On 13 July, Aung Kyaw Soe and Hlaing Min Oo of MCRB presented at the “Project Planning and Project Management in Financial Workshop” held at the Mon State Hluttaw Hall in Mawlamyine organized by National Enlightenment Institute (NEI). Read more: http://www.myanmar-responsiblebusiness.org/news/mon-state-parliament.html

1. Responsible investment in
large-scale plantation
agriculture
Hlaing Min Oo
Programme Associate, Myanmar Centre for
Responsible Business

2. Overview
 MCRB’s work related to agriculture
 Impacts of large-scale plantation agriculture
 Key challenges for responsible agriculture in Myanmar
 Responsible investment in large-scale agriculture in Myanmar
 Recommendations and what you need to do

3. MCRB’s work related to agriculture
Knowledge
 Oil Palm Sector-Wide Impact
Assessment (SWIA) (Consultations
– September / Publication –
December 2018)
 Briefing Paper on Indigenous
Peoples Rights (2016), Updating
Briefing 2015 Paper on Land in
2018
 Draft Paper (together with Oxfam)
on Plantation Agriculture –
Publication in September 2018
Advocacy
 Advice to agriculture companies,
EIA consultants and other
stakeholders
Capacity building
 Training for companies, CSOs
and Government (e.g.
Tanintharyi Regional Hluttaw in
April 2018)
Dialogue
 Workshop on ‘Towards food
Safety and Responsible
Sourcing Initiative’ 2016 with
Prime-Agri)

4. Draft Paper (MCRB Oxfam) on
responsible investment in large-
scale agriculture In preparation by MCRB/Oxfam legal consultant Margaret Wachenfeld
 Will invite comments/consultation in August 2018
 Covering laws for:
• Company regulation
• Investment Law
• Land
• Environment including EIA
• Health and Safety
• Labour
• Ethnic Nationalities
• Etc………
 This presentation contain key points/analysis
 Companies which invest responsibly and do EIA need to know the
complete legal framework

5. Mon State
Agriculture
 စတုရန်း ၁ ကီလိုမီတာလျ◌ှင် လူဦးရေ သိပ်သည်းမ◌ှုန◌ှုန်း ၁၇၂ ဦးရ◌ှိပါသည်။
 လူဦးရေ၏ ၂၃% သည် မြို့ပြ ဒေသများတွင် နေထိုင်ကြပြီး၊
 ကျန်ရ◌ှိသော ၇၇% မ◌ှာ ကျေးလက် ဒေသများတွင် နေထိုင်ကြပါသည်။
Large Scale Agriculture
 Rubber, Sugarcane, Other Crops (88,111 ha) - Concessions in reserve
forests (MOALI, 2015)

6. ဆီအုန္းစီုက္ပ်ိဳးေရးစီမံကိန္းေၾကာင့္ေကာင္းက်ိဳး၊ဆိုးက်ိဳး? (Social/ Environmental)
Positive Impact (Social) Positive Impact
(Environmental)
Negative Impact (Social) Negative Impact
(Environmental)

7. ရာဘာအၾကီးစားစိုက္ပ်ိဳးလုပ္ငန္းမ်ား၏ေကာင္းက်ိဳးဆိုးက်ိဳးသက္ေရာက္မႈ ပံုရိပ္တခ်ိဳ႕

