The Fate of Customary Tenure Systems of Ethnic Minority Groups in

Upland Myanmar

An Analysis of the Legal Framework of Land Governance

von der Mühlen, Manuela

a Centre for Development and Environment, OneMap Myanmar, 19A Kokkine Yeik Thar, Bahan Township, Yangon, Myanmar.

Email: manuel.vondermuehlen@cde-regions.net | manuel.vondermuehlen@gmail.com

Supervisor:

Linn Borgen-Nilsen

Due Date:

30. May 2018

Layshi Township, Nagaland © von der Mühlen, Manuel

i

ABSTRACT

Myanmar is currently undergoing a triple transition: From an authoritarian military regime to democratic

governance; from a centrally controlled to a market economy; and from more than sixty years of armed

conflict to peace in its border areas.

Myanmar is a multi-ethnic state with 135 officially recognized ethnicities. The uplands are home to ethnic

minority groups like the Chin, Kachin, Pa-O, or Naga. These groups attained semi-autonomous status

during the colonial era and were largely left untouched by the passing military regime. Recent ceasefire

agreements have facilitated the incorporation of the country’s uplands, as the government seeks an

allocation of the frontier lands to investors and businessmen.

This strategy is accompanied by a land tenure reform process since 2012. The Farmland Law (2012) and

the so-called Vacant, Fallow and Virgin Lands Management Rules (2012) are designed to cause a shift from

common to private property regimes. In contrast, the recently enacted National Land Use Policy or NLUP

(2016), which guides decision makers in the development of the country’s first ever National Land Law, does

recognize customary tenure.

Through this research, I examine the National legal framework of land governance. I provide insights into

the land tenure reform process of a country in transition, and the inevitable challenges and opportunities

faced by the people concerned. I address questions about (i) the ambiguity of Myanmar’s land governance

framework and its consequences for customary tenure security; (ii) how the reform impacts on customary

tenure security; and (iii) how current land laws must be amended to strengthen customary tenure security.

Since the land tenure reform process is particularly prevalent in upland Myanmar, I focus on the country’s

ethnic minority hill groups.

My analysis shows that the legal framework is used by those in power for arbitrary land concessions. Large-

scale land acquisitions are being facilitated and customary tenure systems weakened by nearly all relevant

laws. While the NLUP (2016) offers more hope for customary tenure to become officially recognized, there is

still a long way to go for an all-encompassing National Land Law. I thus propose policy recommendations in

the form of amendments to existing laws. The government must, inter alia, (i) re-classify farmland categories

to include shifting cultivation; (ii) define the meaning of ‘vacant’ lands, excluding lands left fallow by shifting

cultivators; (iii) clearly specify conditions under which the state can claim legal land ownership; and (iv)

align all existing land laws with the NLUP (2016).

My research findings indicate that the land tenure reform process in its current state leads to an uncertain

future of customary tenure systems. In the interest of long-lasting peace, customary tenure should be

protected. The NLUP (2016) provides the foundation for reform that must now be put into action. Only when

the land rights of upland ethnic minority groups are protected will Myanmar’s triple transition be successful.

Keywords: Myanmar; land redistribution; customary tenure; shifting cultivation; large-scale land acquisitions

ii

Figure 1: Myanmar Country Map

Source: http://themimu.info/country-overview

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Aung San Suu Kyi, State Counselor1

1 Source: As cited in Leckie and Arraiza 2017, p. 40

The land issue is one of the biggest challenges in Myanmar. Most

of the lands were grabbed illegally and thus there are a lot of

problems regarding land ownership […] Those illegal land

acquisition and land grabbing have been happening in Myanmar

seriously since 20 years ago. There could be a few land cases

even before that. The legislative branch of government has been

trying to solve all those land issues since 2013. However, it is

not as successful as expected. We are now trying our best to

solve land cases at soonest.

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LIST OF FIGURES AND TABLES

List of Figures

Figure 1: Myanmar Country Map ii

Figure 2: Major Ethnic Groups of Myanmar 1

Figure 3: Most Frequent Adverse Livelihood Outcomes of Large-Scale Land Acquisitions 2

Figure 4: Distribution of Ethnic Armed Organisations and Natural Resource Extraction in Myanmar 3

Figure 5: Customary Tenure Recognition Worldwide 6

Figure 6: Customary Tenure Recognition in Myanmar 6

Figure 7: Myanmar’s ‘Ambiguous’ Legal Framework of Land Governance 14

List of Tables

Table 1: ‘Bundle of Rights’ and Associated Operational Position Towards the Resource 5

Table 2: Effects of Land Tenure Reform on Customary Tenure Systems in Myanmar 15

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LIST OF ABBREVIATIONS

Notification: I have spelt out the complete term of each abbreviation whenever I mention it for the first time

in each chapter. The rest of the chapter uses only the respective abbreviation. Only terms mentioned at least

two times throughout the paper are abbreviated.

CFC = Community Forestry Certificate

CLR = Classic Land Reform

FAB = Farmland Administrative Body

FPIC = Free, Prior and Informed Consent

GAD = General Administration Department

LAA = Land Acquisition Act

MBLR = Market-Based Land Reform

LNA = Land Nationalization Act

LUC = Land Use Certificate

NLD = National League for Democracy

NLUP = National Land Use Policy

SEIA = Social and Environmental Impact Assessment

VFVLM = Vacant, Fallow and Virgin Lands Management

TABLE OF CONTENT

ABSTRACT ................................................................................................................................................... i

LIST OF FIGURES AND TABLES ............................................................................................................ iv

LIST OF ABBREVIATIONS ....................................................................................................................... v

1 INTRODUCTION ................................................................................................................................. 1

1.1 Background Information ............................................................................................................... 1

1.2 Research Problem .......................................................................................................................... 1

1.3 Research Questions ....................................................................................................................... 3

1.4 Research Relevance ....................................................................................................................... 4

1.5 Research Approach and Outline .................................................................................................... 4

2 THEORETICAL FRAMEWORK ........................................................................................................ 5

2.1 Land Tenure Systems and Security ............................................................................................... 5

2.1.1 Land Tenure Security ............................................................................................................ 5

2.1.2 Land Tenure Regimes ........................................................................................................... 5

2.1.3 Customary Tenure ................................................................................................................. 6

2.2 Land Redistribution ....................................................................................................................... 7

3 LEGAL FRAMEWORK OF LAND GOVERNANCE ........................................................................ 9

3.1 Land Tenure Reforms and Their Impacts on Customary Tenure .................................................. 9

3.1.1 Land Tenure Reform Before Independence (Prior to 1947) .................................................. 9

3.1.2 Land Tenure Reform After Independence (1947 – 2012) ..................................................... 9

3.1.3 Land Tenure Reform Today (2012 – Present) ..................................................................... 10

3.2 Land Governance Institutions...................................................................................................... 12

4 DISCUSSION ..................................................................................................................................... 14

4.1 Research Findings ....................................................................................................................... 14

4.2 Policy Recommendations ............................................................................................................ 16

5 CONCLUSION ................................................................................................................................... 19

