Whose Land is it Anyway?

By Caitlin Pierce 7 July 2016

The farmers of Kyon Dayel Village were ecstatic to read in the newspaper that Ayer Shwe Wah was releasing 40,000 acres of land that the company had acquired under the military government’s 1990s Lowland Development Project.

The farmers remember distinctly the day in 1999 when big machines arrived in their fields and company representatives told them the land now belonged to the project.

But, after 15 years of waiting, the farmers were dismayed to learn that the land would not be returned to them; instead, the tenant farmers who had leased the land from Ayer Shwe Wah since 1999 had applied to register this released land themselves.

According to the now defunct Parliamentary Land Investigation Committee, the military, government ministries, and private companies have released or given back over 400,000 acres to the State since 2013. This is only a fraction of the 2 million acres that the Farmers’ Affairs Committee in the Upper House of Parliament believes could be considered “confiscated.”

In reality, this “returned” land often doesn’t reach the individuals from whom it was initially taken.

At least 25 percent of land grab or local land dispute cases handled by the network of paralegals working with Namati—a legal empowerment organization focused on land rights in Burma—involved farmers trying to access and restore their rights over land that had been released.

Rather than being fully resolved by the formal government mechanisms, historic land disputes between government ministries, the military, or companies and farmers are now transforming into local inter-communal conflicts.

A report to be released next week by Namati highlights several reasons why this happens.

Firstly, a complex history of land-related laws in Burma contributed to the development of an unofficial shadow system of land tenure and possession in the country; and laws and mechanisms for resolving land disputes remain opaque.

In many instances, official records do not reflect actual land use, limiting the evidence available for farmers to reclaim their land.

In the case of many of the Kyon Dayel farmers, land that their families had been farming for over 50 years at the time of confiscation still appears on official maps as “grazing land.” By the letter of the law, this would make those farmers ineligible for compensation or restitution.

Second, there is no legal definition of “original farmer” or guidance on how to resolve cases when there are competing claims.

Are the Kyon Dayel farmers “original farmers,” even though they were farming “grazing land”? Should the tenant farmers who benefitted from—but were not complicit in—the land confiscation be stripped of any rights to the land that has formed the basis of their livelihoods for the past 15 years?

Thirdly, farmers reclaiming seized land must present two key pieces of evidence that are difficult for many to obtain. These are: proof in the form of tax receipts or eyewitness testimony that they previously possessed the land; and specific maps and coordinates that demonstrate that the same plot of land has been released.

Such maps and coordinates are not publicly available; accessing them remains a function of whom you know. This creates opportunities for those with powerful connections to take advantage of the system.

Finally, the return of land at the local level is managed through the General Administration Department (GAD). This is where the complexities around the issue come into focus.

Evidence suggests that the military was involved directly, or indirectly through family connections, in over 50 percent of land grab cases handled by paralegals working with Namati. The military’s oversight of the GAD, via the Ministry of Home Affairs, creates a conflict of interest in the resolution of these cases.

Since January, the National League for Democracy—which now heads the government—has prioritized the resolution of land grab cases and to that end established the Central Committee on Confiscated Farmlands and Other Lands, tasked with monitoring state and divisional government’s handling of land disputes and the return of seized land.

On July 1, Naypyidaw Council chairman Myo Aung announced the central committee’s aim of settling all land grab disputes within six months.

This high-level attention is great news for the country and thousands of farmers whose land was taken without due process or compensation. But, the committee would do well to take a measured approach to the resolution of these cases.

Putting in place guidelines and transparent mechanisms that are truly responsive to the complexity of these cases on the ground, and which the average citizen can understand, is important to ensuring that land disputes do not morph into inter-communal conflicts.

Burma has one shot at providing restorative justice to these farmers: getting it right should take precedent over clearing the docket quickly.

Caitlin Pierce is the Myanmar Policy Advisor for Namati, a legal empowerment organization focused on land rights in Burma.