Position Paper on the Rights to Customary Land and Practice Systems in Myanmar

November 16th, 2022  •  Author:   Transnational Institute  •  11 minute read
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Essentials to consider for a Federal Democratic country

This commentary reflects on a position paper posted on the website of Land in Our Hands which is the result of the collaborative effort of a group of grassroots associations and local civil society organizations who have been working together on customary land rights in Myanmar.

An interesting position paper is posted on the website of Land in Our Hands (LIOH), a network of local organizations working on land issues since at least 2014. It was researched and co-authored by a group of local organizations, committees and working groups who have been working on land in their own ways and territories – some well-known and longstanding, and some preferring to be anonymous (due to the security situation). The position paper is part of their advocacy for ‘genuine’ recognition and deeper understanding of customary land systems and also for a federal union in which customary land systems have a place.

“First, we hope to help push forward and strengthen the movement for full and meaningful recognition of indigenous ethnic peoples and their customary land rights and land management systems. Second, we hope to help all those who are seeking to help build a truly just society in Myanmar, to understand and respect the existence and importance of villagers’ customary land systems and assist in our efforts to get them fully and meaningfully recognized and respected, restituted and protected, as a step toward achieving a more general land reform process that puts people, nature and the planet before profits. Third, we hope to help prepare the way for the establishment of a federal union that is built on real peace within and between communities and on pro-people land governance based on customary land practices.”

The research upon which the paper is based shows that many customary land systems remain more or less operative today, despite the current turmoil. But their survival and the survival of the people who benefit from them (directly and indirectly) are under threat. The position paper highlights factors working against the well-being of customary land systems and their inhabitants.

Indigenous Karen communities work together and measure their village boundaries according to their customary practices; Kloh Mae Kaw village, Hpapun District. / Photo credit KESAN

Major political-economic changes over the last decade have been putting pressure on lands, livelihoods, and ways of life. Since the advent of the quasi-civilian U Thein Sein government in 2011, there has been a massive effort to transform Myanmar into an attractive place for big foreign investors and to incorporate populated rural areas into international supply chains and commodity webs. National laws and policies were designed to reorient both the country and the entire realm of government towards these goals. Some people assumed that this transformation was needed in order to ‘develop’ the country after decades of military rule. In the internationally dominant logic of ‘sustainable development’, customary systems are seen as ‘economically inefficient’ and ‘environmentally destructive’, and thus part of what ought to be replaced. Customary systems are thus seen by many political and economic elites as brittle relics of the past that have outlived their time.

But the paper argues that this is not the case.

“Customary land management systems are not a fixed set of rules. They are ‘living laws’. This means that while the system as a whole can be practiced and passed down from one generation to the next, there is still flexibility and room for innovation. The rules and ways of doing things can change and evolve, in response to changes within the community (like demographic changes such as the village population increasing or decreasing) or changes in the physical environment/climate (like a river drying up or an extended drought).”

Many people today are involved in evolving these customary land systems and their ways of life. And as the paper explains, those who are making their lives in customary land systems at the same time are still trying to make a living working with nature and protecting ecological biodiversity.

“Customary land management systems are not only serving to conserve and protect the sustainability of land, forest, water and other related natural resources, but also to provide food security, maintain the ecosystem, and enable the villages to mitigate and respond to climate change.”

For many decades their more agroecological approaches have succeeded in protecting the natural resources in these territories.

Ironically, this has made these areas very attractive to business investors looking to make big money. Since 2010, millions of acres of customary land have been targeted for reallocation to big investors through the Vacant, Fallow and Virgin Land Management Law (enacted in 2012 and amended in 2018). This law has been a crucial component of a bigger package of ‘modernizing’ laws set up to legalize taking the land and related natural resources in these places and making it available for national ‘economic development’ projects and enterprises. As LIOH pointed out at the time that the law was being amended, it basically amounts to ‘legalizing land grabbing’ that is adding a new layer of displacement to the many decades trend of uprooting people when their lands are wanted and they are not, thereby serving to deepen – not resolve – the country’s long-standing political conflicts.

“Customary land systems have been practiced for many decades. But a succession of governments including the military regime until now have undermined these systems. Over the past decades, people have had to leave their customary lands and territories because of long-term civil war and have suffered pain and faced many troubles as refugees and IDPs. Recognition and restitution of the people’s customary lands and territories is very important to be able to resolve Myanmar’s political conflicts and build a federal union and achieve sustainable peace. Customary land management systems should be treated as part of the basic foundation of any future federal land system.”

