Photo – KEAN
The lack of protection for customary land use systems
Written by Kyaw Zaya in Maung Kone Magazine (January 2017 [No. 42]). Translated by Khon Soe Moe Aung and Andy Smith.
Traditionally land disputes in U Preh Reh’s village are solved with full participation in front of the customary land use committee’s leaders. In accordance with the customary rules, both sides write down the agreement on paper with signatures to solve the problem.
U Preh Reh’s village is called DawKuKhu in HtiPawHso village tract, Pruso Township, Kayah State. He is part of the Karenni (Kayah) ethnic group and was the former village tract leader during the era of U Thein Sein’s government. He is also a member of the village customary land management committee. He explained that his village has been practicing their customary land use system since the time of their ancestors and this has not impacted their village’s solidarity and social relationships.
However about four years ago when villagers began to practice land governance according to the 2012 Land Laws, a notable land dispute emerged. Four siblings were working together on land inherited from their parents. When the land department arrived to register the land, the eldest brother registered all of the land in his name. The eldest brother then held the rights to all of the land in his name and refused to recognize the land rights to his siblings.
According to the customary land law, the siblings inherit the land of their parent’s equally. But the eldest brother refused to recognize the land rights in accordance with the customary land law. This created a conflict between the government law and the customary law which became well-known in the village.
According to the new government law, the person named on the land title legally owns the land. U Preh Reh, member of the village tract land management committee, commented on the new law that looking from the viewpoint of the customary land law, “There is no justice, the big fish wins”. Since 2012, 25 unresolved land cases have arisen in the six villages of HtiPawHso village tract.
An activist working on land issues said “There is no legal recognition for the customary land use practices. Because of this, there are many conflicts between the government law and the customary law. Moreover, the confiscations of land for the government and for company’s projects are facilitated easily.
In the 2012 land laws, there is nothing on customary land ownership said U Shwe Thein, director of the organization, Land Core Group. Land Core Group is working to help research and advocate for indigenous people’s land management and governance rights.
He added that moreover none of the laws concerned with land management, such as the Vacant, Virgin and Fallow Land Laws; Forestry Laws and Investment Laws, provide adequate protection for customary land.
According to the new land law, indigenous people’s lands are being defined as vacant, virgin and fallow land by the government land registry say indigenous land rights activists.
U Preh Reh commented “The government law prioritizes a winner and a loser. They do not consider or give understanding to social relationships. That is the main difference with the customary management.”
U Preh Reh added “Regardless of how correct you are according to any type of customary management, you will lose at the court if it does not match with the current government law.”
Photo – KEAN
What is custom?
According to the report released by the Ethnic Community Development Forum (ECDF) in January 2016 titled ‘Our Customary Land’, Customary Land is the village land, forest, water springs/ streams and agricultural land in the territory of indigenous people’s villages that is shared and preserved for the purpose of natural resource preservation, development and village unity.
The ECDF report researched the customary law of seven different ethnic tribes from six States; it did not include Rakhine State. ECDF’s spokesperson, Mi Ka Mon, said Rakhine State was left out for security reasons.
The report states that customary land law highlights the history of each ethnic group, their values and the characteristics of their culture.
People researching indigenous issues and indigenous people say that customary laws have existed for generations and the customary systemsare used for maintaining their land and natural resources.
The report states that customary laws are based on everyone’s participation and a bottom-up process.
ECDF’s report states that the management systems governing land comprise of founding a publicly accepted committee, electing committee members, having tools and methods to solve problems and making open and publicly-supported solutions.
ECDF’s report further states that local people depend on customary law’s essential features to legislate in accordance with social, economic and cultural changes.
U Preh Reh explained that the local people do not understand clearly about the 2012 Land Laws. However, they registered their land because of the news that their land will be listed as vacant, virgin and fallow land without their registration.
U Preh Reh also explained that even though local people hold form 7 and form 105 denoting land tenure, they do not clearly understand about the meaning of the forms.
He commented “Rather than saying the government law is not good, I would like to say that there are more negatives than benefits for indigenous people like us”.
Indigenous land activists say that the government does not have any data collection processes regarding customary land use practices.
Photo – KEAN
Well-founded Customary Practices
According to Food Security Working Group’s (FSWG) report titled ‘Analysis of land tenure security and ownership in mountainous regions’, Indigenous people living in the mountainous areas have and practice their own land customary land management systems.
According to the report published in 2011, 66% of Myanmar’s land and 42% of its total population are in mountainous areas, over 1000ft above sea level, including the Kachin, Kayah, Kayin, Chin and Shan ethnic groups.
