1

DISPUTEDTERRITORY

DISPUTEDTERRITORY

MoNFARMERSFIGHTAGAINSTUNJUSTLANDACQUISITION ANDBARRIERSTOTHEIRPROGRESS

AREPORTBY

THEHUMANRIGHTSFOUNDATIONOFMONLAND-BURMA
OCTOBER2013
DISPUTEDTERRITORY


Copyright@2013HumanRightsFoundationofMonlandBurma(HURFOM) Allrightsreserved. PrintedinThailand Dateofpublication:October,2013 Publisher:HumanRightsFoundationofMonlandBurma(HURFOM) ContactAddress:P.OBox35 Sangkhlaburipostoffice Kanchanaburi71240,Thailand Websiteaddress:http://www.rehmonnya.org AllphotosandinformationinthisreportarecopyrightedmaterialsoftheHumanRights FoundationofMonlandBurma(HURFOM)

HURFOMOctober2013


A.Introduction 10 12 15 15 16 17 19 19 20 21 23 24 24 25 26 28 28 29 30 31 32 33

TABLEOFCONTENTS

B.Methodology C.Background

1. Landconfiscationundermilitaryrule:19622011 (i) Landconfiscationbymilitarybattalions (ii)Landconfiscationbylocaladministration 2. Continuedlandconflictunderciviliangovernment:201113 (i) Continuedabusesbythemilitary (ii)Peaceprocesslandacquisition (iii)Landconflictlinkedtoeconomicdevelopment 3. ThecurrentlegalframeworkoflandrightsinBurma (i)ConstitutionoftheRepublicoftheUnionofMyanmar(2008) (ii)ForeignInvestmentLaw(2012) (iii)FarmlandAct(2012) (iv)Vacant,FallowandVirginLandsManagementLaw(2012) D.Pursuinglandrights:201113 1. Monfarmersfightfortheirrightstoland (i)Demands (ii)Lettersofappeal (iii)Defyingauthority (iv)Refusaltoacceptunfaircompensationoffers (v)Organisedprotest

HURFOMOctober2013

 TABLEOFCONTENTS (vi)Formationoffarmersunions 2. TheLandInvestigationCommission (i)Obstaclestoinvestigations (ii)Lackofinfluence 3. Elusiveprogress

33 34 36 37 39

E.CASESTUDY1:PastmilitaryconfiscationsinYeTownship

41 41 43 44 48 50 51 52 53 54 59

1. CaseSummary 2. Theaftermathoflandconfiscations (i)Rentalandrepurchaseofland (ii)Lossoflivelihoodsandlabourmigration (iii)Attachmenttolandandthetollofitsloss 3. Widespreadappeals,poorresults (i)Residentsdemandlandrestitutionandfaircompensation (ii)Disappointingoutcomes (iii)ConfiscationsbyLIBNos.343and587:afailuretocondemnand weaklegalprotection (iv)Corruptionandpoliticalagendas:theneedforgenuine commitmenttojustresolution F.CASESTUDY2:Ongoinglanddisputesovercementproductionin KyaikmayawTownship 1. Casesummary 2. Reportsofmisconduct (i)Compensationoffersbelowmarketvalues (ii)Failuretoseekpriorandfreeconsent (iii)Failuretoseekinformedconsent (iv)Paymentwithheldfromresidents 3. Theaftermathofunjustlandacquisition

62 62 66 66 68 71 74 75

DISPUTEDTERRITORY

TABLEOFCONTENTS
4. Calltoaction,noprotection (i)2013lettersofappeal (ii)Delaysandabsenceofindependentdisputeresolution (iii)Kyaikmayawfarmerslegalposition (iv)Residentscallsforsupport 77 77 79 81 82 85

G.Conclusions:KeybarrierstoMonfarmersstruggleagainstunjustland acquisition 1. Weaklawandpolicy (i)Weaklandtenuresecurity (ii)Failuretorecognisecustomaryownershippractices 2. Thelackofanimpartialbodytohandlelanddisputes 3. Alackofgovernmentcommitmenttoendorsingresponsible conductinlandacquisition 4. Farmerscapacitytonavigatelandcontroversies (i)Legalunderstanding (ii)Financialknowledge (iii)Languagebarriers 5. Theneedforpersonsinpositionsofinfluencetochampionthe rightsoffarmers (i)Corruptioningovernmentdepartmentsandlocallevelauthority (ii)CallsforcontinuedcommitmentfromMonpoliticalparties (iii)SubduedsupportfromMonarmedgroups H.Recommendations

85 85 86 87 88 88 89 89 89 90 90 91 91

92

I.Appendix1LandRightsinInternationalLaw Appendix2Thelistoflandowners Appendix3Map

95 98 100

HURFOMOctober2013

ACRONYMSANDABBREVIATIONS
AMDP AR FDI FMB HLPRights HURFOM IB IDP LIB LUC MIC MOMC NLD NMSP RLU RAFU SLORC SLRD UN USDP VFVLaw VPDC AllMonRegionsDemocracyParty ArtilleryRegiment ForeignDirectInvestment FarmManagementBody HousingLandandPropertyRights HumanRightsFoundationofMonland InfantryBattalion InternallyDisplacedPerson LightInfantryBattalion LandUseCertificate MyanmarInvestmentCommission MilitaryOperationandManagementCommand NationalLeagueforDemocracy NewMonStateParty RehmonnyaLabourUnion RehmonnyaAgricultureandFarmersUnion StateLawandOrderRestorationCouncil SettlementandLandRecordsDepartment UnitedNations UnionSolidarityandDevelopmentParty Vacant,FallowandVirginLandsManagementLaw VillagePeaceandDevelopmentCouncil

DISPUTEDTERRITORY

A. INTRODUCTION

ver the years HURFOM has produced a number of accounts highlighting the hardships faced by Mon farmers who became victims of land confiscation or unjust land acquisition.1 In this report HURFOM followsup on previously documented abuses and concentrates on an emerging new trend: farmers active and collectivepursuitsforrightstotheirland. Disputed Territory aims to elaborate on the activities of and express solidarity with farmers who are resolutely, and in some cases for the first time, seeking justice regardingtheirland.Toexhibitcurrentchallengesandbringintofocussomeofthekey obstaclesintheMoncontext,thisreportusescasestudiesofappealsoverpastmilitary land confiscations in Ye Township and ongoing transgressions by various investors in KyaikmayawTownship.Wherebarrierstojusticeexist,HURFOMrecommendseffective andimmediatesolutions. HURFOM contends that farmers newly voiced demands present an important opportunity for President Thein Seins government. Inherent in an environment of growingactivismisthechancetomeetappealswithjustice,therebydemonstratingto domesticandinternationalcriticsthattheadministrationiscommittedtoaclearbreak withtheabusesofpastmilitaryregimes.Violationsoffarmersrightsneedtobepublicly condemned and owners of wrongfully seized land must have property restored or be given fair compensation. There is an urgent need for the establishment of a credible legal framework to prevent dispossession and violated rights from continuing to be hallmarksofagrarianlifeunderthisgovernmentsnominallycivilianrule. The argument presented herein is simple. Since 2011 farmers have been actively pursuingtheirrightstoland,yettodatelittleprogresshasbeenmade.Fewpastvictims of unjust land acquisition have had land returned, misconduct by investors in land acquisitioncontinues,andsecurelandrightsremainvirtuallyabsentfromBurmeselaw.
1

Unjustlandacquisitionisusedthroughoutthisreportinreferencetoacquisitionsoflandinwhich landownersrightsarenotrespected.Typicallythisinvolvesthefailuretoobtainfree,priorandinformed consentfortheacquisition,andmayalsoincludefailuretopaycompensationorpaymentofcompensation belowthelandsmarketvalue.Thetermisusedbroadly,toencompasspastcasesofmilitaryland confiscationandongoingacquisitionsoflandbyunscrupulousinvestors.

HURFOMOctober2013

10

Given the focus on farmers struggle for their rights, this report pays considerable attention tothe legalframeworkinwhichpastandongoinglanddisputes have taken place. Inadequate legislation and public lack of awareness of existing legal rights are highlightedaskeyreasonswhyMonfarmersdonotpossessrightstotheirlandin2013. In a nation emerging from conflict and actively pursuing economic development, farmersareindesperateneedofrobust,legallyenshrinedprotectionoftheirlandrights. With government land surveys characterised by a lack of transparency and enduring bias,theprecisenumberofacresoflandunjustlyacquiredfromMonfarmersoverthe yearsremainsnearlyimpossible foranorganisationofHURFOMscapacityto confirm. However, information gathered for this report suggests that it stretches to tens of thousandsofacres.HURFOMcallsonallpersonsinpositionsofauthoritytoelevatethe voices and champion the rights of farmers who for generations have crafted Burmas uniqueandprolificlandscape.

11

DISPUTEDTERRITORY

B.METHODOLOGY

ince 1995 HURFOM has been engaged in documenting the voices of Mon populationswithresearchmethodologythatwasdevelopedoverthese18years ofexperience.

Research for this report was conducted from April to September 2013. During this period five field reporters visited four Monpopulated townships: Mon States Ye, Thanbyuzayat and Kyaikmayaw townships, and Tenasserim Regions Yebyu Township. Interviewswere conductedinpersonwhere possibleandbyphone when transportor security issues made interviewees locations inaccessible, and field reporters shared interview transcripts and field notes with HURFOM via satellite phones and online communications. With local authorities often backing the military personnel and companiesinvolvedincasesunderinvestigation,fieldreportersnotedtheyhadtocarry outresearchwithcaution. After preliminary visits it was decided that field reporters would focus on Ye and Kyaikmayaw townships because cases there reflected the spectrum of different perpetratorsagainstwhomMonfarmersareappealingunjustlandacquisition:military in the former and various companies in the latter. Ye and Kyaikmayaw were also determinedtobebettersuitedtocollectingcomprehensivedatathanotherregions;in Thanbyuzayat and Yebyu townships victims of confiscation had more consistently migratedtoneighbouringcountriesforworkopportunities. Fieldreportersmade use ofanextensive network to facilitate interviewsandgainthe confidence of victims. On our reporters fourth and final trip to Ye Township, a local religiousleaderprovidedassistancethatwasinvaluabletoourwork.

HURFOMOctober2013

12

Intotalcloseto100interviewswereconducted.83localresidentswereconsultedinYe and Kyaikmayaw townships and seven in Yebyu Township. In Ye Township 14 villages were covered, whilst testimony was obtained from residents of five Kyaikmayaw villages.Inaddition,fieldreportersconsultedfourmembersoftheSettlementandLand Records Department, two parliamentary representatives (both members of the Land Investigation Commission), five members of village administration, one Union leader and numerous legal experts. Where possible HURFOM uses the real names of interviewees, although many requested to remain anonymous or to appear under an alias given security concerns related to their cases. Similarly, for protection of intervieweesandattheirrequest,insomecasestheirpreciselocationsarenotlisted. Over the course of this research, various persons declined to talk with HURFOM reporters.Some victimsofmilitary confiscationsinYe Townshipexpresseddistrustfor our reporters, saying they would only cooperate with political parties. Of 12 civil servantswhodeclinedinterviews,twosaidtheywereconcernedaboutfarmersrightsin ongonglanddisputesbutfearedthatgivingtestimonymightjeopardisetheirpositions. AllcompaniesactiveinKyaikmayawTownshiprefusedrequestsforinformation. In addition to conducting interviews, HURFOM was able to obtain copies of correspondence regarding land disputes in Ye, Kyaikmayaw, Yebyu, and Thanbyuzayat townships.Thesecontainedbothoriginallettersofappealfromresidentsandresponses bygovernmentpersonnel. Wherepossible,casesrepresentedherearegiveninthefullestandmostaccuratedetail possible, with hopes that the information gathered in this report may be used as an advocacy tool for advancing the cases of the victims. Appendix 2 contains a list of confirmed cases of military land confiscation in Ye Township, all of which remain unresolved.ThisregisterwasmadebycrosscheckingalistofvictimsinYecompiledfrom HURFOMsarchiveswithnewinformationobtainedduringthisyearsinterviews. Whilst theoriginallistwastooextensiveforallcasestobefollowedupdirectlyduringourdata collectionperiod,ineachvillagereportersinvitedahandfulofintervieweestothelocal monasterytodiscusstheirandotherscases. Attempts to confirm cases in Ye revealed to HURFOM the challenges faced by agents investigatingland disputes.In some villages it was difficult for reporters to accurately trackthechronologyoflandownershipduetosale,rentalorreconfiscationofland.It wasalsonotedthatlandacreageandthenumberofagriculturalassets(treesorplants) involved in confiscations proved difficult to confirm due to falsified military records,

13

DISPUTEDTERRITORY

deficient land documentation, inflated claims by victims hoping to secure more compensation,andhumanerrorwhenrememberingexactcircumstances. Inadditiontonewmaterialscollected,thisreportincludesinformation,testimoniesand images from HURFOMs extensive archives. It also draws on the growing number of newsarticlesandresearchdocumentsavailable surroundinglandconflictandrightsin Burma, supplemented by original pieces of land rights legislation. As far as possible, HURFOM aimed to analyse research collected in Mon regions in the context of wider landrightsissuesthroughoutBurma.

HURFOMOctober2013

Fieldreporterinterviewingalocalresident.

14

C.BACKGROUND
1. LANDCONFISCATIONUNDERMILITARYRULE:19622011

and confiscations under military rule were supported by a domestic legal framework that flouted international norms (see Appendix 1) and in which land could be seized from owners within the parametersof the law.2 By the time Ne Winsmilitarygovernmenttookpowerin1962legallydefinedlandrightsinBurma,also known as Myanmar, had seen significant decline. British colonial rule had recognised private ownership of land and, whilst land could legally be acquired by the State for public purposes, in this period landowners enjoyed various rights over the use and transfer of their land.3 However, when Burma gained independence from British rule and moved to amodel ofsocialist governance, private land rights were replaced by a system in which the State formally owned and could exert claims over the countrys land. The 1947 Constitution, adopted immediately prior to 1948 independence from British colonialrule,formallydesignatedtheStateastheultimateownerofallland.4Thiswas followedbythe1953 LandNationalisationActthat,withtheexceptionofsmallerplots ofland(upto50acres)thatfarmerscouldprovetheyhadownedsince1948,broughtall agriculturalland subject to State reclamation and redistribution schemes.5 The aim of thislegislationwas toprotectsmallholder farmingandreverselargescale acquisitions that had taken place in the postindependence period, but it set a precedent for the State wielding constitutionally defined ownership rights and legally seizing land. Even beforethe1962militarycoupthewaywaspavedforwidespreadlandconfiscation. Withalegalbasisforlandconfiscationalreadyinplace,successivemilitarygovernments reaffirmed, enhanced, and increasingly exercised the States legal ownership of the countrys land. Shortly after Ne Win seized power the 1963 Disposal of Tenancies Act was passed, deepening State control over land by establishing the States right to
2

ForadetailedhistoryofBurmaslandlawseeLeckie&Simperingham,Housing,LandandPropertyRights inBurma:TheCurrentLegalFramework,2009. 3 GuidelinesforthelegalacquisitionoflandbytheStateforpublicpurposesaresetoutinthe1894Land AcquisitionAct. 4 1947Constitution,Article30. 5 Exemptedfarmersrightstolandwereconditionalontheircontinuingtousethelandforagricultural purposesandrefrainingfromlettingitliefallow.

15

DISPUTEDTERRITORY

terminate landlordstenancyarrangementsandinitiateitsown.6Furthermore,boththe 1974 and 2008 Constitutions reiterated that the State was the ultimate owner of all land.7Asmilitarydemandsforlandaroseandconfiscationsproliferated,thejustification thattheStatewasactinginaccordance withrightsconferredtoitbythecountryslaw wasrepeatedlyemployed.

(I)LANDCONFISCATIONBYMILITARYBATTALIONS
OneofthemostprominenttypesoflandconfiscationinMonareasundermilitaryrule wastheseizureofcivilianlandbymilitarybattalions.Wherecompensationwaspaidit wasdescribedasnegligible,andmostvictimsreportedreceivingnoneatall.8 InMonregionslandconfiscationbythemilitaryisrecordedasmostprolificafter1995. Prior to that year the regime was still waging war against a number of the countrys ethnic minority populations and large regions of Mon territory were held under the direct control of the New Mon State Party (NMSP), the predominant ethnic Mon resistancegroup.However,the1995ceasefirebetweentheNMSPandBurmesemilitary forces returned many of these areas to governmental administration. As the military sought to exert its control and counter renewed insurgencies, increasing numbers of troopsweredeployedtothisnewlyaccessibleterritory.9Thesebattalionsbegantobuild bases,oftenemployingforcibleconfiscationtomeettheirgrowinglandneeds. Tomakemattersworse,in1997governmentfundingformilitaryactivitieswasseverely depleted and battalions were ordered to follow a policy of selfreliance. Battalions demandsforland outgrewjusthousingand acreage forbases toinclude the needfor farmingprojectsthatsupplied foodandincome tocoveroperatingcosts.Asthe rising

In1963NeWinsgovernmentalsopassedtheLawSafeguardingPeasantsRights,intendedtoprotect indebtedfarmersfromcreditorsforeclosingonland.However,whilstthisprohibitstheconfiscationofland andpropertybycivillawcourts,itmakesnopronouncementsagainstStateconfiscationofland. 7 ConstitutionoftheSocialistRepublicoftheUnionofBurma(1974)Article18(a);Constitutionofthe RepublicoftheUnionofMyanmar(2008)Article37. 8 Caseshavebeenreportedofa99%gapbetweencompensationofferedandthemarketvalueofland (HURFOM,LaidWaste,2009,p.38). 9 HURFOM,NoLandtoFarm,2003,p.9.

HURFOMOctober2013

16

numberofmilitaryunitsbasedinMonareasattemptedtobettermeettheirownneeds, landconfiscationsgatheredpace.10 Troop deployments to Mon areas and resulting land confiscations further intensified when preparations began in 1998 for the construction of the governmentowned KanbauktoMyaingKalaypipeline.RunningfromTenasserimRegiontoKarenState,the 183milelong pipeline was to travel the length of Mon State through five different townships.11Withmilitaryforcestaskedwithitsconstruction,securityandmaintenance, by 2003 over 20 new battalions had been deployed along the pipelines route.12 In a report published in 2009, HURFOM stated that pipeline battalions had seized approximately 12,000 acres of land in addition to the 2,400 acres confiscated by the Statetoclearapathfortheproject.13 A large number of these land confiscation cases were concentrated in Mon States Ye TownshipandaredetailedinSectionE.

(II)LANDCONFISCATIONBYLOCALADMINISTRATION
In addition to land acquisition by battalions, under military rule Mon farmers routinely experienced land confiscation by village administrators.In some cases this was carried out in response toordersfromabovedictating confiscation on behalf of the military or forStateprojects,butonotheroccasions administrators took advantage of the governments tolerance of locallevel corruption and seized land for personal gain. Landconfiscatedbymilitarytroops.
10 11

HURFOM,NoLandtoFarm,2003,p.19 HURFOM,LaidWaste,2009,p.9 12 Ibid.p.14 13 Ibid.p.20

17

DISPUTEDTERRITORY

Since 2011 when political and civil space began to open for farmers to lodge appeals regardingmilitaryeraconfiscations,new cases havecome tolight (see SectionD).For example, from 201112 farmers from Thanbyuzayat Township sent two successive letters of appeal to State authorities detailing confiscations in their home village of Kayokepi in 2008. The letters alleged that the villages administrator, U Cartoon, had seized 19 acres ofland from five farmers, splitting it into small plots and sellingit for profit.14 An investigation in 2011 by the Thanbyuzayat Township General Administration Department concluded that the Kayokepi land had been confiscated following orders fromaLightInfantryBattalion(LIB)Generalandthatitssalewasintendedtoraisefunds for the construction of a road between Kayokepi and Htin Shu villages. The road was indeedsubsequentlybuilt,butUCartoonhassinceprovedunabletoprovideadetailed accountofhowthemoneywasspent.15Whetherornotthefundswerewhollyusedfor the roads construction, the case demonstrates the common theme of a lack of transparency. Similarly, HURFOM documented this year that 201 acres of land were allegedly confiscatedinlateFebruary2011fromresidentsofKalohvillageinYeTownshipbysub Township Administrator U Kyaw Moe and village administrative staff. Like the Thanbyuzayatcase,landwassplitintosmallplotsandsoldoff.Villagersweretoldthat theresultingprofitwouldbeinvestedincommunitydevelopment,buttheyallegethis promisenevermaterializedinanyvisibleway.Giventhelackoftransparency,residents werelefttoassumethatvillageadministratorspersonallyprofitedfromthesale.16
14

LetterfromKayokepiFarmerstotheDepartmentofAgricultureandIrrigation,05/09/11(SourceT2); LetterfromKayokepifarmerstoMonStateParliament,20/01/12(SourceT1). 15 HURFOM,FieldReport(hereafterFR)T1,July2013. 16 HURFOM,Kalohvillagesappealforconfiscatedlandremainsunresolved,28June2013.

