation of tenure rights, guidance can be found in Article 7 (Safeguards), Article 8 (Public land, fisheries and forests), Article 9 (Indigenous
peoples and other communities with customary tenure practices.

On the need to promote democratic access to land where poor, vulnerable and marginalized people have little or no access, through distributive and redistributive reform, guidance can be found in Article 15 (on land redistribution and land ceiling).

On the need to restore democratic access to land through land restitution in cases where people have lost their prior access as a result of armed conflict or natural disaster, guidance can be found in Article 14 (on land restitution).

Speci c Recommendations

The NLUP could be further improved in line with international standards by explicitly declaring the following as policy aims in the Preliminary section of the document:

1. Respect for the multiple meanings and values in Myanmar society, including social and spiritual functions; ecological and environmental functions; and a political legitimacy function.

2. Special emphasis on poor, marginalized and vulnerable people and peoples in the context of national food security, the realization of the human right to food, and the peace process.

3. Measures to promote social justice, namely:

   1. Recognition and protection of the tenure rights of small scale food producers, ethnic minorities, women, and other poor, marginalized and vulnerable customary users;

   2. Establishment of a land size ceiling (not only on land concessions) with land redistribution of tenure rights to landless and near- landless working people, in order to promote democratic access to and control of land, as well as to avoid (re)land concentration.

   3. Establishment of mechanisms of land restitution of tenure rights of those who have previously been displaced by armed conflict

and natural disaster, especially IDPs and refugees, under safe and secure conditions, in order to restore those rights which were lost.

4. Recognition and protection of diverse agro-ecological conditions and diversity of farming systems, especially those which support food production for household consumption and local and regional markets.

5. Promotion of social justice and the progressive realization of human rights throughout Myanmar society.

Additionally, it is recommended to make the following improvements to some specific chapters:

1. Part I, Chapter 1

   1. Define clearly public purpose. The TGs o er relevant guidance: “States should expropriate only where right to land, fisheries or forests are required for a public purpose. States should clearly define the concept of public purpose in law, in order to allow for judicial review” (Art.16.1).

   2. Adopt fully the entire standard of basic principles as laid out in the TGs Article 3A (“General principles”) and Article 3B (“Principles of implementation”).

2. Part I, Chapter 2

   1. Acknowledge that in many places throughout the country customary and informal land management mechanisms and institutions have emerged or persisted, while in some places these were disrupted or destroyed by armed conflict and natural disaster, among others.

   2. Acknowledge that the five laws enacted in 2010-2013, including the SEZ law, have created dissent and should be reviewed and revised based on the purposes and principles of this national land use policy as revised above.

3. Part I, Chapter 3

   1. Indicate clearly how this structure will serve the state’s obligation to respect, protect and fulfill human rights under international law, especially the right of self-determination in the enjoyment of individual and collective land use rights.

   2. Indicate how this structure will democratize control of land related decision-making and policy implementation.

4. Part I, Chapter 

   1. Establish clear safeguards that recognize and respect actual land use practices including community decision-making.

   2. Eliminate the category of VFV land, which when combined with a top-down (re)classification approach, risks hampering e ective access to forest, land, fisheries and waterways by those whose lives and livelihoods most directly depend on it.

   3. Adopt the Tenure Guidelines Article 8.1 which states that “Where States own or control land, fisheries and forests, they should determine the use and control of these resources
      in light of broader social, economic and environmental objectives” (and also Art.4.4 of the Tenure Guidelines).

   4. Adopt the Tenure Guidelines provision in Article 1.1 on the wider objectives of responsible land policy.

5. Part I, Chapter 5

   1. The NLUP draft provides for recognition/protection of “long- term land user rights whether or not they have been registered, recorded or mapped”. Yet there is no di erentiation of di erent users, where they come from or how they got onto the land

      in question. There is no mention of those who may have been
      on the land in an earlier era and may have been displaced by armed conflict or natural disaster or due to arbitrary eviction.
      It is not explicit about whose rights will be emphasized in this process or why such recognition and protection is important
      as a matter of public policy. Also, a key theme of the TGs is that land information management systems should be a pro-poor tool used to protect poor, marginalized and vulnerable groups from dispossession. Special care must be taken to ensure that land information and administration systems do not become
      a tool for dispossession. While a welcome provision, Art. 22(e) should nonetheless strive to specify how it will be determined who these long-term land users are, and how it will ensure their tenure protection from corporate or state actors over time.

