Catriona Knapman offers her insight on changing facets of land reform.
This post is part of Tea Circle’s “Year in Review” series, which looks back at developments in different fields over the last year.
Since 2012, land governance in Myanmar has been undergoing major changes. This article aims to capture the changes of the last year, framed through my perception of working as a consultant for a range of local NGOs, INGOs and donors. While this will inevitably be coloured by my own experience, I hope that I can present for wider discussion and reflection some of the key events and issues that I have found interesting over the past year.
Law and Policy Development
The Myanmar National Land Use Policy (NLUP) was published in March 2016, after 2 public consultations that took place during 2014 and 2015. This document represents an important step forward in land governance, not only due to its content, but also due to the consultative process through which NGOs and farmers across the country provided input and ideas for an initial draft, which was then used to develop the final version of the policy. This process was unprecedented in law development in Myanmar.
Since the new NLD government came to power at the end of March 2016, the status of the NLUP has become somewhat unclear, as authorities have not officially supported the policy’s implementation or the proposed National Land Law (an umbrella law for land under which the NLUP is situated). More recently, the Commission for the Assessment of Legal Affairs and Special Issues has put forward a series of proposed amendments to the NLUP which include removing sections on gender equality as well as protections around customary land governance. These are controversial recommendations for changes to articles that many civil society groups felt were key elements of the policy. At present, it is unclear if these amendments will be accepted by Parliament.
Other laws and policies released this year include:
- The latest version of the Karen National Union Land Policy launched in May 2016. This initiative of the KNU intends to set out a Karen-led vision for land management, including protection of customary land rights and equitable resource sharing. In contrast to Myanmar land law, which defines land as a resource owned by the state, the policy takes the perspective that land belongs to the people. The KNU policy has six major chapters that cover the following: farmland, forests, water resources, fishery and other natural resources. Other states have also been developing their own land use policies, but they are not yet at the stage of completion.
- The new Investment Law came into force in the new tax year. The law includes provision for a new process for companies wishing to invest in Myanmar and for the Myanmar Investment Commission to review a prospective investor’s commitment to responsible investment, including human rights and environmental issues.
- A draft Agricultural Development Strategy (ADS) is being developed by the Ministry of Agriculture Livestock and Irrigation. The strategy aims to implement the 2016 Agricultural Policy and notably its vision for ‘an inclusive, competitive, food and nutrition secured and sustainable agricultural system contributing to the socio-economic well-being of farmers and rural people and further development of the national economy.’ The strategy includes implementation of the policy’s vision for land and includes an investment plan that aims to achieve accelerate agricultural growth through three strategic pillars: governance, productivity and competitiveness. The ADS is currently undergoing a phase of public consultation across Myanmar.
Laws on the Ground
Implementation of the two laws which launched the land governance reform 2012—the Farmland Law (FLL) and Vacant Fallow Virgin Land Law (VFVLL)— continues, with the process of translating their principles on-the-ground proving a complex process.
The FLL allows for the registration of user rights over land classified as Farmland, by individual land users. This represents an important change from past land administration, which did not allow individual registration of plots of agricultural land with the government. However, as land records have, in many cases, not been kept updated in the past 80 years, the classification of land by the government does not always accurately reflect how land use has evolved on the ground. This creates many complications in the way that land is classified and registered.
The registration process itself also has many difficulties. Farmers face problems with lack of information about the process and local township offices need more resources to carry out the work effectively. Other issues are linked to inter-household gender dynamics— particularly because the law provides for household registration in the name of the head of the household, which is in most cases a man. Joint registration can in some cases be successfully negotiated, but in general this results in land ownership being largely the domain of men, with women accessing rights by proxy, through the men in their families. This requires women farmers to maintain stable social arrangements if they are to have secure access to land and, as such, renders their land tenure more insecure than men’s.
As this article was going to print, Parliament released a number of proposed amendments to the FLL for public comment.
The VFVLL allows for granting land for commercial purposes, where that land is considered vacant, fallow or virgin, according to government classifications. As noted above, government classification of land does not always accurately reflect land use on the ground and as a result this law has been the subject of much controversy, especially in ethnic areas, where the government considers land governed customarily to be vacant land. The application of the VFVLL has seen new evolution this year, as the new NLD government and civil society are seeking to enforce provisions to reclaim land allocated to companies for large-scale agriculture, following provisions in the law to reclaim land which has not been exploited within four years of acquisition. These provisions apply only where land has not been used for the intended purpose or fully exploited by the investor within four years. Through these procedures there is scope to return land to communities who have ancestral and historic links to the area.