HURFOMOctober2013

18

2.CONTINUEDLANDCONFLICTUNDERCIVILIAN GOVERNMENT:201113
DespitetheinaugurationofanominallyciviliangovernmentinMarch2011,unjustland acquisitionhasremainedarecurringthemefor Burmas ruralandagrarianpopulations. Almost a quarter of the human rights violations recorded by the Network for Human RightsDocumentation Burma(NDBurma)fromApriltoSeptember2012consistedof landconfiscationcasesthatreachedacrosssevendifferentstates17andthegroupcalled landconfiscationoneofthemostpressingissuesof2012.18

(I)CONTINUEDABUSESBYTHEMILITARY
Since 2011 reports have continued to emerge of military land confiscations in Mon regions. In June 2011 HURFOM reported on land confiscations by Navy UnitNo.43onKyweThoneNyiMaIsland inTenasserimRegionsYebyuTownship.19 Although confiscations began in December 2010 prior to Thein Seins presidency, they continued into the new governmentsterm. Aformerplantationownerpointstohislandand At the time of the 2011 report 1,000 rubbertreesthatwereconfiscatedbythemilitary. acres of land had already been seized, reportedly with no compensation paid, and a further 3,000 acres of land were designated for acquisition by the navy unit. 20 A communication from Secretary Myo AungHtay on behalf of the Presidentin August 2011 detailed that 81,196.62 acres of landintheareahadbeentransferredtothenavyunit.21Althoughtheletterheldthatat
17 18

NDBurma,ReportontheHumanRightsSituationinBurmaApril2012September2012,2012,p.4. NDBurma,ReportontheHumanRightsSituationinBurmaJanuary2012December2012,2013,p.1. 19 LocatedinTenasserimRegion,YebyuTownshipcontainsasubstantialMonpopulation. 20 HURFOM,BurmasNavyAttacksCiviliansLivelihood,2011,pp.1011. 21 LetterfromSecretaryMyoAungHtaytoCoastalRegionCommand,MawRaWaddyNavyDepartment, 24/08/11(SourceYB1).

19

DISPUTEDTERRITORY

the time of seizure none of the land was being cultivated or used and was therefore rightfully acquired, testimonies collected by HURFOM earlier that year disprove this claimandsuggestthatatleastsomeportionwasunjustlyconfiscatedfromresidents.

(II)PEACEPROCESSLANDACQUISITION
With President Thein Seins administrationheraldingitsemphasison democratic reform, one of its central prioritiessince2011hasbeenanendto conflict between Burmese military forces and the countrys numerous ethnicarmedgroups.However,overthe course of negotiations reports have emergedoffarmersbecomingunwitting victims of the peace process. Allegedly, in some cases land has been used as a DisputedlandintheKhaYoneGuuarea. bargaining tool to appease armed groups or as a means to incite division betweentheethnicpopulationstheyrepresent. In May 2013 residents from 14 villages in Paung Township of Mon State protested againstongoing injusticesintheircommunities. 22 One majorcomplaintsurroundeda conflictover3,000acresoflandinZinvillagemarkedforconfiscationbytheNMSPtobe used in an NMSP agricultural project. Nai Tala Nyi, an NMSP representative, detailed thatsince 2004thegrouphadsoughtpermissionfromthegovernmenttoappropriate thisland.ThepermissionwasfinallygrantedwhentheNMSPsignedaceasefirewiththe government in 2012.23 Whilst the NMSP stated that no land would be confiscated if farmers could prove ownership and that around half of the chosen land was too mountainous to be cultivated, the case highlights the impact of negotiations between governmentandethnicactorsonfarmerslandsecurity.

22 23

HURFOM,PaungTownshipresidentsprotestagainstinjusticeintheircommunities,5June2013. The1995ceasefirebetweentheNMSPandBurmeseforcesbrokedownin2010,withanewceasefire signedinFebruary2012.

HURFOMOctober2013

20

WithnumerousarmedfactionsoperatinginMonareas,theNMSPhasnotbeentheonly groupinvolvedinlandconflictsduringtherecentpeaceprocess.InJuly2013HURFOM published a case study detailing land confiscated in Kha Yone Guu of Kyaikmayaw TownshipbytheMonPeaceProcessgroup,alsoknownastheNaiSyoungroup,whichis abreakawayfromtheNMSP.24 Havingallegedlybuiltgoodrelationswiththe Burmese military by selling them illegally imported arms, in 2012 the group was granted permissiontodeploytroopstoKha Yone Guuandimmediatelysoughtlandtobuilda base.Cases of confiscation reportedly included villagers who could present ownership papers for their land and residents who were threatened at gunpoint or otherwise intimidatedintohandingoverhighvaluelandforminimalcompensation.OneKhaYone Guuresidentexpressedhisbeliefthatthegovernmenthadpermittedtheconfiscations toturnKhaYoneGuusMonresidentsagainstthearmedgroup. It is a kind of strategy of the government in its military policy to create conflictwithinethnicgroups.Sothegovernmentcreatesopportunitiesfor armedgroupstocarryoutsuchactivities.25

(III)LANDCONFLICTLINKEDTOECONOMICDEVELOPMENT
In addition to curbing ethnic conflict, another stated priority of President Thein Seins administration has been to significantly advance Burmas economy. However, it is of concern to HURFOM that pursuit of this goal appears to have generated a wave of unjustlandacquisitionsthroughoutthecountry,includinginMonpopulatedareas. Severallandconflictsoccurringafter2011reportedlyinvolvedmisconductbydomestic and foreign investors as they scramble to acquire vast tracts of land for development projects. For the most part this is not a new trend; since the State Law and Order RestorationCouncil(SLORC)movedawayfromSocialismin1988andtowardsamarket economy, disputesovercompanieslandacquisitionshaveroutinelyarisen.26The1991 Wasteland Instructions Law that sanctioned granting companies up to 5,000 acres of terrainclassifiedas wastelandforleasesofupto30years,inmanywaysopenedthe doorforthis.However,since2011suchcaseshavebeenoccurringatarapidrate.Land
24 25

HURFOM,Ethnicarmedgroupsalsoguiltyoflandconfiscation:ThecaseofKhaYoneGuu,11July2013. Ibid. 26 DiscussionheredrawsonFoodSecurityWorkingGroupLandCoreGroup(FSWGLCG),13Studiesof LandConfiscationsinThreeTownshipsinCentralMyanmar,2012.

21

DISPUTEDTERRITORY

pricesinBurmaaresoaringandshownoimmediatesignsofreversal,andinvestorshave attempted to grab plots of land while they can at a comparatively low expense. For foreign investors, the 2010 elections and subsequent relaxation of Western economic sanctionsprovidedtheimpetustoinitiateprojectswithinanemergingeconomy.Later sectionsofthisreportdetailhow2012lawsprivilegednewinvestorsinterests,leaving farmerslandrightslargelyunprotectedintheprocess. Highprofilecasessuchasdisputesover the Chinabacked Letpadaung copper mineprojectareamongthemostvisible symptoms of an emerging land acquisition epidemic to which Burmas ethnic regions are not immune.27 Reportedly, farmers in ethnic border areasareatsomeofthehighestriskof unjust land acquisition by new investors.AreportbytheTransnational InstituteandBurmaCentreNetherlands states:

Burmas borderlands are where regional cross borderinfrastructureandmillenniumoldtradenetworksconvergeandare someofthelastremainingresourcerichareasinAsia.28

KanTrakulhoon,presidentandCEOofSiamCement Group(photo:TheNation).

InMonterritorythemostseriousinfractionshaveoccurredin MonStatesKyaikmayaw Township, with land unjustly acquired from residents by various domestic companies planningtoestablishextensivecementproductionintheregion(thiscaseisdiscussedin fullinSectionF). With plans recently announced in Moulmein, the capital of Mon State, of a USD 386 millioncementplantbyThailandbasedSiamCementGroupanddesignsforanelectric power plant run by another Thaibased company, potential risks to farmers land
27

ArecentreportbytheKarenHumanRightsGroup(KHRG)detailedlandconfiscationandobstaclestoland useresultingfromnewresourceextractionanddevelopmentprojectsin7Karenpopulatedresearchareas (KHRG,LosingGround:LandconflictsandcollectiveactionineasternMyanmar,2013). 28 TNI&BCN,DevelopingDisparity:RegionalInvestmentinBurmasBorderlands,2013,p.2.

HURFOMOctober2013

22

securityintheregioncontinuetoarise.29KoThanHlaing,aseniorconstructionengineer originally from Moulmein, emphasised the importance of community members being abletoshareinthebenefitsofinvestmentratherthansolelybearingthecosts. We always welcome rural developments in our country. It is a great opportunitytocreatejobsinourareasTheunemploymentrateforyoung peopleinruralareasisincreasinginourcountry.Theyshouldbeofferedjob opportunities [as a result of] Foreign Direct Investment [FDI]. Domestic citizensshouldgetcapacitydevelopmentfromFDI.30 Compounding the threat to farmers land rights is the spate of Statebacked developmentprojectsbroughtonbynewinvestmentdesignedtoimprovethecountrys infrastructureasit seekslegitimacy inglobalmarkets.InJune 2013HURFOMreported on destruction of land along the route of a road construction project planned to link MonStates ThanbyuzayatTownshiptoThailandviathebordertownofThreePagodas Pass. With280acres oflanddestroyedsince the projectcommencedin2011,sources allegethaton7June2013Col.AungLwin,BorderSecurityAffairsMinister,commanded thechiefengineerofthePublicConstructionDepartmenttofocussinglehandedlyonthe roadsconstruction,evenwherethiswasattheexpenseofresidentsland.31

3. THECURRENTLEGALFRAMEWORKOFLANDRIGHTSIN BURMA
In 2012 various land laws were repealed32 and a number of new laws were passed concerningfarmersrightstolandandtheacquisitionoflandbyotheragents.Belowis anoverviewofsomeofthekeylawsineffectatthetimeofwriting.33Thecontentionis that these new laws have been used to (1) vindicate past land confiscations, thus
29

GlobalCement,SiamCementGroupspendsUS$386monfirstcementplantinMyanmar,4September 2013. 30 HURFOMInterviewO14,September2013. 31 HURFOM,LanddestructionlookssettocontinueinpathofThanbyuzayattoThreePagodasPassroad, 17June2013. 32 Thefollowingwererepealed:LandNationalisationAct(1953),DisposalofTenanciesAct(1963),Law SafeguardingPeasantsRights(1963),ForeignInvestmentLaw(1988). 33 ForamoredetailedaccountoflawsineffectseeFSWGLCG,LegalReviewofRecentlyEnactedFarmland LawandVacant,FallowandVirginLandsManagementLaw,2012.

23

DISPUTEDTERRITORY

avoidinglandrestitutionandcompensationpayments,(2)denytherightsoffarmersin ongoinglandconflicts,and(3)facilitatefutureunfairacquisitionsoffarmersland.

(I)CONSTITUTIONOFTHEREPUBLICOFTHEUNIONOFMYANMAR (2008)
The 2008 Constitution declares Burma to be a market economy in which private property rights are recognised (Articles 35 and 37) and requires the government to enact necessary laws to protect peasants rights (Article 23). However, the 2008 Constitution maintains the State as the ultimate owner of all land (Article 37) and therebypreservesthegovernmentsrighttoforciblyacquirelandfromitscitizens.

(II)FOREIGNINVESTMENTLAW(2012)
The 2012 Foreign Investment Law passed in November of that year stipulates that foreign agents can invest up to 100% in any one project (Article 9). The law regulates investmentinvariousways,statingthat: Agriculturalprojectsmustbecarriedoutasajointventurewithacitizen(Article 35). Foreigninvestorscanleaselandforupto50years,whichcanbeextendedupto atotalof70years(Article31). Investmentisrestrictedwheretheprojectcanaffectthetraditionalcultureand customsofthenationalraceswithintheUnionorisanagriculturalprojectthat couldbecarriedoutbycitizens(Article4). However, the Myanmar Investment Commission (MIC), a body appointed by the governmenttooversee foreigninvestment(Article11),isgivenconsiderable authority to overrule these regulations. Notably, it may allow restricted investments for the interest of the Union (Article 5) and stipulate longer land leases in less developed, difficulttoaccessareas(Article36).

HURFOMOctober2013

24

(III)FARMLANDACT(2012)
TheFarmlandActwaspassedon30March2012andcameintoforceon31August2012 withasetof accompanyingregulations.The law upholds the State asthe ownerofall land but permits the right for farming to individuals in order that the countrys agriculturalproductionmay develop (Article 3).Disposingwithsocialisteralegislation, theactformalisesthe2008Constitutionscommitmenttoamarketeconomy,puttingin place a system of private land ownership where citizens and other bodies may legally own,sellandotherwisetransferland. Bythislaw,therighttousefarmlandisrecognisedwhenlandisformallyregisteredin the owners name, notably excluding rights to land conferred by informal customary ownership practices (Article 4).34 Land use rights are to be managed by Farmland Management Bodies (FMBs) at Village/Ward, Township, State and Central levels, and registered by the Settlement and Land Records Department (SLRD). Individuals with claimstolandmustapply totheirTownshipsSLRDforaLandUseCertificate(LUC)and payafeetoregistertheirlandshouldtheSLRDdecideintheirfavour(Articles58). Farfromestablishingfullysecurelandtenure,variousconditionsaremadeontheright touseland (Article12)withfailuretocomplypunishablebyanythingfromafinetothe revocationoftheownersLUC.Notably,conditionsinclude: Further jeopardising farmers land security, State ministries reserve the right to utilize farmland for projects in the longterm interest of the State (Article 29), although compensationmustbepaid(Article26)andlandreturnediftheprojectisterminatedor notcarriedoutwithintheprescribedtimeframe (Article32).Whilstcompulsorysaleof landisarightsrespectingfeatureoflawinmanycountriesthereareseriousconcernsin Burmas case, given a precedent of State abuse of the legally enshrined right to
34

The use of land only for the purpose specifiedin itsLUC, unless permission is grantedfromtherelevantFMB.Farmersareprohibitedfromgrowinganything otherthantheirregularcroporusingtheirlandfornonagriculturalpurposes. An obligation to cultivate land at all times, refraining from leaving it fallow withoutsoundreason.

Forexample,itiscommoninMonareastoconsiderlandtobeownedbythefirstpersontocultivateon it.ThispracticeisknowninBurmeseasdamaucha,orwieldsthemachete(FSWGLCG,13StudiesofLand ConfiscationsinThreeTownshipsinCentralMyanmar,2012,p.15).

25

DISPUTEDTERRITORY

appropriateland.35Thisiscompoundedbythefactthatthelawlacksclearguidanceon when and for what reasons the State may demand sale of land, and on how compensationistobedecided. TheFarmlandActdoespermitagriculturalistsassociations(Article38).However,there isnomechanismtoreferlandappealstoanindependentjudicialbody (Articles2225). Instead, village/ward FMBs are designated as responsible for deciding land disputes, withappealstobelodgedfirstwiththeTownshipFMB,thentheDistrictandfinallythe StateFMBthatholdsultimatedecisionmakingpower.

(IV)VACANT,FALLOWANDVIRGINLANDSMANAGEMENTLAW (2012)
The Vacant, Fallow and Virgin Lands Management Law (hereafter the VFV Law) was also passed in March 2012. In effect the law expands on the 1991 Wasteland Instructions,grantingrightstoinvestorslookingtoacquirevacant,falloworvirginland. Bythislaw: Land may be acquired by citizens, jointventure investors (by approval of the MIC) or government bodies for the purposes of agriculture, mining or other governmentallowablepurposes(Articles45). Upto5,000acresoflandmaybegrantedatanyonetime,uptoamaximumof 50,000acres(Article10). Leaseperiodsofupto30yearsareallowed(Article11). Decisions to grant land are made by the Central Committee for the Management of Vacant, Fallow and Virgin Land chaired by the Minister for Agriculture and following recommendationsfromvariousgovernmentbodies(Articles 67).Powersconferredon the Central Committee include the right to grant more than 5,000 acres of land for projectsinlinewithStateinterests(Article10). InconjunctionwiththeFarmlandActtheVFVLawdesignatestherightforinvestorsto acquire any land not formally registered with a LUC, superseding claims to land conferredbycustomaryownershippractices.Whilstthelawacknowledgesthatfarmers
35

SeeforexampletheUSConstitutionsFifthAmendmentandtheUKAcquisitionofLandAct(1981).See alsotheUNPinheiroPrinciples.

HURFOMOctober2013

26

may in fact be cultivating formally unregistered areas of land (Article 25), where they lackofficialdocumentationtheirrightsareleftunrecognised.IfLUCsarenotheldthen compensationneednotbepaidtocultivators,normusttheirconsenttoacquisitionbe obtained. Farmers are offered limited legal recourse to protest such acquisitions. Again no independent judicial bodyis assigned to handle disputes, with the Central Committee givenresponsibilityforhandlingcontestedcases (Article25).Offeringsomeprotection, the accompanying VFV Rules stipulate that the Central Committee must ensure that farmerscultivatingunregisteredlandarenotunjustlydealtwith(Rule52).However,the VFV law makes clear that protest is subject to severe legal consequences: individuals protestingagainstlandacquisitionbyinterferingwiththeconcernedprojectsprogress areliabletopenaltiesofupto3yearsimprisonmentora1millionkyatfine(Articles26 28). ItisworthnotingthatconcernsoverlandsecurityundertheVFVLawareapplicableto land owned by the vast majority of Burmas farming population. In June 2013 it was claimed that 85% of farmers in the country lacked currently valid paperwork for their land.36 Reports have indicated few government efforts to facilitate swift land registrationandthereisapressingneedfortheregistrationprocesstobestreamlined andaccessibletofarmerslookingtoobtainLUCs.37

36 37

DisplacementSolutions,BridgingtheHLPGap,June2013,p.27. Seeforexample,FSWGLCG,LegalReviewofRecentlyEnactedFarmlandLawandVacant,Fallowand VirginLandsManagementLaw,2012,p.26.

27

DISPUTEDTERRITORY

D.PURSUINGLANDRIGHTS:201113
Commenting on the current situation for Burmas farmers, the Asian Legal Resource CentrestatedinanNDBurmareportthat: Almostdaily,newsmediacarryreportsofpeoplebeingforcedoutoftheir housesorlosingagriculturallandtostatebackedprojects,sometimesbeing offeredpaltrycompensation,sometimesnothing.38 Although HURFOMsresearchshowsthatthisobservationisalltootrue,anothertrend hasencouraginglyemergedalongsideit.Withalmostequalfrequency,newsoutfitshave beenreportingonfarmerstakingactionagainstunjustlandacquisition.39Encouragedby PresidentThein Seinsnominallyciviliangovernmentandmakinguseofnewfreedoms40 grantedbyitsreforms, farmersacrossBurmahave beentakingastand againstunjust land acquisition by demanding restitution for past confiscations, calling for fair treatmentinongoinglanddisputes,andmovingtosecurerightsovertheirlandinthe future.41

1.MONFARMERSFIGHTFORTHEIRRIGHTSTOLAND
ResearchconfirmedMonfarmersparticipationinthissurgeof civilaction.Information obtained from Ye and Kyaikmayaw townships from April to September 2013 is summarisedbelow,alongsideresearchfromthisperiodandHURFOMarchivematerials regarding Thanbyuzayat, Paung and Yebyu townships and other areas of Tenasserim Region.CasestudiesinSectionsEandFexpoundinfullonresidentsactivitiesinYeand Kyaikmayawtownships.
38 39

NDBurma,ReportontheHumanRightsSituationinBurmaAprilSeptember2012,2012,p.1. Forsomerecentcasessee:Mizzima,LandlossresidentinDaweitosueITD,24June2013;Irrawaddy, FarmersacrossBurmaaskTheinSeinforhelp,27June2013;MyanmarEleven,Hundredsgatherinprotest againstseizedlandsinYangon,27July2013;Mizzima,24villagesthreatenprotest,31August2013; MyanmarEleven,FarmersprotestagainstlandgrabbinginBagoregion,2September2013. 40 Forexampleofnewfreedomsgranted,seetheDecember2011PeacefulProtestLawandrelaxationof presscensorshiprestrictionsinAugust2012. 41 InSeptember2012MyanmarElevenreportedthattherecentlyestablishedHumanRightsCommission wasreceivingaround30lettersofcomplaintdaily,withmostofthemrelatedtolanddisputes.Fora detailedaccountoffarmerstakingcollectiveactioninKarenregionsseeKHRG,LosingGround:Land ConflictsandcollectiveactionineasternMyanmar,2013.

