Federalism and the recognition of indigenous rights to land and natural resources in Myanmar
Gabrielle Kissinger 10 .05. 2020  

After 70 years of military rule, Myanmar is in a process of defining its federal system. Exploring lessons learned in other countries that have a similar set of issues can shed light on how to build a democratic and federal system of government in Myanmar that respects its ethnic people. A new report explores whether indigenous and community rights have been recognized in three countries that have federal systems of government and also have extensive indigenous communities—Canada, Ethiopia, and Brazil. The question of land lays at the heart of solutions towards peace, as it is the basis for the economic and cultural future of Myanmar’s Indigenous Peoples.

As of April 2020, the national peace process in Myanmar has included little discussion of issues related to natural resource governance. The Nationwide Ceasefire Agreement includes three clauses related to land and natural resources, and these are largely reflected in the Interim Arrangements. Yet, the operationalization of the Interim Arrangements is largely non-existent. And of the 15 existing bilateral ceasefires in Myanmar, only five address natural resources, and rather than reform their governance, the ceasefire agreements simply allow Ethnic Armed Organizations to continue exploiting resources and generating revenue, while maintaining centralized government control. Proactive governance of ethnic regions by ethnic people in a federal system—with a long-term view for their future—is still far from being realized.

One reason for this is that the existing Myanmar Constitution, which defines the current system of federalism in Myanmar, gives very little authority to states and regions. It is silent on how a ‘third tier’ of governance and decision-making—such as ethnic governance—will be recognized in this system. The Constitution does not devolve decision-making authority on land and natural resources to state, regions, or indigenous and local communities. The 2015 constitutional amendments allows for states and regions to carry out specific activities related to resource governance in accordance with laws enacted by the central government. States and regions can reclaim vacant, fallow, and virgin lands, but overall authority and title is still held by the central government.

Experiences in Canada, Ethiopia, and Brazil illustrate how federalism, as an institutional governance device, is not enough to respond to the challenges of ethnic diversity and overcoming conflict. Despite the fact that all three countries have Constitutional commitments to indigenous rights, these have not been realized in practice. The reasons for this vary, from challenges in demarcating land and defining which laws would apply in these demarcated areas, to how those laws or procedures would relate to the rest of the federal system. With so many unanswered questions, assertion of indigenous rights and title has mostly been pressed in court cases in Canada and Brazil. In Ethiopia, land tenure and management was disconnected from the ethnic customary governance systems and accompanying Constitutional protections, resulting in strong central government control and a context ripe for corruption and bribery.

There are a range of engagement options for central, state, and regional government to recognize indigenous rights to land in a federal system based on the case study examples, with varying degrees of authority recognized for indigenous governance bodies. Those that recognize and respect indigenous government, with signals in legislation as to how that affects jurisdictional and relationship aspects, built indigenous self-determination into the federal system. Similarly, there exist various land designation options that respect Indigenous Peoples’ right to define their traditional territory and recognize related decision-making authority and responsibility. Co-management can work in some cases. But recognizing customary land use and rights, including self-governance within a federal system, is best suited to respecting indigenous and community rights to govern their territories.

Opportunities exist to operationalize and expand upon Myanmar’s Interim Arrangements under the Nationwide Ceasefire Agreement, to define the processes by which reconciliation of ethnic peoples’ rights to their land and natural resources can be pursued. The question of land is fundamental to finding lasting peace, as it is the basis for the economic and cultural future of Myanmar’s Indigenous Peoples.

Read the full report here.

About the author: Gabrielle Kissinger is a Senior Policy Advisor with Forest Trends, Principle of Lexeme Consulting, and has worked for over 25 years at the interface between government policy, markets, and land use pressures, from local to national and international scales.

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