I. Introduction

“Yes, now look at our ancestors’ land that has been given to us, it is all being destroyed. They do business and get money. For us we have to sacrifice, suffer, and we get nothing out of it. How much can they bully us? What is human? We are equally human, yet they do not know whether other people will be hurt or suffer. They just care about their profits and are satisfied if they get money, not caring about other people’s suffering and destruction. It is not human, it is animal…they can do whatever they want with a package of their money, but for us, with only our voices, what can we do?”
Naw T---, (female), D--- village, Kyonedoe Township, Dooplaya District/Southern Kayin State
(Interviewed in November 2014)[1]

Since December 2012, villagers in Karen communities across southeast Myanmar have reported widespread land confiscation and its associated impacts. This report is an analysis of 484 pieces of data collected by KHRG researchers between December 2012 and January 2015, which resulted in the identification of 126 reports specifically related to land confiscation and its associated impacts, as well as community responses. These land-related issues are linked to three broad categories of development and business activity: infrastructure projects, natural resource extraction, and commercial agriculture projects. In addition, villager testimony highlighted frequent land confiscation by armed actors occurring for military purposes. Villagers’ perspectives on these projects were frequently excluded from either planning or implementation, and compensation was often nonexistent or insufficient. Villagers reported that land-related abuses have caused livelihood difficulties, displacement, environmental destruction, and other issues. In response, villagers described employing various forms of individual and collective action strategies to prevent abuses, including negotiation, demonstrations, and outreach to both media sources as well as local organisations. Ensuring that such efforts are supported, that such a space for local responses is created and expanded, and that villagers ultimately retain their land use rights without facing displacement or abuse is critical to ensuring that a viable, equitable, and inclusive peace takes root in southeast Myanmar.

This report is a follow up to Losing Ground, a KHRG report published in 2013, and is based on an analysis of written and oral testimony from villagers in southeast Myanmar, as well as documentation such as photographs, video, and audio recordings, collected by researchers who have been trained by KHRG to report on local human rights conditions. The documents analysed in this report detail cases of land confiscation and its associated impacts occurring between December 2012 and January 2015 in Karen communities across southeast Myanmar, including all of Kayin State and Tanintharyi Region, as well as parts of eastern Bago Region and northern Mon State.[2] The objective of this report is to present villagers’ perspectives on land confiscation and related community responses in southeast Myanmar. It aims to highlight the continuation of previously identified trends, as well as introduce new issue areas which have since emerged  in prominence, based on villagers’ testimony since December 2012. The testimony presented in this report is the direct, lived experience of villagers in southeast Myanmar. Its dissemination is therefore crucial for both domestic and international actors to better understand the impacts of land confiscation on the communities in which it occurs. The findings and recommendations are intended to assist all development actors, including the Myanmar government, armed actors, domestic and foreign corporate actors, as well as civil society, to fully understand the concerns of local communities in the context of development and land confiscation, and take appropriate action to ensure land-related abuses are avoided and future development is community driven, inclusive, and sustainable.

Section I: Introduction provides an overview of the report in general, and details the methodology of the report. In addition, it includes a current context subsection which reviews recent developments in Myanmar’s laws and politics as they pertain to land issues.

Section II: Land use types assesses four primary project types related to land, identified in the analysis of villager testimony. These are infrastructure projects, which include the construction of roads, bridges, dams and other projects; natural resource extraction, which includes mining for gold, stone, and other minerals and metals, as well as logging; commercial agriculture projects, which primarily include rubber, teak, palm, and other plantations; and finally the confiscation of land by armed actors for military purposes. Villager testimony regarding each is presented, with a further focus on consequences and trends.

Section III: Village agency provides analysis of the primary agency strategies employed by villagers in response to the abuse types identified. These include outreach to CBOs & NGOs, negotiation, lobbying the Myanmar government and EAG officials, demonstrations, formal registration, and a number of other less cited strategies. The full text of all 126 documents which formed the dataset for this report are available in the Appendix 1: Raw Data, and Appendix 2: Land Grabbing Forms. Appendix 3: Background Information provides legal background and contextual information, which allows for an analysis of the testimony in this report within a broader framework.

Rationale for the report

The objective of this report is to present villagers' perspectives on land confiscation and related community repsonses in southeast Myanmar. It aims to highlight the continuation of previously identified trends, as well as introduce new issue areas which have since emerged in prominence based on villager testimony since December 2012. The testimony presented in this report is the direct, lived experience of villagers in southeast Myanmar. Its dissemination is therefore crucial for both domestic and international actors to better understand the impacts of land confiscation on the communities in which they occur.