HURFOMOctober2013

28

(I)DEMANDS
Most farmers taking action against unjustlandacquisitionstatedthatthe return of their land was their first priority,42 largely due to the lands current value. One farmer from Mae Gro village in Kyaikmayaw Township said: Wewanttogetourland backsincelandpricesare highnow.43 FarmerswholosttheirlandineasternKyaikmayaw Several farmers seeking restitution Townshipdemonstrateontheirfarmlands(Photo: deemed fair compensation at the PeaceandDiversityParty). lands current market value to be an acceptable alternative where land is currently in use by its new owners and return is impractical.44 Other farmers lodged more modest requests. One farmer from Kyaung YwainYeTownshipsaidresidentsfromhisvillagehadgivenupaltogetheronhopesof restitutionfor landconfiscatedfromthem in2001byLightInfantry Battalion(LIB) No. 591. Instead, they were appealing to be compensated only for the plants growing on theirlandatthetimeofitsseizure.45
42

HURFOMInterviewsY56&Y9(YeTownship),Y10(KoeMile),Y11(Kundu),Y14(KanHla),YeTownship, JulyAugust2013;HURFOMInterviewsK13&K9(MaeGrovillage),K13(KaDonSivillage),Kyaikmayaw Township,AprilAugust2013. 43 HURFOMInterviewK9,MaeGrovillage,KyaikmayawTownship,August2013. 44 HURFOMInterviewY5,YeTownship,July2013;HURFOMInterviewsK23(MaeGrovillage),K13(KaDon Sivillage),KyaikmayawTownship,AprilAugust2013. 45 HURFOMInterviewY13,KyaungYwavillage,YeTownship,August2013.

29

DISPUTEDTERRITORY

(II)LETTERSOFAPPEAL
The most common activity reported by Mon farmers when tackling cases of unjust land acquisition was penning letters ofappeal.Writtenappealswere recorded in Mon States Ye, Kyaikmayaw and Thanbyuzayat townships, in addition to Yebyu Township and other areas of Tenasserim Region.46 These were variously directed to the President, government departments, senior military authorities,localadministration, parliamentary representatives and the recently established

LetterofappealfromlandownerstotheLandGrabInquiry Commission.
46

AppealsinYeTownship:HURFOMInterviewY1Kalohvillage,YeTownship,July2013;HURFOMFRY2,Ye Township,September2013(mentionofappealsagainstinKoeMile,KamarwatandKunduvillages); HURFOM,Kalohvillagesappealforconfiscatedlandremainsunresolved,28June2013;Correspondence fromgovernmentdepartmentsandDr.BanyarAungMoeregardingappealsforlandconfiscatedbyLIB Nos.587&343inHninSoneandAyuTaungvillagesMayOctober2012(SourcesY14). AppealsinKyaikmayawTownship:HURFOMInterviewsK1,K2,K3,K4,K9,MaeGrovillage,AprilAugust201; HURFOMInterviewK7,KwanNganvillage,August2013;HURFOMInterviewsK12,K13,K14,KaDonSi village,August2013;HURFOMFRK2,KyaikmayawTownship,August2013(mentionofappealsinKwan Nganvillage);LetterfromMaeGrovillagefarmerstotheLandInvestigationCommission,regardingland unjustlyacquiredbyJuneIndustryCo.Ltd.22/04/13(SourceK1);LetterfromKawPaNawvillagefarmersto variousareasofgovernmentandparliamentregardingPacificLinkcompensationdispute23/04/13(Source K2);LetterfromPyarTaungandNaturalEnvironmentWatchNetwork(KawPaNaw,KawDoon,MaeGro, KwanNgan,NiDon,KaDonSi,PaukTaw,andKawWanvillages)regardingJuneIndustryCo.Ltd.and Zaykabarcompanycementprojects27/06/13(SourceK3);HURFOM,Ethnicarmedgroupsalsoguiltyof landconfiscation:ThecaseofKhaYoneGuu,11July2013. AppealsinThanbyuzayatTownship:HURFOMFRT1,July2013(mentionsappealsinKayokepi,Waekalaung, KyaungYwaandWaeWinKarawvillages);LettersfromKraitpivillagefarmerstoMonStategovernment& MinistryofAgricultureandIrrigationregardinglandconfiscationbyvillageadministration,September2011 January2012(SourcesT12). AppealsinYebyuTownship:ResponsetoappealsbySecretaryMyoAungHtayonbehalfofthePresident regardingbylandconfiscatedbyNavyNo.43inKyweThoneNyiMavillage,24/08/11(SourceYB1). AppealsinotherareasofTenasserimRegion:HURFOM,Ownerwatchesconfiscatedfarmlandsellfor housing(KawTaungvillage),5October2012.

HURFOMOctober2013

30

LandGrabInquiryCommission(seebelow).Lettersilluminatedtherangeofabusesand perpetrators, from past to ongoing land acquisitions and involving the military, local administration,investorsandethnicarmedgroups.

(III)DEFYINGAUTHORITY
Severalfarmerswererecordedashavingdefiedtheauthorityofunjustlandacquisitions. Nai Tun Toung, 54, from Mae Gro village of Kyaikmayaw Township told a story that echoednarrativessharedbyanumberoffarmerswhosaidtheycultivatedcropsorbuilt structuresonlandthathadbeenunjustlytakenfromthembutthenneversubsequently used. Sincelastyearwe havegrownricepaddyonourlandwithoutpermission from [June Industry Co. Ltd], even though we may face some problems from them. We dont want to be silentWhether they [the government] acceptourletter[ofappeal]ornotwewillgrowpaddyonourlandforour dailyfood.47 Correspondingly, a farmer from Kaloh village, Ye Township explained how in February 2012hebuiltafencearoundlandthatwasconfiscatedfromhimin1992forrailwayline construction but was never used for that purpose.48 In a similar act of defiance, residentsofYeTownshipsTuMyoungvillagerefusedinJune2012topayanannualtax leviedbythemilitaryinexchangeforpermissiontoworkonlandconfiscatedbyLIBNo. 586in2001.49
47 48

HURFOMInterviewK4,MaeGrovillage,KyaikmayawTownship,April2013. HURFOMInterviewY1,Kalohvillage,YeTownship,July2013. 49 HURFOM,LandtaxcontroversybetweenYeresidentsandmilitarybattalion,20June2013.

31

DISPUTEDTERRITORY

(IV)REFUSALTOACCEPTUNFAIRCOMPENSATIONOFFERS
Various farmers who experienced investors attempts at unjust land acquisition told HURFOM that they, or others in their village, declined unsatisfactory offers of compensation even when company officials used threatstocoercetheownersintosigning compensationagreements.50NaiTunKyi, a 55year old farmer from Mae Gro village in Kyaikmayaw Township, detailed his refusal to cooperate with theJuneIndustryCo.Ltd.in2011.

TheentrancetoKaDonSivillageinKyaikmayaw.

They announced that they would give 100,000kyatperacre,and,asitwasaStateproject,theythreatenedthatif wedidnotagreethentheywouldtakethelandwithoutcompensation.The farmers,includingmyfamily,decidednottoaccepttheirsmallamountof compensationandrefusedtosignforit.51 MaThin,36,fromKyaikmayawsKaDonSivillagedescribedrepeatedrefusalstohand overherlandtothePacificLinkCompany. Other people have already sold their plantations to the [Pacific Link] companybutwehave noplantoselloursyet,althoughthe companyhas called on us five times already to sell to them. Wewillincrease the price [asked]forourplantations,andthecompanycantakeitornot.52
50

HURFOMInterviewsK1(MaeGrovillage),K7(KwanNganvillage),K8(KawPaNawvillage),K1011(Ka DonSivillage),KyaikmayawTownship,AprilAugust2013. 51 HURFOMInterviewK1,MaeGrovillage,KyaikmayawTownship,April2013. 52 HURFOM,InterviewK14,KaDonSivillage,KyaikmayawTownship,August2013.

HURFOMOctober2013

32

(V)ORGANISEDPROTEST
In one case, Mon farmers were documented to have participated in an organised protest against land confiscation. In May 2013 over 100 farmers from 14 villages in Paung Township gathered to protest against injustice in their communities, with land seized by the NMSP cited as a primary complaint (case detailed in Section C). The demonstrationwasrecordedas thefirstofitskindinthetownshipshistory. According toNaiAungSan,aprotesterleadingtheevent: The purpose of the protest is to demand the same rights for all local people.Ifourdemandsdonotsucceed,wewillknow thatthe authorities arenotproperlycommittedtodemocracy.53

(VI)FORMATIONOFFARMERSUNIONS
Some Mon farmers took action by moving to establish unionbased advocacygroups inanattemptto unite farmers and improve their standing in landbasedconflicts.In2012avictimof the navy land confiscations on Kywe ThoneNyiMaIslandofYebyuTownship said: If we create a union to support farmers rights, this will not happen again.54 Whilst the Myanmar Farmers Association (MFA) exists on a national level, the group has been criticised for representingtheinterestsofhightomiddleincomeagribusinessplayersasopposedto championingtherightsofthecountryssmallholderfarmermajority.55Toworktowards achieving a truly representative alliance, Mon farmers have exercised permissions
53

LandownersunionmeetinginNiDon.

HURFOM,PaungTownshipresidentsprotestagainstinjusticeintheircommunities,5June2013. HURFOM,FarmersinMonStateurgeformationofaFarmersUnion,18September2012. 55 TransnationalInstitute,AccessDenied,May2013,p.8.

54

33

DISPUTEDTERRITORY

granted in the 2012 Farmland Act and begun the process of registering their own FarmersUnion.56Attemptstoestablishsuchaunionfailedin2007,butenoughpolitical spacemayhaveopenedupfordormantplanstonowtakeroot.57 NaiKaoTalaRotspoketoHURFOMabouttheformationoftheRehmonnyaAgriculture andFarmersUnion(RAFU)designedtorepresentMonpeoplelivinginMonState,Karen State and Tenasserim Region. An exNMSP member, Nai Kao Tala Rot founded the Rehmonnya Labour Union (RLU) in 2009 and more recently accepted an offer from RAFUsfounderNaiRonDeintoimparthisexperiencetotheestablishmentoftheRAFU. The Unionisinthe process ofofficialregistration,withanapplicationcurrentlyunder considerationbytownshiplevelauthorities. Wegive helptoanypeople whorequestitfromusAllpeople have the right to work on and cultivate [land], so we will be working on helping people whose land has been confiscated to claim their rightsWe will continue to help [local people] fight for their rights if land confiscation happens again in the futureWe hope our union can help them [local farmers] escape from a deep hole and the human rights abuses that happenedinthepast.58 In addition to responding to cases of land conflict, Nai Kao Tala Rot detailed that the RAFU offers training for farmers covering land rights and land registration processes amongstothertopics.TrainingshavebeengiveninKyaikmayaw,MoulmeinandChaung Zonetownships,withplanstobeginactivitiesYeandYebyutownships.

2.THELANDINVESTIGATIONCOMMISSION
Some appealslodgedbyMonfarmersweredirectedtoandinvestigatedbythe newly formedLandInvestigationCommission,establishedinJune2012inresponsetodisquiet amongstthe nationsfamers.Passedwith395votesinitsfavour,the commissionhad the backing of broad parliamentary support.59 The Land Investigation Commission is divided into nine groups composed of parliamentary representatives and tasked with
56 57

See2012FarmlandAct,Article38. HURFOM,FarmersinMonStateurgeformationofaFarmersUnion,18September2012. 58 HURFOMInterviewO13,September2013. 59 MyanmarTimes,Repsignoreministryonlandgrabcommittee,5August2013.

HURFOMOctober2013

34

investigating disputed land acquisitions since 1988 in specific regions. Notably, its mandate is limited to investigating cases and formulating recommendations and does notincludeorbestowdecisionmakingcapabilities. Mon farmers complaints fall under the jurisdiction of Group 9, or the Land Grab Inquiry Commission, responsible for investigating disputes in Tenasserim Region and Karen and Mon states. The fiveperson groupisledby U Htay Lwin, a member of the UpperHouseofParliament,alongwithfourLowerHouseMPsrepresentingthedifferent constituencies covered under the Commissions authority.60 The group began field researchactivitiesinlateSeptember2012withtoursofvariousareasinKarenState.61 As part of the Commissions activities we have to surveyland,makeconclusions,consultanyotherfacts orissues[relevanttothecases]andgivefeedback.We only handle cases after 1988, said Mi Myint Than, a member of the Commission and Ye Constituency MP fortheAllMonRegionsDemocracyParty (AMDP).Six types of land confiscation cases have been submitted to parliament: Farms and plantations confiscated for the extension of military bases, to construct railway lines and motorways, build bridges and airports, establishcompanies,build[Stateowned]factoriesand MiMyintThan,amember complete civil [agriculture and animal husbandry] oftheLandGrabInquiry projectsAfter exploring and observing the cases, we Commission. submit findings from our field trip to upper levels [of authority]. After coming back from field research, we have to meet and consult [with the upper levels] to share our and other groups findings. Whenwefinishsharingourobservationsandconclusionswehavetodrafta planofaction[forthecases].62 GiventhatinvestigationsinMonStatecommencedonlyinJuneofthisyear,resultshave yet to be seen.63 For Mon areas, the nascent activities of the Land Grab Inquiry CommissionGroup9signalastepintherightdirection,andHURFOMacknowledgesthe
60 61

HURFOMInterviewO12,July2013. Irrawaddy,LandgrabprobetravelsacrossBurma,26September2012. 62 HURFOMInterviewO1,July2013. 63 Mizzima,LandgrabcommissionopensinquiriesinMonState,12June2013.

35

DISPUTEDTERRITORY

enormoustaskathandandthesignificanceofburgeoningeffortstocollectandrespond to farmers appeals. Itis hoped that this report willserve as a research and advocacy tool to assist with these land survey endeavours and provide recent, supplementary datafromYe andKyaikmayawtownships.Mostcases presentedhereinoccurredafter 2005 and up until today and therefore suitably match the Commissions mandate to cover land disputes originating after 1988. However, there are some clear reasons, outlined below, to doubt that the Land Investigation Commission represents a convincing attempt on the governments part to improve processes and inadequacies currentlyinherentinlanddisputeresolution.

(I)OBSTACLESTOINVESTIGATIONS
MembersoftheLandGrabInquiryCommissiondetailedvariousobstaclesfacedduring thecourseoftheirinquiries.Forexample,MPMiMyintThandescribedthefailuresto cooperatewithinvestigationsexhibitedbyseniormilitaryauthorities.64 When we requested that the [Southeast Command] Chief of the military meetandconsultwithus,hedispatchedajuniortouswhohadonlybeen in the military for two days. He [the replacement] was new to military service,sohowcouldhetellusaboutthemilitary?Inmyopinion,Ithought that[themilitaryauthorities]didnotwantustoinspectthemanduncover thetruth.65 Commission Member Daw Nan Say Awa, who also serves as the MP for the Phalon SawawDemocraticPartyforHpaanConstituency,KarenState,reportedthatmembers of the Settlement and Land Records Department (SLRD) had failed to respond to requestsfromthegroupforassistancetoinvestigations.66 Another obstacle was apparent during field surveys in Hpaan Township, Karen State where the groups investigations were hindered by farmers fear of reprisals from authoritiesinvolvedinlandconfiscation.MiMyintThancommendedtheeffortsofother villagers,unaffectedthemselvesbylanddisputes,whodisregardedthreatsfromvillage
64

FailurebymilitaryauthoritiestocooperatewithinvestigationshasbeenreportedbyotherCommission investigationgroups(Mizzima,Seizedlandcommissionfacingproblemsduringinvestigations,7September 2013). 65 HURFOMInterviewO1,July2013. 66 HURFOMInterviewO2,July2013.

HURFOMOctober2013

36

administratorsandbravelyassistedtheCommissionbyencouraginghesitantfarmersto discusstheircases.67 Still,apprehensionsurroundingfrank discussionsoflanddisputes represents a substantial challenge to the Commissions investigations as it pursues comprehensiveandaccuratedatacollection.

(II)LACKOFINFLUENCE
LandGrabInquiry CommissionmembersinterviewedbyHURFOMdisplayedagenuine commitment to helping farmers pursue their rights to land. Speaking to HURFOM, Mi Myint Than emphasised the Commissions freedom from government control and the impartialityofitsmembers. Wewerechosen,notbecauseofourrelationtoanycases,butbecausewe wereinterestedinsolvingtheproblemsofthelocalpeoplewhohavebeen affected[bylandconfiscation].68 However, the potential of the Commission to influence outcomes is limited and the groupsmandateispurelyinvestigatoryinnature. When we give feedback [to farmers wholodged appeals] wewill not be able toprovide specificanswersWehave tourge seniors[in positionsof authority]tomakesurethattheowners gettheirlandback,continuedMi Myint Than. We tried to reach out and increase public awareness about theissueasmuchaswecould.Wecommunicatedtopeopleclosewithus that they should pass our offers on to local people who want to get our help.Wewouldliketohelpthemescapefromdeepproblemsasfaraswe can, but it depends on the senior people [in government]Although Myanmarhasbeenchangingintoademocracyfortwoyears,lawandorder is still weak. The people who have the right and power [to resolve land problems]arethe[same]peoplewhowereinvolvedinthesekindsofissues inthepast.69

67 68

HURFOMInterviewO1,July2013. Ibid. 69 Ibid.

37

DISPUTEDTERRITORY

Thissentimentwassupported byeventsfollowingtheLandInvestigationCommissions first report to parliament in March 2013 concerning military land seizures.70 The response was directed to the Land Investigation Commission as a whole, but has importantimplicationsforactivitiesinMonareas. It was reported that between July 2012 and January 2013 the Land Investigation Commissionreceived565separatecomplaintsregardingmilitaryconfiscationscovering almost250,000acresofland.71 However,on16July2013BurmasMinisterofDefence announcedtoparliamentthatonly18,364acresoflandreportedonbytheCommission wouldbereturnedtoowners.Heassertedthattheremaindercouldnotbereturnedas itwasinusebymilitarybattalionsorwastooclosetoactivemilitaryspacetobesafely used by civilians.72 He also claimed that a number of complaints listed by the Commissionhadbeenperpetratedbyotheractorsandunfairlyblamedonthearmy.73 In Section C, HURFOM noted concerns that local and nationallevel corruption will continue to impinge upon justice and dispute resolution until laws provide for land acquisition cases to be investigated and decided by independent decisionmaking bodies. The government communication above evidences that without direct dispute resolutionauthority,theLandInvestigationCommissionseffortsmayremaintoothless. The Land Investigation Commission is also unable to expedite restitution of land or payment of compensation following the announcement of decided outcomes. Those farmers mentioned above and representing the small fraction of land designated for returnbythemilitaryhaveyettoregaintheirfarmsandplantations.Despitehopesthat landwouldberestoredtoformerownersbeforetheendoffertilemonsoonseason,no immediate actions were taken. Burmas Union Parliament Speaker Thura Shwe Mann andLandInvestigationCommissionMemberMPPeThanwereamongthecriticsofthe slowmoving land restitution process.74 Whilst the Minister of Defence had initially promised that land would be returned in July of this year, on 23 August Presidential

70

Onecommissionmemberwasreportedasclaimingthatmilitaryabuseswerebeingtackledfirstasthese caseswerelesscomplexanddatamorecomplete(Irrawaddy,Militaryinvolvedinmassivelandgrabs,5 March2013). 71 Irrawaddy,Militaryinvolvedinmassivelandgrabs,5March2013. 72 Irrawaddy,Onlyfractionoflandwillbereturned:Minister,18July2013. 73 DVB,Militaryagreetoreturnmeagrefractionoflandconfiscatedbymilitary,18July2013. 74 Mizzima,Restorationoflandseizedtooslow,tooless:InquiryCommission,28August2013;Myanmar ElevenParliamentspeakercallsforquickreturnofseizedland,1September2013.

