On 22nd May 2018, MCRB held a consultation in Yangon to obtain comments on the draft ‘Land Rights and Business in Myanmar’ briefing paper, an update of MCRB’s 2015 Land briefing paper. The presentations are available here. Reference was also made to the separate forthcoming paper on responsible investment and laws relating to agriculture plantations and land, which MCRB is coauthoring with Oxfam. Read more: http://www.myanmar-responsiblebusiness.org/news/consultation-to-update-land-paper.html

1. Donna Guest
22 May 2018
LAND BRIEFING PAPER CONSULTATION

2. Introduction
 Land rights – one of key issues on reform agenda of both previous
government and NLD administration.
 Movement to try to return land to rightful owners and resolve land disputes.
 CSOs and current government in agreement that land rights are a key part of
‘transition to democracy’.
 Need for companies to be aware of these processes and conduct enhanced
due diligence when acquiring land, due to unresolved land disputes.

3. Introduction continued
 First MCRB land briefing paper published in April
2015.
 This paper provides an update on the laws,
policies, and practices regarding land but can be
read as a stand-alone document.
 Intended to inform companies in Myanmar about
land issues from a human rights and responsible
business perspective.
 Most companies need land to conduct their
operations so need for awareness of
problems/issues specific to Myanmar.

4. Other MCRB work related to land
 Most available on MCRB website
 Sector-wide Impact Assessments (SWIAs):
 Oil and Gas
 Tourism
 Information and Communications Technology
 Mining (tin, gold, limestone)
 Each SWIA has a chapter on land covering field work
and implications for companies.
 Common themes – lack of compensation for land
expropriations from villagers or unclear compensation
rates/lack of protections for people who lose their land.

5. MCRB work on land continued
 Draft Briefing paper on Biodiversity, Human Rights, and
Business – risks of unsustainable land use practices, notably
land clearing for agribusiness; and unplanned/uncoordinated
development.
 Draft ‘Mini-SWIA’ on oil palm – land implications in
Tanintharyi Region - IDPs returning to their land, now used
for oil palm plantations by companies.
 MCRB focus on plantations/large scale agriculture – land
disputes identified one of the challenges, forthcoming paper.
 MCRB workshop on Kyaukphyu SEZ – involuntary
resettlement of villagers.

6. Land rights and international human rights law and
standards
 UN Guiding Principles on Business and
Human Rights – protect, respect, remedy.
 UN Covenant on Economic, Social and
Cultural Rights (Myanmar a State Party) –
land acquisitions should not result in forced
evictions.
 International Finance Corporation (IFC)
Performance Standards:
 IFC PS 5 – on Land Acquisition and
Involuntary Resettlement.
 IFC PS 7 – on indigenous peoples.

7. Land rights and international law and standards continued
 Food and Agriculture Organization (FAO)
Voluntary Guidelines on the Responsible
Governance of Tenure – to improve
governance of land, fisheries, and forests
with the goal of achieving food security.
• UN Basic Principles and Guidelines on
Development Based Evictions and Displacement
– to respond to adverse human rights impacts
occurring in the implementation of large
development projects.

8. Challenges for
local communities in obtaining land rights
 Legacy of mass land expropriations by previous
governments for private sector development.
 Communities still struggle to reclaim their land
and homes in the face of unresolved land
disputes.
 Rural people dependent on land for livelihoods;
their customary tenure arrangements/lack of
written documentation puts them at risk of land
expropriation.
 Farmers’ protests can put them at risk of
prosecution for ‘trespassing’ under Penal Code.

9. Challenges for
local communities in obtaining land rights
 Difficulties for women farmers because of male-dominated system of
decision-making.
 Most agricultural land ownership registered under head of household,
typically a male.
 Urban/peri-urban population – hundreds of thousands living in informal
settlements/slums; lack of written documentation/insecure tenure rights. Lack
of low cost housing.
 Positive role that civil society organizations are now able to play in advocating
on behalf of small-scale farmers and others for secure land tenure rights.

10. Government structures working on land
 Many government bodies involved; no inter-ministerial body specifically
mandated to oversee land issues.
 Result – confusing and overlapping mandates.
 Also lack of capacity in government; non-harmonized land laws; lack of
accurate maps.
 However - establishment of National Land Use Council in January to
implement 2016 Land Use Policy.

11. Government structures continued
• land administration and agricultural policy,
• maintains land registry and cadastral maps
Ministry of Agriculture, Livestock and
Irrigation (MoALI):
• ECD Approves Environmental Impact Assessments.Ministry of Natural Resources,
Environment and Conservation
(MONREC)
• GAD controls all land considered at government disposal
• District Level GAD - all compulsory acquisition of land.
Ministry of Home Affairs (MoHA):
• MIC approves investments in land leasing
Ministry of Finance and Planning
• Confiscated Farmlands and Other lands
Central Reinvestigation Committee

12. Policy and legal framework
Importance of implementation of 2016 National Land Use Policy.
Three key land laws – 1894 Land Acquisition Act, 2012 Farmland
Law and VFV Land Management Law.
Land acquisition governed by 1894 law.
Three laws being amended amidst concerns that the draft
amendments are regressive.