In Tanintharyi, there is particular interest in reclaiming land under the VFVLL. A process has been developed as a test study called the Oil Palm Sector Review (OPSR), led jointly by the Regional government and One Map Myanmar, with active support from local civil society. The OPSR will involve collaboration between government, private sector and civil society to discuss areas of land previously granted for oil palm sector development, which has not been planted. This is the first process of its kind under the law.
Similar to the Oil Palm Sector Review, there are a number of cases I found particularly interesting over the past year, and which I believe highlight some of the complex challenges facing Myanmar’s land governance reform process.
Land and Peace
Of note are two legal cases concerning IDPs who were criminally prosecuted by two oil palm companies for allegedly causing damage to their plantations. The IDPs claim to have returned to their traditional land following recommendations from the Karen Ethnic Minister at the regional level, who confirmed that it was safe for them to return to their former homes. These IDPs reportedly left their land over ten years ago due to conflict in the area, which was the site of ongoing unrest between government and KNU forces. These cases highlight the complexity of the current situation as it relates to peace in the country. While there has been a ceasefire in the concerned areas, and while the country has opened up to the wider world for trade, there is currently no process to support management of land in cases of displacement due to conflict. The contested land ownership reveals two systems at play, each of which enable conflicting actors who feel they have an equal claim to the land, one through a governmental process and the second through historical, customary claims. While there remains no system to resolve such disputes, there is a risk that the vulnerable will be further punished rather than supported.
Another case that shows similar complications is that covered in the “Green Desert,” research report produced through collaboration by a number of CSOs in Tanintharyi. It highlights the lack of regulation around land and business acquisition and also the lack of controls and protections for displaced populations attempting to reclaim land.
In a similar vein, the peace negotiations remain extremely pertinent to land governance in the country. The 2nd Pinlon Conference took place at the end of May 2017. The attendees signed a 37 point Pyidaungsu Accord, which included 10 points on land and natural resource management. These set out broad areas of agreement around land management going forward in the peace negotiations, but there is still a need to see how these will be implemented over the course of the negotiations into more practical agreements and on the ground. There is a fine line between land management and territorial issues and as such the process of finding practical arrangements will likely be complex and require careful negotiation to ensure lasting peace.
Land and Gender
Much of my work revolves around the issues pertinent to women farmers. Although women play a key role in agricultural labour, they are often not considered as landowners or decision makers in land governance.
The Land Core Group organised Myanmar’s first Female Farmer Forum in July 2016 where women farmers from 12 states and regions came together to discuss issues important to them, many of which related to their access to and control over land. Major themes that emerged were barriers to land ownership and decision-making in land for women— many of which are due to discrimination in inheritance practices and in state systems that have a bias toward issuing land documentation in the name of men only, due to their denomination by the state system as household heads. Women also noted the particular obstacles they face in accessing state service departments, attending community meetings and obtaining information on land due to prejudice around their ability to be involved in land management and land decision-making. A briefing paper was followed by a participatory photo exhibition of images by women farmers that highlighted women’s detailed knowledge and understanding of the land they farm— showing a vision of land as a place of community, family and livelihoods. This stands in stark contrast to the assumptions about women that underlie current policy approaches to land.
Karen Human Rights Group’s research details some of the main issues for women in post-conflict areas, noting the particular challenges for single women, widows and women whose husbands do not live with them due to pressures of land confiscation. Also, while some women had taken on positions of authority in these areas during the conflict, men have been re-occupying these roles since the preliminary ceasefire.
Namati also issued a report that notes that application for land registration is led almost entirely by men and that men are predominantly managing land registration processes and that joint registration is rarely sought in practice.
Going forward, the biggest issues over the next year will concern negotiations related to land in the peace process as well as reforms of the FLL and the potential reform and/or implementation of the NLUP. Challenges for women farmers, reclaiming land under the VFVLL, and land registration will continue to be tested at a practical level, with individual cases offering the potential for important learning on a national scale.
Catriona Knapman is a consultant based in Myanmar working on a range of land governance issues, with a particular focus on women’s land rights and rural tenure. For more information see: www.writingonrights.com.