HURFOMOctober2013

38

Office Minister U Soe Thein announced that land would be returned to farmers in OctoberandcontingentupontheirabilitytoproduceLUCs.75

3.ELUSIVEPROGRESS
Onthewholeresearchshowedthatfarmersvocalpursuitoftheirlandrightshasbeen met with little real progress. As detailed above, few cases of land disputes in Mon regions have been brought to satisfactory and just conclusions and most are accompaniedbyconcernsaboutthemethodsofhandlingcomplaints.Onanationwide scale, the Land Investigation Commissions limited impact showcases its restricted capacity to influence decisions that, instead, frequently remain in the hands of local, military,orstateauthoritiesthatwerethemselvescomplicitinthedisputes. PresidentTheinSeinpromised76 todevelopclear,fairandopenlandpolicies, buthis commitment to reform continues to be questioned. For example, the newly drafted FarmersInterestsPromotionBillremainssilentontheissueofunjustlandacquisition.77 Currentlegislation still leaves the dooropenforinvestorstoobtainvastareas ofland from farmers whose rights are legally undefended. Worryingly, reports have also emergedofthecountryslawbeingappliedtoarrestactivistsstagingprotestsoverland disputes.78 Today the governmentisagovernmentthatneithertakesactionforyou nor listens to your complaints, said a legal agent from Thanbyuzayat Township. The government does nothing and becomes a toothless governmentwithnoresponsibilityoraccountability.79

75

Irrawaddy,Militarytoreturnsomeconfiscatedlandsoon:MP,8July2013;Mizzima,Seizedlandstobe returned,26August2013. 76 DVB,Ministryagreestoreturnmeagrefractionoflandconfiscatedbymilitary,18July2013. 77 DVB,Movetoaidfarmersmaydevastatesector,4August2013. 78 See,forexample,DVB,FarmersinhidingnearInleLakeasofficialscrackdownonploughprotests,12 June2013;Irrawaddy,ActivistNawOhnHlaJailed2YearsforLetpadaungProtest,29August2013; Irrawaddy,LandRightsActivistsSuedforProtestingWithoutPermission,8May2013. 79 HURFOMInterviewO7,emailcorrespondence,June2013.

39

DISPUTEDTERRITORY

The question arises: what exactly is standing in the way of progress? The following sections explore some of these barriers using land dispute case studies from two different townshipstoanalyse the obstacles Monfarmers face intheir pursuitofjust land rights. HURFOM stands alongside these courageous Mon farmers and calls for reformstofacilitateimmediateandequitablerecognitionoftheirrightstoland.

FarmineasternYeTownship.

HURFOMOctober2013

40

E.CASESTUDY1:PASTMILITARYCONFISCATIONSINYE TOWNSHIP
1.CASESUMMARY

s outlined earlier in the report, under military rule various factorsconspiredtobringabout largescalemilitaryconfiscationsofland in Ye Township,located in the south of Mon State. These confiscations largely took place after 1995 following the ceasefire between NMSP and Burmese military forces. As a zone newly accessible to the Burmese military and onthe route of the Kanbauk toMyaing Kalay gas pipeline, Ye Township saw a surge ofmilitary battalionsdeployedto theareaandsubsequentlyseekingland.

TroopbasesinYeTownship.

ReportspublishedbyHURFOMin2003and2009togetherindicateover6,000acresof landconfiscatedbythe militaryinYe townshipfrom1998to2009.80 Theseandmore recentHURFOMarticles81havereportedlandconfiscationsoverthisperiodinaround30 townsandvillagesinYeTownshipatthehandsofover20different,identifiablemilitary groups.82 Many of these were largescale acquisitions; for example, 360 acres

80 81

HURFOM,NoLandtoFarm,2003;HURFOM,LaidWaste,2009. Recentreportsinclude:HURFOMFRY2,September2013;Correspondencefromgovernment departmentsandDr.BanyarAungMoeregardingappealsforlandconfiscatedbyLIBNos.587&343inHnine ZoneandAyuTaungvillages(SourcesY14),MayOctober2012;HURFOMnewsarchives(availableonline). SeealsoAppendix2ofthisreport. 82 Reportsregardingmilitarylandconfiscationreceivedfrom:Kamarwat,KalawLay,KyaungYwa,ChaPone, AhMae,KoeMile,Kundu,KanHla,KawHlaing,Kaloh,KyonePaw,Hangan,LeinMawChan,AyuTaung, KyaungYwa,KawPalaing,KhawZar,DonPhi,PharLane,Mawkanin,Taungbon,Hangan,SanPya,Duya, Abaw,TuMyaung,TharGaYan,Sonnatha,Gukataw,KalarGoteisland.InadditionHninSoneandLamine subtownships. PerpetratorsknowntoHURFOM:LIBNos.106,282,299,317,343,538,583,585,586,587,588,591;IBNos. 31&61;ARNos.311&317;MOMCNo.19;NavyUnitNo.43.

41

DISPUTEDTERRITORY

confiscatedinAyuTaungvillagebyLightInfantryBattalion(LIB)No.343.83Mostplotsof land were seized for direct use by the battalions, although in some cases land was confiscatedonbehalfofgovernmentdepartments.84 Victims of previous Ye military confiscations were revisitedbyHURFOMin2013 andeach reported losing between 2 and 40 acres of land with little or no compensation provided (see Appendix 2). Sums of compensation recorded were as low as 563 kyat for almost sevenacresofland.85Oftenthefactthatland was unregistered and officially classed as vacant was used to justify failure to compensatelandorthecropsgrowingonit.86

Plantationpurchasedbythemilitaryand markedbyatroopflaginYeTownship.

Residents were frequently coerced into signingcompensationagreementsthatwereusedtogiveanimpressionoflegitimacyto military land acquisition. Nai Khin Mung Nyit from Koe Mile village had his 10acre plantationconfiscatedbyLIBNo.299in2001onbehalfoftheMinistryofEnvironmental ConservationandForestry.HetoldHURFOM: When they confiscated [the land], [the military] said they would compensateus.Theytookustovisittheirbaseofficeinordertoforceusto sign[anagreementforthecompensation].Theycalledustovisitfiveorsix times. They gave 100,000 kyat to my oldest brother and then we five siblingsdividedthistotake20,000kyateach.100,000kyatwasnotalotof money,itcouldbespentonachild'ssnack.Butweweretooafraidofthem torefusetosignoursignatures.87

83

HURFOMFRY1,YeTownship,July2013;LetterfromtheMinistryofAgricultureandIrrigationregarding landconfiscationbyLIB587&343inHninSoneandAyuTaungvillages(SourceY2),18/04/12. 84 ForexamplelandinKoeMilevillageconfiscatedin2001forusebytheMinistryofEnvironmental ConservationandForestry(HURFOMInterviewY10,KoeMilevillage,YeTownship,August2013;HURFOM FRY2,September2013). 85 LetterfromtheMinistryofAgricultureandIrrigationtothePresidentandUniongovernmentregarding landconfiscationbyLIB587&343inHninSoneandAyuTaungvillages(SourceY2),18/04/12. 86 Ibid. 87 HURFOMInterviewY10,KoeMilevillage,YeTownship,August2013.

HURFOMOctober2013

42

Toputthatsumintoperspective,atthetime100,000kyatwasroughlyequivalenttoa third or half of the profits generated from one durian harvest on a plantation of that size.88Althoughlargersumsofcompensationwereofferedtocertainotherresidentsin the area, the extentofthe undervaluationoflandthat iscentraltoproviding families withincomeyearafteryearisapparent.TodayNaiKhinMungNyitsplantationisvalued at10millionkyat.

2.THEAFTERMATHOFMILITARYCONFISCATIONSFORYE RESIDENTS
From July to August 2013 HURFOM field reporters revisited victims of previously reported cases of military land confiscation in 14 villages in Ye Township and some in Lamine and Ye towns.89 Infive ofthose villagesalargenumberofpreviously reported caseswerenolongerbeingdisputed90,whilstinanotherfivevariousdifficultiesmeant thatlittlereliabledatacouldbeobtained.91Hence105ongoinglanddisputecaseswere confirmed in the surveyed areas and followedup by HURFOM researchers (see Appendix2). Ingeneral,theconfiscationsunderdiscussiontookplacein2001andresearchrevealed the spectrum of farmers experiences in Ye Township over the 12 years following the lossoftheirland.

88 89

HURFOMInterviewY11,Kunduvillage,YeTownship,August2013. Villagessurveyedwere:Kyonepaw,KoeMile,KyaungYwa,KanHla,Kundu,AyuTaung,PharLane,Duya, Gukataw,TharGaYan,Kaloh,Hangan,KawHlaingandMawkaninvillages. 90 HURFOMreportersfoundthatlandmarkedoutforconfiscationinPharLane,Duya,GukatawandTharGa Yanvillageshadneverinfactbeenseizedfromowners,andthatinKoeMilevillagesomelandthatended upinthehandsoftheMinistryofEnvironmentalConservationandForestryaftermilitaryconfiscationhad beenreturnedtoresidents 91 ResidentsinKaloh,HanganandKawHlangvillageswerenotablysuspiciousofanduncooperativewith HURFOMreporters.Thisproblemwaspossiblyexacerbatedbythefactthatsecurityconcernsrendered HURFOMreportersunabletovisitthesevillagesinpersonandinterviewshadtobeconductedvia telephone.InAyuTaungandMawkaninvillagesdatawasdifficulttoconfirmduetomigrationofmany victimstodifferentareas.

43

DISPUTEDTERRITORY

(I) RENTALANDREPURCHASEOFLAND
After their land was confiscated, the majority of farmers continued to work on their propertiesforatleastsomeperiodoftime duetotenancyagreementswiththelands new military owners. In all villages surveyed, offers of tenancy agreements had been madetoresidents.92However,aletterofappealnotedthatoffershadnotbeenmade tofarmerswhoselandhadbeenclassifiedasfallow.93IntervieweesinAyuTaungvillage suspected that the military had made different offers to different parties in order to createdisunityamongstvillagersandpreventthemfromunitingincollectiveprotest.94 In many cases farmers were given permission to work on land for three to five years without incurring fees, particularly where they had received no compensation at the time of seizure.95 However,inKoe Mile village farmersnotedthat the rentfree period officially granted to them was five years but, for two of these years, they were preventedfromusingtheirland.96 After rentfree periods ended, or where they were never granted, farmers were required to pay the military everincreasing usage fees in BattalionbarracksinYeTownship. exchange for permission to cultivate the land they had previously owned. According to Nai Kyaw Thein,50,whoseeightacreplotoflandwasconfiscatedbyLIBNo.586in2001:
92 93

HURFOMFRY2,September2013. LetterofappealbyYeTownshipresidents,13/05/12(SourceY5). 94 HURFOMFRY2,September2013. 95 LetterfromMinistryofAgriculture&IrrigationregardingconfiscationbyLIBNo.343inAyuTaungvillage (SourceY2),18/04/12;LetterfromMinistryofHomeAffairsregardingconfiscationbyLIBNo.343inAyu Taungvillage,13/04/12(SourceY3);HURFOMInterviewsY2,Y4,Y9,Y12,Y13,Y14,JulyAugust2013 (mentionpaymentfreeleaseinHangan,Kundu,KwanBaeandKanHlavillages);HURFOMFRY2,September 2013(mentionspaymentfreeleaseinAyuTaung,KoeMile,KunduandKyonepawvillages). 96 HURFOMFRY2,September2013.

HURFOMOctober2013

44

Afterthefiveyears[rentfreeperiod]wehadtopay550kyatperrubber tree[growingontheplantation],700kyatpertreethefollowingyear,800 kyatthenext,andeventually1,300kyat.97 Most interviewees reported that payments were decided on a per plant basis, with prices demanded varying from battalion to battalion. Fees being paid today hovered around 1,300 kyat per plant.98 With plantation sizes ranging widely, villagers reported payingupto1.5 millionkyatper yearin usage fees.99 One villager toldHURFOMthat, withthepriceofrubberfluctuatingandrentpricesrising,hehadattimesbeendriven into debt by the payments levied on his former land.100 It was also reported that the military occasionally demanded additional taxes from renting farmers101 to cover arbitrary purchases or expenditures for the battalions. In one case concerning LIB No. 586,residentswere toldthe collectedtaxeswouldbe usedtofix the generator,host guests,andgivepresentstosenior[members].102 With few other options to earn an income, many villagers agreed to the rental arrangements. Some continue to pay usage fees on their former plantations to this day.103 However,numerousintervieweessaidthattheyhadbeenunable toaffordthe payments demanded and so could not rent their land.104 Where this was the case in KyonepawandKyaungYwavillages,itwasreportedthatbusinessmenfromotherareas hadsubsequentlytakenuprentalcontractsonvillagersfarms.105 Other residents said they refused rental agreementsout of unwillingness to negotiate with the parties behind the confiscations. Nai Hlaing, 70, from Kyonepaw village describedhisresistance: They[the military]stoppedapproachingme afterI refusedtomeetwith them,andmanytimes[toavoidmeetingwiththem]Iwenttoworkinstead, even though I was called [to meet with them] and sent a letter [being summonedtoameeting].AlthoughIdidnotgotomeetthemIheardthat
97 98

HURFOMInterviewY9,YeTownship,August2013. HURFOMInterviewY3,YeTownship,July2013;HURFOMInterviewY9,YeTownship,August2013. 99 HURFOMInterviewY9,YeTownship,August2013. 100 HURFOMInterviewY5,YeTownship,July2013. 101 HURFOMFRY2,September2013. 102 HURFOMInterviewY8,Kyonepawvillage,August2013. 103 HURFOMInterviewY14,KanHlavillage,August2013;HURFOMInterviewsY25,Y7&Y9,YeTownship, JulyAugust2013(Y3,Y5,andY9werestillrentingland). 104 HURFOMInterviewsY4&Y6,YeTownshipJuly2013;HURFOMFRY2,September2013. 105 HURFOMFRY2,September2013.

45

DISPUTEDTERRITORY

they[were sayingthatthey]wouldgive five yearspermissiontowork [on confiscatedland]Ididnotgotomyplantationaftertheyconfiscateditand did not ask for permission to workMy landwas not affected when they builttheirbattalion.Theyshouldnothaveconfiscatedit.106 Whenfarmersdidagreetorenttheirlandfromthemilitary,avarietyofrelatedabuses wererecordedovertherentalperiod.Onefarmersaid: They [LIB No. 587] intimidated us, reminding us that the plantation belonged to them and we could not harm or destroy the plants while workingoniteventhoughwepaid[them]themoney.Theysaidthatitwas notourpropertybuttheirs.107 Another farmer described misconduct byLIBNo.343,saying: Although I was 70 at the time they abused us, taking our electricity and makingusliveinthedark.108 In a third case, corruption amongst military authorities led to a villager having to pay rental fees again and againtomultipleagents.109 Plantationfencedoffbytroopsafterconfiscation. Compounding their difficulties, renting farmers also reported facing insecure accesstoland,withrentalagreementssubjecttobeingterminatedatanytime.Farmers fromKundu,KyaungYwaandKanHlavillagesdetailedcontractsbeingterminatedafter twotothreeyears.110InbothKyaungYwaandKanHlaitwasreportedthatthreatshad been used to intimidate farmers into giving up the land. In September 2013 HURFOM reported on a new group of farmers whose rental contracts on confiscated land were being terminated, with plantations being given to soldiers families. One of these farmersexplainedhowthisoutcomewasaresultofhisrequestforareductioninrent:
106 107

HURDOMInterviewY8,Kyonepawvillage,August2013. HURFOM,InterviewY9,YeTownship,August2013. 108 HURFOMInterviewY11,Kunduvillage,August2013. 109 HURFOMInterviewY7,YeTownship,July2013. 110 HURFOMInterviewsY11(Kundu),Y13(KyaungYwa),K14(KanHla),August2013.

HURFOMOctober2013

46

Wemetwithanarmymajortodiscussthepricefor2013,butherefused ourrequesttodecreasethepaymentfrom1,200kyatto1,000kyat,which reflectsthechangeinthepriceofrubber.OnAugust29wewentagainto themajorfornegotiationsbuthesaidhewouldnotsellthelandtoanyone andwasinsteadplanningtogivethelandtothefamiliesofsoldiers.Hewas worried about military leadership hearing about the land disputes and conductinganinvestigation.Wefearedhis wordsbecause he toldus that hedidntcareaboutoursituationandwouldshootbackifneeded.111 Aside from renting out land, army battalions have also sought to make money from victimsofconfiscationinotherways.ItwasreportedthatarmybattalionsinKyonepaw, Kundu and Kyaung Ywa villages had recently offered residents the opportunity to buy backtheirland.112Manyfarmerscommitmenttoregainingtheirlandwassuchthatthey said they would accept, agreeing to give up to the full price they originally paid for it despite concerns about the lands current poor condition.113 However, Nai Aung Soe Myit,40,fromKyaungYwavillagesaid: Although the military has proposed that we can get back our plantationsforhalfthe price I do not want to buy it back because I would just get back the land, without any [income generating] plants. There are only tall grasses on the plantation now that I would have to clear out[tobeabletoplant crops] if I took it back

BattalionbaseinYeTownship.

111 112

HURFOM,YeTownshipResidentsRecountTrialsofLandDisputeswithMilitary,16September2013. HURFOMInterviewsY8(Kyonepaw),Y1112(Kundu),Y13(KyaungYwa),August2013. 113 HURFOMInterviewsY8(Kyonepaw),Y1112(Kundu),August2013.

47

DISPUTEDTERRITORY

soitwouldbealotofworkagain.114 A recurring narrative about the decline of formerly fertile land appeared in other interviews aswell,andingeneral conditionswere reportedtohavedeteriorated once farmerswerenolongeractivelycultivatingtheirland.Inseveralcaseslandlayunusedby battalionsandwascoveredinweeds.115NaiKyawThein,whoselandonceencompassed 1,200rubbertrees,said: I love my plantation so much that [after his rental contract was terminated] I went to look at its condition and I was sad to see that my plantationwasalmostdestroyed.Theykepttheplantsthattheycould[use to]havefruittoeatand,asfortheplantsthatcouldnotprovidefruit,they cutthemalldownanddidnotreplantthem.Sonowtherearelonggrasses [ontheplantation]anditlookslikeajungle.116 In other cases, land had been rented out to companies whose lack of expertise in farming had caused the destruction of land and plants.117 Overuse of chemicals by inexperiencedcultivatorswasgivenasonecauseofthisdecline.118

(II) LOSSOFLIVELIHOODSANDLABOURMIGRATION
ForfarmersinYeTownshipwhoeitherrefusedtopayusagefees,hadrentalcontracts terminated,orwerenevergiventheoptiontocontinueworkingtheirplantationsfora cost, land seizures resulted in a damaging blow to their livelihoods. Some were fortunate enoughtoownmultiple plantationstooffsetthe lossofone,butforothers theirsingleplotsoflandrepresentedtheirsolesourceofincome.119Inaddition,withup toeightyearsofcontinuousinvestmentandlabourneededtoseeaprofitfromrubber

114 115

HURFOMInterviewY13,KyaungYwavillage,August2013. HURFOMInterviewsY8(Kundu),Y11(Kyonepaw),Y13(Kyaungywa),August2013;HURFOMFiledReport Y2(sectiononKyonepaw),September2013. 116 HURFOMInterviewY9,YeTownship,August2013. 117 HURFOMInterviewY12,Kunduvillage,August2013;HURFOMInterviewY14,KanHlavillage,August 2013. 118 HURFOM,YeTownshipresidentsrecounttrialsoflanddisputeswithmilitary,16September2013. 119 HURFOMFRY2(commentonKoeMilevillage),September2013;HURFOMInterviewY11,Kunduvillage, August2013.

HURFOMOctober2013

48

trees, one of the primary crops in Ye Township, the loss of plants for little or no compensationcreatedafurtheraffronttothefarmersyearsofeffort. I want to provide a livelihood for my family, said one interviewee. So when my plantation was confiscated I was like a person with broken legs.120 Farmingfamiliesthatlosttheirplantationswerelefttofindnewsourcesofwork.One formerlandownersaid: Now Iwork diggingwells,cuttinggrass and working on other peoples plantations.121 However,severalfarmerswerereported to have migrated to other parts of the countryorThailandtoseekworkdueto shortages of work opportunities in their nativecommunities.122 Someinterviewsillustratedthatchildren had shouldered their families financial AmigrantworkingonaplantationinThailandafter burdens by working to support parents helosthislandinnorthernYe. who lost farmland or plantations.123 In some cases, this inverted dependency createdfrictionforadultswhohadtoshiftfromtherole ofbreadwinner torelyingon the income generated by younger members of the family. Mi Khin Win, a resident on KanHlavillage,toldHURFOM: Myfatherisstillupsetnowabouthisplantation,andalthoughwe[MiKhin Winandhersiblings]givehimashare[ofourwages]hedoesnotwantto takeitbecausehesaysthathehasnotdoneanyworktogetthemoney.To
120 121

HURFOMInterviewY5,YeTownship,July2013. HURFOMInterviewY4,YeTownship,July2013. 122 HURFOMFRY2,September2013;HURFOMInterviewY4,July2013;HURFOMInterviewY11,Kundu village,YeTownship,August2013;HURFOM,DestinationUnknown:HopeanddoubtregardingIDP resettlementinMonState,October2013,pp.3940. 123 HURFOMInterviewY6,YeTownship,July2013;HURFOMInterviewY14,KanHlavillage,August2013.