   2. These current weaknesses can be remedied by relevant provisions of the Tenure Guidelines, among others:

   3. Adopt the Tenure Guidelines Article 1.1.

4. Adopt the Tenure Guidelines Article 4 on the rights and responsi- bilities related to tenure, especially Articles 4.5, 4.6, 4.8 and 4.9,

5. Adopt the Tenure Guidelines Articles 7.1 and 7.6 (Safeguards), Article 8.3, Article 9, and Article 10.

6. Part II Chapter 1

   1. The NLUP draft stresses a technical approach to planning and chang- ing land use, which might clash with actual uses and knowledge on the ground; risks putting at risk poor, vulnerable and marginalized households and communities; principle of “bottom-up” is not applied to decision-making over which information will be accepted.

   2. The Tenure Guidelines recognize diverse development models and farming systems, as well as diverse land use change purposes. They would not envision definitions of suitability that promote large-scale investment exclusively and at the expense of the marginalized, and would envision definitions that permit pro-

      poor redistributive reform alongside other types of investment

   3. The current draft of the NLUP’s Article 26 must be read against the Tenure Guidelines provisions on principles of implementation which call for participation of the most a ected people (TG Art.3B.6). Currently, Art. 26(c) of the NLUP draft outlines a ‘bottom-up’ approach will be used for urban planning matters, while “deciding” and “determining” will rest with the district level (Art. 26(d) and Art. 26 (g)). This veers away from the principle

      of participation as elaborated in the Tenure Guidelines.

7. Part II, Chapter 2

a. “Changing land use by zoning”: interesting provision to “protect the continuous land use, land management and land tenure rights whether or not they are registered”; but not explicit on priorities in terms of how/which continuous users and uses will be prioritized; risks ratifying current users/uses at the expense of those who su ered from past misappropriations; removes earlier draft’s principle of FPI consent (e.g., role in decision making) in validating proposed land use zoning, and instead settles on informing public and stakeholders. 

b. Part II overall is oriented to providing safeguards in favor of displacement, for which there are UN Guidelines, the UNDRIP, and ILO 69; main safeguard is impartial environmental and social impact assessment, which is interesting, but not yet based on the international human rights principle of FPIC or the standard on development related evictions and displacement (UN Guidelines); provision to prevent land grabbing is severely weakened by setting limits on land acquisition according to the capacity of each company that applies for concession, rather than the international standard set by the Tenure Guidelines; safeguards on contract farming are not clearly based on existing human rights standards.

8. Part IV

   1. The NLUP establishes procedures for land acquisition, compensa- tion, resettlement, and rehabilitation together, but this section is very short and grossly lacking in detail (especially when compared with the part on taxation). Notably, restitution is not mentioned

      at all. The provision also fails to elaborate on the circumstances under which compensation will be required (i.e. Why displacement is occurring in the first place), the mechanisms and procedures in place to ensure resettlement and rehabilitation are carried out, etc.

   2. The TGs have entire sections dedicated to the respective topics
      of land consolidation (Article 13), restitution (Article 14), expropriation and compensation (Article 16). The draft NLUP should be revised
      to conform with the Tenure Guidelines, starting with shifting the NLUP draft’s emphasis from harmonization with national law to harmonization with international standards, such as FPIC (for before land deals occur) and restitution (for after land deals occur).

   3. The draft NLUP should also be revised to fully meet the most relevant and existing international human rights standard set by the UN Guidelines on Development related Eviction and Displacement, UNDRIP and ILO 69.

9. Part V

a. This part should be revised to conform with the Tenure Guidelines particularly on ensuring “accessible to all” (Art. 21.1) and should ensure that alternative dispute resolution mechanisms, including democratic customary land conflict resolution systems, are supported and made accessible.

10. Part VII

    1. Being such an important topic, this section should be moved forward in the NLUP to a place of higher prominence.

    2. Provide greater clarification to ensure that terms like cooperation, consultation, and participation are adopted in a meaningful way, and not in a checklist style manner.

