‘All These Laws Are Intended to Take the Indigenous People’s Land Legally’: Saw Eh Say, Coordinator of Karenni Earthrights Action Network

[Land] is very related to their [indigenous] customs, their territory, and controlling their resources”

When we say land and land rights, it is very important for the indigenous people, and it is very important for the people in Karenni State. Because when we say the land, it means not only just property. It is very closely related to their customs, their territory, and controlling their resources.

When we say the customary land practice, they have fully systematical management system. They have their traditional system for recognising land. The government don’t want to recognise this kind of customary land issue. Because the government only see land as property or land as money, they see only like that. So it is a very big problem, it is very threatening to the community, indigenous community. That’s why they want to take a lot of land, indigenous people’s land, or in the ethnic area. They took a lot of land. But according to the customary practice, all the [ethnic] lands are controlled by the ethnic people and they all have their own owner.

If something happens related with the land dispute, they solve the dispute themselves among the community. If they need the witness, they call the witness, because they already have their customary witness. Because whatever they do, they can handle [the situation] with the other neighbouring community, and also with the neighbouring house. Both parties, they agree, or they follow, all the customary decisions. So after the dispute, when the conflict is finished, they can live together or they can treat each other fairly. But, according to the statutory land law, it only has like one will win and the other will lose. So when we say about the customary practice, it is a win-win situation. It is very important for the indigenous people, because neglecting this management system, all of their land will be taken by the government.

2012 Government statutory land laws: “[T]hese laws are intended to take the indigenous people’s land legally”

The first one [challenge] is the neglection of this customary system in the law. And another one is that they adopted new land laws or new land policies that can destroy the customary practice. A lot of laws started from 2012. They prepared two more laws, related to the land issue, like 2012 land law, and the Vacant Fallow and Virgin Land (VFVL) Law – all these laws are intended to take the indigenous people’s land legally. According to the 2012 law they just focus on the farmland law. So that’s all the land like forest, or the shifting cultivation land, or the other land in the ethnic area. The land that doesn’t have the register, it becomes VFVL vacant, fallow and virgin land. So everyone in the country, they can apply to use this land.

If they recognise the customary land, they can’t take the land from ethnic area. If they can’t get the register, government call the land as vacant, fallow and virgin land. So, they are trying to dominate with their statutory land law. But if you look on the surface area, like the government said to the international community, now they have new land law, new land policy, and they give support to the community for land registration. So they can sell, they can do anything, what they want, if they have their register. Actually it is fighting against the customary practice. According to the customary practice, they can’t sell their land to the outsider. But according to the statutory land law, they can do anything, they can take the land from the ethnic people easily.

When the people see the register, they worry for their customary practice. Their custom practice is not yet recognised, but the government gives them the register. So it is challenging for them. And it is also difficult for them to decide to follow the new land law, or to maintain their customary practice, it is happening in the situation now. When we discuss with the different groups, most of the people, they want to continue their customary practice. But the people who don’t have the political point of view, they just say; for the situation, we have to accept the register from the government. But most people know that it is a trick by the government. They will support only register for the farm land, but rest of the land will be taken by the government. They know.

NLD Government land policies: “[I]n the NLD government period, they can do nothing because they work under the 2008 Constitution”

During the NLD government period, they formed the new group [Central Review Committee on Confiscated Farm Lands and Other Lands] to investigate the land confiscation cases, but they are limited, they just allow after the 88 period, but [the cases] before the 88 period, this committee can’t solve or handle these cases. Because all the land was taken by the military, so they limited or they restricted handling those cases. I do not see much changes. Because they [NLD government] cannot do much changes, they are very limited to do, they have limited power. They cannot do many things. For the major changes they can do nothing for now.

In the 2008 Constitution, Article 37, all of the land is owned by the State. I think there are many articles, in the 2008 [constitution], that are limiting the ethnic people to participate and to accept human rights violating situation. And even we can say in the NLD government period, they can do nothing because they work under the 2008 Constitution, even they know that it is not good. But they can’t do anything now.

We can say that the committee in the Karenni State is very weak, because some of the people don’t know [the issue] even though they are involved in this committee. Last month, we made a research related with this committee; they don’t know about the process, and they don’t know about their responsibility or job in the committee. And they don’t know, they don’t know about the issue or the land confiscation issue. So, it’s very bad for the Karenni State.

Now we are starting to work with them. We hope that we will empower them, or find suitable persons for the committee, so they can support or they can help the community who are faced with the land confiscation case. We hope like that. So we made a plan to work closely with them, and to empower them. This is our main idea.

We are just at the initial stage, we just told them the situation, and we just told them to empower them related with the investigation process. So, informally they said they agree [for us] to empower the group or to change some of the people with suitable persons. We need to wait and see, what is the reality.

KEAN’s involvement: “[I]f we do not share this information to them [community], no one comes to them and shares about this knowledge”

Now we are implementing our activities, not only in the Karenni state, we work with organisations at the national level. So for advocating to the government to recognise or to change, or to make suitable laws, to recognise the customary practice.