49

DISPUTEDTERRITORY

this day he says that if the plantation had not been confiscated by the militarythenhisfamilywouldnotbeinadifficultsituation.124 Despite various testimonies collected about the loss of livelihoods, HURFOM research suggests that it is likely that the full extent of hardship faced by many families in Ye Township following confiscations remains undocumented. Field reporters described a recurringsensethatsomeintervieweesweretooembarrassedtoadmitthefullscopeof financialdifficultiesthatbefellfollowingtheirlossofland.125

(III)ATTACHMENTTOLANDANDTHETOLLOFITSLOSS
Many farmers expressed a deep attachment to their land and, as a result, a heavy emotional toll associated with its loss. Nai Hlaing, 70, from Kyonepaw village told HURFOMthatdespite refusingtorenthisplantationfromitsnewmilitary owners,he helpedthemputoutafireontheland. Although the land does not belong tomeanymoreIstillloveitbecauseI cultivateditformanyyears.126 In 2012 a farmer in Chapon village toldHURFOMthatthe connectionhe felt to his land had prevented him from migrating for work, despite the fact that the little land left to him after confiscation was not sufficient tosupporthisfamily. After [some of] my land was confiscated, I wanted to go abroad like other people did but I could not leave my remaining four acres even though they didnt provide enough

AmigrantworkingonaplantationinThailandafterhe losthislandinYeTownship.
124 125

HURFOMInterviewY14,KanHlavillage,August2013. HURFOMFRY2,September2013. 126 HURFOMInterviewY8,Kyonepawvillage,August2013.

HURFOMOctober2013

50

income. There were many people like me who could not leave their land.127 Oneyoungsonofalandlossvictimconcluded: Ihadtosendmyfathertothehospitalthreetimesbecausehewas depressed[aftertroopsconfiscatedthefamilyplantation].128

3.WIDESPREADAPPEALS,POORRESULTS
AfteryearsofhardshipfacedbyfarmersinYeTownship,theadventofPresidentThein Seins nominally civilian government and the end of decades of direct military rule usheredinawaveofpublicdemandsforrightsoverconfiscatedland.Theinitiationof democraticreformin2011wasnotthefirstcatalystforfarmersinYeTownshiptospeak out against land seizures,129 but complaints began to be heard at a hitherto unprecedentedfrequency. Overthepastfewyears,formerresidentsofChaponvillagebegantricklingbackhomein search of land restitution after being displaced by confiscations perpetrated by Navy UnitNo.43.130 Farmers inTumyoungvillage refusedtopay annualrentalfeestoLight Infantry Battalion(LIB) No. 586, instead demanding the return of their land.131 Formal letters of appeal were sent by residents in villages throughout Ye Township to the governmentandmembersofparliament.132Byvariousmeans,thevictimsofpastland confiscationsbegantomaketheirvoicesheard.
127

HURFOM,Villagersslowlyreturntoformercommunitiesinsearchofconfiscatedland,18December 2012. 128 HURFOMInterviewY7,YeTownship,July2013. 129 Forexample,HURFOMFRY2,September2013notesthatatthetimeofseizuresomeresidentsinKoe MilesuccessfullyresistedconfiscationoflandbytheMinistryofEnvironmentalConservationandForestry, whowithdrewfromsomeareasoflandsubsequenttoaletterofappealsubmittedbyresidents. 130 HURFOM,Villagersslowlyreturntoformercommunitiesinsearchofconfiscatedland,18December 2012. 131 HURFOM,LandtaxcontroversybetweenYeresidentsandmilitarybattalion,20June2013. 132 AppealshavebeenmadeknowntoHURFOMin:KoeMile,KamarwatandKundu(HURFOMFRY2, September2013);HninSoneandAyuTaung(Correspondencefromvariousgovernmentdepartmentsand MPDr.BanyarAungMoe,SourcesY14,MayOctober2012).

51

DISPUTEDTERRITORY

(I)RESIDENTSDEMANDLANDRESTITUTIONANDFAIR COMPENSATION
On the whole, residents requested for the return of their land or, failing that, fair compensation. A letter ofappealsubmittedbyagroupofformerlandownersfromYe Township demonstrates peoples desire to move on from past hardship while emphasising the need for justice and land rights to be recognised by the current administration. The letter concludes, In order to be a dutiful government, the governmentneedstorepayresidentsfortheirloss.133 Peopleshouldnotpointtoandlookbackonmistakesfromthatperiodof time,althoughmanypainsandproblemswerecausedintheconflictperiod. It is better, if there is the opportunity, to make a new start and heal the injuries experienced by residents in the conflict periodthe military confiscated many pieces of land to extend their military bases, which includedmanycasesofcorruption.However,someoftheproblems[faced

133

Ibid.

52 HURFOM October2013 AuthoritiesusecoercionandofferunfaircompensationtolandownersinNiDon.

byresidents]canbesolved.Thereforewe,theresidents,havewrittenthis letter of appeal to be submitted to the authorities and other departments.134 The letter was written on behalf of all victims of military confiscations in the region, many of whom it said were unaware of their legal rights regarding land taken from them.Itdemandedthat:(1)authoritiesaccountforallmilitarylandconfiscationsinthe regionandjustifythembylaw,(2)landinvolvedinunjustifiableseizuresbereturnedto residents,and(3)intheremainderofcasescompensationbepaidforcropsgrowingon thelandattimeofseizure.Thelettercalledforassistancetohelpfarmersgainsecure rights over currently held land and avoid future land conflict, recommended that Ye farmersrightsundernewlandlawsbeexplainedtothem, askedthathelpbegivento residentstoformallyregistertheirland,anddemandedthatrightstoregisteredlandbe fullyrespectedbytheauthoritiesinthefaceofprospectiveinvestmentacquisitions.

(II)DISAPPOINTINGOUTCOMES
Thus far, such appeals have produced disappointing results, and HURFOMs research revealedfewinstancesinwhichconfiscatedlandhadbeendesignatedforreturn. ThereweresomepromisingindicationsinKoeMilevillageregardinglandconfiscatedby themilitaryonthebehalfoftheMinistryofEnvironmentalConservationandForestry.In 2012 the Ministry told farmers that their land would be returned to them, and asked localsfor8,000kyatper acre forconfiscatedlandto be measuredpriortorestitution, sayingthatLUCswouldbedistributedtoformalizethelandsreturn.Todate,thepapers havenotbeenissued.WhilstsomeKoeMilefarmershavebeguntocultivatetheirland again without the official documentation, some are continuing to appeal for LUCs, recognising that without them their land rights remain deeply insecure in the current legalsetting.135OneKoeMileresidentsaid:

134 135

LetterofappealbyYeTownshipresidents,13/05/12(SourceY5). HURFOMFRY2,September2013.

53

DISPUTEDTERRITORY

Theforestdepartmenthasalreadymeasuredthelandtobegivenbackbut thepermission[tocultivateonit]hasnotyetbeengiven.Wearenotsure whetherwewillgetthepermissionornot,butwearestillhoping.136

(I) CONFISCATIONSBYLIBNO.343AND587:AFAILURETO CONDEMNANDWEAKLEGALPROTECTIONS

AseriesofcorrespondenceregardingconfiscationsbyLightInfantryBattalion(LIB)Nos. 343 and 587 in Ayu Taung and Hnin Sone villages provides insightinto key difficulties facedbyYefarmersseekingjusticeforpastabuses. Mi Myint Than, MP for the Ye Township constituency, submitted a letter of appeal in late April2012 onthe behalfoffarmersinAyu TaungandHninSone villages.Records showedthatLIBNo.343hadacquired360acresoflandinAyuTaungwhilstLIBNo.587 appropriated 224 acres in Hnin Sone. Mi Myint Than condemned such largescale militarylandacquisitions. Ithinkthattheychose[toconfiscatelandin]areassuitableforbusiness.If thegovernmentsetaspecificlimit,50or100acresoflandforeachmilitary base depending on whether it is big or small, the situation would be solved.137 On3October2012 MiMyintThansletterwasmetwitharesponsefromtheViceChief Directorofthe ParliamentaryDepartmentwhoforwarded correspondence obtainedin MayfromtheMinistriesofHomeAffairsandofAgricultureandIrrigation.138Thelatter detailedthatpursuantto MiMyintThansappealtheyhaddispatchedan investigation teaminMay2012tosurveytheareaandconsultmilitaryauthorities.Thisgroupwasled bythe administratorforYe Township andincluded the chiefs of the Ye Townshipand Lamine Subtownship SLRD (accountable for these villages) and the Lamine Sub townshipadministrator.139
136 137

HURFOMInterviewY10,KoeMilevillage,August2013. HURFOMInterviewO1,July2013. 138 LetterfromTinWinAung,ViceChiefDirectoroftheParliamentaryDepartmentonthebehalfoftheChief Director,toMiMyintThan,03/10/12(SourceY1). 139 LetterfromMyinHlaing,MinistryofAgricultureandIrrigationtothePresidentandUniongovernment, 18/05/12(SourceY2).

HURFOMOctober2013

54

The responses from the government ministries brought to light various concerning trends.First,theministriesfailedtocondemnpastmilitaryseizuresbyassertingthatthe land had been rightfully acquired for military purposes. Delegating responsibility for handling the disputes to the Mon State Parliament, the Ministry of Agriculture and Irrigationadvised: The land confiscated was not taken for individuals own purposes, but was validly utilised for establishing battalion departmentstosecure and defend the nationthe previousgovernmentacted legitimately regarding land confiscatedbyLIBNos.343 and587inYeTownship.140 Sincethisruling,membersofMonState Parliament seem to have endorsed its stance. One interviewee told HURFOM inAugustthatthemilitarydecreedthat only land outside the 360 acres legally requisitioned by LIB No. 343 would be returnedtoowners.141 InthecaseofHninSone,theMinistryof Home Affairs encouragingly suggested WrittenresponsefromaUnionMinisterjustifying that 35.17 acres of appropriated land confiscation. that was never used by LIB No. 587 should be returned to previous cultivators, but it failed to condemn initial land seizures.142

140 141

Ibid. HURFOMInterviewY12,Kunduvillage,August2013. 142 LetterfromLieutenantGeneralKoKo,MinistryofHomeAffairstotheUniongovernment,13/05/12 (SourceY3).

55

DISPUTEDTERRITORY

Secondly, land laws offered little protection to farmers seeking land restitution or compensation. The ministries failure to condemn past military land confiscations was facilitatedbyweaklandlawsthatwereusedtojustify,bylawsatthetimeofseizureand atpresent,landacquisitionandfailuretopayjustcompensation.143 The Ministry of Home Affairs stated that of 584 acres of land acquired by the two battalions,458acreshadbeenregisteredtoownersand 126acresclassifiedasvacant orvirgin.144Wherelandhadbeentakenfromowners,theseizureswereinaccordance withlawsallowingtheacquisitionoflandforStatepurposesandfollowingpermissions issued by the Ministry of Home Affairs and the Moulmein General Administration Department.145 The correspondence revealed that compensation totalling 1,882,341 kyat had been paid by LIBNo. 343 for 242 acres of land and the crops growing on it. However,thissumrepresentsanaverageofjust7,778kyatperacre,andin2013,land surveyedbyHURFOMinYeTownshipwasvaluedatanaverageof1.7millionkyat per acre(seeAppendix2).The2012FarmlandActstates thatconfiscatedfarmsaretobe compensatedwithoutanyloss,146butitprovidesnoguidanceorspecificsastohowthis restitutioniscalculated. Land classified as vacant or virgin was considered justifiably acquired and not necessitatingcompensationaccordingtothe2012VFVLandsLaw.Regarding118acres ofvacantlandtakenbyLIBNo.343,theMinistryofHomeAffairsadvised: Followinginstructionsfromthe Ministry of HomeAffairsandinline with landlaw,thevacantlandconfiscatedbyLIBNo.343wastransferredtothe MinistryofDefenceDepartmentwithoutpayment.147 Notably,theMinistryacknowledgedthatsomelandofficiallyclassifiedasvacanthadin factbeeninuse:

143

Atthetimeofbothlettersthe2012FarmlandActhadbeenpassed,howeverithadyettobeenacted. Whilstministriesarelikelytohavebeenapplyingpreviouslegislationtothecase,asdetailedherethe FarmlandActoffersnonewprotectionandconferssimilarrightstotheStatetoacquireland. 144 LetterfromLieutenantGeneralKoKo,MinistryofHomeAffairstotheUniongovernment,13/05/12 (SourceY3). 145 LetterfromMyinHlaing,MinistryofAgricultureandIrrigationtothePresidentandUniongovernment, 18/05/12(SourceY2). 146 FarmlandAct(2012),Article26. 147 LetterfromLieutenantGeneralKoKo,MinistryofHomeAffairstotheUniongovernment,13/05/12 (SourceY3).

HURFOMOctober2013

56

Althoughtheland[acquiredbyLIBNo.343]isspecifiedasvacant/virginin thelandrecords,at7amon6.5.2012thefieldsurveygroupconfirmedthat it had contained the following: (i) over 3,000 rubber plants planted by U Win,(ii)1,500rubberplants,300betelnutplants,andotherplantsgrown byUAungTin,(iii)700rubberand100betelnutplantscultivatedbyUChit TinandUMgMyint,(iv)oneacreoftreesandbamboograssesownedbyU TheinTin,(v)twoacresoflandcultivatedbyUKyawAye.148 Leveraging the laws failure to conferrightstoland thatisnot formally registered but is held by customary ownership practices,the MinistryofHome Affairs deemed that no compensation was warranted forthesefarmers.Forexample, onepetitionerwastold: Inresponsetothe appealofDawMoe Tu regarding land to the east of LIB No. 343, the land presented was specified as vacant/virgininthe WrittenresponsefromUnionMinister. land records. Accordingly,theownerwasnotcompensatedforthe1,200rubberplants, 500betelnutplantsand25durianplants.149 Finally,theinformationcollectedduringinvestigativesurveyswasnotedinsomecases todivergefromownersclaims.TheMinistryofHomeAffairsletterstated: The statement of the parliamentary representative (No.12/OSS) claimed that35.27acresoflandconfiscatedbyLIBNo.587wasinHninSonevillage,
148 149

Ibid. Ibid.

57

DISPUTEDTERRITORY

Lamine Subtownship, Ye Township, Mon State. However, this land is situatedthreemilesfromthemilitarybaseandwasnotincludedintheland confiscatedbyLIBNo.587tobuildnewfacilitiesfortroops.150 Itispossiblethatthe HomeMinistrysstatementistrue,butitisimportanttorecognise that military battalions often failed to keep accurate records of the land being confiscated, underestimating plot sizes in official documentation to avoid being held fullyaccountable.NaiAungSoeMyit,40,fromKyaungYwavillagereportedthatLIBNo. 591 recorded confiscating three acres of his land even though 20 acres were actually seized.151 Overall,theresponsetoappealsregardingconfiscationsbyLIBNos.343and587inYe Townshipofferedfarmerslittleacknowledgementoforreparationfortheirconsiderable losses.InlateOctoberDr.BanyarAungMoe,AMDPUpperHousemember,criticisedthe appealsoutcomesandexpressedsolidaritywithfarmersdisadvantagedbyit. We would like to suggest that the government carefully consider its actions, as it uses its law without consideration for the suffering of the people.Farmersrelyontheirplantations,usingthisincomesourcetocover their daily expenses, community costs [for example, donations to other villagers], religion, education and healthcare. Farmers face big income difficulties if their plantations and farms are confiscated. If [the government]islookingtodevelopthecountry,allcitizensshouldsharethe burden so that no one individuals life is jeopardized. However, some peoplehavelosttheirlivelihoodssolelytobenefitthecountry.Itisnotfair orjustforthem.Therewillonlybeequalityandjusticeforvictimsofland confiscationwhentheyarecompensatedbythegovernment.152 Dr. Banyar Aung Moe recommended that the Land Investigation Commission reassess thecase,presumablyforamoreobjectiveinquirythangovernmentministriescomplicit inseizurescouldoffer.WhilstthegrouphasmadeinquiriesinYeTownshiptheirfindings have not yet been publicly disclosed. However, given a lack of protections in existing legislationandthefactthattheCommissionisnotaffordeddecisionmakingpower,its ability to bring about a more favourable outcome is uncertain. Ultimately, decision making remains centralised among bodies that use subjective, discriminatory laws to evadecondemningpastmilitaryabuses.
150 151

Ibid. HURFOMInterviewY13,KyaungYwavillage,August2013. 152 LetterfromDr.BanyarAungMoe,29/10/12(SourceY4).

HURFOMOctober2013

58

(II) CORRUPTIONANDPOLITICALAGENDAS:THENEEDFOR GENUINECOMMITMENTTOJUSTRESOLUTION

In addition to government refusal to condemn past abuses and weak protection of farmers rights by law, the lack of commitment shown by numerous other bodies to pursue just resolution of appeals presents a further obstacle to the progress of Ye Township land disputes. Before land seized by military battalions can be returned it must be officially defined and recorded as having been confiscated in the first place, highlightingfarmersneedforchampionswhoarewhollydedicatedtothisprocess. Notably, residents complained that members of the Settlement and Land Records Department(SLRD)failedtoaccuratelysurveyconfiscatedland.ResidentsinKyonepaw villagereportedconcernsaboutthe SLRDs landsurveyintheirareaaftertheynoticed that the group was only measuring confiscated land in active use by the military, not land thatwas unusedandlyingfallow.153 Similarly,Ye residentsdescribedhow visiting officials had failed to make adequate efforts to facilitate residents input for surveys, typicallyspeakinginBurmeseinsteadoflocalethniclanguagesandusinghighlytechnical legalterminology.154 Much of the misconduct described was alleged to be the result of corruption among governmentofficialswhosetiestoperpetratorsofconfiscationyieldedvestedinterests in survey results that favour military retention of land. MP and Land Investigation Commission member Mi Myint Than said that land officials were biased while conducting the surveys and the outcome looks the same as it did under the military regime.155 Members of the Land Investigation Commission confirmed the impact of misconduct in surveys, stating that confiscated land was vastly underrepresented in officialrecords.156 YeTownshipresidentsalsostatedthataftertheycomplainedtoparliamentaboutunfair land surveys, two chief officers of the Ye Township SLRD submitted letters of resignation, disappeared, and reportedly have not been seen since. Locals said the

153 154

HURFOM,FRY2,September2013. HURFOM,YeTownshipresidentsappealtoparliamenttoresolvesluggishlanddisputes,5September 2013. 155 Ibid. 156 Ibid.

59

DISPUTEDTERRITORY

officersdepartureallowedtheDepartmenttodenyresponsibilityforsurveymisconduct andevadequestionsaboutthesurveysfindings.157 MiMyintThanemphasisedtheneedforactiononlandissues,sayingthatpromotionof personal agendas was not just a problem restricted to government departments. She pointed to political parties who paid lip service to land disputes without showing genuinecommitmenttoresolution. TheNLD[NationalLeagueforDemocracy]suggestedresubmittinga[land survey] proposal but we dont agree with them. This kind of problem has existed for decades. [Government departments and political parties] just collectinformationbutsolvenothing.Theyonlypromotetheirparty.They wantustovoteforthem.158 Itis likely thattheseconcernsapplytocases inYe Township.HURFOMfieldreporters notedseveralpoliticalpartiesengagedwithvictimsoflandconfiscationinYe,including theMonDemocraticParty (MDP) and MiMyintThans AMDP.Fieldreportersclaimed that the creation of the Land Investigation Commission had given land activists confidence towork withpoliticalparties.159 However,questionswereraisedaboutthe Monpoliticalparties solutionstolandconfiscationcases,suggestingthatpromises to fight for farmers land were being used to gain political favour and did not represent genuine commitment to pursuing swift and effective action.160 Whilst several political representatives have been instrumental in advancing the claims of Ye Townships farmers, there is a need for all parties to follow suit and push forimmediate and just outcomestoappeals. The same is true for ethnic armed groups active in the Mon areas. Displacement Solutions,anexperiencedsourceofanalysisonglobalhousinglandandproperty(HLP) rights, reported that the 2012 New Mon State Party (NMSP) ceasefire brokered with Burmeseforces: is not strong on HLP rightsMon civil society organisations suggest the NMSPisgenuinelyconcernedaboutissuesrelatingtolandandHLPrights,

157 158

Ibid. Ibid. 159 HURFOMFRY2,September2013. 160 HURFOMFRY2,YeTownship,September2013

HURFOMOctober2013

60

but in these initial stages, they have prioritised other issues they see as morepressing.161 NaiThein,originallyfromKalohvillage,toldHURFOMthattheNMSPfailedtoofferhim any assistance when he visited the Ye Township liaison office to discuss his brothers confiscatedplantation. Agreementstoprotecttheirownethnicpeopleshouldhavebeenincluded in ceasefire discussions between the government and the NMSP. The NMSPs response to their peoples complaints means that these ethnic peoplemaythinkthattheirpartydoesnothavethepowertoprotectthem. [I]worrythatiftheNMSPcontinuesinthisway,theethnicpeoplemaynot wanttosupportthepartyatall,orsupportthemless.162 Asanimportantactorinregionalandnationallevelpolicydiscussions,theNMSPmust ensure that it fully commits to advancing the claims of victims of past military confiscationsinYeTownship. Withregardstoallparties,HURFOMacknowledgesthatinvestigating,adjudicating,and securing justice for land disputes is a challenging task. Our own field reporters noted many obstacles to collecting accurate data on cases (see Methodology). Yet these difficulties are precisely why deep commitment amongst all persons in positions of influence to just resolution of cases is of paramount importance. Anything less representsasizeableandneedlessimpedimenttoprogressinMonfarmerspursuitof theirrightstoland.