8. အျပဳသေဘာႏွင့္အႏႈတ္သေဘာသက္ေရာက္မႈမ်ား (change OP to large-scale plantation agri)
8
အျပဳသေဘာ အႏႈတ္သေဘာ
သဘာ၀ပါတ္၀န္းက်
်င္သက္ေရာက္မႈမ်ား
 ေရရွည္တည္တံ့ေသာ
 ရာသီဥဳတုေဖာက္ျပန္မႈမျဖစ္ေပၚေစႏိုင္ျခင္း
 သစ္ေတာျပဳန္းတီးေစျခင္း
 မူလဇီ၀မ်ိဳးကဲြစိပ္မ်ားအေပၚျခိမ္းေျခာက္မႈျဖစ္ေစျခ
စ္ေစျခင္း(စားက်က္ပ်က္စီးျခင္း)
 ေရညစ္ညမ္းမႈျဖစ္ေစျခင္း
 စုိက္ပ်ိဳးေရးသံုးဓာတုပစၥည္းသံုးစြဲျခင္း
 အမဲလိုက္ျခင္း တိုးပြားလာေစျခင္း
လူမႈပါတ္၀န္းက်င္
သက္ေရာက္မႈမ်ား  ဆင္းရဲမြဲေတမႈေလွ်ာ့ခ်ရာတြင္အေထာ
ေထာက္အကူျဖစ္ေစျခင္း
 အလုပ္အကိုင္အခြင့္အလမ္းရရွိေစျခင္း
 အေသးစားလုပ္ငန္းရွင္မ်ားအတြက္အေ
ေထာက္အပံ့ျဖစ္ေစျခင္း
 ေဒသရဲ႕အေျခခံအေဆာက္အဦးဖြံ႕ျဖိဳးတိုး
ုးတက္ေစႏိုင္ျခင္း
 ၀န္ေဆာင္မႈမ်ားကိုလက္လွမ္းမွီလာေစျခင္း
(ဥပမာ - ေက်ာင္း၊ ေဆးခန္း၊ စသျဖင့္)
 ေျမယာသိမ္းဆည္းျခင္းေရႊ႕ေျပာင္းခံရျခင္း
 ဓေလ့ထံုးတမ္းအရပိုင္ဆိုင္ေသာေျမယာဆံုးရႈံးျခင္
ံုးရႈံးျခင္း
 အသက္ေမြး၀မ္းေၾကာင္းဆံုးရံႈးရျခင္း
 အလုပ္အတြက္ စိုက္ပ်ိဳးေရးလုပ္ငန္းၾကီးအေပၚ
မွီတည္ရျခင္း
 ဆိုးရြားေသာလုပ္ငန္းခြင္မ်ားႏွင့္အဓမၼခိုင္းေစမႈ
္းေစမႈမ်ား၊ ကေလးလုပ္သားခိုင္းေစမႈမ်ား
 ေရႊ႕ေျပာင္း
 ေျပာင္းေရႊ႕လုပ္သားမ်ား

9. Main challenges for responsible agriculture
in Myanmar
Land
 No comprehensive land registry or land use map
 Land policy and current set of land laws are not coherent
 No legal recognition of customary lands rights
 Lack of protection of local farmers creates uncertainty for farmers and
investors
 Contested areas of control between central government and ethnic armed
groups
Other
 Lack of awareness of and experience in sustainable agriculture
 Environmental pollution
 Labour rights violations

10. Legal process for investment in plantation
agriculture
Myanmar Companies Act (2017)
Myanmar Investment Law (2016)
and Rules (2017)
Myanmar Environmental Conservation
Law (2016), Rules (2014), Standards
(2015) and EIA Procedure (2015)
And many other laws and byelaws and
notifications on labour, disability,
ethnic nationalities, land, pesticides,
water, safety, wildlife conservation,
cultural protection etc etc……. !

11. Responsible investment in large-scale
agriculture in Myanmar
What you need to know:
Step 1: Registering as a company in Myanmar
Step 2: Do companies need to register with MIC or
not?
Step 3: If not MIC then how?
Step 4: Responsible business requirements when
establishing, and during, operations
Step 5: Recommendations

12. Step I: Register as a Company in
Myanmar
 Those involved in
large scale
agriculture need to
register as a
company under
2017 Companies
Act
STEP 2: MIC or
not?
 All ‘foreign companies’
need to go to MIC for
projects involving
agricultural land because
they are prohibited from
owning or renting land for >
1 year unless they have an
MIC Permit (or
Endorsement for small-
 Art.2(a): “Myanmar companies” = <
35% foreign shareholding
 Whether a company is ‘foreign’ or
‘Myanmar/citizen’ has implications
for:
• What a company is permitted to do
under the Myanmar Investment Law
(MIL)

13. Step II: Myanmar Investment
Commission or not?
Myanmar Investment Commission (MIC) Permit is required (MIL Art 36c.
Myanmar Investment Rules) for Foreign or Myanmar large-scale agriculture
investment which:
 Are “strategic” (Rule 3):
• Involves rights to use > 1,000 acres (405 ha) land for primarily
agriculture purposes
• Is a government granted concession > $20 million investment
• Crosses international border or conflict (not defined) area (>$1
milllion)
• Crosses State/Region boundary
 Is regarded as having large potential environmental/social impact (Rule 5)
because it:
• includes involves compulsory acquisition and rights to use
o > 100 acres (40.5 ha) land or

14. MIC Incentives in Agriculture
 Zone 1 ‘less
developed’:
7 consecutive years:
Mawlamyine District
• Chaungzon
Township
• Kyaikmayaw
Township
 Zone 2
‘moderately
developed’: 5
consecutive
years:
Thaton
District:
• Thaton
Township
• Kyaikhto
• Bilin
Township
Mawlamyine
District
• Mawlamyin
e Township
• Thanbyuza
yat
Township
• Mudon
 Zone 3 ‘adequately
developed’: 3
consecutive years:
 Tax exemptions potentially available from Myanmar Investment Commission under
the MIL for promoted sectors
• Agriculture and related services (except tobacco)
• Plantation/conservation of forest and other businesses
 Mon State falls under promoted regions (Notification 10/2017) potential income tax
exemption of