We can say that all of the, all the environment issues, all are under a threatening situation. Like even, if you compare to another township, or another state, or another area, so we are at the junction, like that. Now the government or the community are also approaching to implement the mega development projects. And also other natural resource extraction projects.

All of the natural resources are under threat from the companies or the corporates or the government.

For the community, they are willing to know about these issues, or this knowledge. Because, if we do not share this information to them, no one comes to them and shares about this knowledge. Even if it is very directly related with them [the community], the authorities do not say anything to the community. So the community do not know about that. For us, we teach the community or we train the community related with the issue, it may not follow the law of situation, because we are just letting them know what is included in the law of the situation. Some of the laws give the community some opportunity or some benefit. But majority of the things [laws] are, they will take from the community. So we just know, we just want the community to know what is included in the law of the situation, so they can analyse what they should do for that.

We did a lot of training… So when they meet with the cases, they can complain or they can ask for their right. For example, we train the community for the GPS-using. So after that, the community representative organises the villagers and measures their land, their territory and also the forest land. At the same time, the forest department came to the village and measured about the forest for the registration. But their measuring unit was very… Only 50 acre. For the original land, the community measure was 200 acre. So it’s very different. So the community complained for that, and after that, they accepted the community complaint.

It is difficult for us to show the big significant success. But even if we cannot show the significant success, we have little success of significance for the community. We can support the affected community for getting back their land, to get back their land from the landgrab by the military. And also, some community they have received the land registration from the city department. Before, it was very limited, very difficult to accept for the forestry department. But some document they accepted. Also related to the platform between the community and the government department, like the GAD or Forest State Department. So we can create a platform like that. And also we can support other organisations related with the human right or the environmental issue.

Foreign Investments in Karenni State: “[T]hey give more opportunity, or more chance to the investor to win this situation.”

According to our current situation, there are many weaknesses in the law, investment law, and also the other laws. If something happens related with a dispute between the community and the investor, they give more opportunity, or more chance to the investor to win this situation.

The first thing they need to do to is give information to the community. So, why the project, and how long will they implement, and what will include in this project. And what benefit, and what side-effect of this project, they should tell the community. The community needs to know enough information related to the project or the plan. After they have that, they can decide. They should accept or not accept, like that… But all the project teams, now they are neglecting the proper process. They don’t let the community know about the project or the activity, so they are facing with opposition. And another one is that the company needs to take the responsibility for the transparency and accountability for their activity. And also we see now that some of the international companies, they are trying to invest or some of the companies, they already implemented their activity in Karenni State.

We have one experience [of responsible foreign investment], because one of the Japanese company, they tried to build an antinomy refinery, and in the beginning of the process, they did this incorrectly; they took the signatures from the community. And after that, they approached the union-level government for permission. So they got permission from the union level, and the state level. But when they started to organise the community again, the community opposed them, because they just took 10 or 20 people who agreed with their project. So when they started to implement their activity, the community opposed and the CSOs also opposed them. We closely worked with the community and to know more about the plant. We did a lot of meetings with the community, and we did with the company. We had three consultation meetings with the community, CSOs and the company. The last time, the company director from Japan, the Japanese guy, came to the consultation meeting and he asked the community [and said] he will follow what the community decides. So the community decided they don’t want this project, because they don’t know well about the project. And the community were not involved in the beginning of the project. So after, the director also agreed with the community, so they cancelled the project.

The international community needs to know well about the local situation. If they only listen to, or if they only look to the government side, the information will be wrong.

Like now the government announced to the international community, that now they support the people, they support the farmers, to possess the register. But it is just a fake. So before implementing the activity, or before investing the activity to the land, ensure respect for the people who rely on that land. And also, protect those people’s land rights.

Indigenous land rights and the future: “We ask for the federal, and when we ask the customary practice, they are related to each other”

[The government needs] to recognise the customary practice. And also, the government needs to take responsibility to protect the indigenous people. Not only in the letter. Not only on the writing paper. They need to show that they have a good work to the indigenous people. They also need to control, or they need manage the investors. But now in the current situation they are more offering opportunity to the investor. So, all the investors or investment they are looking for and extracting natural resources on the indigenous peoples’ land.

I think when we say recognising the customary land management system, it is very broad [issue]. So, it’s like if they accept it, or recognise the customary system, it is very much related to the federal system. When we ask about the customary land management system, it is very political for the indigenous people. We ask for the federal, and when we ask the customary practice, they are related to each other. When we say the customary practice system, it means that we can manage our land operation by ourselves. And we are the owner of our land. And also, we can manage it freely by ourselves. In the federal system, in the federal state, we can manage our land and our resources by ourselves.

Download KEAN’s 2016 report “Our Customary Land Use Management Systems” in English | Burmese

Go to KEAN’s website: https://www.keanearthrights.org/en/kean/

Read more about the Karenni: https://www.burmalink.org/background/burma/ethnic-groups/karenni/

[B]efore implementing the activity, or before investing the activity to the land, ensure respect for the people who rely on that land. And also, protect those people’s land rights.