U Shwe Thein estimated that of the over 51 million people in Myanmar, roughly a minimum of one fifth must be indigenous people living in mountainous areas and practicing customary land ownership and management systems. This equates to 20% of the total population of the country.
Indigenous people and their customary land management systems were recognized in the period of British colonization. This was as part of the 1889 Land and Tax act of upper and lower Burma.
However indigenous land activists analyze that the National Land Ownership Law, adopted in 1953 is the main reason for legallyextinguishing the shifting cultivation practices of ethnic tribes.
U Shwe Thein gave an example, “Even in the era of the English colonization, they recognized customary land ownership rights and recognized ethnic groups by for example the Chin Act. In this latest era of change, there is no recognition of ethnic customary land use management in Burmese laws.
Land Activists say the Chin Act is one type of legal mechanism, from when Myanmar was colonized by the English, for the English government’s recognition of the customary practices of indigenous people in mountainous regions. This act was not only for the Chin ethnic groups. It was also used as evidence that recognized the customary management of land, water and natural resources by the Kachin and Kayah.
Actually, Myanmar has signed United Nations Declarations on Human Rightsproviding protection to indigenous people’s rights.
These are the Universal Declaration on the Rights of Indigenous People (UNDRIP) and the Food and Agriculture Organization’s(FAO) Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Peoples (VGGT).
Myanmar’s government has a responsibility to follow UNDRIP as a member of the United Nations and was also amongst the first countries to sign FAO’s VGGT in 2012.
Saw Eh Say, the Coordinator of Kayah Earthrights Action Network (KEAN)pointed out “Don’t they sign international agreements, (the government) does. But the implementation is very weak. That is why there is not protection for the local people.
He criticized “By signing the international agreements, the government improves their international profile. But there is no benefit yet domestically”.
According to the responses of local people, due to the government’s lack of protections for indigenous people’s customary land use management systems, indigenous ethnic people worry for their land ownership.
Photo – KEAN
Daw KaLawDu village tract in Demawso Township of Kayah State is a famous region for nature tourism. The region is about one and a half hours from Loikaw Town by motorcycle. The main livelihood activities of the Karenni People living there are hillside agriculture and rice cultivation.
U PaKu BaNgwe explained although at the current time, it is peaceful, communication is good and investment is arriving, the local people worry about confiscation of farmland and paddy land.
U PaKu BaNgwe is a 65 year old man of the Kayah (Karenni) ethnicity living in Daw TaNgu village of Daw KaLawDu village tract. He is a member and leader of his regions customary land management.
He said that in his village tract, both national and international tourists often visit to the Seven Steps Lake and the villagers are worried about news that a hotel project will come.
Today’s concerns have existed since 2012 when the government forestry department declared the mountain and forest, protected by U PaKhu Bangwe’s ancestors for generations, a government protected forest and posted a sign stating ‘Do not Trespass’. The area recognized by the government as protected forest is over 2,000 acres.
For the government to recognize the area as Protected Forest, they defined the forest preserved by U PaKhu Bangwe’s ancestors as vacant land according to the 2012 Vacant, Virgin and Fallow land law. By this law, vacant land is recognized as Nationally owned land so when there is trespassing and land use, the perpetrator can be punished.
Although the village’s forest and mountains within their village’s region were preserved according to their customary systems, the government was unable to give them ownership documents according to the new law.
U PaKhu BaNgwe illustrated that inside the area recognized as protected forest by the government, there are forest nats, which cannot be touched, looking after the forest according to Daw TaNgu’s tradition and beliefs. At this place,villagers go to worship and make oath giving ceremonies to these nats.
In front of the village on the left side, there is a forest and a mountain, a signpost on a tree reads “Protected forest. Do not trespass.” and around the forest, there is a fence.
Moreover, the cemetery land, land used for hillside cultivation and forest for village use is within the area defined as Protected Forest. U PaKhu BaNgwe said “ Eventhough the land is recognised as government protected forest and there is no entry and no cutting trees, we still have to go there as our cemetery is in the forest.
When we go there to bury our deceased, the villagers do not cut down trees and do not have the right to clear the forest apart from clearing the path to this cemetery explained U PaKhu BaNgwe.
He explained that this cemetery had existed in this place since the village was founded and that the village had continued to have burials for generations. This forest and this mountain are the symbol and the evidence of our village. We all accept and value this according to our customs.
He explained that actually even if the government forestry department don’t preserve this area, this forest and mountain is very connected to our ancestral beliefs and sustainable lives that have been preserved and defined in accordance with custom until today.
U PaKhu BaNgwe explained that as a village’s protected forest in the local ethnic people’s customary law, nobody had the right to cut down trees or cause any damage to the forest or the mountain. According to belief, when trees were cut down or damaged in a protected forest, it was thought that disease and suffering would affect the village.