    3. Potentially positive, but contradictory provision: while it claims to recognize and protect the right of all ethnic nationalities to their land, it also suggests provisions aimed at ending the traditional taungya system by reclassifying these as “permanent taungya”; lacks clarity on who gets to decide how ethnic nationalities

       can use and manage their land and prescribes a particular farming system, highly dependent on costly external inputs.

11. Part VIII

a. Art. 78 should be revised to make clear how it conforms fully with existing international standards, especially CEDAW and the Tenure Guidelines gender equality Principle of Implementation, which calls on states to: “Ensure the equal right of women and men to the enjoy- ment of all human rights, while acknowledging di erences between women and men and taking specific measures aimed at accelerating

de facto equality when necessary. States should ensure that women and girls have equal tenure rights and access to land, fisheries and forests independent of their civil and marital status” (Article 3B4).

12. Part IX

a. This is a welcome provision if it opens the way to remedying the problems associated with the existing land and investment laws; and if it raises the demands on this policy to actually
and comprehensively address the underlying land issues and in ways that go beyond a technical-procedural approach.

13. Part X

a. This provision should explicitly reference to the international human rights principle of evolutive law, and explain clearly how

it relates to the formulation of the prospective new land law.

I Discussion
Land Policy Making in Myanmar

On 18 October 2014 the Myanmar government unveiled a much- awaited draft National Land Use Policy (NLUP) for public comment. Once it is finalized, the new policy will guide the establishment
of a new overarching framework for the governance of tenure of land and related natural resources like forests for years to come. This is a very important step for Myanmar, given the fundamental importance of land policy for any society – particularly those

with recent and complex histories of political and armed conflict and protracted displaced populations. With 70% of Myanmar’s population living and working in rural areas, agriculture is a fundamental part of the country’s social and economic fabric. The situation is particularly dire for the country’s ethnic minority groups, who make up an estimated 30% of the population.

The government initiated a consultation process and organized seventeen public consultation workshops: 1 in each of the states and regions; 2 additional events in Shan State; and 1 in Nay Pyi Taw. Given the crucial meanings of land for the lives and livelihoods of the peoples of Myanmar, and the amount of land-related conflicts in the country, this was an important and welcome decision by the government. However, local organisations were quick to point out that the consulta- tion process did not provide a meaningful platform for communities to fully understand the meaning and potential impact of the draft NLUP as it was announced at short notice and did not take su cient time to fully reflect their concerns and aspirations and provide su cient feedback. Despite these concerns, various local and international organisations held pre-consultations workshop all over the country, to raise aware- ness about the draft NLUP text and facilitate community responses. Land In Our Hands (LIOH), a network of representatives of CBOs and local organisations advocating for land rights for local communities, organized 12 pre-consultation workshops.2 Following this, two expert meetings will be organized in Nay Pyi Taw to solicit final input.

Establishing an inclusive land use policy-making process that allows for - and encourages - full and meaningful participation for all rural working people is essential for ensuring a policy outcome that is widely and e ectively accepted by society.

The land use policy draft under discussion here has a national scope, and will likely have a long-term impact. Therefore it is of crucial importance to the future prospects and trajectories of agriculture and the lives of those engaged in the sector, with impacts not only upon how land is used, but also upon who will use it, under what conditions, for how long and with what purposes. Ensuring that all members

of Myanmar’s rural communities are considered in the making of
the policy, so that their needs are represented and their rights are upheld, is critical to its legitimacy and e cacy in providing a basis for democratic access and control over land and associated resources.