161 162

DisplacementSolutions,BridgingtheHLPGap,June2013,p.24. HURFOMInterviewY15,September2013.

61

BattalionbasedinYeTownship. DISPUTEDTERRITORY

F.CASESTUDY2:ONGOINGLANDDISPUTESOVER CEMENTPRODUCTIONINKYIAKMAYAWTOWNSHIP
1.CASESUMMARY

n October 2010 HURFOM published a short report titled Waiting in Tears covering Hexa International Company LLCs plans to establish a large cement production base in Mon States Kyaikmayaw Township. The report expressed concerns that land for the project and being designated in SLRD land surveys would be unjustly acquired from residents.163 Hexas plansnevermaterialized,buthavesincebeen replaced by numerous other domestic companies competing to capitalise on the townships hitherto untapped natural resource. To date, HURFOM continues to receive reports of farmers in Kyaikmayaw Township forced off farms and plantations for meagre compensation as these companiesseektoacquirethelucrativeland.

PyarTaungMountaininKyaikmayaw.

Situated in the east of Mon State and bisected by the Attaran River, Kyaikmayaw Township is straddled by the Ni Don and Pyar Taung Mountains. For residents, these peakssignifythelegacyoftheirancestors,withcavernsandmountaintopsstrewnwith ancient pagodas, cave paintings and religious artefacts. For investors, the mountains value lies below, in the resources beneath these elaborate adornments. A previous employee of the Ministry of Mines estimated that 200 million tonnes of limestone, a vital raw material in cement production, was contained in Ni Don Mountain alone.164 The mountains also contain a plentiful supply of coal, needed for firing production facilitiesthatconvertearthintosaleableproduct.
163

HURFOM,WaitinginTears:ImpactsofimpendingcementfactorydevelopmentinKyaikmayaw Township,20October2010. 164 Ibid.

HURFOMOctober2013

62

Itisreportedthatplansforheavy cement production in the region began in 2006 with negotiations between Hexa and the ruling Union Solidarity and Development Party (USDP) exploringcollaborationandprofit sharing from the enterprise. The projectwas tocoverbothNiDon Mountain on the western side of the AttaranRiverandPyarTaung on its eastern bank.165 Residents GovernmentauthorizationgrantedtoHexaInternational in Kyaikmayaw Township first CompanyLimited. learned of these plans in 2009, notlongbeforegovernmentservants,localadministrationandcompanyofficialsarrived tosurveylandinOctober2010.166However,thefollowingmonthitwasannouncedthat the project had been jointly taken over by the Zaykabar Co. Ltd. and the 24 Hour GeneralServicesCo.Ltd.ZaykabarwastoextractresourcesfromNiDonMountainto the west of the Attaran River and 24 Hour General Services would set up operations aroundPyarTaungMountainontheeasternbank.167 On6December 2010ZaykabarsChairmanUKhinShwe, aleadingpropertydeveloper andLowerHouseMPfortheUSDP,visitedNiDonvillageandtoldresidents: We came here to make this remote and unknown village, Ni Don, into a worldknownproject.168 Land acquisition began immediately, with 99 farmers signing their plantations over to ZaykabarbytheendofDecember2010.IthassincebeenreportedbyNiDonresidents

165 166

Ibid. HURFOMInterviewK1(MaeGrovillage,April2013)mentionsawarenessin2009oftheproject.Mention of2010landsurveyinHURFOM,WaitinginTears:Impactsofimpendingcementfactorydevelopmentin KyaikmayawTownship,20October2010. 167 HURFOM,RocksamplingforcoalplanspreadsfearsoflandconfiscationinKyaikmayawTownship,28 January2011. 168 HURFOM,WhenIbecamedesperate:Opinionsofresidentsduringforcedlandacquisitionin KyaikmayawTownship,18January2011.

63

DISPUTEDTERRITORY

that Zaykabar also acquired around2,000ofacresofland to construct a road linking future cement supply with nationwidedemand.169 Meanwhile, on the eastern bank of the river, 24 Hour General Services became the next company to pull out of theproject.Theywereswiftly replacedbytheJuneIndustry Co. Ltd., a biofuels company with a branch focussed on UKhinShweofZaykabarCompanyspeakingtolandowners cement production. On 1 abouthisproject. January 2011 Managing Director Dr. Nu Nu Win and members of the Kyaikmayaw Township administration visitedMaeGrovillageresidentstoannouncethatthecompanyintendedtomakeuse ofplantationsonthe riverseasternside.170Again,landacquisitionbeganatonce,with 311.36acressignedovertothecompanybytheendofFebruary.171 Two years later, in January 2013, a new company arrived in the area to establish a cement plant on the other side of Pyar Taung Mountain, directly competing with the JuneCompanyandcompoundingpressureoneasternbankresidentstoselltheirland.172 OneresidentreportedinAugustthatthenewarrival,PacificLinkCementIndustriesLtd. ledbyretiredmilitarycaptainZawLwinOo,hadacquiredaround300acresoflandfor theproject.173 Research conducted by HURFOM and detailed below demonstrated rife misconduct throughoutallcompaniesnegotiationswithKyaikmayawfarmers.Compensationoffers were reported to be far below the lands market value, companies showed no commitment to seeking free, prior and informed consent from residents in land
169 170

HURFOMInterviewsK5&K5,NiDonvillage,July2013. LetterfromMaeGrovillagefarmerstoLandInvestigationCommission,22/04/13(SourceK1). 171 HURFOMFRK2,August2013. 172 LetterfromKawPaNawresidentstovariousgovernmentdepartments,23/04/2013(SourceK2). 173 HURFOMInterviewK7,KwanNganvillage,August2013.

HURFOMOctober2013

64

acquisition(evenusingthreatsanddeceptiontogainland),andtodate compensation paymentshavenotbeenreceivedinfullbymanyresidents. In total, land acquisition by the Zaykabar,June Industry, and Pacific Link companies is knowntohaveaffected10villages174inKyaikmayawTownship:KawPaNaw,KawDoon, KwanNgan,KaDonSi,KawWan,KawKweeandSinmavillagestotheeastoftheAttaran RiverandMaeGro,NiDonandPaukTawtothewest.Forresidentsthatownedlandin various locations (in particular farmers from Mae Gro village), there were reports of individualfamiliesbecomingvictimsofcementprojectsonbothsidesoftheriver.175

174

HURFOMInterviewsK115,AprilAugust2013;HURFOMFRsK13,MaySeptember2013;Lettersof appealfromMaeGrofarmers,KawPaNawfarmersandPyarTaungandNaturalEnvironmentWatch Network,AprilJune2013(SourcesK13). 175 Forexample,HURFOMInterviewK1,MaeGrovillage,April1013.

65

EntrancetoKawWanvillageinKyaikmayaw.

DISPUTEDTERRITORY

2.REPORTSOFMISCONDUCT
HURFOMsresearchrevealedvariousformsofmisconductthatwereuniversally perpetratedbyallcompaniesactiveinthearea.

(I) COMPENSATIONOFFERSBELOWMARKETVALUE
Almost all residents reported that compensation offered by companies for their land waswellbelowthemarketprice.Withlandqualityvaryingacrosstheregion,HURFOM investigationsdeterminedlandinKyaikmayawTownshiptobeworthbetween2.5to4 millionkyatperacre.176 Zaykabarofferedaflatrateof350,000kyatperacretoresidents.177TheJuneIndustry Companydistinguishedfourtiersofcompensationdependingonlandquality,withthe bestland (Level1)toreceive350,000kyatperacre,300,000kyatforLevel2,50,000 kyatforLevel3,and15,000kyatforLevel4.178SumspaidbyPacificLinkwerehigherbut also contingent on land quality, with reports of compensation offers usually between 500,000to1millionkyatperacre.179 However,wherecompensationofferswereconditionalbasedonlandquality,residents reportedthatcompanyofficialsfailedtostickuniformlytothispolicy.Fivefarmersfrom Ka Don Si village reported receiving differing offers of compensation despite holding land perceived to be of similar quality.180 Allegedly, farmers with personal ties to collaborating local authorities were also awarded more profitable compensation packages.

176

MarketvaluedeterminedfrominterviewswithKyaikmayawvictimsofunjustlandacquisition,inaddition toconsultationwithMonStatelandandpropertybroker. 177 HURFOM,WhenIbecamedesperate:Opinionsofresidentsduringforcedlandacquisitionin KyaikmayawTownship,18January2011. 178 HURFOMInterviewK1,MaeGrovillage,April2013;LetterfromMaeGrofarmerstoLandInvestigation Commission,22/04/13(SourceK1);HURFOMFRK2,August2013. 179 HURFOMInterviewK7,KwanNganvillage,August2013;HURFOMInterviewK10,KaDonSivillage, August2013;HURFOMInterviewK14,KaDonSivillage,August2013;LetterfromKawPaNawresidentsto variousgovernmentdepartments,23/04/2013(SourceK2). 180 HURFOM,Farmersdescribediscriminationandcorruptioninlandcompensationschemes exploitation/authorities,19August2013.

HURFOMOctober2013

66

I just got thousands of kyat compensation [as opposed to millions], but others got higher than me because they were close with the village administrator,saidonefarmer.181 In other cases, higher sums were awarded to placate farmersbelievedtounderstand their legal rights and who would be willing and unafraid toregistercomplaints.182 Fuelling allegations that companies were trying to divide farmers, a few residents reported being paid substantially higher sums of compensation.Forexample,Mi Companyofficialspeakingtolandownerstoendorse Sone,48,fromKaDonSivillage projectactivitiesanddefendlandacquisition. said that Pacific Link had offeredher2.5millionkyatper acre for her land. 183 HURFOM research also suggested that some farmers secured around 2 million kyat per acre from June Industry.184 However, these residents were notableexceptionstothegeneralrule. Reportedlynotallfarmersacceptedoffersofpayment;someresidentsrefusedtosign agreementsforcompensationtheyperceivedtobeunfair(seeSectionD).185However, withcompaniesdrawingonavarietyofstrategiestoobtainlandfromresidents,many farmers bowed to pressure and relinquished their land for a fraction of its value. Nai AungMon,aMonNationalSchoolteacherinKwanNganvillage,described PacificLinks attempts to appease the villagers by providing school materials to children and mosquitonetstofamiliesasapoorsubstituteforfaircompensation.186
181 182

Ibid. Ibid. 183 HURFOMInterviewK11,KaDonSivillage,August2013. 184 HURFOMFRK2,August2013. 185 HURFOMInterviewsK1(MaeGrovillage),K7(KwanNganvillage),K8(KawPaNawvillage),K10K11& K14(KaDonSivillage),KyaikmayawTownship,AprilAugust2013. 186 HURFOMInterviewK7,KwanNganvillage,August2013.

67

DISPUTEDTERRITORY

(II) FAILURETOSEEKPRIORANDFREECONSENT
In most cases companies sought some from of consent from residents for the acquisition of their land, but interviewees descriptions of the consent given frequently indicated varying degrees of coercion. Speaking about Zaykabar Co. Ltd., Ni Don residentNaiTheinsaid: We are not pleased about what we gave to them against ourwishes.187

Companyauthoritiesofferingdonationstoaseniormonkin NiDon.

Farmers in Mae Gro, Ni Don, andKaDonSivillagesreportedthatthey,orothersintheirvillage,hadbeenthreatened or intimidated over the course of acquisition talks.188 Referring to Pacific Links negotiationswithKaDonSivillagers,53yearoldresidentNaiHtunsaid, Thecompany membersdonotspeakpolitelytovillagers.189 Acommonthreatusedbyallthreecompanieswastheinsistencethatfarmerslandwas needed for a Statelevel project and if farmers did not hand over their land for the compensation offered, it would instead be forcibly confiscated for no payment whatsoever.190 The authorities andthe [June Industry]companythreatenedthe owners,
187 188

HURFOMInterviewK5,NiDonvillage,July2013. HURFOMInterviewsK1,K34,K9,MaeGrovillage,AprilAugust2013(regardingJuneIndustry);HURFOM InterviewK5,NiDonvillage,July2013(regardingZaykabar);HURFOMInterviewsK10&K15,KaDonSi village,August2013(regardingPacificLink);LetterfromPyarTaungandNaturalEnvironmentWatch NetworktothePresidentregardingPacificLink,27/06/13(SourceK3). 189 HURFOMInterviewK10,KaDonSivillage,August2013. 190 HURFOMInterviewsNos.K14&K9,MaeGrovillage,AprilAugust2013(regardingJuneIndustry);Letter fromMaeGrofarmerstoLandInvestigationCommissionregardingJuneIndustry,27/04/13(SourceK1); HURFOM,WhenIbecamedesperate,18January2011(regardingZaykabar);LetterfromPyarTaungand NaturalEnvironmentWatchNetworktothePresidentregardingPacificLink,27/06/13(SourceK3).

HURFOMOctober2013

68

[telling them] that they had to sell thisland to the company because the authorities and company had permission, if the owners did not sell their land,toconfiscate it,said one MaeGroresident. Therefore,the owners took the price for the land offered by the company, as otherwise the owners would have to give their land to the company [without compensation].191 Thesethreatswerebuoyedbytheperceptionthatlocaladministrationandmembersof theSLRDwerecollaboratingwith allthreecompaniesmembersinthelandacquisition process.192 Forexample,whenJuneIndustrysmanagingdirectorDr.NuNuWinvisited Mae Gro village in January 2013, she was accompanied by Kyaikmayaw Township administratorsandSLRDmembers.Explainingtheseriesofeventsleadinguptotheloss ofher10.29acreplantation,62yearoldMiSanKyisaid: DawNuNuWinandtheauthoritiesfromKyaikmayawsaidthattheState neededthelandsotheywouldhavetotakeitanduseit.InFebruary2011 thevillageadministratorandtheUSDPfromMoulmeincamehereandsaid that we should accept the small compensation, and that if we did not acceptitthenwewouldloseourlandwithoutgettinganycompensation.So weacceptedtheir50,000kyatperacreofcompensationasdidotherfield owners. No one cares for us or protects our land, including our village administrator. The authorities just used the States power and took our land.193 It remains unclear whether companies were in fact acting with permission from high orders of government or if official sanction for land acquisition went no further than townshiplevel authority. Pacific Link Ltd. demonstrated its efforts to establish useful relationshipswithauthoritiesbyallegedlyofferingthempersonalgainsinexchangefor supportingacquisitions.InonecaseinKawPaNawvillage(seebelow)PacificLinkpaid compensationtolocalauthoritymembersratherthandirectlytoplantationowners,and inKaDonSivillage,universitygraduateMaThinreported:

191 192

HURFOMInterviewK9,MaeGrovillage,August2013. HURFOMInterviewsK14&K9,MaeGrovillage,AprilAugust2013(regardingJuneIndustry);HURFOM InterviewK5,NiDonvillage,July2013(regardingZaykabar);HURFOMInterviewsK7,KwanNganvillage, August2013(regardingPacificLink);LetterfromPyarTaungandNaturalEnvironmentWatchNetworkto thePresidentregardingPacificLink,27/06/13(SourceK3). 193 HURFOMInterviewK3,MaeGrovillage,April2013.

69

DISPUTEDTERRITORY

Mostresidentsinourvillagewhoselandwastaken[byPacificLink]know that [in the area] there are some rubber plantations owned by armed groups and senior [authorities]. Their land is situated around where the normalfarmers'landwasconfiscated.Weweresurprisedtoseethattheir landwas notinvadedorconfiscatedby the companies' employees. They avoided buying land owned by the authorities. We cannot stand that land owned by the authorities was not touched but the land of average locals wasconfiscated.194 In some extreme incidents, companies showed a complete failure to seek consent to land acquisition from residents.KwanNganteacherNaiAung Mon discussed a visit in early 2013 by members of the Kyaikmayaw SLRD and villageadministration: [Before Pacific Link came to acquire land] a group came to survey itThey didnotasktheopinionofvillagerswho didnothavedocuments[fortheirland] aboutwhethertheywantedtosellitor not. They just asked people who had KyaikmayawTownshipcementprojectlayout documents. Then they, the village developedbyZaykabarCompany. administrator and land records department, collaborated [with Pacific Link] to get the land that did not have documentation it [only] had old documents, which are not recognized by the government as official ones.195 Inanothercase,HURFOMreportedinJanuary2011thatNiDonvillageadministratorU KyawTunhadforgedresidentssignaturesonlandtransferagreementsforZaykabarCo.
194 195

HURFOMInterviewK14,KaDonSivillage,August2013. Ibid.

HURFOMOctober2013

70

Ltd. The infringement on residents right to consent was most directly the result of corruptioninvillageleadership,butthecompanypersistedinholdingthearrangements valid. "I did not accept the compensation as I realized that without signing [it] over,theycouldnottakemylandaccordingtothelaw,said onevillager. What happened later on was that the village head and his younger brother, together with members of the VPDC [Village Peace and Development Council], signed [our land] over on behalf of us [meaning] everyone whodidnotsignoverandacceptthe compensation and they tookthecompensation[for]themselves.196

(III)FAILURETOSEEKINFORMEDCONSENT
Inadditiontocoercivetactics,companieswerealsoreportedtohaveexploitedfarmers lackoflegalknowledgeorthecirculationofmisinformationtoobtainthecompensation agreement.Asaresult,manyfarmersgaveconsentwithoutbeingfullyinformedoftheir rightsortheattendantoutcomes.AccordingtoalettertoPresidentTheinSeinfromthe PyarTaungandNaturalEnvironmentWatchNetwork: Most landowners agreed with them [andgave their land away], perhaps becausetheywereafraidorbecausetheyhadnoknowledgeoftheresults thatwouldoccur.197 Testimonies indicated that companies took advantage of the fact that many farmers lacked the financial knowledge or legal skill needed to successfully negotiate fair contracts with largescale investors. One Ka Don Si resident spoke about how her parentshadnotbeenawareofthefairmarketvalueoftheirlandwhentheysignedit awaytoPacificLink,saying; Afterinvestigating[theissue],wefoundoutthatthecompensation[paid] wasverylow.198

196

HURFOM,KyaikmayawTownshiplandownerscomplainaftervillageheadillegallysellslandtoZaykabar Company,25January20133. 197 LetterfromPyarTaungandNaturalEnvironmentWatchNetworktothePresidentregardingPacificLink, 27/06/13(SourceK3). 198 HURFOMInterviewK15,KaDonSivillage,August2013.

71

DISPUTEDTERRITORY

Similarly, Ma Thin, 36, spoke of how her consent to Pacific Links offer was influenced by immediatefinancialneeds. Iwassatisfiedthattheygaveme thatmuchcompensationbecause Ineededmoneyfortreatmentfor mysickfather,butintheendmy fatherdiedthreemonthsagoand the compensation money was almostgone.199 Companies were also alleged to have exploited villagers limited knowledge of relevant land laws. For example, the companies threats of State land confiscation with zero compensation cannot be upheld by law: the State can forcibly demanduse ofland,butthe 1894LandAcquisitionAct(neverrepealedundermilitary rule)andthenew2012FarmlandActclearlystatethatinsuchcases,unlessthelandis unregistered,somecompensationmustbepaid.200 AccordingtoanappealletterwrittenbyMaeGrofarmers: On1January2011Dr.NuNuWinandhergroupvisitedMaeGrovillageto warn farmers that if they did not accept the groups request their land would be confiscated using authority from above. When we heard their information we were afraid as, being normal and uneducated people, we worriedthatwewouldloseourlandwithoutanycompensation.Therefore, weagreedtothecompensationtheyoffered.201 NaiTunToung,avictimofunjustlandacquisitionbyJuneIndustry,said: Wejustknowthattheywereusingthelaw withfarmerswhodonotknow aboutthelawsothattheycouldmakeaprofit.202
199 200

ProjectsiteinMaeGrovillage.