15. Restrictions in the Investment Law:
Agriculture
 Prohibited for foreign investors: Manufacturing forest products from forest
area/government administered natural forest
 Only allowed as joint venture with any citizen-owned entity (i.e. Myanmar
company) or Myanmar citizen:
• Cultivation of crops in agriculture land, distribution to the local market
and exporting
• Processing, canning, manufacturing and marketing of food products
except milk and dairy products
 Only allowed with approval of relevant ministries
(Notification 15/2017):
• MoALI: production of seasonal crops
• MONREC:
o Logging in forest land and land administered by the government;
o Establishment of forest plantations (teak, hardwood, rubber,
bamboo, cane etc);
o Wood-based industry and related businesses with implementation
of forest plantation

16. Step III
Legal pathways for acquiring
agriculture/plantation land which do
not – in principle - require an MIC
Permit

17. Step III: Options for a Myanmar investor to obtain
land which do not involve MIC
Vacant, Fallow or Virgin (VFV)
Management Land Law 2012
 Common option for acquiring access
to land  Government can allocate
land in tranches of 5000 ha up to
50,000 ha
Note: Under Myanmar Investment Rule 3
the threshold requiring MIC Permit is
1,000 acres/405 ha.  this tranche size
would require MIC Permit
Company applies  to VFV Land
Management Committee
 Application passes up/down through
multiple layers of VFV Committees for
approval
 Opinion sought from MoALI Perennial
Crop Division
Farmland Law 2012 (under
revision)
 Farmers typically have Land
Use Certificates (LUC)
 Apply  to Farmland
Administrative Bodies
(FAB)
 Application passes
up/down through
multiple layers of FAB for
approval
 Myanmar companies can
lease farmland directly from
farmers if they have secured
a land use certificate (LUC)
 Farmers typically have
smaller plots of land: leasing
land from farmers requires
Forest Law
1992
 Myanmar
company or
foreign
company 
applies to
MONREC
for
permission
to establish
a
commercial
plantation
on forest
land
 MIL imposes
restrictions

18. Usage Right (relevant
Government Form)
Responsible Government
Authority
Entities entitled to acquire or use this type of
land
VFV Law Right to use VFV land:
• for industrial crops
(Form 11)
• for perennial plants
and orchards (Form
12)
Central Committee for
Management of VFV Lands
(CCVFV)
Myanmar individuals and companies
VFV Committees at the levels
of:
 State/Regional
 District
 Township
 Village tract
Foreign Companies in joint ventures with the
government
Myanmar companies or individuals with a MIC
Permit or Endorsement, through the LRA
process
Farmland
Law
Farmland
Rules
Land Use Certificate
(LUC) issued to farmers
(Form 7, accompanied by
a map on Form 105)
Central Farmland
Administrative Body (FAB)
 includes Ministry of Home
Affairs, General Affairs
Division (GAD)
Myanmar companies can buy or lease LUCs
from farmers
Farmland Administrative
Bodies at levels of:
 State/Regional
 District
 Township
 Village tract
Foreigners (individuals or companies) can
lease farmland from farmers but only with
permission of Government.
Unclear which government agency under
Farmland Rules; presumably MoALI (line
ministry responsible for farming)

19. Forest Law Permission to Use and
Contract with the Forest
Department
Forest Department Myanmar citizen or company
FD branches at levels of:
 State/Regional
 District
 Township
Foreign investors (MIC Notification 15/2017):
 are prohibited from
manufacturing forest products from forest areas
and government administered natural forest
 as part of MIC process, require approval from
MONREC to:
(i) log in forest land and land
administered by the government
(ii) establish forest plantations (teak,
hardwood, rubber, bamboo, cane etc)
(iii) carry out wood-based industry and
related businesses with
implementation of forest plantation
Right (relevant
Government Form)
Responsible
Government Authority
Entities entitled to acquire or use
this type of land

20. Step IV
Responsible business requirements
when establishing, and during,
operations

21. Environmental Conservation Law:
2015 EIA Procedure
EIA and Initial Environmental Examination (IEE) requirements for Plantation Industrial/Crop Production
(rubber, oil palm, cocoa, coffee, tea, bananas, sugar cane) in Annex 1 of EIA Procedure
Plantation Industrial/Crop Production (e.g. rubber, palm oil,
cocoa, coffee, tea, bananas, sugar cane)
IEE ≥ 200 hectares but
< 500 ha
EIA ≥ 500 ha
Annual Crop Production (e.g. cereals, pulses, roots, tubers,
oil-bearing crops, fibre crops, vegetables, and fodder crops)
IEE ≥ 500 ha but <
3,000 ha
EIA ≥ 3,000 ha
Concession Forest IEE < 10,000 ha EIA ≥ 10,000 ha
 Single assessment (EIA) should cover environmental and social
impacts
 After approval by ECD/MONREC, an Environmental Compliance
Certificate (ECC) is issued including requirements on the company,
including for monitoring and reporting, and notifying MONREC of
any breaches.
 Smaller plantations may be required to submit an Environmental
Management Plan
 Companies should provide MIC with information about their