Once adopted, the NLUP will have serious consequences for the current land-related legal landscape. In March 2012, a year after the new Thein Sein government had come to power, the Farmland Law and the Vacant, Fallow and Virgin Land Law were passed. These two laws significantly changed the way land is governed in the country. The Farmland Law stipulated that land can be bought, sold and transferred on a land market with land use certificates. In a country where large numbers of people tilling the land do not have formal land titles this is highly problematic. The Vacant, Fallow and Virgin Land Law stipulates that all land not formally registered with the government can be allocated to domestic and foreign investors. The laws do not take into account the land rights of ethnic minorities, and fail to recognize customary and communal tenure systems in land, water, fisheries and forests. As a result, large numbers of farmers in the country, including most upland ethnic communities, have suddenly become ‘squatters’ under this law. These laws were passed through parliament very quickly, without the benefit of broad public debate or an inclusive consultation process. Both laws are mainly benefitting commercial interest and have already facilitated land grabbing and created several land related conflicts with increasing protests by local communities a ected by these developments.3

In response to growing criticism, in June 2012 the President estab- lished the Land Allocation and Utilisation Scrutiny Committee (LAUSC), headed by the minister of Ministry of Environment Conservation and Forestry. The role of the committee is to advise the President on land use policy and land laws. The NLUP was drafted by this committee, with assistance from international experts. The President established the Land Investigation Committee in June 2012, composed of MPs and headed by a representative of the military-backed Union Solidarity and Development Party (USDP). The committee is only mandated to investigate land grab cases which must not go back before 1988 (the period before the previous military government). The committee has concluded that the majority of land grabbing was done by the military.4

The draft NLUP includes several key issues that would greatly improve Myanmar’s land governance arrangements. However, some serious concerns remain that are outlined in this briefing, which also o ers recommendations for improvement.

Whose Lives Will Count in the Future Myanmar?

Land policy is never neutral; all land policymaking risks resulting in a less- than-ideal outcome no matter how “good” the process is. This is because policymaking is what James Scott refers to as “state simplification”5 – e.g., a state building activity that simplifies the complexities of real life in order to make them “legible” to public administrators and amenable to public administration. Across the globe historically, land policymaking has involved dismissing facts and phenomena that could disrupt or derail for- mal-technical land-use categorization and land property standardization.

Some simplification is unavoidable. Yet policies that too narrowly follow overly neat categories of land use will be unable to detect, adapt to or address many of the most significant details of land based social relations in reality – the very things that need to be the object of analysis in the

first place. This is the dilemma: to move forward in land policymaking, choices are made, some “details” will be taken on board, some will be given priority, but others, quite simply, will not, and instead they will be ignored or dismissed. The question is: which details are going to matter?

More to the point, whose details are going to count?

This is the heart of the matter in the National Land Use Policy (NLUP) process underway in Myanmar. That the public is invited to submit comments and recommendations is a significant and welcome development. If the government is to make this step matter, then it must follow through. It must ensure that the issues, concerns, and aspirations expressed by those whose lives and livelihoods are most a ected or threatened by forced eviction and dislocation, land confiscations and large-scale land deals, leave

a substantial imprint on the policy that finally gets adopted.

Asking whose details count in the land policy process opens a window on the larger transition underway in Myanmar today. As the World Bank points out, “Myanmar is now embarking on a triple transition: from an authoritarian military system to democratic governance; from a centrally directed economy to a market-based economy;

and from 60 years of conflict to peace in the border areas”.6 There is widespread recognition that the lynchpin in this triple transition is land (policy) reform. For some, “... land reform ... will determine the role of farmers in the country’s reform process and lay the foundation for new relations between the government and the rural poor.”7

For others, “[i]f we are truly going to form a new Myanmar under a federal system, there is an urgent need to resolve the land problem”.8 The new land policy will, in turn, be the basis for a new land law.

The outcomes of this NLUP process will indicate the direction of
the country’s reform process and the larger transition. For many societies in transition, in the absence of a “founding” moment –
that is, where it is clear that the old regime has finally come apart and a new regime has come together on the basis of a new set of fundamental agreements system-wide – national policymaking is a proxy for debate and finding agreement over the terms and direction of national development. In Myanmar, fundamentally important questions around what development, for who and for what purposes, have still to be decided. How the NLUP answers these questions will determine the breadth and depth of the new regime’s foundations.