HURFOMInterviewK14,KaDonSivillage,August2013. TheLandAcquisitionAct(1894)Article5;FarmlandAct(2012),Article26. 201 LetterfromMaeGrofarmerstoLandInvestigationCommission,22/04/13(SourceK1). 202 HURFOMInterviewK4,MaeGrovillage,April2013.

HURFOMOctober2013

72

Companiesarealsoreportedtohave resortedtospreadingwhatresidentsconsidered outrightmisinformation.NaiTinNgwe,aresidentofNiDonvillage,describedZaykabar chairmanUKhinShwes2010visittothevillagebysayinghe: Summoned the peasants to confirm and explain about the land confiscation, giving the justification that the land was covered with salt water and would be flooded in the rainy season. Khin Shwe said that he tookariskforustopromotethebetterdevelopmentofthisuselessland But the water is not saltwater because it comes from a mountain stream.203 Some landownerswereleftunsureastowhetherornottheirlandwas beingsolicited for acquisition. Two residents in Ka Don Si village said they had first been told by authorityfiguresthattheirlandwasnotincludedinareasmarkedoutbyPacificLink,but thenthatitwas.204UKhinHla,aformervillageadministrator,said: Before we submitted the letter we were confused with the information giventousbytheTownshipadministration,astheydecidedononeresult andthentoldusanother.205 Inafinalstrikeagainstresidentsinformedconsent,itwasnotedthatcompaniesdidnot make due efforts to ensure residents understood the information being conveyed to them.AllcompaniescommunicatedwithresidentssolelyinBurmese,andfarmerswho only speak the ethnic Mon language were unable to understand or negotiate directly withthecompanieswithouttranslators.206

203 204

HURFOMInterviewK6,NiDonvillage,July2013. HURFOMInterviewK1213,KaDonSivillage,August2013. 205 HURFOMInterviewK12,KaDonSivillage,August2013. 206 HURFOM,WhenIbecamedesperate,18January2011(regardingZaykabar);HURFOM,Farmers describediscriminationandcorruptioninlandcompensationschemes,18January2011(regardingPacific LinkandJuneIndustry).

73

DISPUTEDTERRITORY

(IV)PAYMENTWITHHELDFROMRESIDENTS
Several residents told HURFOM that, after signing their consent to land acquisition, they had not been paid in full by June Industry and Pacific Link companies.207 For example, five Kaw Pa Nawfarmerswereleft uncompensated when Pacific Link paid their compensationsumsto variouslocalauthority members rather than directly to the plantation owners.208 The authority figures LetterfromlandownersfromMaeGroandKawPaNawvillages that allegedly claimed requestingcompensationfromPacificLink. compensation included MP U Loon Aung, SLRD Member U Hla Myint, and Ministry of Home Affairs AccountantUSanHlaing. WhentheseresidentsraisedtheirconcernswithPacificLinksmanagingdirector,Capt. ZawLwinOo,hereportedlydeniedhiscompanysmisconductandtoldthefarmersthey shouldspeaktohigherauthoritiesiftheywantedtolodgecomplaints.NaiKyawDin,67, said,Itisnotfairthattheytookandmisused themoneyfromourplantationlandsand nowwewantourplantationsback.209
207

HURFOMInterviewK2,MaeGrovillage,April2013;HURFOMInterviewK11,KaDonSivillage,August 2013. 208 LetterfromKawPaNawfarmerstogovernmentdepartments,23/04/13(SourceK2). 209 HURFOMInterviewK13,KaDonSivillage,August2013.

HURFOMOctober2013

74

3.THEAFTERMATHOFUNJUSTLANDACQUISITION
Unjustland acquisitionhastaken aheavytollonKyaikmayaw residentswholosttheir livelihoodsforpaltrysumsofcompensation.DuringHURFOMinterviewswithMaeGro villagers aboutthe effectsoflandacquisitionbyJune Industry,62yearoldMiSanKyi said: Since 2011[June Industry]has taken10.29acresof ourland.The landis fromourgrandfatheranditcanproduce65or70basketsofriceperacre [around15,000kg]wecannotsurvivewithoutourfields.Nowwehaveto liveinasituationwhereweareverypoor.210 ManyresidentshadreportedlybeendriventoseekworkacrosstheborderinThailand, and some expressed fear about the potential exploitative conditions they could encounterthere.AccordingtoNaiTunToung,54,wholostsevenacresoflandtoJune Industry: Aftertheytookourlandwehadnojobtodo.Thissevenacresoflandis ourmainlivelihood.Ifwehavenofieldsthenouronlychoiceistomigrate toThailand[andwork]asaslave.211 Kyaikmayaw farmers reported feeling illequipped to seek other types of employment afterworkingtheirentirelivesonfarmsandplantations.NaiMgAung,59,said: After the company took our land we let our son migrate to Thailand to startourlifeagain.Wehavetowaitformoneyfromoursonforourdaily food. We cannot get rice from our field and our business is falling apart. Ourmainjobistogrowthericepaddyandbeans,andweareonlyexperts atthisjobWefacesomanyproblems.212 Despitepromisesofregionaldevelopment,residentsfromMaeGrovillagecommented thatnorealsignsofprogresshavebeenobservedinthetwoyearssinceJuneIndustry arrived.213 In contrast, concerns about the degradation of Kyaikmayaws natural

210 211

HURFOMInterviewK3,MaeGrovillage,April2013. HURFOMInterviewK4,MaeGrovillage,April2013. 212 HURFOMInterviewK2,MaeGrovillage,2013. 213 LetterfromMaeGrovillagefarmerstoLandInvestigationCommission,22/04/13(SourceK1).

75

DISPUTEDTERRITORY

environment resulting from the project have proved legitimate.214 In September 2013 HURFOM reported that a road recently constructed by June Industry to upgrade infrastructurebeforecementproductionbeginsdivertednaturaldrainagepatternsand exacerbatedmonsoonseasonfloodinginNiDonvillage.Asaresultscoresofhomesand plantationsweredestroyed.215 In what residents described as a surprising and eerie twist, all project activities are currently suspended, and vast swathes of land acquired by the three companies reportedlylieunused.OneMaeGroresidentsaid: The authorities and the [June] Company did not do anything with the land they tookfromusandnowthereis alotofgrassinourfield.216 AlthoughHURFOMresearch217 did not satisfactorily reveal reasons behind the cessation of the work, one Ni Don resident voiced suspicions218 thatZaykabarsdisappearance was due to the companys PlantationmarkedbyatroopflaginKyaikmayaw. current lawsuit219 against a politicalpartythatsupportedvictimsofitsproductionactivitiesinRangoon.PacificLink Companyisrumouredtohavesuspendeditsworkduringtherainyseasonbutallegedly planstorecommenceinOctoberofthisyear,220andongoingtestimoniesthatcompany

214

ConcernsaboutnaturalenvironmentandwildlifevoicedinletterfromPyarTaungandNatural EnvironmentWatchNetworktothePresident,27/06/13(SourceK3). 215 HURFOM,LabormigrationleaveswomenandchildrentofacefloodinginMonState,5September2013. 216 HURFOMInterviewK2,MaeGrovillage,April2013. 217 LetterfromPyarTaungandNaturalEnvironmentWatchNetworktothePresident,27/06/13(SourceK3). 218 HURFOMInterviewK6,NiDonvillage,July2013. 219 Irrawaddy,ZayKabarLaunchesDefamationLawsuit,23July2012. 220 HURFOMInterviewK8,KawPaNawvillage,August2013.

HURFOMOctober2013

76

memberscontinuetopropositionfarmersforlandcorroboratereportsthattheproject isstillsettogoahead.221

4.CALLTOACTION,NOPROTECTION
Since land acquisition for cement production in Kyaikmayaw Township began in 2010, residentshave beenunitingagainstcompanieseffortstoforce themofftheirland.In December 2010, immediately after Zaykabar explained their intentions to Ni Don and MaeGroresidents,villagersheldameetingwithlocalcommunitymemberswhopossess somelegalandpoliticalexpertisetoencourageinformedanalysisamongparticipantsof Zaykabars acquisition plans.222 More recently residents have become increasingly assertiveintheirdemands,joiningtherisingtideofcivilsocietyactionunderPresident TheinSeinsadministration. Whiletheacquiredplantationscontinuetogounused,manyfarmershaverevertedto cultivatingontheirformerlandswithoutseekingpermissionfromthenewowners.223Ni Don resident Nai Tin Ngwe reported that, in his village, cultivation had not been met withreprisalsfromZaykabar. Most farmers have gone back to working on their land. The Zaykabar Companyhasnotyettakenanyactionagainstthese[farmers].224

(I)2013LETTERSOFAPPEAL
In 2013 residents ofKyaikmayaw Township submitted variousletters of appeal. These coveredvillagesthroughoutthetownship,althoughoneKwanNganresidentnotedthat localsfromhisvillagehadyettojointhewaveofprotest.225
221

HURFOMInterviewK7,KwanNganvillage,August2013;HURFOMInterviewK10,KaDonSivillage, August2013. 222 HURFOM,WhenIbecamedesperate,18January2011 223 HURFOMInterviewK4,MaeGrovillage,April2013;HURFOMInterviewK6,NiDonvillage,July2013. 224 HURFOMInterviewK6,NiDonvillage,July2013. 225 HURFOMInterviewK7,KwanNganvillage,August2013.Inasimilarvein,aKaDonSivillagefarmernoted thatsomefarmersinhervillageweresatisfiedwiththeircompensationandwerenotparticipatingin attemptstoregisterunjustlyacquiredfarmland(HURFOMInterviewK10,KaDonSivillage,August2013).

77

DISPUTEDTERRITORY

In April Kaw Pa Naw residents complained to seven government departments about PacificLinkcompensationthatwasfraudulentlyclaimedbylocalauthoritymemberson theirbehalf.Theywrote: Wearefarmerswhoworkonourlandhonestly.Eachyearwepaythetax thatisrequestedfromus.Thepersonincharge,theCaptain[ZawLwinOo], should only have paid compensation directly to landowners. The people whoreceivedourcompensationshouldnothavetakenit,asitisnottheir money.Itwasnotfairorhonestforthemtotakemoneyinthiswayfrom honest farmers. Furthermore, the staff involved acted against their duty and used the lawfortheirownpurposes.Therefore,notonlyshouldthey beprosecutedbytheirdepartments,buttheyshouldfacetheruleoflaw. Westronglysuggestthatthiscasebehandledproperly,thatthemoneyis returned and that action is taken against the people who fraudulently receivedmoney.226 The day following the Kaw Pa Nawlettersubmissions,MaeGro farmers registered an appeal to the Land Investigation Commission regarding June Industrys unjust acquisition of landandfailuretoutiliseit.

PlantationmarkedbyatroopflaginKyaikmayaw.

Beingfarmers, farm work isthe onlykindofjobwecando,sowewanttowork onourfarms againWe would like the group to give us detailed information about whethertheywillbuildthecementfactory.Iftheplanhasbeenterminated, wewouldliketobe able towork onourlandagainandwillpay back the compensationpaidbyJune IndustryCo.Ltd.Ifthe planisstillgoingto be implemented the company should show respect to the farmers and

226

LetterfromKawPaNawresidentstovariousgovernmentdepartments,23/04/2013(SourceK2).

HURFOMOctober2013

78

reconsider the compensation paid, which does not meet the lands value today.227 Finally, directing their concerns to President Thein Sein, in June the Pyar Taung and NaturalEnvironmentWatchNetwork(comprisedofresidentsfromvillagesaroundPyar TaungMountain)protestedagainstallcementprojectsinKyaikmayawTownship. Our villages have to deal with issues of land confiscation where we are forced to sell our farmland to companies at a low price, by the governments mandate. In order to construct a cement factory they [the companies] have to buy these lands. Ifwe do not sell it at the price that they want, there is no choice other than to lose our lands for no [compensation].The price [offeredbythe companies]ismuchlowerthan normalprices,soitisthesameasif[thelandisbeing]confiscated.228

(II)DELAYSANDTHEABSENCEOFINDEPENDENTDISPUTE RESOLUTION
There have been some positive signs in response to appeals lodged by Kyaikmayaw residents.Followingcomplaintsabouttheuseofforce,JuneIndustryreportedlytakena softer approach toward farmers when negotiating settlements and have upped compensation offers somewhat.229 In addition, at the central governments orders, on 28May2013theMonStategovernmentformedaninvestigativegrouptoprobecases of reported misconduct on both sides of the Attaran River.230 In their letter to the President,thePyarTaungandNaturalEnvironmentWatchNetworkwrote: They[theinvestigationgroup]investigatedhowtheJuneCompanyforced ustosellourland,howtheypaidusandwhatishappeningnow.231

227 228

LetterfromMaeGrovillagefarmerstoLandInvestigationCommission,22/04/13(SourceK1). LetterfromPyarTaungandNaturalEnvironmentWatchNetworktothePresidentregardingPacificLink, 27/06/13(SourceK3). 229 HURFOMFRK2,August2013. 230 HURFOMInterviewK9,MaeGrovillage,August2013;LetterfromPyarTaungandNaturalEnvironment WatchNetworktothePresident,27/06/13(SourceK3). 231 LetterfromPyarTaungandNaturalEnvironmentWatchNetworktothePresident,27/06/13(SourceK3).

79

DISPUTEDTERRITORY

Resultsfromthisinvestigativeteamareyettobeseen,buttherearesomereasonstobe cautiousaboutitspotentialtoresolveKyaikmayawfarmersmanifoldcomplaints.First, theestablishmentofthegroupmayservetopostponegovernmentactiononthecase. One Mae Gro farmer said he was told his case would be discussed by the Mon State government once investigations concluded, and that following this he and other Mae Grofarmerswouldhavetosubmitanotherletterofappealtothecentralgovernmentto promptadecision.232 Second, the impartiality of the group is open to debate considering that it is comprised entirely of government servants and local administration members, including township administrators, the head of the KyaikmayawDepartmentofForestry,and arepresentativefromtheDepartmentof AgricultureandIrrigation.233 Inthe wake of a visit from the group, Ka Don Si residents said it was lucky that Pacific MilitarylandmarkerinKyaikmayaw. Link employees now living in the village were not present when the investigative team held discussions with local people becausethecompanystaffarethoughttohaveinfluenceoverlocalauthorities.234 The recently formed Land Investigation Committee may better meet the need for an independent body to investigate and adjudicate Kyaikmayaw land disputes. The CommitteehasalreadyconductedinvestigationsinKyaikmayawTownship,thoughtheir findings are yet to be released. However, the Committees responsibilities do not includethedecisionmakingpowerneededtoensurethatcomplaintsaretranslatedinto fairoutcomes forKyaikmayawfarmers. Theauthoritytodecidelanddispute casesstill lieswiththecentralgovernment,andwithZaykabarschairmanservingasanMPforthe rulingUSDP,itremainstobeseenwhetherjusticewillprevailforfarmingfamiliesinthis muchdisputedregion.
232 233

HURFOMInterviewK9,MaeGrovillage,August2013. LetterfromPyarTaungandNaturalEnvironmentWatchNetworktothePresident,27/06/13(SourceK3). 234 HURFOMFRK2,August2013.

HURFOMOctober2013

80

(III)KYAIKMAYAWFARMERSLEGALPOSITION
As their cases move forward and decisions start to be made on appeals, the little protectionaffordedtofarmersbycurrentlawremainsadisquietingpartoftheprocess. Under the new 2012 laws, farmers who lack valid documentation for their land are afforded no rights to compensation for land acquired. All Kyaikmayaw farmers in this position, whether current victims of unjust land acquisition or at the mercy of future attempts, are unsupported by the law when demanding compensation that meets their lands market value. For example, thereportsofPacificLinktargeting unregistered land for seizure raise apprehensions that companies recognise and are capitalising on thislegalloophole. Even for Kyaikmayaw farmers possessing ownership documents, their landrights aredilutedbythe law. Under the Farmland Act, concerns over failure to obtain free, prior and informed consent arelegallyirrelevantinthecaseof aStateprojectwherefarmersmay beforcedtohandoverlandagainst their wishes. If any of the Kyaikmayaw cement production companies are in fact operating with permissions granted to State projects, or if such instances arise in the future, then residents consenttolandacquisitionisnota legalnecessity.

Theletterofappealonthecementprojectfromthe villagersinKyaikmayaw.

81

DISPUTEDTERRITORY

Furthermore, as outlined in the previous section, the law fails to provide concrete guidance oncompensation to victimsofStatesanctionedlandacquisition.Inthisway, toomuchlegalleewayisallowedtocompanies tomake theirownjudgementsonfair landvalues. TheonelegalprotectionofferedtoKyaikmayawfarmersisfoundinthe2012Farmland Acts requirement that land for State projects must be returned if the project is terminatedornotcarriedoutwithintheprescribedtimeframe.235However,thelackof transparencysurroundingcompanyactivitiesmakesitdifficulttoknowwhereaproject stands, whether it is sanctioned by the State, or what timeframe is assigned to it. HURFOMtherebycallsforafullinvestigationoftheseconditionsand,ifwarranted,the returnofresidentsland.

(IV)RESIDENTSCALLSFORSUPPORT
ManyintervieweesinKyaikmayawTownshipexpressedadesireforassistancewiththeir landdisputes.ThiswasparticularlytrueinMaeGrovillagewhereovertheyearsfarmers fellvictimtocompanyaftercompanyseekingtoacquireland.NaiTunKyi,55,wasone ofseveralresidentswhocalledforlegalcounsel: Wewouldliketoappealforafairlawyer[toadvocate]forourfieldandwe want help from the people from humanitarian groups, people who help farmerslikeus.236 Others called for assistance from members of parliament, specificallymentioning MPs MiYinChan(USDP)andMiMyintThan(AMDP).237 Thesecallsforhelpdepictfarmersacknowledgementoftheneedtogarnerexperienced support that can advance their cause and build their own capacities to negotiate effectivelywithcompanies.AKaDonSiresidentsaid:

235 236

FarmlandAct(2012),Article32. HURFOMInterviewNo,K1,MaeGrovillage,April2013.SeealsoHURFOMInterviewK4,MaeGrovillage, April2013. 237 HURFOMInterviewsK2&K4,MaeGrovillage,April2013.

HURFOMOctober2013

82

We are oppressed due to havingalack ofknowledge.So we would like someone who has education and knowledge toguideandhelpus.Wewould liketorequestagrouptocome that can help solve [our problems] and seek justice for us.238 However, these calls for assistance also represent a growing feeling among NiDonmonkadvocatingforfarmerstooppose dispossessedKyaikmayaw farmers thatthey cementcompanyactivities. have beenleftalone tobattle unscrupulous companies and their unrestricted pursuit of land. Rather than being protected by community authorities, families reported observinglocal leadershipscollaboration andcomplicityinunjustlandacquisition.One MaeGrofarmersaid: No one cares for us or protects our land, including our village administrator.239 AnotherMaeGroresidentexpressedsimilarfeelings,whilstalsoindicatingtheneedfor the government to take action against companies misconduct in order to resolve residentsdifficulties. Before the authorities took the land directly, but now companies collaborate with the authorities to take our land for their business. The companies should stop making a profit from the villagers and should not abuse them. The government should punish them [the companies]. We hopethatthegovernmentwillsolvetheproblemforus.240 There is a pressing need for the government to publicly acknowledge, condemn, and punish misconduct after remaining silent on the issue and leaving companies in
238

HURFOM,Farmersdescribediscriminationandcorruptioninlandcompensationschemes exploitation/authorities,19August2013. 239 HURFOMInterviewK3,MaeGrovillage,April2013. 240 HURFOMInterviewK1,MaeGrovillage,April2013.

83

DISPUTEDTERRITORY

Kyaikmayawtoacquirelandastheyseefit.Withplansinplacefortheestablishmentof an enormousscale cement production in Moulmein Township by the Siam Cement Group,241thegovernmentmustimmediatelyandirrevocablytightenregulationstosend a clear message to extractive companies that transgressions in land acquisition are unacceptable. TheBurmesegovernmentisalsonottheonlyauthoritythatmustpromulgatemessages rejecting unjust land acquisitions. Ethnic armed groups active in Kyaikmayaw share responsibilityinthisregard. Personally,[Ithinkthat]some[members]fromtheNMSParealsoinvolved inthis issue,saidMaThin,a KaDonSi resident.Othersbelievethatthey [members of armed groups] are helping to protect [the Mon people], develop [Mon areas] and build a peace process. However, not only have they failed to protect us from exploitation and protest against the companies, but also they have lost their pride and appealed to the companies[topersuadethem]nottotaketheir[own]landaway.242 Like in Ye, there is a need for all persons in position of influence, whether local authorities, central government, members of parliament or ethnic armed groups, to stand behind Kyaikmayaw farmers in their battle against unjust land acquisition and fightforreparationsfortheirlossoflivelihood.

