New Laws Threaten Family Farmers and Ethnic Communities in Myanmar
This article is partly adapted from the Oakland Institute’s report, Driving Dispossession: The Global Push to “Unlock the Economic Potential of Land,” released in July 2020, authored by Frederic Mousseau, Andy Currier, et al. The report highlights recent legislation in Myanmar which has legitimized and accelerated the confiscation of smallholder farms and customary land.
Han Win Naung, a farmer from Yangon, Myanmar has not been able to tend to his 5.7 hectare farm since September 2018. Han Win Nuang was not aware he needed to apply for a permit to continue working the farm his father founded three decades ago. The permit requirement was introduced in a 2018 amendment to the controversial Vacant, Fallow, and Virgin Land Law (VFV), but studies have found that 95 percent of people affected by this law are not even aware it exists. Despite this, administrators of the Tanintharyi region accused Han Win Nuang of violating the VFV law and sued him for trespassing. While he fights alongside representatives from Tanintharyi Friends, his mango, banana, and cashew trees are dying and he struggles to feed his family. Unfortunately, stories like Han Win Nuang’s are not uncommon in Myanmar.
The Oakland Institute’s new report, Driving Dispossession: The Global Push to “unlock the Economic Potential of Land,” highlights recent legislation in Myanmar which has legitimized and accelerated the confiscation of smallholder farms and customary land.
“The VFV Law, the Farmland Act, and the LAAR Law are designed to encourage the legal takeover of lands that millions of farmers and Indigenous people rely on for their livelihoods.”
Between 2018 and 2020, the government passed two significant amendments and a new law regarding the use, tenure, and expropriation of agricultural lands – the amendment to the Vacant, Fallow, and Virgin Land Law (2018), the amendment to the Farmland Act (2020), and the Land Acquisition, Resettlement, and Rehabilitation Law (2019). Although the VFV Land Law has received the most attention in international media, all three of the laws have had disastrous ramifications for Myanmar’s ethnic states, inhabited by the Chin, Kachin, Karen, Karenni, Mon, Rohyingya, and Shan communities.
The September 2018 amendment to the VFV Land Law in Myanmar was passed, reportedly to boost economic development in the country by making so-called “vacant” lands available for agriculture, mining, and other purposes. With the VFV Law amendment, a six-month deadline was given for anyone occupying so-called VFV lands to apply for a 30-year permit to continue their use. Anyone found using the lands after March 2019 without a permit could face eviction and up to two years in jail and/or a K500,000 fine [US$330].
A survey conducted by Namati, a civil society legal empowerment network, indicated that at the end of the registration period, most local villagers were unaware of the legislation, including the customary land exclusion, putting them at risk of losing their land.
Nearly one third of the country is considered VFV land – thus subjected to the six-month deadline – and three quarters of VFV land is located in Myanmar’s ethnic states. Many of these communities practice customary land tenure systems. Mischaracterized by government officials and development agencies as “informal, ill-disciplined and inefficient,” these intricate systems of land management are actually “closely regulated and uniquely well adapted to marginal, ecologically fragile upland areas” in rural Myanmar.
Although last-minute changes to the amendment added language exempting “customary land” from the registration deadline, there is no clear definition of customary land in Myanmar law. This leaves landholders uncertain of their status and at the arbitrary whim of the administrative offices overseeing land.
The amendment also threatens the ability of hundreds of thousands of refugees to return home, because of a stipulation that requires VFV permits to only be applied from within the country. Nearly half of Rakhine state, where the majority of Myanmar’s Rohingya people originate from, is considered VFV land, creating an impossible situation for Rohingya refugees. Concerned that their land rights would be permanently revoked, some people returned home before the area was declared safe, resulting in wounds from landmines.
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The VFV Land Law and the Farmland Act were both initially passed in 2012, and the Farmland Act was amended in February of 2020. Both laws stringently regulate the use of agricultural lands, typically at the expense of smallholder farmers and communities under customary tenure systems.
Whereas the VFV Law is aimed at making land available for agribusiness and extractive industries, the Farmland Act promotes private land use through titling and registration programs and governs the choices of farmers, including the types of crops planted and when farmers can fallow their fields.
The results of the Farmland Act, and the new restrictions added in 2020, have continued tenure insecurity, dispossession, and the concentration of land in the hands of a privileged few.
The Land Acquisition, Resettlement, and Rehabilitation Law
In addition to the VFV Law and the Farmland Act, in 2019 the government of Myanmar passed the Land Acquisition, Resettlement, and Rehabilitation Law (LARR). This new law replaces colonial-era provisions for land expropriation, including the Land Acquisition Act of 1894. However, rather than moving the country in a more progressive direction which would see security and respect for the land rights of rural and ethnic communities, the LARR law makes few improvements on the colonial laws and in some aspects is actually regressive.
Under the LARR Law, land can be expropriated for a wide variety of vaguely defined “public purposes,” including national defense, infrastructure development, and any projects deemed to be in accordance with Myanmar’s national economic policy.
While the law does provide useful guidance and regulations for the resettlement of people displaced by land expropriation, the definitions of “Project Affected People” who have legal entitlements are extremely narrow. Thus, according to the LARR law, people and communities using land under informal and communal tenure systems are not guaranteed compensation for their land or resettlement in case of expropriation. Further, even those who are entitled to compensation will receive only “market value,” less than the market value plus 15 percent mandated under the Land Acquisition Act of 1894.
The LARR serves primarily to legitimize land grabbing that has been taking place for decades. Even worse, the primary victims of this dispossession are ethnic minorities and rural communities using customary tenure systems. A 2015 study of legal and illegal land confiscation in Myanmar conducted by the Transnational Institute found that 57 percent of confiscated land was customary land. Furthermore, the most frequent perpetrators of land confiscation were the military (48 percent of cases) and the government (19 percent).
Perhaps most alarming is that this vague expropriation process, which is rife with loopholes, is not subject to judicial review, meaning that land acquisition under this law cannot be challenged in court.
The VFV Law, the Farmland Act, and the LAAR Law are designed to encourage the legal takeover of lands that millions of farmers and Indigenous people rely on for their livelihoods. The three laws are a potent combination which ensure that the practice of land grabbing – widespread in Myanmar under its previous military dictatorship – can continue, now concealed by false promises of ‘economic development.’ If Myanmar is ever to achieve the democratic transition that many erroneously believed Aung San Suu Kyi would bring to pass, these land laws must be abolished.