Land

Myanmar is in the midst of rapid economic and social change, with dramatic consequences for land tenure. Under the military regimes that ruled Myanmar since 1962, the state was the main landowner, either directly or (after 1988) via proxy companies. In the current reform process, smallholders are reclaiming their legal land rights at the same time that foreign investment is flooding the country, placing all previous land use arrangements under increasing pressure.

Men and women in Phar Late Wa village in the Ayeyarwady river basin are busy in the paddy fields during harvest time. Photo from Livelihoods and Food Security Trust Fund (LIFT), published 17 May 2016. Copyright LIFT, non-commercial.

Men and women in Phar Late Wa village in the Ayeyarwady river basin are busy in the paddy fields during harvest time. Photo from Livelihoods and Food Security Trust Fund (LIFT), published 17 May 2016. Copyright LIFT, non-commercial.

Myanmar is the largest country in mainland Southeast Asia, with 70 percent of the population working in agriculture,1 although arable land makes up a relatively low 19 percent of national territory.2 Once the largest rice exporter in Asia, Myanmar experienced a drop in production during the years of military control, and agriculture is now further threatened by environmental change and an influx of land-related investment. Land use varies between the rich rice paddies of the Ayeyarwady Delta, the central Dry Zone, and mountainous areas inhabited by ethnic minorities practicing shifting cultivation (taungya). These latter areas are now the site of numerous land concessions and natural resource extraction projects, leading to new cases of displacement and conflicts.3

Land policy and administration

The Myanmar Constitution (2008) provides for private property rights, while maintaining that the state is the “ultimate owner of all lands and all natural resources” and shall “supervise extraction and utilization of State-owned natural resources by economic forces”.4 More than 30 laws govern land management, some of them dating from the 19th century British colonial period.5 At least 20 government agencies are involved in land issues, with a complex system of varying structures at both the national (Union) level and provincial (State) levels.6 In ethnic minority areas, local governments and military commanders have significant influence over land policy; for instance, the Karen National Union has its own Land Use Policy and registration procedures,7 although this is not recognized by the national government.

Subdivision of paddy fields beside main road, Aein Gyi village, Twante, Myanmar. Photo from San Thein, Gret Land Tenure Study Team, published 19 May 2016. Copyright LIFT, non-commercial.

Subdivision of paddy fields beside main road, Aein Gyi village, Twante, Myanmar. Photo from San Thein, Gret Land Tenure Study Team, published 19 May 2016. Copyright LIFT, non-commercial.

Responsibilities for land management are divided among the Ministry of Agriculture and Irrigation for lowland agricultural land, and the Ministry of Natural Resources and Environmental Conservation (MONREC) for upland (forest) lands. Residential land, meanwhile, is managed at the city level. The rapid opening and political transition has led to bureaucratic overload, as the new government has enacted new laws and formed new institutions, including MOECAF established in 2011.8 The Vacant, Fallow and Virgin Land Law, Foreign Investment Law, and the Farmland Law, all passed in 2012, were designed to increase investment, encourage large-scale land use and promote agricultural income.9 These laws have been criticized for supporting investors’ interests over secure land holdings of smallholder farmers10 and enabling seizure and re-allocation of land as “vacant” or “fallow” that is actually under cultivation or part of regular crop rotations practiced by taungya farmers.11

In January 2016, Parliament (while still under the control of USDP) approved a new National Land Use Policy (NLUP) following an extensive public consultation process. The new policy aims to harmonize existing laws and guide development of a new land law.12 The policy assures equitable land access for smallholders and landless people, with consideration of customary tenure and gender equality.13 Some civil society and donor agencies have praised the consultation process and pro-poor aspects of the NLUP, while others, including ethnic organizations, critique the policy for favoring investors over community interests.14 The foremost remaining questions are how the policy will be implemented and how it will be received by related institutions, such as committees overseeing the 2012 laws, in dispute resolution and ensuring accountability.15 In May 2016, the new National League for Democracy (NLD) government formed a Central Review Committee on Confiscated Farmlands and Other Lands, aiming to address the complex legacy of land confiscation and dispossession.16

The NLUP consultation process is a reflection of widening political space in Myanmar, including over land issues. Civil society movements have used these spaces for advocacy on land rights issues. Farmers’ associations and other grassroots organizations have emerged in every region of the country.17 In Yangon, the Land Core Group, formed in 2011 by domestic and international NGOs and concerned individuals, plays a coordinating role among diverse civil society groups.18

Land classifications

Prior to the political transition, most land in Myanmar was held through a multiplicity of customary or informal tenure arrangements. Deeds were registered in township offices, but fewer than half of the population had documented tenure. Record-keeping and maps were frequently outdated, incomplete and inaccurate.19 The 2012 Farmland Law marked a turning point for farmers in districts where paddy has been cultivated for generations, providing for the issuance of land use certificates that can be transferred, inherited and mortgaged.20 By the end of 2014, one study conducted by GRET found that 71 percent of sampled landowners in the Ayeyarwady Delta had received titles, as had 80 percent of landowners in the Dry Zone.21 However, coverage in other areas is lower. Land concentration is high: 20 percent of rural households control 69 percent of farmland, and the number of large landholdings of 20 hectares or more is increasing. Landless households are estimated to be between 20 and 60 percent in various regions.22

The chart below shows the total land area of several categories from the Myanmar Statistical Information Service.

