Successive governments in Myanmar have confiscated land for development projects with little regard for formal legal processes and without the Free, Prior and Informed Consent of communities. This practice disproportionately affects indigenous people due to a lack of recognition of their indigenous customary land use practices, as evidenced in a new report titled, ‘Our Customary Land Management Systems' by Kayah Earthrights Action Network, KEAN, an EarthRights alumni organization.
In Myanmar, as a result of factors including weak laws and poor governance, farmers face severe land tenure insecurity. Since colonial times, the union government had the legal right to acquire land for public purpose under the 1894 Land Acquisition Act. This power has been used to facilitate large-scale land grabs of indigenous people’s land on behalf of private businesses and the military. In 2012, the government enacted the Vacant, Fallow and Virgin Land Management Law and Farmland Law, which exacerbated land tenure insecurity, particularly over land subject to customary agricultural practices. When the National League of Democracy (NLD) took power in 2016, the Union level Land Use Management Central Committee had over 6,000 unsolved land complaints.
The report by KEAN shows that these laws leave indigenous people particularly threatened as they have their own customary land use management systems. Indigenous communities have managed their food security, environment, and natural resources, and dictated their own traditions, culture and politics for centuries. Despite focusing only on Kayah (Karenni) State, the report pressures Myanmar’s land laws to protect all of the over 130 distinct ethnic groups in Myanmar. In the sample of 52 villages, KEAN found that customary land use management systems shared many common features including classification, administration and customary settlement practices for land disputes.
As sanctions and restrictions on investment in Myanmar are lifted, it is imperative that the legislative framework ensures that indigenous people’s own customs and practices are respected according to international treaties and mechanisms, such as the United Nations Declaration on the Rights of Indigenous People. In all situations, when the government is acquiring land for a public purpose, due to the historical significance of indigenous people’s customary land use management systems, free, prior and informed consent must be a requirement.
For Myanmar to flourish as an inclusive democracy, it is essential that indigenous people’s rights are respected. KEAN’s report provided 12 key recommendations to government, policy makers, ethnic organizations, investors and civil society organizations. These recommendations focused on recognizing customary land management practices in statutory law and the ability for indigenous people to practice self-management. In addition, the report emphasizes the need for the government to practice free, prior and informed consent and ensure that indigenous people can actively participate in decision-making. In order to solve existing land disputes and to prevent their recurrence in the future, recommendations from civil society and ethnic groups themselves must be heard and implemented at the policy level.