Our response flows from two basic assumptions. The first assumption is that if the “triple transition” is to succeed, then people-centered land policymaking is needed.9 There is a reason why the slogan “Not About Us Without Us” is popular with rural working peoples movements around the world; civilian rule is not the same thing as democratic rule. Among other things, the latter means involving those who have previously been excluded in development decision making. Across the globe, democratizing rural arenas has proven to be especially di cult in the face of an array of historical and institutional obstacles.10

Stepping back, Myanmar’s transition has reached an historical moment, where fundamental issues are converging and demanding legitimate solutions that must finally go beyond promises and ceremonies. The new land policy’s answer to the following core question – “who has or ought to have, what rights to which land for how long and for what pur- poses?” – will either raise or ruin the political legitimacy of the Myanmar state in the eyes of many. For this, policy must be people-centered.

For Myanmar’s land policy to be truly people-centered and the “triple transition” to succeed, it must seek to: (i) ensure benefits to the landless and near-landless working peoples; (ii) remedy historical injustices;
(iii) promote the distinct right of women to their own land rights; (iv) promote the distinct right of ethnic minority groups, and other customary communities in minority areas such as Mon villagers in Karen state, for example, to their territorial claims as rural working people and as peoples; (v) support ecological land and labor uses in pursuit of productivity;

(vi) ensure state/public support for building diverse and sustainable livelihoods; and (vii) advance the rights of rural working peoples to access and use land for purposes and in ways of their own choosing.

Our second assumption is that as long as the “founding” agreements
still have to be worked out, the transition process itself remains fluid and dynamic, and potentially open to previously excluded voices to be heard. But those voices must be raised, and the government must respond account- ably. Important steps have been made in national reconciliation in Myanmar in recent years. The initial gains must be extended to reach those who have historically been excluded and marginalized, or risk getting overturned.

Here, a human rights-based approach to land policymaking is essential. In addition to identifying who should be prioritized as a subject-matter of state policy, a human rights-based approach has the potential to apply the brakes on patterns of food-energy production and consumption that incentivize and encourage land grabbing, displacement/ dispossession, and adverse incorporation of poor people into industrial agricultural, fishing and forest food-energy enclaves. In the end, access to and control of land is key to the realization of other basic human rights, including the right to food, the right to housing, and others, and it is also a key to having e ective access to and control of other natural resources, including water, fisheries, and forests. Land and its related natural resources are crucial for life; accordingly, States through their public policies must approach them as a matter of human rights, and not just a matter of business.

The Land Problem

Seventy percent of Myanmar’s population live and work in rural areas, and small-scale and subsistence agriculture is a fundamental part of
the country’s social and economic fabric. According to the World Bank, “From a strategic point of view, agriculture is of central importance for achieving the twin goals of ending extreme poverty and promoting shared prosperity in Myanmar. The sector accounts for about 43 percent of the GDP, which is [the] largest share of GDP among ASEAN members....The sector generates about 54 percent of total employment and is source

of livelihoods for about 70 percent of population who live in rural areas. Some 29 percent of rural households live below the poverty line”.11

Behind this situation of course is a serious land problem, which is increasingly highlighted in the national and international news media. As has been noted by some observers, “Under the past 50 years of military rule, land was frequently taken from farmers with little or no compensation and given to cronies of the former junta. It is estimated that approximately 1.9 million acres were illegally transferred to pri- vate companies in the past 20 years, even though 70 percent of that land has never been developed and is still used for farming by the original owners.”12 By mid-2013, the government had reportedly given out as much as 5.2 million acres for agribusiness concessions. 13

Often land issues are described in terms of land grabbing. But in reality, land grabbing is not the only land problem plaguing Myanmar society, and it is in fact tied to a deeper set of problems related to three main and broadly distinct types of situations a ecting rural working households and peoples: (i) their access to land exists but
is threatened or is vulnerable to threat, (ii) they currently have little or no e ective access to and control over land-related decisions, and (iii) they previously lost such access for various reasons especially like getting caught in crossfire during armed conflict
or getting caught in a natural disaster and being forced to flee.

The discussion below is not a comprehensive look at the land problem in Myanmar; rather it is a brief description of these three distinct patterns that together make up the problem of lack of democratic access to and control over land. It is these three dimensions of the land problem in Myanmar today that determines the type of land use policy response that is needed, and which the NLUP can and must try to address.