5.1 Idea Behind the Research ............................................................................................................ 19

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vii

5.2 Main Findings and Policy Recommendations ............................................................................. 19

5.3 Research Limitations and Further Studies ................................................................................... 20

6 ACKNOWLEDGMENTS ................................................................................................................... 21

REFERENCES ............................................................................................................................................ 22

Alphabetical ............................................................................................................................................ 22

Thematic .................................................................................................................................................. 27

ANNEX ....................................................................................................................................................... 37

Case Study: Nagaland ............................................................................................................................. 37

Declaration of Originality ....................................................................................................................... 39

1 INTRODUCTION

1.1 Background Information

Myanmar has an area of 670.000 km² with a population of 51.4 million people (Kraas et al. 2017). Most

people depend on land for their livelihoods, almost 70% of the total population lives in rural areas. The

country is administratively divided into the Union in Nay Pyi Taw, 14 Regions and States, 74 districts, 330

townships, 3.301 wards, 13.588 village tracts, and 63.798 villages (Kraas et al. 2017). Myanmar is a multi-

ethnic, multilingual, and multi-religious country with 135 officially recognized ethnicities. The Bamar

constitute the largest ethnic group, Burmese is the official language, and Buddhism the all-prevalent

religion. Myanmar’s uplands are dominated by ethnic minority groups (non-Bamar) and home to 40% of

the total population (Stokke et al. 2018). Figure 2 shows the distribution of the major ethnic groups

throughout the country.

1.2 Research Problem

Figure 2: Major Ethnic Groups of Myanmar

1

1

Myanmar is currently undergoing a triple transition:

From an authoritarian military regime to democratic

governance; from a centrally controlled to a market

economy; and from more than sixty years of armed

conflict to peace in its border areas (Htun 2015; KHRG

2015; WB 2018).

The government intends to develop a National Land

Law incorporating all previous land laws. In this

process, guided by the National Land Use Policy

(2016), it follows a strategy of incorporating the uplands

– until recently largely untouched and still dominantly

governed through common property regimes – into the

public system of land governance (Hirsch, Scurrah

2015). The lack of recognition of customary systems

undermines the tenure security of upland ethnic

minority groups and threatens their way of life (Vicol et

al. 2018).

Source: Stokke et al. 2018, p.4

1

2

Lowland farmers have been familiar with statutory law and the concept of private property since the British

colonial regime controlled their lands to secure access to paddy rice and collect taxes (Andersen 2016; Mark

2016a). Tenure security through private property institutions in the uplands cannot be a replicable model,

however. For Myanmar’s hill communities, customary tenure means livelihood and identity (Mark 2015).

Myanmar must outline a different legal framework of land governance for its upland ethnic minority groups

(USAID LTP Toolkit 2018).

Shifting cultivation is the dominant agricultural practice of Myanmar’s upland ethnic minority groups and

their main source of livelihoods (Springate-Baginski 2013). It represents an extensive multifunctional

landscape use integrating the economic and environmental value of the land, while capitalist and collectivist

farming systems segregate landscapes into forest conservation and intensive agricultural land use zones

(Castella et al. 2013). Transition from shifting cultivation to permanent agriculture is a response to broader

political economic pressures to commercialize agriculture, often blind to the ruptures caused in rural

livelihoods (Scurrah et al. 2015).

Large-scale land acquisitions (LSLA)2 can tremendously transform the livelihoods in their target region

through alteration of use, access, and ownership rights to land (Oberlack et al. 2016). Lands held under

common property regimes are vulnerable to involuntary land loss in contexts of weak legal enforcement

mechanisms of customary land rights presenting an easy target for investors (Fuys et al. 2006; ILC 2006).

Figure 3 shows the most frequently reported adverse (negative) livelihood outcomes of LSLA on a global

scale.

2 Combining definitions from multiple sources, LSLA is herein defined as governments and private investors from domestic and

foreign countries securing large tracts of lands and waterbodies, including communally held indigenous territories, for

agricultural production, infrastructure or industrial development, resource extraction, and resource conservation by means of

long-term lease or purchase agreements (Foljanty 2009, p.3; Oberlack et al. 2016).

Figure 3: Most Frequent Adverse Livelihood Outcomes of Large-Scale Land Acquisitions

Source: Oberlack et al. 2016

3

The seizure of customary held lands in the uplands is now being facilitated, ironically, through the

nationwide ceasefire agreement enabling a shift from decades of civil war to the inflow of capital from

domestic and foreign investors (Hirsch, Scurrah 2015). Figure 4 shows the overlap between the locations of

present day ethnic armed conflicts and large-scale development projects across Myanmar.

Without amendments, the current legal framework of land governance increases vulnerability and risks

poverty for millions of people (Leckie, Arraiza 2017; Mark 2016b). The government must therefore legally

recognize customary tenure and shifting cultivation as realities on the ground to strengthen tenure and

livelihood security (Mark 2016b).

1.3 Research Questions

1. Why is Myanmar’s legal framework of land governance considered ‘ambiguous’; and what are the

consequences of this ambiguity for customary tenure security of upland ethnic minority groups?

2. How does Myanmar’s land tenure reform process impact on customary tenure security of upland

ethnic minority groups?

3. How must Myanmar’s land laws be amended to increase customary tenure security for upland ethnic

minority groups?

Figure 4: Distribution of Ethnic Armed Organisations and Natural Resource Extraction in Myanmar

Source: Stokke et al. 2018

4

1.4 Research Relevance

The research is situated in the current land redistribution debate. It is directly linked to indicator 1.4.2 of

Myanmar’s report on the Sustainable Development Goals to implement Goal 1: End poverty in all its forms

everywhere measuring its success by the proportion of the adult population with secure tenure rights and

legally recognized documents (UNDP, CSO 2017).

Myanmar is emerging from decades of civil war. The arrangement of the land redistribution process will

have profound consequences on how citizens relate to one another (Mark 2016b). The research is relevant

for any country recovering from ethnic armed conflict where state sovereignty is challenged by multiple

institutional actors (RRI 2015).

The National Land Use Policy (2016) calls for research on customary tenure to better understand what is at

stake and facilitate recognition of customary land rights. This study contributes to a better understanding

about the role of customary tenure in Myanmar’s legal framework of land governance. The results can be

used to revise the ongoing land redistribution process to be more sensitive to rural livelihoods.

1.5 Research Approach and Outline

I have chosen an analysis of the legal framework of land governance to better understand the complexity

behind the ongoing land tenure reform process in Myanmar. I have consulted relevant land laws before

independence (1894 – 1947), after independence (1947 – 2012), and recent land laws and policies (since

2012). It is important to become familiar with comparatively old laws since these are still legally applied in

Myanmar despite being outdated. Nevertheless, I have specifically focused on the reforms since 2012

because they have the most profound consequences for customary tenure security of ethnic minority groups

in the uplands. In addition, I have analysed many secondary sources covering relevant topics like customary

tenure, shifting cultivation, and LSLA in the context of Myanmar.