The titling process only applies to land classified as “farmland”: Forestland is not eligible and continues to be held through customary tenure rights.23 Most taungya or grazing land is not mapped or registered. In upland areas, land classification is further complicated by the history of internal conflict between the central government and armed ethnic groups, which has led to many people being repeatedly displaced.24 People living in the uplands thus have less secure access to land than those in the delta and Dry Zone.

Customary practices are officially recognized for the first time in the new National Land Use Policy, which makes repeated mention of customary law and tenure, without clearly defining what is meant by the terms.25 The NLUP also states that “legitimate land tenure rights” recognized by local communities, “shall be recognized, protected and registered in accordance with laws”.26 This language is spurring interest in community mapping and documentation efforts, a process facilitated by the availability of specialized mapping software, such as FAO’s open source mobile application, Open Tenure.27

In the process of developing the NLUP, the government has benefited from technical support and advice from UNHABITAT’s Land Administration and Management Program (LAMP) and the multi-donor fund known as LIFT. Other main donors to land governance include USAID and the Swiss Agency for Development and Cooperation (SDC).28 Since 2015, SDC has funded the Center for Development and Environment of Bern University and the Land Core Group to launch the OneMap project, an open-access spatial data platform on land issues.29

Land transfer and public land lease

The Central Committee for the Management of Vacant, Fallow, and Virgin Land (CCVFV), established in 2012, is responsible for reallocating “vacant” or “fallow” land to domestic and foreign investors for periods from 30 to 70 years. Another committee, the Myanmar Investment Commission (MIC), is also tasked with granting land to foreign investors.30 These laws take a British colonial precedent, the 1894 Land Acquisition Act allowing for state appropriation of “waste land” for a “public purpose”, and re-present it in the current context of economic opening and investment promotion.31 As much as 20 percent of all land in Myanmar has been approved for land concessions, with five million hectares (or about 7.5 percent of all land) awarded to foreign and joint venture investors.32


Source: Myanmar Information Management Unit. Created by ODI June 2016. Licensed under CC BY-SA 4.0. Explore the data.

The highest profile examples of land investment are three Special Economic Zones (SEZs), funded by Japanese, Thai, and Chinese companies respectively.33 Although only the first of these has opened, the NLD government has pledged to continue supporting the zones. External reports note that SEZs face risks from local opposition, ongoing ethno-religious tensions and environmental concerns.34 Such controversies also apply to investments in large-scale resource development projects such as oil and gas pipelines, mines and hydropower dams. Much of the investment in resource extraction is wholly or partially from state-owned enterprises from other countries in East and Southeast Asia.35

Thilawa Terminal Yangon. Photo by Harry and Rowena Kennedy, Flickr, taken 13 February 2015. Licensed under CC BY-NC-ND 2.0.

Thilawa Terminal Yangon. Photo by Harry and Rowena Kennedy, Flickr, taken 13 February 2015. Licensed under CC BY-NC-ND 2.0.

Foreign investment in the agricultural sector is low compared to manufacturing and mining. Land allocated to large-scale agricultural concessions increased by 170 percent from 2010-13, but only one-fifth of that land had been planted.36 Chinese investors, in particular, have acquired land for rubber and other agribusinesses in previously isolated border and ethnic regions.37

Although laws provide for notification, appeal processes, and compensation, these procedures are not followed in many cases of land transfer. As a result, communities find themselves excluded and even charged with trespassing on land they have used for generations.38 Smallholders, particularly those living in conflict areas, are facing insecure land tenure resulting from the effects of centralized land use planning, poor inter-ministry coordination, as well as encroachment from land transfer to investors.

Another widespread cause for communities’ exclusion from agricultural and forest land is Myanmar’s immense landmine problem. At least five million people living in 56 townships (out of 330 nationwide) are affected by mines, mainly near the Thai border.39 Limited technical surveys of contaminated areas have been conducted by international agencies, but no land clearance or release to date.40

Land dispute resolution

The reform period in Myanmar has witnessed a rise in land conflicts, linked to past and recent land acquisitions by the military, the government and their business allies. A parliamentary committee set up in 2012 received about 17,000 complaints about land disputes up to November 2015.41 The increased visibility of land issues reflects new political freedoms and relaxation of media censorship, as well as the persistence of entrenched interests in the economy and politics, particularly in upland and border areas.42 Some cases of conflict around large-scale projects are still ongoing, such as the Hat Gyi dam on the Salween River in Karen State and the Lapadaung copper mine in Sagaing Region.

Myanmar’s burgeoning civil society has encouraged some smallholders to take land cases to court.43 Judicial oversight of dispute resolution, however, remains limited by law.44 Private negotiation, supported by public advocacy campaigns and appeals for political intervention, have proved more effective than litigation. There is also a growing interest in, and support for, legal education for farmers and grassroots movement-building. The same forces of change that are accelerating land transfers and disputes are also contributing to social efforts to address their effects.

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References

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