(i) Need for public policy to protect e ective access to land where this already exists but is or may be threatened – especially land users in ethnic borderland areas and upland shifting cultivators in general, as well as any land users: without the authorized documentation; with authorized documentation but subject to arbitrary eviction; and with papers but vulnerable to “the dull compulsion of economic forces”. Ethnic minority men, women, and children make up an estimated 30- 40 percent of the total population, and ethnic states occupy some 57 percent of the total land area and are home to poor and often persecut- ed ethnic minority groups. Most of the women and men living in these impoverished and war-torn areas are subsistence farmers practicing upland cultivation. Economic grievances have played a central part in fuelling the civil war. While the central government has been system- atically exploiting the natural resources of these areas, the money earned has not been (re)invested to benefit the local population.14

(ii) Need for public policy to promote e ective access to land where poor, vulnerable and marginalized people have little or no access, through distributive and redistributive reform – especially 

(i) women, who “work as farmers in their own farms, as unpaid workers on family farms and as paid or unpaid laborers on the farms and plantations of others. In addition, while women are increasingly responsible for the production and processing of food as farmers, fisherwomen, forest gatherers and waged agricultural workers,
they do so with very little legal protection in their access to natural and productive resources and in the workplace (emphasis added)”15; (ii) landless labourers who are said to comprise as much as “[o]ne-third of Myanmar’s 47 million rural residents”.16 This problem cannot be dealt with through regular market mechanisms, but must be addressed through purposive state policy since market mechanisms are a contributing factor in rendering people landless or near-landless

(iii) Need for public policy to restore democratic access to land (restitution) in cases where people have previously lost such access for di erent reasons such as getting caught in the crossfire during armed conflict and being forced to flee or getting caught

in a natural disaster and being forced to flee – this is especially the pressing issue for IDPs and refugees, who after decades of conflict are currently estimated to include 650,000 internally displaced persons (IDPs) in Burma’s ethnic borderlands, as well as over 130,000 refugees (mostly Karens) and as many as two million migrants, many of them unregistered, in Thailand.17

This multi-dimensional land problem outlined above is undoubtedly di cult, complex, contested, and therefore delicate. Ethnic minority populations in particular are often at an especially deep disadvantage
in claiming land rights as many are without Citizen Scrutiny Cards. This card confers citizenship rights, including the right to obtain formal land use rights. To illustrate: ‘’Land ownership is di cult, as most of the villagers have documentation from armed opposition groups, not from the central government”, explains a Karen community worker. “Their land tenure is based on these local documents. It is crucial that the Karen National Union [KNU – an ethnic armed opposition group] negotiates land titles in the peace talks, otherwise it will dissolve into a big mess. Many people who had documents lost them when they fled to the jungle.”18

On top of this, “Because of the conflict the original population has fled and their land has not been used for a long time”, says a representa- tive of a Karen civil society organisation. “The government realizes this, and companies have started to apply for permission to use this land. Villagers coming back find their land occupied.” “The upland areas have no record and demarcation of land use, so we do not know how much area has already been confiscated,” says the Karen civil society worker. “There is also no independent mechanism to address land conflicts. When IDPs and refugees return, maybe some people are living in their areas, and we need to think about this.”19

To move forward under such challenging conditions, it is important from the outset to distinguish between social-political process and technical-administrative procedures and mechanisms, and to accept the need to put the latter in the service of the former. An exclusively top-down statist approach is likely to simply worsen the situation.

Instead, what is needed to move forward is an approach that puts state-led procedures-mechanisms at the service of bottom-up people- centered processes of negotiation and collective decision-making.
An enduring negotiated solution to the land problem is one that is capable of opening up political space for many tailored solutions
to be negotiated at the ground level, where the primary agents of constructive change – the various di erentiated segments of rural working households and communities who will be most a ected
– are able to discuss, debate and negotiate a tailored agreement
for their peaceful co-existence. This is the only way to minimize,
and perhaps even avoid the risk of more violence and conflict.

This takes us back to the underlying issue of who will get to decide
who has what rights to which land for how long and for what purposes. Neither land policies nor land practices on the ground arise in a vacuum. Land rights, land practices and land policies are the outcomes of very particularized contestation and struggles between di erent social classes and interest groups, and between the latter and the state. Historically, and emerging out of and embedded in existing power configurations, there is a strong tendency for the changes wrought by

land policies to favour (or end up favouring) dominant landed classes and groups, as well as powerful state o cials and bureaucrats.

