Analysis of Customary Communal Tenure in the Myanmar Uplands

Burma/Myanmar in Transition: Connectivity, Changes and

Challenges Chiang Mai 23-24th July 2015

Kirsten Ewers Andersen

Upland Customary Tenure

• Customary communal tenure is characteristic of many local shifting cultivation upland communities in S.E. Asia. These communities have strong ancestral relationships to their land, which has never been held under individual rights, but considered common property of the village. Communal tenure has been the norm and land has never been a commodity.

Risks to Ethnic Upland Communities’ Shifting Cultivation Fallows

• Fallow land under customary tenure can be seen as vacant land by government under the Vacant, Fallow and Virgin Land Act 2012 as it is not titled and business is competing for land and natural resources leading to dispossession of local communities

• Government’s legal recognition of shifting cultivation land parcels under one communal ownership can be a means for a community to protect its lands against dispossession

Ongoing Policy Reforms in Land- draft National Land Use Policy

Rapid Research in Chin and Shan States during 2013-14

• With support from the Land Core Group in Myanmar I recorded (with FIPC) together with national researchers the customary Internal Rules for how the communities manage and share the lands under shifting cultivation/rotational fallow farming (Chin) and permanent and rotational farming (Shan)

• The Land Core Group supported the research to identify a possible regulatory framework for how in Myanmar to register shifting cultivation/rotational farmland as one common property under village joint ownership based on lessons learnt from Cambodia

Inspiration: Cadastral Communal Land Registration in Cambodia

• In Cambodia the indigenous communities have a right by Land Law 2001 to jointly get Land Use Certificates of all their communal agricultural land parcels including the fallows

• A cadastral land registration is a legal process including survey and mapping of the communities’ land parcels and it holds legal validity of communal ownership. It is not just zoning and mapping.

Key Principles of Common Property Resources (CPR)

• Boundaries of the land parcels that makes up the common property are clearly defined

• Boundaries between legitimate users and non-users are clearly defined

• Land management and sharing of the land follow the customary Internal Rules of the villages

• The customary Internal Rules (IR) and institutional arrangements match the characteristics of the resources in question as to size, vegetative cover, specific products, seasons etc

Customary Tenure is the Village’s Internal Rules

• Internal Rules for land management differ from village to village, dependent on the village's land resource endowment, the size of its total land area, population density, ethnic group identity and culture, clan identity and kinship, women’s status, private land claims within the common property, inheritance, bride prices, and transactions to borrow/lend land between village members.

Characteristics of Northern Chin Customary Communal Tenure

• Lopil are landscape blocks that have different size, fertility, natural vegetation cover

• One or two new fallow lopil are opened each year• A village may have in total, say, 18 lopil for use over

ten years. Each is divided annually into plots of around 3 acres demarcated by stones on the ground

• In Northern Chin allocation of plots among families takes place each year by lottery against the numbered plots

Chin lopil

The Internal Rules of Northern Chin Customary Communal Tenure

• Annual plot allocation in new lopil takes place by lottery• A family can develop a permanent claim within the

common property if investing labor in a terrace or orchard. Internal Rules permit this claim but only as long as the person lives in the village

• All rights of access to CPR land are based on actual physical residence in the village. This is the main condition in all villages

• This means customary tenure has rules for user ”membership”. Residence = Rights

Process of Fieldwork to Record Customary Tenure

Southern Chin Women, Chin StatePalaung Women, S. Shan State in meetings

Characteristics of Shan Customary Tenure

• The Northern Shan State landscape is different from Chin. Permanent cultivation with subsistence and cash crops (rice and corn)

• All land including the agricultural land in the village territory is considered village land

• All village agricultural land is communally controlled. If a family leaves the village the land will return to the common pool resource and redistributed. The family cannot sell the land to outsiders

Differences and Similarities between Customary Tenure Chin and Shan Communities

• In Chin villages the lopil are named & defined physical entities within large landscapes. Permanent claims are few. Rotational fallow farming/shifting cultivation. Rights are based on village residence

• In Shan villages the agricultural landscapes are small, well defined and named physical entities making up the parcels in the village territory. Plots within these landscapes are permanently claimed by families living in the village, e.g. a partitioned communal tenure.