The remainder of the paper is structured as follows. The THEORETICAL FRAMEWORK provides

background information on land tenure security and systems, including customary tenure, as well as land

redistribution to better understand what inspires countries like Myanmar to reform their agrarian structure,

and what is at stake. Where applicable, I refer to the respective information in the context of Myanmar. This

is followed by an analysis of customary tenure in the LEGAL FRAMEWORK OF LAND GOVERNANCE.

The DISCUSSION addresses the research findings and policy recommendations before the CONCLUSION

summarizes the main idea, main findings, and most important policy recommendations. In the ANNEX, I

take a closer look at customary tenure systems and rural livelihoods of Myanmar’s upland ethnic minority

groups through a case study on the Naga.

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2 THEORETICAL FRAMEWORK

2.1 Land Tenure Systems and Security

2.1.1 Land Tenure Security

The term land tenure refers to property rights to land of groups and individuals (Kuhnen 1982). Land tenure

is characterized through a ‘bundle of rights’, rather than a single right to land (Feder, Feeny 1991; Ostrom,

Hess 2007). The literature (ibid) commonly distinguishes the following five types of tenure:

1) Access: The right to enter a defined physical area and enjoy non-subtractive benefits. The

right to subtract the resources pertaining to these lands is not guaranteed;

2) Withdrawal: The right to obtain resource units or products of a resource system;

3) Management: The right to regulate internal use patterns and transform the resource by

making improvements;

4) Exclusion: The right to determine who will have access and withdrawal rights, and how those

rights may be transferred;

5) Alienation: The right to sell or lease management and exclusion rights.

As shown in table 1, the level of property rights to land is defined by the rights holder.

Table 1: 'Bundle of Rights' and Associated Operational Position Towards the Resource

Owner Proprietor Claimant Authorized

User

Authorized

Entrant

Access X X X X X

Withdrawal X X X X

Management X X X

Exclusion X X

Alienation X

Source: Ostrom, Hess 2007

2.1.2 Land Tenure Regimes

Land tenure regimes are the institutional arrangements that define and regulate the rules, principles,

procedures, and practices through which societies establish and regulate peoples’ relationship to land (FAO

2002; USAID 2007).

Land rights are held under one of the following four globally recognized land tenure regimes:

1) State property regime: Property rights are held by some authority in the public sector, but

can partly be transferred to individuals (by leaseholds or concessions);

2) Individual property regime: Property rights are held by an individual or legal body, but can

partly be restricted by the state;

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3) Common property regime: Property rights are held by the community. Members can use the

commons within a demarcated territory independently, based on strict rules and procedures.

Non-members are excluded;

4) Open access: Property rights are not assigned, access unregulated. States often claim

ownership to lands under common property regimes because they do not recognize the latter.

Source: Davy 2009; GTZ 1998

Although these four major tenure categories can be distinguished in theory, they often overlap and change

over time (MRLG 2017). For example, a forest area may officially be classified as state land but considered

common property on the local level with villagers holding rights to practice shifting cultivation and collect

firewood (MRLG 2017).

2.1.3 Customary Tenure

Customary tenure describes a set of rules and

regulations, which have been established over time

by a community to sustainably manage their lands

and natural resources (MRLG 2017). Though not

recognized in formal statutory law, customary rights

and associated rules and institutions are legitimate

in the eyes of local communities: They are well

known, accepted and enforced by communities, and

in most cases by neighbouring communities as well

(MRLG 2017).

What Customary Tenure is NOT

Customary law does not have to be old to be

legitimate. It is also not a static concept, but

adaptive to local and global contextual changes.

Furthermore, customary law refers not only to

communally held lands, but also to clan-based,

household, and individual ownership rights

within village boundaries (Andersen 2016;

MRLG 2017).

Figure 6: Customary Tenure Recognition Worldwide

It is estimated that indigenous peoples and local communities either own, control, or could claim 65% of the

global land mass (RRI 2015). At present, 18% of this land mass is legally recognized customary land: 10%

through ownership, 8% through designation without ownership rights. In comparison, Myanmar has designated

merely 0.07% of its land mass and not acknowledged any ownership rights to ethnic minority groups. The

complete lack of customary tenure recognition is characteristic of fragile states like Myanmar (RRI 2015).

Figure 5: Customary Tenure Recognition in Myanmar

Source: Original figures, based on RRI (2015)

2.2 Land Redistribution

Definition

Throughout history, governments have attempted to change their land governance institutions to overcome

obstacles to social and economic development because of shortcomings in the existing agrarian structure

(Kuhnen 1982). Land redistribution or land tenure reform is herein defined as legislation intended and

likely to directly redistribute ownership of, claims on, or rights to current farmland, and thus to benefit

the poor by raising their absolute and relative status, power, and/or income, compared with likely

situations without the legislation (Lipton 2006, p. 328)

Classic Land Reform

In classic land reform (CLR), households owning more land than a specified ceiling must surrender this

excess to the state (Lipton 2009). The CLR attempts to reduce inequality by transferring land rights from

large landholders to smallholder farmers raising the latter’s absolute and relative status, while monetarily

compensating the previous landholders for their ‘loss’ of land (Lipton 2009).

People with direct or indirect interests in the amount and terms of land transfer try to influence government

officials and their agencies. They often succeed in resisting land tenure reform until the rural poor become

a large and increasingly mobilized interest group that can no longer remain unattended (Lipton 2009). After

all, “[i]t would be naïve to assume that those who monopolize power and land will simply step aside and

divest themselves of their wealth and social position […]” (as cited in Borras, Saturnino 2006, p. 115).

Despite its redistributive character, the CLR is often (though not necessarily) blind to communal land rights

(Lipton 2009). Communal lands are often (though not necessarily) considered open access/public lands in

the eyes of the reformers (Lipton 2009). On the next page, Chile offers a historical example of CLR with

respect for communal land rights, followed by MBLR restoring the status quo.

Market-Based Land Reform

The focus of Market-Based Land Reform (MBLR) is almost exclusively technical, administrative, and

economic with the intention to capitalize on the remaining commons (Borras et al. 2010). According to

MBLR proponents, poverty can be addressed by transforming communally held lands from ‘sleeping

capital’ into privately owned and financially interchangeable rights that can be turned into assets (Borras et

al. 2010). They believe that turning this ‘extra-legal’ property into individual titles incentivizes banks to

hand out credits to rural people, which encourages the latter to invest in their now legally protected lands

(Soto 2000). This model is intended to ensure that the state give up its regulatory functions over land and

establish a land rental market (Borras et al. 2010).

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Criticism on the Market-Based Land Reform

The idea of ‘capitalization by formalization’ (p. 837) offers a simple solution to a complex problem (Löhr

2012). However, apart from manifold shortcomings of this approach3, land tenure is too complex to be

tackled by a ‘one-size-fits-all’ approach legalizing ‘extra-legal’ property (Deininger, Binswanger 1999).