The Covid-19 pandemic showed how crucially important having land is for working people and their households to survive in difficult times. The Covid-19 pandemic and the lockdowns that governments enacted to respond to it disrupted wage work, as well as international and cross-border food supply chains. After decades of commodification processes, many people in Myanmar no longer produce the food they eat, and instead now depend on being able to purchase their food in the market. During the pandemic, having lost employment and without the means to buy food, combined with dwindling food stocks, meant increased hardship, malnutrition and vulnerability to disease. But having land back home – including as part of customary and informal village systems – meant that millions of migrant workers, for example, had a place to retreat to, where they were able to shelter (and recuperate), to grow their own food and to wait out the crisis together with other family and community members. This is what a social ‘safety net’ is. But not everyone has land, and those without land were forced to rely more on outside help and faced deeper uncertainties.

Since the February 2021 coup, terrible violence and repression has been unleashed by the newly-formed State Administration Council (SAC) against the population, but impacted different people and segments of the population differently. For many working people whose lives and livelihood are bound up with their ability to access and care for customary lands (including the forests and waters that are part of these village-based systems), both individually and collectively, the coup has brought even more problems and pressures.

Each of these facts of life in recent years up to the present – longer-term commodification of land, the Covid-19 pandemic and political responses to it, followed by the coup – have been occasions for political and economic elites to push forward narrow political-economic agendas and to use division and misrepresentation to prevent working people and grassroots communities from different ‘walks of life’ from coming together to fight for what many regardless of certain differences would want – peace, justice, democracy, dignity.

Coming together of course is very difficult and complicated, not simple or easy, and nor can it be rushed. There are many aspects to consider, many misunderstandings to overcome, many divides that need to be bridged. This is certainly true with regard to customary land systems. Sharing one’s own experience, research and perspective – as the groups behind this position paper have done – is necessarily part of a bigger process of coming together. Their effort is to be acknowledged, welcomed and appreciated!

And then what? How can we go on to forge a path for further discussion that engages people living other walks of life that could help build a bridge not only understanding, but in advocacy? Maybe it will be useful – and possible at some point – to follow up this effort with another round of reflection. For example, not all working people across Myanmar see themselves as belonging to customary systems, but they may still need and want land to survive and build a life with dignity. How can their needs be addressed, how can this initiative help them, if it can? Also, the various pressures and crises of recent years, and what they have shown in their impacts, would seem to put the idea of ‘food sovereignty’ higher up on the political agenda (alongside other ideas) in a future federal union. How can customary land systems contribute to building that vision and making it a reality? Perhaps these would be good questions to start thinking about next, and start discussing with a wider circle of groups.

Definitely, there is no such thing as an easy fix when it comes to complicated social-political situations like what we see in Myanmar today. Every ‘solution’ to a problem generates new problems to be understood and solved. This is to be expected, this is what it means to live in society, and its how we gain knowledge and experience of working and living together. Genuine recognition of customary land systems is also at the same time recognition of the people associated with them and recognition of that we are all born equal and with equal rights to live a dignified life. And in the end, that is what this position paper is about – it is about people living one way of life within a larger society standing up to say (in effect) “here we are too, present and accounted for, and ready to join with others to build a new path”.

“Myanmar society is a diverse and plurinational society, composed of many people and peoples, hailing from different walks of life, including diverse ethnic backgrounds and indigenous heritage, and shaped by many layers of history. Having endured too much bloodshed and strife and too many cycles of conflict, we as a diverse and plurinational society must cultivate the collective political will to finally forge a new, inclusive and democratic future, re-constituted under a federal framework: one where all people and peoples can live and flourish, free from ethnic and gender discrimination and free from racial and class oppression, side by side and in real peace and harmony, with each other and with nature.”

The question is not if they should be recognized, but rather how can these be genuinely recognized as part of a wider effort to move forward and create the solid social foundations for a plurinational, democratic and peaceful federal union. This position paper contributes to envisioning the bigger way forward, and we look forward to seeing how all those interested in peace and democracy will engage with these ideas.

In this light, TNI welcomes this initiative and believes the effort should be commended and even celebrated for going against strong currents of the dominant elite political culture that serves to erase land in the hands of working people and to pit all the diverse peoples of Myanmar against each other in order rule over them all. This initiative to overcome differences and unite people in a common cause, and as part of a bigger political project, deserves deep respect and sincere congratulations for where it comes from, for what it is, and for where it aspires to go.


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