13. Myanmar Investment Law
(2016) & Rules
2017 Companies Law
Article 7 of the 2015
Environmental Impact
Assessment Procedure
World Bank Group
(IFC PS)
Asian Development Bank.
involuntary resettlement or having potential
adverse impacts on indigenous peoples
Policy and legal framework

14. Concerns – Policy and Legal Framework
 Lack of clarity on protection of customary land rights relevant to companies –
need for due diligence and engagement with customary owners/users.
 The government has wide discretion to expropriate land ‘in the public interest’
– broad wording.
 Lack of protection for owners in land acquisition processes and lack of
detailed regulations on compensation levels or criteria about what
compensation covers.
 Limited safeguards for those whose property is being acquired.

15. Special Economic Zones (SEZs)
 Governed by the 2014 SEZ Law and Rules.
 Three main SEZs: Thilawa, operational since 2015; Kyaukphyu
and Dawei, not yet operational.
 Problematic land acquisition processes in SEZ.
 Kyaukphyu – some 20,000 people, most dependent on land,
may face involuntary resettlement.
 Problematic EIA process in Dawei – overall EIA not yet
conducted although individual EIAs have been. Work has
already begun on some infrastructure projects.
https://www.pinterest.com/pin/241365479820
98638/

16. Urban land
 30% of population urban, likely to increase as Myanmar develops.
 Difficulty for companies to establish who owns urban land they wish to
develop.
 Example – per Myanmar Business Forum – companies must interact with at
least three government agencies to transfer land rights in Yangon.
 Majority of land owners have incomplete or unregistered chain of ownership
documentation.

17. Urban land continued
Land speculation in urban and peri-urban areas a big problem.
Land often held as investment and hedge against inflation because
financial institutions not well-developed.
This can fuel speculation and drive up land prices.
Acquired land often unused.

18. Rural land
 Some 70% of population is rural and mostly
dependent on land for livelihood.
 Higher levels of poverty in rural areas.
 Prevalence of small-scale farmers.
 2012 Farmland Law restricts crop choices;
production systems; and ability to use fallow
land.
 Much of land which government has
declared VFV is in fact being used; need for
companies to ascertain if VFV land is
already owned/used by others.
https://i0.wp.com/myanmarvels.com/wp-content/uploads/2017/01/rural-
myanmar.jpg?resize=640%2C426&ssl=1

19. Ethnic minorities/indigenous peoples
 Ethnic minority areas plagued by armed
conflict, resulting in IDPs and refugees.
 Land belonging to IDPs and refugees now
may be used by others.
 Some areas under control of armed
groups, who may have their own land
administration.
 Prevalence of swidden/shifting agricultural
under customary practice; lack of formal
land titles.
https://blogs.adb.org/sites/blogs/files/styles/large/public/Photos_ADB_2012_MMR_
MT_DSC_0107%20%282%29_Fotor.jpg?itok=WaqFGK_j

20. Introduction to recommendations
Complexity/confusion about land - well-known scenario in emerging markets
without established cadastres and clear land laws.
Increased scrutiny about the way companies are addressing these problems.
The following recommendations can help companies to address these problems in
Myanmar.

21. Recommendations to companies
 Be aware of the history and context of land use and acquisition and respond
to it responsibly.
 Seek to respect rights (legal or customary) of those historically owning/using
land.
 Negotiate a fair deal that does not seek to exploit communities’ possible lack
of information or documentation of owners.
 Conduct detailed due diligence through direct consultation with villagers and
community leaders, as well as local authorities.
 Establish relationships with communities as soon as possible.

22. Recommendations continued
 Apply international standards and guidance during any
land transaction process (UNGPs, FAO Voluntary
Guidelines on the Responsible Governance of Tenure ;
IFC Performance standards).
 Aim to influence government-led resettlement processes
so they meet international standards.
 Pay particular attention to at-risk groups including women
and landless people.
 ‘Ground truth’ the land history; don’t rely on assurances
from government or lawyers.

23. • Understand additional considerations,
standards, and expectations in ethnic
minority areas.
• Take conflict-sensitive steps in considering
land transactions in conflict-affected areas.
• Undertake enhanced due diligence in
Rakhine State involving land.
Recommendations

24. Recommendations
 Consider carefully how to best address legacies
and past impacts, drawing on international best
practice.
 Don’t rely solely on cadastral records, including for
compensation.
 Develop operational grievance mechanisms
 Use mitigation hierarchy: avoid, minimize,
compensate/offset.
 Ensure that due diligence addresses the risks of
speculation and new arrivals.

25. Our unanswered questions
How is the National Land Use Council, formed in January with a mandate to
implement the 2016 National Land Use Policy, functioning?
The current status of the NLUP, and whether it is being amended.
Is the 2013 Law on the Protection of Farmers’ Rights and Enhancement of Their
Benefits being implemented/enforced?
When will the 2016 draft Myanmar National Building Code be enacted and
implemented?
When will the Agriculture Development Strategy, developed by MOALI, ADB, FAO,
and LIFT, be made public?

26. Your questions and concerns
Questions on presentation?
Additional points?
Concerns about land rights not covered in presentation?