Property rights are not intangible, they describe social relationships, which are not adequately considered

through MBLR. Since the MBLR has dominated land governance frameworks worldwide over the past

decades, land tenure reform has largely shifted from its classic character of ‘redistribution’ to ‘efficiency’

without considering inequality (Borras, Saturnino 2006; Lipton 2009). Myanmar has adopted a MBLR

framework with the consequence of increased inequality and tenure insecurity in its rural hinterlands

(Boutry, Allaverdian 2017).

Legal Pluralism

In contrast to an exclusive focus on private property regimes, legal pluralism refers to the co-existence of

at least two different property regimes in a multi-ethnic society like Myanmar (Benda‐Beckmann 2001;

Dekker 2005). The legal entry point to recognize customary alongside individual land rights requires

modifications in legal provisions that (i) refer to customary rights; (ii) regulate the conservation of natural

resources; and (iii) regulate the use and exploitation of land and resources (Almeida 2015). In my policy

recommendations, I thus propose modifications to legal provisions regulating customary tenure and use of

land and resources.

3 The conventional solution to land tenure insecurity can be criticized, inter alia, on the following grounds: (i) It can break communal

‘safety nets’; (ii) it is based more on ideology than on scientific evidence; and (iii) it falsely assumes a causal relationship between

land tenure security and private property rights (Gilbert 2001; Goldfinch 2015).

Collectivization and De-Collectivization in Chile

The agrarian reform implemented under the communist regime of Salvador Allende (1970 – 1973) introduced

a maximum size of land through ceilings, and expropriated large landholders of lands to which indigenous

peoples had historical claims. The intensification with which the expropriation process took place eventually

led to the downfall of the government and the assassination of Allende (with strong political backing by the

United States). The military regime under the leadership of Allende’s successor, General Augusto Pinochet

(1973 – 1989), de-collectivized most of the lands the Allende regime had collectivized returning the now

communally held lands to private landholders or the state. The governments following Chile’s return to

democracy (since 1990) have introduced legal reform, including the Indigenous Law (1993), which protects

the remaining communal lands of indigenous peoples (3% of Chile’s total land mass).

Source: http://www.estudiosindigenas.cl/documentos/documentos%20originales/von%20der%20Muhlen,%20Manuel_SPRI%20NG_Master%27s%20Thesis_Final(1).pdf

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3 LEGAL FRAMEWORK OF LAND GOVERNANCE

3.1 Land Tenure Reforms and Their Impacts on Customary Tenure

3.1.1 Land Tenure Reform Before Independence (Prior to 1947)

The British colonizers followed an export-oriented development strategy to produce paddy rice and selected

cash crops and collect tax revenues from agricultural land. This required land acquisitions on a large scale

(Ferguson 2014). In the Bamar-dominated lowlands, the British introduced the Land Acquisition Act or

LAA (1894), which outlines when and how the government may acquire lands from private rights holders

(Ferguson 2014). Importantly, during British colonialism, many upland ethnic minority groups gained

autonomous status, were exempted from taxes, and could freely choose which crops to plant (FSWG 2011;

Mark 2016a). In other words, many upland ethnic minority groups relished de facto recognition of their

customary way of life (FSWG 2011; Mark 2016a).

The LAA (1894) has several shortcomings with negative implications on customary tenure security (USAID

LAA Analysis 2017). First, it lays out rules for land acquisitions in the name of public interest without

specifying the meaning of public interest. This makes it relatively easy for the government to grab lands on

the grounds of public interest without providing further justifications. Second, the LAA (1894) fails to

provide for control mechanisms. It also fails to provide adequate means of compensations in case of

evictions (USAID LAA Analysis 2017).

3.1.2 Land Tenure Reform After Independence (1947 – 2012)

The Constitution of 1947 was amended in 2008. Together with the Land Nationalization Act or LNA

(1953) and the Forest Law (1992), it constitutes the most important legal document concerning customary

tenure security following independence. Although it protects individual ownership rights (Articles 35, 356

and 372) and establishes the right to appeal (Articles 11 and 19), the Constitution (2008) simultaneously

affirms the state as the ultimate owner of all lands (Article 37). The LNA (1953) re-affirms the state as the

ultimate owner of all lands (Burgess 2015). While the LAA (1894) exempted upland ethnic minority groups,

the LNA (1953) applies to the uplands as well turning smallholder farmers de facto into ‘state tenants’

unable to mortgage, lease, sell, or exchange lands (Mark 2015; Mark 2016a).

The Forest Law (1992) distinguishes between two categories of forest land: Reserved Forest for commercial

production (Articles 2 and 4) and Protected Public Forest for environmental conservation (Articles 2 and 5).

Since all forest land is classified under of these two categories, and officially declared state land, this creates

a difficult baseline for forest dwelling communities because they are regarded as ‘illegal’ residents on their

own lands (FSWG 2011). However, local communities can obtain 30 years subsistence use rights for a pre-

defined management area through Community Forestry Certificates (CFC) (FSWG 2011).

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3.1.3 Land Tenure Reform Today (2012 – Present)

The Farmland Law (2012), the Vacant, Fallow and Virgin Lands Management or VFVLM Rules (2012)

and the National Land Use Policy or NLUP (2016) represent the most important legal documents regarding

customary tenure security today.

Farmland Law (2012)

The Farmland Law (2012) establishes a land registration and title system for agricultural use that formally

recognizes private use rights through the issuance of Land Use Certificates (LUC) granting its holder

permission to cultivate agricultural land (USAID Farmland Law Analysis 2017). The widescale distribution

of LUC is meant to attract investors through the creation of a land rental market since the certificate provides

its holder with the right to sell, exchange, access credit, inherit, and lease land (Mark 2015).

The Farmland Administrative Body (FAB) oversees the land registration process and issues the LUC (Mark

2015). In addition, the FAB has the authority to confiscate farmland, if this is in public interest (Mark

2016a). The Farmland Law (2012) theoretically provides for dispute resolution mechanisms (Articles 9 and

17). However, if unresolved, disputes can only be passed on to another FAB at the next highest level until

the Region/State level without external accountability. In other words, the FAB is the administrator and the

judge of farmland allocations at the same time (Mark 2015).

The Farmland Law (2012) does strengthen individual tenure security through the issuance of LUC. It also

offers communities the opportunity to re-classify forest land into farmland (Boutry, Allaverdian 2017).

However, since it neither recognizes customary tenure nor shifting cultivation as a farmland category, locals

cannot obtain titles for lands used by the community for shifting cultivation (Boutry, Allaverdian 2017).

Vacant, Fallow and Virgin Lands Management Rules (2012)

The VFVLM Rules (2012) regulate use, allocation, and use permissions for lands declared ‘vacant’ under

the management of the VFVLM Committee (Mark 2016a; Scurrah et al. 2015).

Nine million LUC have already been handed out since 2012 (Boutry, Allaverdian 2017). However, decisions

about allocations of ‘vacant’ lands are often based on outdated information and completely disregard local

use (WB 2018). Since shifting cultivation is considered illegal and the VFVLM Rules (2012) fail to

recognize fallow lands used for shifting cultivation as communal lands, considering them to be ‘vacant’,

this leads to infrequent dispossession without prior consultation on the ground, mis-classifications, and

incorrect allocations. This situation causes multiple land conflicts across Myanmar (ERI Farmland Law

Analysis 2018; USAID VFVLM Rules Analysis 2017).

