Farmers protesting land grabs in Taunggyi, Shan State. (Photo: John Chit Nyein)
Mizzima | 9 December 2014
‘There is no voice of real farmers’
Written by Portia Larlee
Draft land use policy dismays farmers and ethnic minority groups
When a farmer refused to leave his land near Nawngkhio in the hills of northern Shan State, police and soldiers put a gun to his head and took him away.
The story of the farmer and the confiscation of his land has been a common one in Myanmar. Land rights activists had hoped that such stories would belong to history under the draft land use policy unveiled by the government on October 18.
Their hopes may have been in vain.
The release of the draft policy, part of a process towards enacting a new National Land Law and “harmonising” existing legislation, was greeted with objections and criticism from farmers’ organisations and ethnic minority groups throughout the country.
Among the critics was Ko Si Thu, a land rights activist since 2009 and convenor of Land in our Hands, a network of more than 60 farmer’s rights groups. Ko Si Thu, who recounted the story of the farmer dispossessed of his land, founded the network in February 2014. The catalyst was another land grab. Ko Si Thu founded the group after members of his family had their land taken.
Expectations had been high for the land use policy. It will form the basis for the National Law Law, which is widely expected to become the nation’s most important legal document apart from the 2008 Constitution.
Consultations in all 14 states and regions were held in November, ostensibly to provide opportunities for community-based organisations to share concerns about the draft and propose changes.
The draft distribution and consultation process has been rolled-out quickly; the policy is due to be submitted to the Union Government by the third week of December.
A push toward private land-use
The legal framework for land use in Myanmar is a mess; more than 70 active laws, orders, amendments and regulations have been passed by different governments and remain in force.
One of the most comprehensive of the existing laws is the Farmland Law enacted in 2012 to replace the 1953 Land Nationalisation Act, which had vested legal authority of all land in the state and prohibited the sale of land between citizens.
Chapter 1, Section 23 of the 2008 Constitution also placed the ultimate power over all land with the government, allowing property rights for land-use – but not ownership.
The Farmland Law moved closer to private ownership and allowed the transfer and lease of farmland for those with “land use certificates.”
The state must expropriate the minimum amount of land for an intended project – and use it within the prescribed period, says Article 32 of the Farmland Law. If the project is terminated, the farmland must be returned to the “legitimate” owner.
Although the Farmland Law includes such protection for farmers, it is rarely applied, said Ko Si Thu.
Expropriation of “un-used” land
The Vacant, Fallow and Virgin Lands Management Law, also enacted in 2012, controls the use of land deemed to be “vacant” or “un-cultivated” for purposes such as agriculture, raising livestock and mining.
Similar to its predecessor, the 1991 Duties and Rights of the Central Committee for the Management of Culturable Land, Fallow Land and Waste Land, the VFV Law provides for land concessions to citizen investors, government departments, non-government organisations and joint-venture partners approved under the Foreign Investment Law.
The main beneficiaries of reallocation under the 1991 regulation were joint-ventures, state-owned enterprises and private companies linked to the military, said a report released in 2012 by the Myanmar Food Security Working Group.
Article 25 of the VFV Law recognises that farmers are using “vacant” or “uncultivated” land without formal tenure or recognition by the government; the law provides for land to be reclassified as farmland and certificates to be issued to farmers.
Despite the supposed protection it offers farmers, Ko Si Thu said the VFV Law is widely regarded as being “the land-grabbing law.”
Companies can apply for concessions up to 50,000 acres (about 20,235 hectares), while individuals can apply for up to 50 acres (about 20ha). Ko Si Thu said the Htoo Group tycoon, U Tay Za, who enjoyed a close relationship with leading members of the former military government, has acquired about 900,000 acres (about 364,217ha) in Kachin State alone.
Asked to describe land-grabbing trends in Myanmar, Ko Si Thu laughed. “It happens everywhere and I hear stories all the time; we are in the middle of a land-grabbing storm.”
Ko Si Thu said most land grabs occur in Tanintharyi Region, followed by Kachin State.
In 2000 the government launched a 30-year master plan for the farm sector that aimed to transfer four million hectares (about 9.89 million acres) of “wasteland” to the agribusiness industry.
A 2011 report by the Burma Environmental Working Group found that by 2010 the government granted 216 Myanmar companies nearly 1.75 million acres for commercial farming, nearly half of which had been designated for palm oil plantations in Tanintharyi Region.
