Rapid Research in Chin and Shan States during Two pilot villages in Northern Chin State (Hakha tsp.) Two pilot villages in Northern Shan State (Lashio tsp.) The objectives were 1) identify statutory means to protect ethnic upland communities in Myanmar from losing land under customary tenure to agribusiness concessions; 2) to guide the Government towards recognizing customary (communal) tenure in the drafting of the National Land Use Policy (NLUP); and 3) to define how to recognize boundaries of shifting cultivation parcels in a customary system

Arguments for Legal Response to Tenure of Upland Communities Untitled uplands - including fallow lands - are at risk of land grabbing and concessions since long and presently under the Fallow, Vacant and Virgin Land Law, 2012 Land is needed by the ethnic communities for food security given the agro-ecological conditions of the uplands Customary tenure ensures social welfare and counteracts landlessness Land rights of upland communities should be protected by the state through ‘registration’

History of Customary Tenure in Upland S.E. Asia Customary land tenure systems of S. E. Asia have seen the community and its lands spiritually linked to each other through the ancestors that cleared the land first - or wielded the machete - as the Burmese term dama ucha has it. These ancestors or ‘first founders of domain’ and their descendants were seen by their fellow villagers to be the ones that had established special relations to the spirits that granted the fertility of the land for the ones, who lived there

Chin State: Characteristics of Northern Chin Landscapes High elevation (2000 m) and steep incline of vast rotational farming landscapes in Chin State Subsistence crops of millet, sulphur beans and rice are grown in upper cold and lower warm family plots inside the larger rotational blocks of a mountainside lopil Village firewood, watershed and conservation forests are controlled and protected by the village

Chin lopil

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, say, 18 lopil. One or two are divided annually into family 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

Internal Customary Rules of Northern Chin Communal Tenure All rights of access to lopil are based on actual physical residence in the village. Outsiders have no rights to land Prerogative ancestral claims in certain plots in a lopil can be used by others freely, if the claimant has no labor to use the claims 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

Permanent Claim in the Common Property

Customary Tenure is Articulated in 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 and neighboring villages.

Process of Fieldwork to Record Customary Tenure

Women’s Group Discussion on Land

Moving to the Shan State: Characteristics of Shan Customary Tenure The Northern Shan State landscape is different from Chin State with permanent cultivation of subsistence and cash crops (rice and corn) and much less land Limited shifting cultivation. No lottery for land. All village agricultural land is communally controlled, but subject to individual claims. The landscapes are divided into blocks, but a priori ‘owners’ for parcels in each block are known. Indiviual claims cannot be alienated to an outsider. If a family leaves the village the land will return to the common pool resource and redistributed.

Excerpt of List of Claimants to Named Landscapes in a Shan Village Territory

Differences and Similarities between Chin and Shan In Chin villages the lopil are named & defined physical entities within very large landscapes. Permanent claims are few. Rotational fallow farming system. Rights in shifting cultivation land gained in annual lottery. In Shan villages the agricultural landscapes are small, well defined and named physical entities making up the parcels in the common property. Plots within these landscapes are permanently claimed by families living in the village. In both states, rights are based on village occupancy

How to Register? The Study suggested to Use the Farmland Law 2012 and Association Law 2014 The Farmland Law 2012 Article 6 includes organizations/associations as rights-holders farmland The community to develop ‘Statutes’ to incorporate legally under Association Law, 2014 as an organization potentially being recognized by the General Administration Department (GAD) As an organization it can apply to the Settlement and Land Records Department for (communal) land registration with reference to Farmland Law Art 6 The ideas in the study informed to, but not yet discussed in detail with government agencies.

Contents of the Village Statutes The Statutes define the objective of the Association: joint ownership of all the named landscapes in the Statutes They define membership of rights-holding bodies and decision-making arrangements including how to change Internal Rules They define ways of interacting with government and the private sector

Contents of Village Internal Rules The Internal Rules stipulate customary land sharing and management. They differ from village to village in contrast to the Statutes. The positive attributes of a customary system are maintained in the Internal Rules. The Statutes constitute a legal shell around the Internal Rules of customary land management The Internal Rules are not codified except informally by writing them down for keep in the village and village tract administration

The Mapping of the Land - Boundaries The parcels making up all the agricultural land parcels of a customary tenure system ideally should be surveyed and registered This is possible with GPS in the Shan state pilot villages with more permanent land use and smaller tracts of land of around 1400 acres/village, but not in Chin State among shifting cultivators It would prove almost impossible in steep slope Chin State to survey the 20,000 acres of lopils a village controls and uses the land in a ten-twelve year rotation

Fuzzy Boundaries in Shifting Cultivation The land under shifting cultivation changes each year and boundaries of land in old fallows under forest cannot be seen and the land use of a particular lopil may not be the same this year and ten years later. Land use in a lopil covers 1/3—1/4 of the land Mapping boundaries of customary tenure of shifting cultivation land for the sake of registration is to be tackled technically

Utilization of Land Within a Lopil

Influencing the Development of the National Land Use Policy The Land Core Group (with which I worked) has been active to influence the drafting committee of the NLUP in Naypyitaw By January 2016 the NLUP was endorsed reading a.o. : The Govt of Myanmar will protect customary rights, It will prepare customary land use maps It will reclassify customary lands It will formally recognize customary rights, It will register customary land use rights, also for shifting cultivation that is recognized as subsistence agriculture It will monitor whether the customary land use rights of ethnic nationality groups have been formally recognized and protected It will as part of research (Art 80 (j)) determine appropriate procedures for the formal recognition and protection of customary tenure rights Results of research will be incorporated into the new Land Law and Rules

Steps Forward in the Registration of Customary Tenure in Myanmar We need analyses of How ’recognition and registration’ would cater to the many different internal configurations of rights and land use systems found in the customary tenure concept in Myanmar The interface between the customary and statutory systems & setting the terms under which land moves from one system to another in the legal construction (adjudication, mapping, and registration) Provide inputs to the development of new Land Law and associated Rules under the Law

Chin Landscape with Lopil in the Background