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The VFVLM Rules (2012) do provide for control and compensation mechanisms (Article 25 (b)). However,

until now many smallholder farmers had to pay compensations to big businesses since Article 25 (b) is

mostly applied under Section 427 on Trespass and Section 447 on Damage to Private Property (ERI

Farmland Law Analysis 2018). The inflicted punishment is disproportionate and consists of high fines

(MMK 500.000 or USD 375) and imprisonment of up to two years. In other words, the VFVLM Rules

(2012) criminalize farmers on their own lands (ERI Farmland Law Analysis 2018).

Finally, the amount of use permissions that investors can obtain are disproportionately higher than those of

smallholder farmers (Mark 2015). While local communities can apply for agricultural use of ‘vacant’ lands

one time only for no more than 50 acres (Article 10 (a) (iv)), investors can apply as much as ten times for

5000 acres each time, totaling 50.000 acres (Article 10 (a) (iii)). In other words, the amount of ‘vacant’

lands that can be allocated to investors is (at least) 1000 times higher than the amount of ‘vacant’ lands that

can be allocated to local communities.4

National Land Use Policy (2016)

In 2016, the newly elected democratic government, the National League for Democracy (NLD), launched

the NLUP (2016) as a guide to develop a National Land Law with the intention to combine all previous land

laws under one umbrella (Scurrah et al. 2015; USAID Farmland Law Analysis 2017). The NLUP (2016)

represents the beginning of a convergence between international standards on longstanding land issues and

the national legal framework (Leckie, Arraiza 2017; Mark 2015).

The NLUP (2016) is very different in character from the 2012 laws (which is largely attributable to the fact

that the 2012 laws have been established by the military regime and the NLUP (2016) by the NLD).

Although their terms are not clearly defined, the NLUP (2016) does recognize both customary tenure and

shifting cultivation in several provisions (Andersen 2016). Through the NLUP (2016), the government

intends to (i) legally recognize and protect customary lands; (ii) prepare customary land use maps; (iii) re-

classify customary lands; (iv) register customary use rights, including shifting cultivation; (v) monitor

recognition and protection of customary lands; and (vi) facilitate research for formal recognition of

customary lands (Andersen 2016). It also offers smallholder farmers more freedom of crop choice, and to

voluntarily transfer or sell their lands without undergoing complicated processes, when they desire to change

their land uses (USAID Farmland Law Analysis 2017).

4 During an informal discussion with an international expert on land issues in Myanmar, I was told that influential individuals have

created a mechanism through which they can increase the land area for which they apply even further by dividing their own company

into multiple branches.

12

Despite important progress for customary tenure security in comparison to previous land laws, the NLUP

(2016) is criticized by civil society actors because (i) public consultations have until now remained limited

and opposed to by most government officials, afraid to expose the policy too much to the public; (ii) the

overall content of the policy still prioritizes investment and business interests over those of local

communities; (iii) little attention is paid to the fundamental link between land use and administration and

nationwide peace; and (iv) the protection of customary rights is not yet strong enough and not aligned with

international standards (Burgess 2015; Namati 2016).

All laws introduced in this section, from the (almost) 125-year old LAA (1894) to the recent VFVLM Rules

(2012), are still in use. This creates a complex legal framework of land governance where multiple laws

operate simultaneously at a horizontal level. This is the focus of the next section.

3.2 Land Governance Institutions

Source: As cited in Mark 2015, p. 4

‘Stacked’ Laws

The current legal framework of land governance is a patchwork of 70 laws and regulations that are often

described as ‘stacked’ (MCRB 2015). This means multiple layers of laws exist simultaneously because new

laws have not replaced old ones, but instead been ‘stacked’ on top of one another, creating conflicts and

legal contradictions (Mark 2016a).

‘Fragmented’ Sovereignty

The decision-making authority over land and natural resources is ‘fragmented’ (Mark 2016b).

Responsibilities are hierarchically dispersed across ten different government agencies (Burgess 2015). The

most important departments are (i) the Forest Department of the Ministry of Natural Resources and

Environmental Conservation, managing forest land; (ii) the Department of Agricultural Land Management

and Statistics of the Ministry of Agriculture, Livestock and Irrigation, managing farmland; and (iii) the

General Administration Department (GAD) of the Ministry of Home Affairs, which is under the control of

the military and holds administrative responsibilities (USAID LTP Toolkit 2018).

These three departments operate at (almost) all administrative levels from the Union to the village tract,

except for decisions concerning the VFVLM Rules (2012) and the LAA (1894), which are exclusively

managed by the President’s Office at the Union level (USAID LAA Analysis 2017).

“[M]yanmar’s land laws are the most convoluted in all of Asia.

They are a puzzle where all the pieces don’t fit together.”

13

The ‘fragmentated’ sovereignty and consequent confusion becomes even more apparent through the

multiple committees regulating land laws and policies:

1. Farmland Law (2012) = Farmland Administrative Body (FAB)

2. VFVLM Rules (2012) = VFVLM Committee

3. National Land Use Policy (2016) = National Land Council

4. Committee for Reviewing Confiscated Farmlands and other Lands

5. Special Committee for Land and Conflict Resolution

The committees operate at (almost) all administrative levels from the State/Region to the village tract. Due

to the lack of transparency, it is often unclear on which level decisions are made and by whom (Leckie,

Arraiza 2017). The committees under point 4 and 5 have multiple names and are often incorrectly translated

into English, which leads to further confusion what committee to approach and when (Mark 2015).

The village headman is another important stakeholder acting as a political broker between villagers and

government officials for land registrations and tax revenues (Boutry, Allaverdian 2017). Land registration

is a 10-step lengthy and complex process wherein administrators often use outdated cadastral maps with

limited local administrative capacity across the whole country (Mark 2016a; USAID LTP Toolkit 2018).

To make matters more complex, some ethnic armed organisations have developed their own land policies

for the territory under their administrative control like the National Land Use Policy of the Karen National

Union (2015). These policies are not aligned with statutory law (Leckie, Arraiza 2017).

‘Ambiguous’ Legal Framework

Because of ‘stacked’ laws and ‘fragmented’ decision-making authority over these laws, Myanmar’s legal

framework of land governance can be considered ‘ambiguous’. For example, regarding land confiscations

in the uplands, it is unclear whether ethnic minority groups are exempted from land concessions through the

LAA (1894) or whether self-autonomous status has been overruled through the LNA (1953). Those in

power, and with the means to interpret the legal framework, can use its ambiguity to legally confiscate lands

(Mark 2016a). There are numerous examples of arbitrary concessions and enduring land conflicts on an

almost daily basis. Farming communities neither have the same access to information nor the means to

interpret the respective laws, and are further deterred from taking legal actions by the high costs of court

litigation (Mark 2016a). In short, in the absence of adequate protection and control and compensation

mechanisms, land grabs are being facilitated, and customary tenure security of ethnic minority groups in the

uplands negatively impacted by the ambiguity of the legal framework (Mark 2016a).