22. What about existing plantations?
Art.8 EIA Procedure: ‘Any project already in existence prior to the issuance
of Environmental Conservation Rules (June 2014), or the construction of
which has already commenced prior to the issuance of the Rules, and
which, in either case, shall be required to undertake , within the timeframe
prescribed by the Department, an environmental compliance audit, including
on-site assessment, to identify past and/or present concerns related to that
Project’s environmental impacts, and to:
a) Develop an Environmental Impact Assessment (EIA) or Initial
Environmental Examination (IEE) or Environmental Management Plan
(EMP);
b) Obtain an ECC; and
c) Take appropriate actions to mitigate
adverse impacts in accordance with
the Law, the Rules and other
applicable laws

23. MCRB field research on
oil palm noted that some
companies did not have
proper waste
management systems at
their mills. Most
labourers use stream
water for bathing and
laundry contaminating it
with soap and
detergents. Pesticides
and other agricultural
chemicals contaminate
stream water further.
Other relevant environmental laws to be
incorporated into EIA/EMP etc (1/2)
 2015 National Environmental Quality
(Emissions) Guidelines: regulations on noise,
vibration, emissions and liquid discharges
(Plantation Industrial - Sec.2.2.1)
 1994 Protection of Wildlife and Conservation
of Natural Areas Law and 2002 Protection of
wildlife and Protected Areas Rules (revised in
2017): Support for wildlife protection and
conservation of natural areas
 2006 Conservation of Water Resources and
Rivers Law – protects from industry, vessels

24. MCRB’s oil palm field
research found that
labour conditions vary
from company to
company. In some
cases living and
working conditions
are very bad,
including workers are
forced into bonded
labour (debts to
employer etc).
Relevant labour laws/social issues for
agriculture to be incorporated into
EIA/EMP etc (2/2)
 Working conditions, including working hours, rest and
leave
 Minimum Wage Act (2013)
 Payment of Wages Act (2016)
 Freedom of Association and Collective Bargaining
 Social Security Law (2012)
 Occupational Health & Safety Law (draft under
discussion)
 Forced Labour
 Child Labour
 Non-discrimination and disability rights

25. Companies must also abide by the
Myanmar Investment Law (1/2)
MIL Article 65 Chapter XVI (Responsibilities of Investors)
(a): Respect….the customs, traditions and traditional culture of the ethnic
groups in the Union
(g): Abide by the applicable laws, rules, procedures and best standards
practiced internationally for this investment so as not to cause damage,
pollution, and loss to the natural and social environment and not to cause
damage to cultural heritage
(j): Pay wages and salaries to employees and respect and comply with the
labour laws

26. Companies must also abide by the
Myanmar Investment Law (2/2)
Rule 196: Publish annual report (in addition to quarterly operational reports)
 How company has carried out investment in a responsible and
sustainable manner
 Employment performance
 Impact on the environment and local community
 Land used and changes to land or land uses
 Compliance with MIC Permit & other applicable laws

27. To operate responsibly Companies
should:
 Conduct business responsibly and transparently,
in line with the spirit of the Myanmar Investment
Law
 Carry out due diligence, EIA/IEE etc, in line with
international standards
 Use international standards where there are
gaps in Myanmar law
 Get ahead of future changes to Myanmar’s
environmental laws by using sustainable
agricultural practices
 Understand land situation in Myanmar including
the perspective of those living on and using the
land, and find out how ‘virgin’ land is actually
occupied or used

28. What you can do?
 Conduct public outreach (including social media) – getting feedback on
how people feel about large-scale plantations
 Raise profile of the issue - communicating people’s
concerns/suggestions to the government
 Ask questions to cabinet ministers (regional government)
 Make proposals to higher authorities (local priorities, policy changes, local
development projects)
 Prepare regional development plan
And according to 2008 Constitution (Art.175):
(f) Discuss, resolve and record the reports submitted to the
Region or State Hluttaw;
(g) Submit proposal, discuss and resolve;
(h) Raise questions and reply;

29. Thank You !
www.mcrb.org.mm
myanmar.responsible.business