Federalism and the recognition of indigenous rights to land and natural resources in Myanmar
Myanmar is in a process of defining its federal system, after 70 years of military rule. Exploring lessons learned in other jurisdictions that have a similar set of issues can be useful to all parties that are seeking a democratic and federal system of government in Myanmar, which respects its ethnic minority nationalities.
The report, Federalism and the recognition of indigenous rights to land and natural resources in Myanmar: Case studies from Canada, Ethiopia and Brazil, explores what indigenous and customary rights have been allowed and recognized in three countries that have federal systems of government and also have extensive indigenous communities and groups—Canada, Ethiopia and Brazil.
As of February 2020, the national peace process in Myanmar has included little discussion of issues related to natural resource governance. The Nationwide Ceasefire Agreement (NCA) includes three clauses related to land and natural resources, and these are largely reflected in the Interim Arrangements. Yet, the operationalization of Interim Arrangements is largely non-existent. And of the 15 existing bilateral ceasefires in Myanmar, only five address natural resources, and rather than reform their governance, the ceasefire agreements simply allow Ethnic Armed Organizations (EAOs) to continue resource exploitation and revenue generation, while maintaining centralized Union government control.[1] Thus, proactive governance of ethnic regions, by ethnic people in a federal system, with a long-term view for their future, is still far from being realized.
One reason for this is the existing Myanmar Constitution, which defines the current system of federalism in Myanmar, but gives very little authority to states/regions, and is silent on how a ‘third tier’ of governance and decision-making (e.g. ethnic governance) will be recognized in this system. The Constitution does not devolve decision-making authority on land and natural resources to state/regions, or third-tier entities. The 2015 constitutional amendments allows for states/regions to carry out specific activities, in accordance with laws enacted by the Union government. States/regions can carry out reclamation of vacant, fallow and virgin lands, but overall authority and title is still held by the Union government.
The experiences in Canada, Ethiopia and Brazil illustrate how federalism, as an institutional governance device, is not enough to respond to the challenges of ethnic diversity. Despite the Constitutional commitments to indigenous rights, in all three countries this has not worked out as planned for in the Constitutions. The reasons for this vary between challenges in demarcation to the defining what laws would apply in these demarcated areas, and how those laws or procedures would relate to the rest of the federal system. With so many unanswered questions, assertion of indigenous rights and title has been mostly been pressed in court cases in Canada and Brazil. In Ethiopia, land tenure and management was disconnected from the ethnic customary governance systems (with Constitutional protections), resulting in strong central government control and a context ripe for corruption and bribery.
There are a range of engagement options for central and state/regional government to recognize indigenous rights to land in a federal system based on the case study examples, in order from giving least authority to most authority to indigenous governance bodies. Those that recognize and respect indigenous government, with signals in legislation as to how that affects jurisdictional and relationship aspects, built indigenous self-determination within a federal system. Similarly, there exist various land designation options that allow indigenous people to define their traditional territory and related decision-making authority and responsibility. Options including co-management can work in some cases. But those providing for recognition of customary land use and rights which allows for self-governance within a federal system is best suited to respecting ethnic land governance and policies.
Opportunities exist to operationalize and expand upon the Interim Arrangements under the NCA, to define the processes by which reconciliation of ethnic people’s aboriginal right to their land and natural resources can be pursued. The question of land is fundamental to finding lasting peace, as it is the basis for the economic and cultural future of Myanmar’s ethnic people.
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[1] Woods, K., 2019. Natural resource governance reform and the peace process in Myanmar. Forest Trends.