14

4 DISCUSSION

4.1 Research Findings

Research Question 1: Why is Myanmar’s legal framework of land governance considered ‘ambiguous’; and

what are the consequences of this ambiguity for customary tenure security of upland ethnic minority groups?

The first research question addresses the problem of the ‘ambiguity’ of Myanmar’s legal framework of land

governance, and its consequences for upland ethnic minority groups. In Land Governance Institutions

(previous chapter), I have shown that land laws have been ‘stacked’ onto each other for (almost) 125 years

ever since the British colonial regime introduced the Land Acquisition Act (LAA) in 1894. Outdated land

laws have neither been updated nor replaced by new laws. Many laws like the LAA (1894) are not

appropriate for the current context. ‘Fragmented’ sovereignty is the outcome of multiple land governance

actors and committees operating simultaneously at (almost) all administrative levels – from the Union to

the village tract (Mark 2016b). Figure 7 depicts the complexity of ‘stacked’ laws and ‘fragmented’

sovereignty leading to ambiguous interpretations of the law.

Figure 7: Myanmar’s ‘Ambiguous’ Legal Framework of Land Governance

Source: Original figure, partly created by Lundsgaard-Hansen (2018)

This situation – ‘stacked’ laws and ‘fragmented’ decision-making authority – results in an overall

‘ambiguous’ legal framework in which multiple laws operate simultaneously at a horizontal level where it

is unclear which law takes precedence over another, who is responsible for what, and at what level (Mark

2016b).

The corresponding complexity is utilized by influential actors with the financial resources and ability to

interpret the framework to their advantage (Mark 2016a). The consequences of this ambiguity for ethnic

minority groups are arbitrary land concessions, and, in the absence of customary tenure recognition, limited

means to protest. Thus, the Burmese land laws principally act in favour of the powerful, while people

residing on communal lands are vulnerable to involuntary land loss (Mark 2016a).

15

Research Question 2: How does Myanmar’s land tenure reform process impact on customary tenure

security of upland ethnic minority groups?

The second research question is concerned with the impacts of Myanmar’s land tenure reform on customary

tenure. I interpret the findings of Land Tenure Reforms and Their Impacts on Customary Tenure (previous

chapter) in table 2. The table shows whether the respective land laws facilitate or restrict large-scale land

acquisitions (LSLA), and whether this strengthens or weakens customary tenure security.

Table 2: Effects of Land Tenure Reform on Customary Tenure Systems in Myanmar

Land Law Facilitates/restricts LSLA Strengthens/weakens Customary

Tenure Security

Land Tenure Reform Before Independence (Prior to 1947)

Land Acquisition Act (1894) Facilitates Weakens – Lowlands

Strengthens – Uplands

Land Tenure Reform After Independence (1947 – 2012)

Constitution (1947/2008) Facilitates Weakens

Land Nationalization Act (1953) Facilitates Weakens

Forest Law (1992) Facilitates Weakens

Strengthens – CFC

Land Tenure Reform Today (2012 – Present)

Farmland Law (2012) Facilitates – Common property

Restricts – Individual property Weakens

VFVLM Rules (2012) Facilitates Weakens

NLUP (2016) Restricts Strengthens

The LAA (1894) provides the basis for land acquisitions in the name of public interest without providing

adequate control or compensation mechanisms. The government can relatively easy claim lands in the name

of public interest and grant use permissions (Ferguson 2014). During colonialism, the LAA (1894)

converted common into private property regimes on a large scale in Myanmar’s lowlands. At the same time,

it upland ethnic minority groups from the law (Ferguson 2014). With the implementation of the Land

Nationalization Act or LNA (1953), it has become unclear whether the LAA (1894) has been overruled and

extended to Myanmar’s hills. The LNA (1953) thus facilitates LSLA and weakens customary tenure security

of local hill communities. The Constitution (2008) affirms both laws by turning the state into the ultimate

owner of all lands (Article 37). Customary tenure is weakened because it is not recognized.

The Forest Law (1992) has been passed along the same lines as the previous land laws since it grants

ownership of ALL forest land to the state. It therefore facilitates LSLA. At the same time, the Community

Forestry Certificates (CFC) provide a means for local communities to gain official use rights for community

forests; and this strengthens customary tenure security (FSWG 2011).

Source: Original table

16

The recent 2012 reforms have significant adverse impacts on the lives of local communities. On the one

hand, the Farmland Law (2012) restricts LSLA of private property regimes through the issuance of

individual Land Use Certificates (LUC). On the other hand, it facilitates LSLA of lands held under common

property regimes without the ability to apply for communally held LUC (USAID Farmland Law Analysis

2017). Similarly, the Vacant, Fallow and Virgin Lands Management or VFVLM Rules (2012) facilitate

LSLA in various ways. First, lands are often mis-classified as ‘vacant’ without cross-checking the actual

uses on the ground. The VFVLM Rules (2012) further increase inequality by the enormous differences in

the amount of so-called ‘vacant’ lands for which investors can apply, compared to those of local

communities (USAID VFVLM Rules Analysis 2017). The VFVLM Rules (2012) also de-recognize shifting

cultivation. In consequence, lands left fallow for several years, but used for shifting cultivation, are classified

as ‘vacant’ and can hence be easily allocated. The law then criminalizes smallholder farmers, if they protest

confiscations (ERI Farmland Law Analysis 2018; Oxfam Legal Comments 2018).

Compared with the 2012 laws, the National Land Use Policy or NLUP (2016) restricts LSLA by officially

recognizing customary tenure, thus placing an obstacle to land confiscations of the commons. The NLUP

(2016) is still biased towards ‘big business’ and it is also not a law; but it represents a guiding framework

towards inclusive land governance in the future (Vicol et al. 2018).

4.2 Policy Recommendations

Source: As cited in Xanthaki 2007, p.238

Acemoglu and Robinson (2013) trace the origins of inequality back to extractive political and economic

institutions. Myanmar’s current legal framework of land governance is the outcome of more than sixty years

of exploitation under extractive institutions by the previous military regime. Its economic institutions have

become more inclusive since Myanmar has begun to shift from a centrally controlled to a market economy.

However, its political institutions are still largely extractive (Acemoglu, Robinson 2013).5 Myanmar is

economically growing under predominantly extractive political institutions. Growth under extractive

political institutions is possible for a limited time; but cannot be sustained and will eventually collapse

(Acemoglu, Robinson 2013).

5 Myanmar is officially governed by only one party, the National League for Democracy (NLD), under the leadership of State

Counselor Aung San Suu Kyi, who acts as de facto President. Aung San Suu Kyi is constitutionally refrained from Presidency. The

Constitution (2008) also guarantees the military 25% of seats in Parliament, regardless of election outcomes. The military still

controls important ministries, such as the Ministry of Home Affairs.

“[U]nless indigenous peoples can reassert their rights to control their

own development and future and win back sufficient lands and

resources, there can be no real progress in their standards of living.”