But such an undemocratic outcome is neither automatic nor inevitable. Strategic steps can – and must – be taken in Myanmar to prevent this
from happening, while setting the country on a course in the direction of real positive change. In sum, the overarching problematic is one of lack of e ective access to land, combined with an underlying lack of democratic control over land – e.g., e ective participation in decision-making over how land is used, for which purposes, and how social relations surrounding land are organized, especially in those areas targeted for large-scale (for- eign) “investments” and land deals and who have been political excluded, socially marginalized and economically impoverished by past state policy.

The Iron Cage of Existing Laws

Stepping back, it is clear that Myanmar is at a crucial moment in
its land policymaking where key issues are converging and must be addressed in a way that increases the political legitimacy of the state. But achieving this will not be easy. One problem is that the current government was born mired in congenital weaknesses and tainted by past failings on the part of the state. Its ability to cope with this situation has been further constrained by the iron cage

of recently promulgated land and investment law and policy.

The series of land laws designed behind closed doors and promulgated between 2010 and 2013 changed the legal basis for land use rights, especially in the uplands, while establishing a legal land market in order to encourage domestic and foreign investment in land. This situation is unlikely to reduce injustice and inequality, but more likely to worsen the problem and contribute to further land polarization. Had the new land laws been subjected to prior public consultation, the government might have had the opportunity to revise them in order to gain their acceptance. Instead, these laws have been criticised and largely rejected by land

and ethnic rights defenders, and the government’s political legitimacy has been damaged. In order to achieve a people-centered land policy, changes to the existing land and investment laws are necessary.

The Farmland Law stipulates that land can be legally bought and sold on a land market with land use certificates (LUCs), thereby inaugurating a Western-style (individual) private property rights regime that reduces the value of land and associated natural resources to an economic asset. Other non-economic meanings and values of land have thus been discarded. Meanwhile, the legalisation of a land market without strong public safeguards has opened the door to a new generation of problems. “Under this new law, farmers who have been growing on hereditary land for their livelihoods can only possess land by means of o cial registra- tion. As the registration process is not easily accessible for rural people, the land policies put them at risk. In most cases, they are helpless”.20

The Vacant, Fallow, and Virgin (VFV) Land Law allows the central govern- ment to reallocate villagers’ farm and forestlands – both upland shifting land, especially fallows, and lowlands without o cial land title – to domestic and foreign investors. Community-managed resources, such as village forests, waterways, fishponds and grazing lands are equally susceptible to confiscation, despite being crucial to local livelihoods

and food security, particularly for vulnerable households. The law allows for a total acreage for industrial crops for up to a maximum of 50,000 acres for a thirty-year lease, with the possibility for renewal.

These two new land laws immediately put upland communities – composed mainly of di erent ethnic minority groups - under threat
of losing their lands, many of which were already being targeted for resource extraction, agribusiness concessions, and mega infrastructure projects. The new laws undermine their right to land, including their right to decide how they will use and manage their farms and forestlands,
as well as their right to food and water, among others, while the right
of return of hundreds of thousands of IDPs, refugees and migrants
who used to occupy and use land in these areas is forestalled.

A third law designed to attract Foreign Direct Investment (FDI restricts some sectors, including the agricultural sector, to large-scale (private) investment, and gives land use rights of up to seventy years, with an option to extend if the concession is located in less developed and poor communication areas that are ‘suitable for the economic development

of the whole country’. The Myanmar Investment Commission (MIC) can authorize foreign investment in restricted sectors, including in new ceasefire areas, if it deems these to be in the “national interest” and with little recourse for those who disagree.

Finally, the Special Economic Zones (SEZ) Law, which gives further incentives for foreign investors, including up to 75 years land use rights for large-scale industry, low tax rates, import duty exemptions, unrestricted foreign shareholding, relaxed foreign exchange control, and – most chillingly – government security support. The law has raised deep concerns over an array of negative impacts, including forced dislocations of households and villages, benefits that do not materialize, widespread environmental degradation, and severe industrial pollution, among others. Two large SEZs have already been established (the Dawei SEZ in Tanintharyi Region and the Kyaukphyu SEZ in Rakhine State) and five more are planned in ethnic regions.