241

GlobalCement,SiamCementGroupspendsUS$386monfirstcementplantinMyanmar,4September 2013. 242 HURFOMInterviewK15,KaDonSivillage,August2013.

HURFOMOctober2013

84

G.CONCLUSIONS:KEYBARRIERSTOMONFARMERS STRUGGLEAGAINSTUNJUSTLANDACQUISITION
Numerous obstacles bar the way for Mon farmers who are actively fighting against unjust land acquisition. This section combines the Ye and Kyaikmayaw township case studiesasevidenceofpredominanthurdlesto(1)securingafullyjustresolutiontopast andnewlyarisinglandconflicts,and(2)preventingfurtherunjustlandacquisitionfrom arisingbyensuringsecurelandrightsforfarmers.

1.WEAKLAWANDPOLICY
Despitenewlegislationpassedin2012,thelawoffersinsufficientprotectionandlimited rights over land to farmers facing unjust land acquisition. This is a barrier to farmers claiming legal recourse for land unjustly acquired from them in the past, and also constitutesanobstacletoeffectivepreventionoffutureinjustice.

(I)WEAKLANDTENURESECURITY
The2012FarmlandActoffersweaklandsecurityforfarmers,withforcibleacquisitionof landforStatepurposescontinuingtobeendorsed.Thisisaconcerngiventhatthelaw lacks guidelines on the circumstances in which this acceptable and the processes by which this may be justly undertaken (see Section C). Legislation does not make due

85

VillagersdemonstratingaboutlandissuesinKyaikmayaw.

DISPUTEDTERRITORY

efforttoensurethat,inlinewithinternationallaw,Staterightstoacquirelandforpublic purposesarenotabused(SeeAppendix1). Yegovernmentministriesusedthelawsweaklandtenuresecuritytovindicate past military seizures of land and avoid satisfying residents demands for land restitutionorfaircompensation. InKyaikmayawTownshipthreatsweremadebyvariousinvestorsaboutforcible land acquisition for State projects. Whether or not these were grounded in fact, they had credibility because by law consent need not be sought in such cases. If State project claims prove genuine, Kyaikmayaw residents are left withlittlelegalbasisforlandrestitutiondemands.Whilstbylawcompensation must be paid, lack of guidelines on this leaves residents without guarantee of paymenttothemarketvalueoftheirland.

(II)FAILURETORECOGNISECUSTOMARYOWNERSHIPPRACTICES
As outlined in Section C, farmers lacking currently valid legal documentation for their land are made vulnerable to forced acquisition by the 2012 Farmland and VFV Laws, whichdonotrequireconsentorcompensationdue.IntheMoncontextthisviolatesthe United Nations Declaration on the Rights of Indigenous People (see Appendix 1) by ignoring the right of indigenous people to own land possessed solely by their communityscustomarypractices. In Ye Township laws allowing Statesanctioned acquisition of formally unregistered land were used by government departments to vindicate past militaryacquisitionoflandforzerocompensation.Asaresult residentsclaims forcompensationregardinglandanddestroyedplantsweredenied. In2013thePacificLinkCo.Ltd.inKyaikmayawTownshipwasreportedtohave purposefully sought out land in Kwan Ngan village that was not covered by currently valid LUCs, failing to seek these residents consent to sale. Not only doesthissetaworryingprecedentforfuturelandacquisitions,butfarmershave littlelegalargumentforlandrestitutionorcompensation.

HURFOMOctober2013

86

2.THELACKOFANIMPARTIALBODYTOHANDLELAND DISPUTES
Farmersappealsforjusticehavebeenhinderedbythefactthat,bylaw,thereexistsno impartial body assigned to adjudicate their complaints. As outlined in Section D, the Land Investigation Commission does not effectively constitute such a body due to its limited mandate; despite offering some improvement to standards of investigation, decisionmakingpowerremainscentralised.AsTNInotes: Although centralising power to allocate land is not necessarily problematic, it is especially so in Burma because of the larger context of high inequality, combined with endemic corruption and extreme concentrationofpoliticalpowermoregenerally.243 InbothYeandKyaikmayawtownshipsMonfarmersappealswerelefttoinvestigation anddecisionmakingbymembersofgovernmentdepartmentsandlocaladministration bodies that were often complicit in the abuses in question. Various considerations highlightedtheneedforanindependentbodytohandlelanddisputes,bothatthestage ofinvestigationanddecisionmaking. In Ye, SLRD officials inaccurate surveying of confiscated land showed that impartialityandjusticeforpastmilitaryconfiscationscannotbesecuredwhere investigation is delegated to local authorities. Similarly, government correspondencesentinresponsetoappealsrevealedbiasesindecisionmaking, and ministries that initially ordered or benefited from confiscations unsurprisinglyendorsedpastlandacquisitions. In Kyaikmayaw the investigations into unjust land acquisition perpetrated by private companies were carried out by government servants and local administration members who were implicated in collaborations with investors to coerce or force residents off their land. Although results are still unknown, theimpartialityoftheseinvestigationsappearedunlikely.

243

TNI,AccessDenied,2013,p.3.

87

DISPUTEDTERRITORY

3.ALACKOFGOVERNMENTCOMMITMENTTOENDORSING RESPONSIBLECONDUCTINLANDACQUISITION
With decisionmaking on land disputes currently centralised, the importance of government commitment to endorsing responsible and just land acquisition is paramount.Statecondemnationofandrestitutionforunjustlandacquisitionisapillar of international law (see Appendix 1) and a precondition for a political system committed to protecting its peoples rights.244 However, research showed that the governmentinBurmahasthusfarbeenunabletoachievethesegoals. In Ye government ministries failed to condemn past military confiscations of land,insteadrelyingonweaknessesinlawtovindicatetheseseizuresandresist reparations. Although some confiscated land that now lies fallow is slated for returntoitsoriginalowners,nocondemnationwasmadeoftheinitialseizure.

InKyaikmayawfarmersexpressedconcernthattheyhadbeenleftunprotected frommisconductbyagovernmentthatprivilegedtheinterestsofinvestorsand tolerated or encouraged unjust acquisition. Few actions have been taken to publicly acknowledge, condemn, or punish misconduct by cement companies activeinKyaikmayaw,nortoregulatetheirconductinthefirstplace.

4.FARMERSCAPACITYTONAVIGATELAND CONTROVERSIES
Manyfarmerswereneverexposedtoadequateinformationabouttheirlegallandrights ortherepercussionsofsellinglandundermarketvalue,andthereforefacedsignificant challenges when confronted with landrelated disputes. In ongoing cases investors were noted to have openly taken advantage of these conditions to acquire land for unfairpricesorusingcoercivetechniques.
244

SeeDisplacementSolutionsrecommendationinMyanmarattheHMPCrossroadsofthepressingneed forBurmasgovernmenttomakestrongpoliticalpronouncementsagainstHLPmisdeeds(June2012).

HURFOMOctober2013

88

(I)LEGALUNDERSTANDING
InbothYeandKyaikmayawtownshipsitwasobservedthatresidentsneededsupportto fullyunderstandtheirlegalrightsregardingland. InYe Townshipaletter ofappealstatedthatmanyvictimsofmilitary confiscation had not known the laws applicable to their case at the time and emphasised that farmers needed training to ensure that they understood the rights granted under currentlaw.Althoughthelawoffersthemweakprotection,itislikelythatmanyYe farmerswouldbenefitfromrealizingtheirlegalentitlementtofaircompensationfor Statepurposelandacquisition.

In Kyaikmayaw investors exploited residents lack oflegal knowledge by citing the Statesinvolvementintheprojectandthreatening forciblelandacquisitionwithout compensation if the landowners refused to comply with company compensation offers.Forlandownersthatheldofficialland documentation,theseclaimsofState authorisation would not supersede the legal requirement to provide fair compensation. However, many residents were unaware of this and forfeited their landforafractionofitsmarketvalue.

(II)FINANCIALKNOWLEDGE
InKyaikmayawTownshipalackoffinancialknowledgeamongstsomefarmersenabled exploitativeinvestorstosuccessfullymakeunfairlylowoffersofcompensation.Farmers wereseentohavelackedthefinancialskillsneededtosuccessfullynegotiateprofitable contractswithlargescalecompanies.

(III)LANGUAGEBARRIERS
Itwasalsoreportedthatauthoritiesinvolvedinlandsurveysandacquisitionsrepeatedly failed to make an effort to communicate directly with residents in their ethnic Mon language,usingonlyBurmese.ThismeantthatforfarmerswhosolelyspeakMon,their inputandconcernscouldnotbefullyregisteredorincorporated.

89

DISPUTEDTERRITORY

InYeTownshipSLRDmemberssurveyinglandconfiscatedbythemilitary communicatedwithfarmersonlyinBurmese,denyingthemtheopportunityto fullystatetheircasesorengagewiththesurveyprocess. InKyaikmayawTownshipcompanyrepresentativesspokesolelyinBurmeseto farmersinthecourseofnegotiations.Inthiswaydueeffortswerenotmadeto seekfullyinformedconsentforthesubsequentlandacquisitions.

5.THENEEDFORPERSONSINPOSITIONSOFINFLUENCETO CHAMPIONTHERIGHTSOFFARMERS
Thereisanimmediateneedforallpersonsinpositionofinfluenceinlanddisputecases toeffectivelyadvocateforfarmersrightsontheirbehalfwheretheycannotfullypursue their own. Now, although some positive signs have been demonstrated, farmers are largelylefttofighttheircasesalone.

(I)CORRUPTIONINGOVERNMENTDEPARTMENTSANDLOCAL LEVELAUTHORITY
Far from advancing Mon farmers rights to land, government departments and local level authorities have frequently exhibited poor conduct by collaborating with perpetratorsorendorsinginjustice.Thishasmisledinvestigationsintopastabusesand facilitatednewcasesofunjustlandacquisition. InYeTownshipbiaswasseeninhandlingofappealsbytheMinistryofDefence, Ministry of Home Affairs, and the Settlement and Land Records Department (SLRD),allreportedlytiedtoperpetratorsofpastmilitaryabuses.

In Kyaikmayaw Townshipmembers of the SLRD and local administration were alleged to be accepting bribes and documented as having collaborated with companiestoassisttheminacquiringlandthroughunjustmeans.

HURFOMOctober2013

90

(II)CALLSFORCONTINUEDCOMMITMENTFROMMONPOLITICAL PARTIES
To their credit, research indicated various Mon political parties to be involved in supporting farmers appeals for justice. In particular, in Ye Township AMDP MPs Dr. BanyarAungMoeandMiMyintThanwereinstrumentalinadvancingclaimslodgedby residentsagainstLIBNos.343and587.However,HURFOMemphasisestheneedforall Monpoliticalpartiestoshowgenuinecommitmenttofarmersrightsandvocallypush forswiftandtangibleresultstoappeals.

(III)SUBDUEDSUPPORTFROMMONARMEDGROUPS
As an influential actor in Mon areas, there is a need for Mon armed groups, and in particulartheNewMonStateParty(NMSP),tomoredutifullycommittoadvancingthe claimsofallvictimsoflandrelatedinjustice.Withoutthis,farmersareleftunprotected byoneoftheirmostinfluentialsourcesofsupportandadvocacy. TheNMSPs2012ceasefireagreementprivilegesanumberofpoliticalconcerns but isweakonthepromotionofMonfarmersrightstoland.Thisisparticularly relevant to past Ye Township military confiscations, as it is important that reparations for these widespread abuses become a central part of the peace process.TheBurmesegovernmenthasanimportantresponsibilityinthisregard asinternationallawstipulatesthatlandrestitutionprocedures,institutionsand mechanisms be included in peace agreements (see Appendix 1). However, significanteffortsarealsorequiredbytheNMSPtopushforthisoutcome. Intermsofindividualarmedgroupmembersconduct,inKyaikmayawTownship residents felt that members of Mon armed groups had failed to protect them from unscrupulous investors. It was voiced that they had instead tried to appeasecompanies,attemptingtoensurethesecurityoftheirownland.

91

DISPUTEDTERRITORY

H.RECOMMENDATIONS
With multiple barriers to the progress of Mon farmers fight against unjust land acquisition,HURFOMissuesthefollowingrecommendations:

FORPRESIDENTTHEINSEINSGOVERNMENT:
Toreformlawslaidoutinthe2008Constitution(Article 23)inordertoprotect farmersinterestsandofferlegalrecourseincasesofunjustlandacquisition.In particular: - To establish clear and just guidelines on State acquisition of land, fully detailingnecessarypreconditionsandoutliningmechanismsfordecidingon faircompensation. - To recognise by law the rights of farmers holdingland in accordance with customarylaw.Failingthis,forthegovernmenttotakeeffortstostreamline the formal land registration process and support all landholders to obtain LUCs. To appoint an independent and transparent judicial body to investigate and decide on cases of unjust land acquisition. It is suggested that the Land Investigation Commissions mandate be widened, or for a separate fully impartialbodytobecreatedandassigneddecisionmakingpowers. - All investigation and decisions made to date must be reassessed by this bodytomitigatetheeffectsofbiasinthehandlingofappeals. Topubliclycondemnunjustseizuresoflandunderthepreviousmilitaryregime andensurethat,incompliancewithinternationallawandaspartofthepeace processes,landisrestoredtovictimsorfaircompensationpaid. - Inparticular,thegovernmentmustrecognisethedemandsofinternational lawforactorsinpostconflictsettingsto,Establishandsupportequitable, timely, independent, transparent and nondiscriminatory procedures,

HURFOMOctober2013

92

institutions and mechanisms to assess and enforce housing, land and property restitution claims245 (see Appendix 1), bringing about concrete resultsforfarmersinaswiftandfullytransparentmanner. Asamatterofurgency,theMinistryofDefencemustensurethatland currentlyunusedbybattalionsisreturnedtoitsformerownersimmediately.

To publicly acknowledge, condemn and punish all cases of misconduct by investorsacquiringlandinMonareas. To set a notolerance policy for unjust land acquisition perpetrated by companiesandensurethatconductisthoroughlyregulated.

FORALLINVESTORSACTIVEINMONREGIONS:
Tofollow responsibleconductinlandacquisition,ensuringthatfree,priorand informedconsentissoughtfromallpartiesandfaircompensationforlandpaid. Where appropriate, investors must make efforts to include Mon language speakersintheprocessofnegotiationwithfarmers. Tocommittofulltransparencyinallprojectsundertaken.Inthisregardforthe ZaykabarCo.Ltd.,PacificLinkCementIndustriesLtd.andJuneIndustryCo.Ltd. todisclose whether theirprojects areinfactgenuine State projects, and ifso, detailing (1) Permissions granted to acquire land and (2) Project timeframes listedinpermissions.IfnoStatepermissionwasgranted,orprojectshavebeen terminated or timeframes exceeded, then in line with Farmland Act (2012) Article 32 land acquired without free, prior and informed consent must be restoredtoKyaikmayawresidentsimmediately.

FORLOCALADMINISTRATION,GOVERNMENTDEPARTMENTSAND MILITARYPERSONNEL:
To eliminate corruption and complicity in unjust land acquisition. Full commitmenttoprotectingfarmersrightsmustbedemonstratedatallpointsof the process, whether personnel are involved early on with land acquisition negotiationsorlaterwheninvestigatingoradjudicatingappeals.

245

PinheiroPrinciples,Principle12.1.

93

DISPUTEDTERRITORY

TocooperatecompletelywiththeLandInvestigationCommissionsinquiriesand exhibittolocalresidentsthatdisclosingabusewillnotbemetwithreprisals.

FORALLMONPOLITICALPARTIESANDARMEDGROUPS:
To show full and genuine commitment to (1) championing the rights of Mon farmers throughout the peace process, (2) advancing appeals on farmers behalf, and (3) furthering the rights of Mon farmers in the wider national dialogueonlandrights.

FORTHEGOVERNMENT,LOCALADMINISTRATION,POLITICAL PARTIES,NGOSANDCBOS:
Tomakeconcreteeffortstoenhancefarmerscapacitytohandlelanddisputes, particularlybyofferingaccessiblelegalcounselandfinancialskillstrainings.

FORALLMONSTATEFARMERS:
Tocooperatewithinvestigationsoflanddisputesandprovidehonestand accurateinformation.

FORTHEINTERNATIONALCOMMUNITY:
TocallonTheinSeinsgovernmenttomorefullycommittoprotectingtherights offarmersincasesoflandacquisition. TopromoteresponsibleconductbyallforeigninvestorsactiveinMonregions, inparticularwithregardstoSiamCementGroupsplanstoestablishcement constructioninMoulmein,thecapitalofMonState.

HURFOMOctober2013

94

I.APPENDICES
APPENDIX1LANDRIGHTSININTERNATIONALLAW
Anumberofpointsofcurrentinternationallawapplytopastandongoinglandconflicts inMonregions:

1.CONDEMNATIONOFLANDCONFISCATION
TheUnitedNations(UN)UniversalDeclarationofHumanRightsstatesthat Everyonehastherighttoownpropertyaloneaswellasinassociationwithothers. Nooneshallbearbitrarilydeprivedofhisproperty(Article17). TheUNGuidingPrinciplesonInternalDisplacementasserts,Stateshavea particularobligationtoprotectagainstthedisplacementofindigenouspeoples, minorities,peasants,pastoralistsandothergroupswithaspecialdependencyon andattachmenttotheirlands(Principle9). UNPrinciplesforHousingandPropertyRestitutionforrefugeesandIDPs (PinheiroPrinciples)assertstherighttopeacefulenjoymentofpossessions (Principle7).

2.RESPECTFORRIGHTSTOLANDHELDBYCUSTOMARY OWNERSHIPPRACTICES
The UN Declaration on the Rights of Indigenous People recognises the right of indigenous people to own and develop land possessed by their communitys customarylaw,regardlessofwhetherithasbeenformallyregistered(Article26).

95

DISPUTEDTERRITORY

3.DEMANDSFORRESTRICTIVEREADINGOFSTATERIGHTSTO FORCIBLYACQUIRELAND
TheUNGuidingPrinciplesonInternalDisplacementstatesthatTheprohibitionof arbitrarydisplacementincludesdisplacementincasesoflargescaledevelopment projects, which are not justified by compelling and overriding public interest (Principle6) The Pinheiro Principles hold that States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles ofinternationallaw. Whenever possible,theinterestofsocietyshouldbereadrestrictively,soastomeanonlya temporary or limited interference with the right to peaceful enjoyment of possessions(Principle7).

4.LANDRESTITUTIONANDCOMPENSATION
The Pinheiro Principles state that All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they werearbitrarilyorunlawfullydeprived,ortobecompensatedforanyhousing,land and/ or property that is factually impossible to restore as determined by an independent, impartial tribunal246 (Principle 2) and that States shall not recognize as valid any housing, land and/or property transaction, including any transfer that was made under duress, or which wasotherwise coerced or forced, either directly or indirectly, or which was carried out contrary to international humanrightsstandards(Principle15).

Theprinciplesofferguidanceonhowlandrestitutionandcompensationschemesshould becarriedout.ThisincludesthatStatesshould: Establish and support equitable, timely, independent, transparent and non discriminatory procedures, institutions and mechanisms to assess and enforce housing,landandpropertyrestitutionclaims(Principle12.1).

246

AlthoughPrinciple21.1statesthatcompensationmaybepaidinlieuofrestitutionifvoluntarilyaccepted bytheinjuredparty.

HURFOMOctober2013

96

Takeallappropriateadministrative,legislativeandjudicialmeasurestosupport and facilitate the housing, land and property restitution process (Principle 12.3). Include housing, land and property restitution procedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements (Principle12.6). Ensure that Everyone who has been arbitrarily or unlawfully deprived of housing,landand/orpropertyshouldbe able tosubmitaclaimforrestitution and/or compensation to an independent and impartial body, to have a determinationmadeontheirclaimandtoreceivenoticeofsuchdetermination. States should not establish any preconditions for filing a restitution claim (Principle13).

97

DISPUTEDTERRITORY

APPENDIX2THELISTOFLANDOWNERS

HURFOMOctober2013

98

99

DISPUTEDTERRITORY

APPENDIX3MAP
AffectedareainKyaikmayawTownship.

HURFOMOctober2013

100

 AffectedareasinYeTownship.

101

DISPUTEDTERRITORY

HURFOMOctober2013

102

103

DISPUTEDTERRITORY