17

To achieve nationwide peace, prevent societal collapse and a fall-back into military rule, it must be in the

interest of the democratically elected government to recognize common property regimes (Mark 2015). The

current land tenure reform process anticipates a dismal future for customary tenure and the livelihoods of

the most vulnerable. Without statutory protection of customary tenure, displacement becomes inevitable

(Mark 2016b). Amendments to existing laws on the roadmap to a new National Land Law are indispensable

to achieve long-lasting peace throughout Myanmar.

Research Question 3: How must Myanmar’s land laws be amended to increase customary tenure security

for upland ethnic minority groups?

The third and final research question addresses amendments that the government must take to legally

strengthen customary tenure and protect the livelihoods of upland ethnic minority groups. The amendments

that have been proposed to the 2012 laws until now have been fruitless, as they have not touched the

substance of the law, but only dealt with terminology (Vicol et al. 2018; Boutry, Allaverdian 2017).

Farmland Law (2012)

The Farmland Law (2012) must be amended to provide smallholder farmers with the opportunity to apply

for LUC and register their lands regardless of the property regime (common or private) (USAID Farmland

Law Analysis 2017). Legal barriers must be removed to facilitate the registration process. No further LUC

must be handed out without cross-checking land uses on the ground using up-to-date technology and maps

to avoid further land conflicts (Boutry, Allaverdian 2017).

The Farmland Law (2012) must further be amended to re-classify all farmland categories and to include

shifting cultivation as a legitimate land use. The law must also be amended to remove crop limits and give

smallholder farmers the freedom to choose and easily change the crops that they desire since crop

restrictions coerce smallholder farmers to change their land uses (USAID Farmland Law Analysis 2017).

Finally, the lack of oversight of the Farmland Administrative Body (FAB) has even been termed

unconstitutional. It is therefore crucial to establish checks and balanced through an independent review body

of land confiscations (USAID Farmland Law Analysis 2017).

Vacant, Fallow and Virgin Lands Management Rules (2012)

The VFVLM Rules (2012) must clearly define the meaning of ‘vacant’ lands and re-classify those lands

that have been classified under this category with cross-checks on the ground using the latest technology

(USAID VFVLM Rules Analysis 2017). It is equally important to recognize fallow lands used for shifting

cultivation and stop mis-classifying them as ‘vacant’ (USAID VFVLM Rules Analysis 2017).

18

The VFVLM Rules (2012) must define a proportionate punishment for Trespass and Damage to Private

Property for smallholder farmers protesting eviction and allow for dispute resolution mechanisms (Boutry,

Allaverdian 2017). The government must revise the law to protect customary tenure and follow international

best practices of Free, Prior and Informed Consent (FPIC) as well as Social and Environmental Impact

Assessment (SEIA). Evictions should be the last resort. If inevitable, the law must provide compensations

to a standard of living at least as high as before the eviction and make return a possible option (Leckie,

Arraiza 2017). Finally, the VFVLM Rules (2012) must provide equal opportunities for businesses and

investors on the one hand and local communities on the other hand to apply for the same land size area.

National Land Use Policy (2016)

The NLUP (2016) is a positive development for land rights of indigenous peoples and local communities

compared with the 2012 laws. Nevertheless, it still contains important shortcomings that need to be

addressed (Namati 2016). First, the amount of public consultations about the NLUP (2016) and the aspired

National Land Law should be increased (Namati 2016). The focus of the NLUP (2016) must also be more

balanced between community and economic development interests. Policy makers should reconsider the

often underestimated contribution of smallholder farmers to economic development (LCG). The NLUP

(2016) needs to clearly establish a link between sustainable land use and administration and nationwide

peace (Mark 2015). Moreover, the policy must protect customary tenure in accordance with international

law (Namati 2016). Finally, all land laws must be aligned with the NLUP (2016) on its road to the National

Land Law. The National Land Law can only be a success, if there are no more legal contradictions (USAID

VFVLM Rules Analysis 2017).

Other Land Laws

Although completely outdated, the Land Acquisition Act (1894) still regulates land concessions in

Myanmar today. A new law is required to replace the LAA (1894) (USAID LAA Analysis 2017). In the

meantime, the LAA (1894) must be aligned with international standards of FPIC and SEIA to allow for

control and dispute resolution mechanisms. Policy makers should apply resettlement as a last resort, after

duly weighing alternative options (Leckie, Arraiza 2017). In case of resettlement, they must calculate

compensations and restore the standard of living to at least the same level as it was before resettlement

(USAID LAA Analysis 2017).

The Land Nationalization Act or LNA (1953) is equally outdated. Policy makers must also avoid to blindly

apply the LNA (1953) to the uplands in the same way as the LAA (1894) has been applied in the lowlands

(FSWG 2011). The Constitution (2008) must be amended to limit the scope of opportunities for LSLA in

the name of public interest and clearly define what this means (USAID LAA Analysis 2017).

19

The Forest Law (1992) must recognize customary tenure for communities to obtain use rights for their

forest lands. It is important to acknowledge forest dwellers’ existence and enable them to participate in

decisions that concern their own lands (Burgess 2015). This requires widening the scope of forest land

categories allowing for more than just two categories as well as use rights flexibility.6 Finally, issuance of

CFC should be facilitated to promote community-based natural resource management on a large scale

(FSWG 2011).

5 CONCLUSION

5.1 Idea Behind the Research

Through this research, I have addressed the problem of insecurity of common property regimes in upland

Myanmar, home to many of the country’s 135 officially recognized ethnic minority groups. Customary

systems have recently come under threat since Myanmar prioritizes investments on a large scale without

simultaneously protecting land rights of the most vulnerable. Coercing a shift from common to individual

property regimes ignores rural livelihoods and increases inequality within communities. I have analyzed the

land governance framework of Myanmar to understand and tackle the land question. I have drawn upon

three research questions to address the problem, regarding (i) the ‘ambiguity’ of the land governance

framework and its consequences for tenure security of ethnic minorities; (ii) how land redistribution impacts

on customary tenure security; and (iii) how respective laws must be amended to increase security of tenure.

5.2 Main Findings and Policy Recommendations

In addressing the first research question, I have shown that ‘stacked’ laws and ‘fragmented’ sovereignty

result in an ‘ambiguous’ legal framework allowing for multiple interpretations. This ambiguity is used by

influential individuals, who can interpret the framework, for arbitrary land concessions. In its current state,

Myanmar’s land governance framework acts to the disadvantage of tenure security of ethnic hill minorities.

In addressing the second research question, I concluded that large-scale land acquisitions (LSLA) are being

facilitated and customary tenure systems weakened through nearly all relevant laws. The National Land Use

Policy or NLUP (2016) is more hopeful for smallholder farmers’ land rights, as it acknowledges the

existence of their governance systems (customary tenure) and livelihoods (shifting cultivation). However,

the NLUP (2016) only provides a guiding framework; and there is still a long way to go towards an all-

encompassing National Land Law.

6 In comparison, ethnic minority groups like the Naga distinguish in their own customary tenure systems among multiple categories

of forest land. For more information, please consult Case Study: Nagaland (ANNEX).

