The objectives of the study by the Land Core Group (LCG) in two pilot villages each in northern Chin and northern Shan States were to identify legal ways, using the Farmland Law 2012 and Association Law 2014, to register and protect untitled agricultural uplands. This includes the fallows of upland shifting cultivation areas that are possessed by ethnic nationalities that manage their lands under customary tenure. Ongoing land-grabbing since 1988 and the risk of possible alienation of the untitled land through agribusiness concessions posed by the Vacant, Fallow and Virgin Lands Management Law of 2012 (VFV) spurred the study.
The LCG and the researchers identified in the Farmland Law of 2012 a possible instrument for communal tenure land registration under statutory law, if the community could be seen as an ‘organisation’ or ‘association’ with reference to Article 6 (b) of the Farmland Law. In this article, an organisation/association is seen as a right-holder of land use certificates. A step towards communal land registration would be if the community, based on own governance Statutes, incorporated legally with the GAD under the Association Law 2014 (and its future rules). It could then approach the Settlement and Land Records Department (SLRD) as an organisation with a request for land titling of its common property parcels with reference to the Article 6 (b).
As a first step, the researchers recorded all the internal rules of customary tenure found in the four villages. The internal rules are very specific to each village, depending on its resource endowment, history, ethnic culture and kinship system. Internal rules signify community-based property rights, which derive their authority from the community as a whole and its leaders (these are presented in the report Annexes). Then, the researchers designed a number of statutes to support future legal incorporation. These were discussed and adapted in the villages. The statutes (also found in Annexes) deal with governance issues. They do not deal with the customary details of how to share the common property in day to day life, only the internal rules do.
The study fed into the LCG lobbying the Myanmar government to address protection of customary tenure in the National Land Use Policy (NLUP). The endorsed January 2016 version of the NLUP now contains several articles on the protection and registration of customary tenure that can feed into the preparation of the new Land Law and Rules.
The study did not include customary tenure of forests and grazing lands as these ecosystems would need, so far, to be pursued under different laws.
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