• In both states, rights are based on village occupancy

Steps in an Official Registration of Customary Communal Tenure

• 1) Registered comunal ownership of customary village shifting cultivation land requires a mandatory identification of the body that owns the common property. The the community must incorporate legally. Thus, Statutes are developed which turn the community into one legal entity in the eyes of goverment. The entity has clear membership criteria (e.g. residence)

• 2) Internal Rules of customary tenure are recorded for how the community traditionally shares the shifting cultivation and permanent upland. These are the customary rules of tenure.

Development of Statutes turning the Community into a Legal Entity

• The researchers suggested to use the new Association Law for the community to register as an Assocation that would own all the village’s shifting cultivation farmland. The researchers brought draft Statutes for discussion with villagers. The Statutes deal with govenance and may not differ much among villages. They ensure everyone has a right to be heard

• The Internal Rules researchers recorded in each village are about customary land sharing and management. They differ from village to village in contrast to the Statutes

Research suggests to use the Farmland Law and Association Law

• The Farmland Law 2012 Article 6 includes organizations/associations as rights-holders of titled farmland.

• If the community develops Statutes it may incorporate legally as a legal entity or an organization/association that could be recognized by the General Administration Department (GAD)

• Once it is registered as an Association it can apply to the Settlement and Land Records Department (SLRD) for registration of all parcels of its customary communal land which will include all the fallow land

Contents of the Village Statutes

• The Statutes define the objective of the Association: joint ownership of all the named (agricultural) landscapes in the Statutes

• They define membership of rights-holding body

• They define decision-making arrangements and the role of the Village General Assembly and Land Caretaker Committee

• They define ways of interacting with government and the private sector

Contents of the Internal Rules

• The IR define for Chin the annual lottery arrangements for plots inside the new block of fallow land

• The IR define ways of exchange of land internally• The IR define rules of a family’s conversion of land

plots to permanent cultivation inside the CPR• The IR define inheritance and women’s including

widows’ rights• The IR define lending of land to neighbouring village

for annual crops, not perennials

Utilization of land within a lopil

Issues of Cadastral Registration of Shifting Cultivation Parcels

• A digitalized cadastral registration of full communal ownership of shifting cultivation land with legal validity would need to establish clear boundaries of all the agricultural parcels including fallows.

• This refers to, say, all 18 lopil of a village, but the total ten-year actual agricultural land use may be only a total of 8000 acres out of the 24,000 measured, i.e. 800 -900 acres/year

• So which kind of boundaries to use in a legally valid cadastral registration???

Village Communal Cadastral Land Registration Map Cambodia

• Andong Kroloeung is a Phnong indigenous village in Mondulkiri province of Cambodia. Its communal land is measured, digitalized . Its total communal tenure is 1424.6 ha, which is divided into 6 types of land that include:

• A: burial forest of 10.02 ha, B: paddy land of 31.74 ha, C: residential land 166.94 ha, D: actual cultivated land 636.5 ha, E: spirit forest 5.73 ha, F: reserved land necessary for shifting cultivation 573.33 ha.

The Links of Research to the Draft National Land Use Policy

• The draft National Land Use Policy will inform the preparation of the new Land Resource Law

• The 2015 6th version of the draft Land Use Policy is positive towards government recognition of customary tenure of ethnic nationalities

• The aim is to establish clear and easy processes to enable recognition and registration of rights for all stakeholders including ethnic nationalities and smallholder farmers, when their rights have not previously been recognized and registered

Examples of 2015 6th version of NLUP

• Art 27 (d) “Protecting lands that are under rotating and shifting cultivation, and customary cultivation practices”

• Art. 51” 51. Rotating and shifting cultivation shall be considered as subsistence agriculture, and the rate of land tax shall not be more than the maximum rate collected for ordinary smallholder farmer or smallholder household.“

• Whole Section VIII of NLUP: Land Use Rights of the Ethnic Nationalities

Section VIII of NLUP: Land Use Rights of the Ethnic Nationalities

• Art. 62. “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.”

What does customary tenure mean?

• In the following months stakeholders in Myanmar shall have a discussion on what ”customary tenure” means

• Not all customary tenure land is commally managed. In a number of upland communities we find customary tenure where land is controlled by aristocratic clans where other families pay for land access

• In contrast we saw in Northern Chin a fully democratic lottery systems where all are equal and no one landless.

• In drafting a Land Law these issues of customary tenure of ethnic nationalities need to be teased out

Fin

This is the End

Thank you