20

In addressing the third and final research question, I have given policy recommendations in the form of

amendments to existing land laws. The government should, inter alia, re-classify farmland categories to

include shifting cultivation (Farmland Law), and clearly define ‘vacant’ lands, excluding lands left fallow

by shifting cultivators from this category (Vacant, Fallow and Virgin Lands Management or VFVLM

Rules). Amendments are also needed for largely outdated laws like the Land Acquisition act of 1894 or the

Land Nationalization Act of 1953 to clearly define the conditions under which the state claim land

ownership in the name of public interest and what this entails. Equally important, all land laws need to be

aligned with the NLUP (2016).

Unless the government implements these reforms, the fate of customary tenure systems is uncertain. In the

interest of long-lasting peace, customary tenure systems must be protected, and Myanmar’s land governance

institutions shift from extraction to inclusion. The NLUP (2016) provides the foundation for reform that

must now be put into action. Only when the land rights of upland ethnic minority groups are protected, will

Myanmar’s triple transition – from an authoritarian military regime to democratic governance; from a

centrally controlled to a market economy; and from more than sixty years of armed conflict to peace in its

border areas – be successful.

5.3 Research Limitations and Further Studies

The research topic at hand is very complex, but its scope limited; the paper can thus only scratch the surface

of Myanmar’s land issues. Further studies could conduct a more comprehensive analysis of the ongoing

land tenure reform process. In addition to an analysis of the national legal framework, this requires analyzing

the international legal framework of indigenous peoples’ rights to land to compare shortcomings in national

law with international standards.

While this research has proposed legal amendments that the government can take, it has not analyzed how

international donors, international Non-Governmental Organisations and local Civil Society Organisations

can support the government in their efforts to reform its land laws (e.g., advocacy, legal awareness

trainings). Future research could fill this gap.

Finally, customary tenure systems are weakened not only through shortcomings in legal provisions. This is

also the outcome of widescale societal exclusion. Civil society in Myanmar is still relatively new and weak.

Future studies could thus investigate LSLA as an outcome of exclusion beyond the legal framework.

21

6 ACKNOWLEDGMENTS

I would first and foremost like to thank my supervisor, Linn Borgen-Nilsen, for her flexibility

and insightful comments throughout the writing process of this paper.

I would like to thank Emiko Guthe (USAID LTP), Dr. SiuSue Mark (Researcher), Prof. Philip

Hirsch (University of Chiang Mai), Dr. Christoph Oberlack (CDE) and Stefan Häderli (CDE)

for their most welcome literature recommendations. I would also like to thank Lara

Lundsgaard-Hansen (CDE) and Glenn Hunt (LCG) for informal discussions that have

provided me with further insights on the research topic.

Finally, I would like to thank Markus Bürli (SDC), Dr. Joan Bastide (CDE) and U Shwe Thein

(LCG) because they gave me the opportunity to work on land issues in Myanmar and thus

provided the context for this research.

22

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37

ANNEX

Case Study: Nagaland

Notification: For the case study at hand, I have additionally drawn upon primary data collected during a

related research in Layshi Township, Nagaland in September 2017 and March 2018.

A People Left Untouched

We can distinguish four types of human societies: Hunting and gathering, tribal, peasant, and industrial. For

most of human history, only hunting and gathering societies existed alongside tribal social organisations.

Today, only few such societies remain; most have been destroyed during the past centuries (MacFarlane in:

Saul 2005). The mountain ranges between Northern India and Myanmar, where the people collectively

referred to as ‘Naga’ reside, is one of the few places in the world where tribal societies are still in existence.

The Naga, who number 4.5 million people, are representative of forest dwelling communities, who once

roamed large parts of our planet (MacFarlane in: Saul 2005).

On the Lives of the Naga

Geographic Location

The Naga live high up in the mountainous border area between Myanmar and India. On the Myanmar side,

Nagaland lies within the Sagaing Division, one of the country’s largest administrative areas. (Saul 2005).

The border line follows the Patkoi, an easterly extension of the Himalayas, which have formed a physical

barrier for outsiders due to their rugged nature, infrequent passes, and previously hostile peoples (Saul

2005). The Naga build their villages on hill tops for strategic (rather than comfort) reasons. In the past, these

hills provided the villagers with an early warning system from approaching enemy tribes (Saul 2005).

Headhunting

The Naga are famous for their past head hunting

practices. In the absence of contact with the outside

world, the Naga developed their own belief systems in

the realm of spirits (Saul 2005; Führer-Haimendorf

1970). It was believed that the human skull was the

biggest sacrifice for the spirits. For centuries, the Naga

cut off the heads of their enemies and brought them

back to their home villages. In addition to spiritual

sacrifice, the head was believed to offer strength to the

village, and prestige to the warrior. The last official

record of head hunting dates to 1983 (Saul 2005).

Naga Head Hunter

Source: www.flickr.com

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The integration into state administration has brought previously inexistent public services and basic

infrastructure to Nagaland. However, contact with the outer world and lack of sovereignty granted to the

Naga have created new tensions at the border areas (Saul 2005). Fragmented Naga armies fight the Burmese

respectively Indian military at these frontiers. Additionally, while still largely left untouched, land grabbing

has become a perceived imminent threat for many local communities (research results).

The Transformation of an Agrarian Subsistence Society

The diversity of land uses encountered provides the villagers with many livelihood products. According to

preliminary research results, a total of 19 different land use classes could be identified with an average 6,23

classes per village; and 86 different crops with an average 14,05 crops per land use class per village (research

results). In response to broader political economic processes, many Naga are transitioning towards terrace

farming, orchards, and animal husbandry. This transition provides the first step towards private property

regimes although the lands are still considered village territory (Andersen 2016).

Nevertheless, shifting cultivation remains the most important farming practice in Nagaland. It constitutes

an integral livelihood component, and, in particularly remote villages, often the only means of food

production (research results). In Nagaland, with an average fallow length between 10 and 15 years,

rotational farming contributes to a high level of biodiversity, forest re-generation, medicinal plants, a social

safety net, and an income source. Shifting cultivation is the backbone of the Naga culture (research results).

Recognizing customary tenure systems alongside the public land governance system and shifting cultivation

as an official farmland category is therefore key for a sustainable future of the Naga (research results). A-

critical tenure reform blind to the realities on the ground increases uneven distribution of livelihood assets

and opportunities and will eventually lead to the loss of Naga identity (research results).

Naga Chili

The Naga are representative of an agricultural subsistence society. The

entire societal structure is build around subsistence farming and minor trade

among neighbouring villages (research results). The Naga have preserved

their lands for centuries through village-based natural resource management

systems. Outsiders and residents of neighbouring villages are prohibited

from extracting any resources without prior permission from village chief,

council, or elders. While village residents do not require a permission to

collect sufficient resources for their own household needs, collecting

additional resources for business purposes does require prior agreement

from all villagers. If someone does not follow these rules, the products

unwittingly collected will be seized and a fine applied (research results).

Source: www.flickr.com

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Declaration of Originality