Kachin and Shan States had the next largest acreage awarded, said the report Burma's Environment: People, Problems, Policies.
Large concessions in Shan and Kachin states are under Chinese management, despite being established by both government and ethnic minority forces, said the report.
Ko Si Thu said land-use by foreign companies is fostering anti-foreign sentiment. “People don't see the government involvement, they just see foreigners taking land; the anti-China sentiment is really high.”
Land security for the masses
In a report released on October 23 called Pro-business or pro-poor? Making Sense of the recently unveiled draft national land use policy the Transnational Institute criticises the draft land use policy for facilitating land concessions and leases, “while mitigating the worst effects.”
The report by the Amsterdam-based think tank noted recognition of certain categories of land rights previously not recognised under law. Upland farming or “taungya”, has been reclassified as “permanent taungya”, but, whether this is a move to reinforce the traditional practice is unclear, said the report.
Regardless, the institute said the draft land use policy is a step forward from the 2012 laws, which effectively denied land use rights to upland farmers.
The institute and farmers rights groups, including Land in Our Hands, welcomed Section 70 of the draft policy, which calls for the recognition and protection of “traditional rights, land use and land tenure right of the ethnic nationalities who are using land whether or not the existing land use is mentioned in records and maps, and registered,” when updating official land records.
The section “appears to extend the right of land security to all ethnic nationalities system-wide,” said the institute’s report.
Kachin Peace Council coordinator Ma Khon Ja was among representatives from the Kachin community who spent three days reviewing the draft land policy with a lawyer. She expressed concern about extending land tenure to areas in the Kachin highlands where traditional land ownership systems were practiced.
“There are not sufficient government resources to help the farmers even if they wanted to register their land,” Ma Khon Ja said.
Similarly, the institute’s report expressed scepticism about the concepts of “security” and “tenure,” which in practice tend to mean property security for “absentee” landlords, corrupt authorities and foreign investors.
“It means commodification of land, and transforming it into something marketable. Titles are the chief expression of this so-called security,” said the report.
Compounding business-focussed legislation, the development of special economic zones at Thilawa near Yangon, Kyaukphyu in Rakhine State and Dawei in Tanintharyi Region had resulted in farming communities being forced off their land.
“Farmers will be poorer and poorer and companies will be richer and richer,” said Ko Si Thu.
A veiled process
Ma Khon Ja said she fears the draft policy will become law before minority voices have had a chance to be heard.
“Like the Education Law and the Association Law, we had concerns, but we never saw the final draft and then they went to parliament and it was approved,” she said. “After approval it is very difficult to change.”
In a statement on November 26, the National Land Resource Management Central Committee, which is responsible for holding community forums and consultations, said “comments received at consultations will be categorised, assessed for relevance, and incorporated into the policy through an approach that should balance the views of various stakeholders.”
A national level workshop will be organised in December for “final inputs from key stakeholders,” said the statement.
U Tin Maung Than, the committee’s deputy director, declined to comment on the protests against the draft policy and the concern and disappointment about the speed of the consultation process.
Most of the participants at a consultation held in Yangon on November 18 were representatives of the government, said Ko Win Myint Han, joint secretary of the Farmers and Landworkers’ Union, who attended the event.
Struggle to be heard
One of the protests against the draft policy was held in the Kachin State capital, Myitkyina, in late November, prominent land rights activist Daw Bauk Ja told Mizzima.
“It took over one year to draw this draft, but there is no voice of real farmers,” she said.
Daw Bauk Ja said regional administrators responsible for registering land are appointed by the government and may not understand the histories of ethnic minority areas.
A land-use policy for the entire nation was not appropriate for Myanmar and does “not encourage federalism and resource sharing,” said Ma Khon Ja.
“Federalism means the land-use planning should be in the hands of the local governments; that means in Kachin Independence Organisation areas it would be managed by the KIO and in Kachin State government controlled areas it would be under the Kachin State government,” she said. “This draft policy is really centralised.”
Htun Myint Aung, secretary of the 88 Generation Peace and Open Society agribusiness and farmer affairs committee, said the draft policy does not include protection for squatters and the homeless and was vague about the extensive landholdings of the Tatmadaw.
“The wrong land use policy can make poverty and affect civil war,” he said.
This Article first appeared in the December 4, 2014 edition of Mizzima Business Weekly.