He continued by explaining “Actually, someone organizes if there is deforestation to sacrifice either a cow or a pig in return. If not, we believe the whole village will be impacted”
U PaKhu BaNgwe explained that in the village it has happened like this where people have got sick and died because of destruction of this forest that they believe in and preserve.
According to the village’s beliefs, if a person from outside the village destroys the village’s forest or trees, they must compensate depending on the type of land.
When defining the remedy, not just the customary committee decides, the remedy is defined by all of the villagers included in the meeting. The perpetrator who cut down or damaged the forest must pay the remedy defined at the meeting.
U PaKhu BaNgwe shared his experience of when in the era of the military government, the northern side of his village’s mountain was subject to a mining project. They forbid the project because that mountain is protected by customary law. But the authorities continued to mine and the mining machinery broke for no reason. Later according to the custom, they gave one female cow, apologized and worshiped the forest.
U Shwe Thein advised that if the government is willing to work for indigenous people’s land rights, they should start to use the national land use policy.
Photo – KEAN
National Land Use Policy
In January 2015, the National Land Use Policy was finalized and it recognized some of the need for recognition of indigenous people’s customary land use.
This policy states that when drawing the national land laws, they should include the granting of protection to the land ownership and land rights recognized in the customary land systems practiced in indigenous areas. Land experts analyze that this policy is a top-down approach to the Myanmar land context.
In this policy, there are 13 parts and 84 chapters. The policy includes part 8 ‘Land Use Rights of the Ethnic Nationalities’. Chapter 64 states “Customary land use tenure systems shall be recognized in the National Land Law in order to ensure awareness, compliance and application of traditional land use practices of ethnic nationalities, formal recognition of customary land use rights, protection of these rights and application of readily available impartial dispute resolution mechanisms.
Therefore land activists point out that the National Land Use Policy is a path for the government to provide protection for indigenous region’s customary land.
U Shwe Thein advised “the government should quickly adopt and use the National Land Use Policy when resolving land cases and investigating and returning confiscated land”
U Shwe Thein said that to be able to use the National Land Use Policy, the National Land Use Committee that is included in the policy needs to be formed. He continued that the National Land Use Committee must lead in the implementation land reform.
But up until now, indigenous land rights activists say that there has yet to be discussions or drafting of the national land laws.
Specific protections for the customary land management practiced in indigenous people’s regions are not included within the sections of the current 2012 Land Laws and 2012 Vacant; Virgin and Fallow Land Lawss and Forestry Laws. However, the National Land Use Policy states that the national land law must adopt sections providing specific protection for customary land ownership rights.
Photo – KEAN
Instability in Government Policy
Maung Kone magazine approached the new government minister for ethnic affairs to ask concerning the current indigenous land problem and implementation of the national land use policy.
However the assistant of the minister, U Min Aye Ko, when asked about customary land management laws, replied “I don’t understand clearly”
He said “Regarding these land systems, currently we do not have a deep understanding so we cannot comment”
U Min Aye Ko explained that it is a new ministry and the minister is not perfect yet so it is the time for the ministry themselves to study and increase their capacity in each area of ethnic affairs.
In February 2015, the union government adopted “ The law for the protection of ethnic rights”. Part 9, chapter 34 of that law has points on management of indigenous people’s culture and beliefs.
The draft law does not include specific protections concerning customary land management systems.
U Min Aye Ko said that currently departments are following up on these rules. These rules are being drafted by the ministry for ethnic affairs. According to these rules, a land dispute committee for the whole country will be formed.
According to the rules, these committees don’t have the power to directly work in land disputes and other cases; they only have powers to solve conflicts related to culture, literacy and religious belief.
U Min Aye Ko said that for when land problems arise, indigenous ethnic minorities need to give the land issue and type to the respective department to consider.
The head of the union parliament’s indigenous affairs and national peace committee, U Khun Maung Thaung said that concerning indigenous people’s customary management “The law and the government must provide security for indigenous people”.
U Khun Maung Thaung discussed for indigenous people to get guaranteed land ownership rights at the 21st century Panglong conference.
He said, ”In the peace talks, ethnic people are asking for justice and equality in order to protect them from losing their land rights”
But U Khun Maung Thaung further said that until now, they have been unable discuss customary land rights in parliaments.
In Daw KhuKu village, U Preh Reh is hoping for government protection of their customary systems. As there is a not yet specific legal protection until now, he said that they continue to face impacts and conflict with the government law.
Moreover, he observed that there is no recognition of indigenous people’s customary land systems with the words:
“In our minds, because we are minority ethnic people, we feel that we are not cared for”.