Each of these laws was rushed through the parliaments without benefit of broad public debate or serious consideration of their political, economic and social ramifications. They are widely seen as benefitting especially local cronies and ex-generals, some of whom were involved in drafting and/or passing these laws as newly-elected MPs, as well as large private foreign investors, at the expense of rural working people.21 The resulting loss of cultivation rights is likely to exacerbate rural landlessness, poverty and as- sociated problems, such as rapid rural–urban migration with little prospects for urban employment opportunities, environmental degradation, and growing local and national food insecurity.

An Emerging Social Volcano

As the new land and investment laws have taken e ect, a new wave of corporate large-scale concessions, leading to either reallocations of land away from existing land users and rural working households and communities, or to unbalanced contract-farming arrangements,22 has emerged to become a major national issue. There is fierce (and

growing) resistance and opposition to numerous new and old land deals and “development” projects on the ground by communities living in their path. The previous military government concluded many of these deals.

One example is the construction of a Chinese owned gas pipeline overland from a new deep-sea port at Kyaukphyu in Rakhine State on the Bay of Bengal to Kunming, the capital of China’s Yunnan Province. The 1,100-kilometre pipeline will pass through Rakhine State currently embroiled in communal conflict, central Myanmar, and northern Shan State where armed conflict continues. Concerns of local people are due to existing conflicts near the pipeline as well as problems with how the Chinese company has handled communities in the pipeline’s path. Another example is the deeply controversial Myitsone hydro- power dam. Although President Thein Sein won praise for suspending the China-backed Myitsone project. Protests have likewise continued
– and been repressed – over this and other controversial economic projects agreed to under the previous military government.23

Still another example is the Letpadaung copper mine project, which has sparked sti resistance from farmers living in the areas targeted for its expansion. They have repeatedly rejected o ers of compen- sation and blocked roads to keep out bulldozers and to halt fencing operations. Before he passed away in April 2014, the NLD’s U Win Tin observed that the case showed that “[m]oney cannot always appease the people, because sometimes it is their pride and love for their hometown that will prevail over money”. 24 But this message has been lost on proponents of large-scale foreign investment driven develop- ment, who have dismissed the “culture of protest” at Letpadaung as the work of “issue protesters who have come in from the outside”.25

This view contrasts sharply with that of the UN Special Rapporteur
on Human Rights in Myanmar, who said: “[i]n an attempt to protect their rights, people have resorted to public protests, which have led to arbitrary arrests and excessive use of force by the police. The Special Rapporteur underlines that the way to deal with these protests is not to arrest and prosecute the protesters, but to listen to their concerns and grievances and develop a system that protects their human rights”. 26

Despite ample signs that villagers themselves are serious in their opposition to the mine and their determination to hold onto their land and way of life, the government has been unwilling to concede defeat. This led directly to the tragedy last 22 December 2014, where one protester, woman farmer Daw Khin Win of Moe Kyoe Pyin Village, Sagaing, was shot dead by police.27 Predictably, Daw Khin Win’s death at the hands of government police has prompted further protests and appears to be widening dissent. One promi- nent member of Myanmar’s EITI civil society steering committee has said that the government’s handling of the case has caused him to “question his future participation in the EITI process”.28

A Profound Historical Juncture

Myanmar is clearly opening up for business, leading to a surge in land grabbing and sparking firestorms of social protest, which in turn has increased “corporate social responsibility” type rhetoric. Vikram Kumar, Resident Representative in Myanmar of the International Finance Corporation (IFC), the financing arm of the World Bank focused exclusively on the private sector in developing countries, for example, has warned potential investors of “a delicate path to tread – ensuring that they access this once isolated market in an ethical and inclusive ways while maximizing the positive benefits for a population mired in poverty”.29 Yet it is clear to many that concern for social and environmental e ects of large- scale land deals has so far, predictably, remained largely rhetorical.

Less obvious perhaps have been the political effects of the growing gap between this rhetoric and reality: (i) deepening dissent (ii) rising calls for rolling back the government’s development strategy and (iii) creation of small openings for moving away from the status quo.