Althouth the nature of human rights abuses in southeast Myanmar may have changed since the 2012 preliminary ceasefire, land confiscation has become a primary grievance throughout the conflict period, and will continue to be of importance to the tenability of peace in the region. Ensuring that land tenure rights and land confiscation issues are addressed in an inclusive manner in any future agreement between the Myanmar government and the KNU is therefore crucial to the protection and promotion of human rights in southeast Myanmar.

Detailed Findings

Infrastructure projects

• The confiscation of land for the construction of roads, including the Asian Highway, was identified in villager testimony as an important emerging issue since December 2012. This was particularly the case in Dooplaya District, where KHRG received a large quantity of reports from December 2012 to January 2015.

• Land confiscation for hydropower dams continues to be a subject of serious concern for villagers in southeast Myanmar. This is compounded by local concerns about the potential for future confiscation or destruction of land through annual flooding for those living near the resevoir catchment areas. This concern was raised particularly by those villagers living near the proposed site of the Hatgyi Dam.

• The main effects of infrastructure projects include the destruction of villager livelihoods and the surrounding environment. On a large scale, farms and plantations have been levelled in order to build roads and flooding from dams has devastated the local environment in Kayin State.

• The lack of compensation and consultation featured as a prominent trend. Where compensation was mentioned, villagers were given a fraction of what they are entitled to or were still awaiting payment. Where consultation occurred, often, even with villager disapproval, infrastructure projects would still go ahead as planned, leading to serious consequences amounting to human rights violations.

 Natural Resource Extraction (NRE)

• Gold mining was identified as the most common NRE project to result in land confiscation. This was particularly the case in Dwe Lo Township, Hpapun District, where the majority of reports regarding land confiscation related to NRE projects were concentrated.

• Villagers reported that NRE projects, particularly gold mining, resulted in extensive environmental damage, including the release of chemicals into rivers, aswell as soil erosion. As villagers rely heavily on the surrounding natural environment for their livelihoods, environmental damage and livelihood issues often went hand in hand. 

• Villagers identified Myanmar private companies and wealthy individuals as the most common perpetrators of land confiscation for NRE projects, often in collusion with armed actors and Myanmar government officials.

• In the majority of cases, villagers reported that little or no compensation was provided for confiscated land, while only a small number involved consultation with villagers prior to land confiscation. In one instance, villagers report being forced into signing agreements to hand over their land.

Agriculture projects

• Rubber plantations were identified by villagers as the primary use of land confiscated foragricultural purposes, however, teak, betel nut and cardamom plantations were also cited.

• The primary perpetrators of land confiscation for agricultural projects were the Myanmar government, Karen Border Guard Forces (BGF) and private corporate actors. Collusion between state or state-backed armed actors, as well as other armed actors, and private business interests was identified as a continuing trend in southeast Myanmar.

• Land confiscated was predominantly identified as being either privately held land or communally owned. Communal land, including both land governed according to traditional land tenure systems, as well as protected forest areas, were often reclassified as ‘uncultivated’ prior to confiscation.

• The primary consequence of land confiscation for agricultural projects identified by villagers was livelihood issues. A decrease in access to firewood and building materials, often due to the confiscation of communal land, was identified as an emerging new trend in the current reporting period.

Militarisation

• Land confiscation for military purposes included the building of new camps, expanding existing ones, building housing for soldiers’ families, as well as for commerical projects to fund military activities.

• Villagers identified state and state-sponsored armed actors as the perpetrators of land confiscation. This included the Tatmadaw, BGF and Karen Peace Force (KPF).

• In the majority of cases, villagers were not consulted prior to confiscation, and in one case villagers were deliberately misled into signing an agreement which turned over land to an armed actor.

• Throughout the reporting period, KHRG continued to receive reports detailing the negative impacts of cases where land had been confiscated prior to December 2012. This particularly highlighted the ongoing trend of land grabbing by the Tatmadaw over the last several decades.

Village agency

• There was a marked increase in the frequency and diversity of village agency responses compared to the prior reporting period of 2011-2012. In particular, reports indicating negotiation and lobbying with armed groups has increased, while formal registration of land and outreach to community-based organisations (CBOs) have emerged as strategies.
   
• In a small number of cases, negotiation with armed actors was successful in preventing or stopping a project. However, in most cases villagers faced violent threats or even death for speaking out.
   
• Villagers reported lobbying EAGs, in particular the KNU/Karen National Liberation Army (KNU/KNLA), in order to address abuses in areas projects were prevented following EAG intervention.

Recommendations

Consultation and consent

• As villagers are best placed to assess their own interests and the impact of development on their livelihoods, development projects should be planned in consultation with local communities, with full disclosure of information relating to how the projects could affect their lands and livelihoods. Communities should be given the opportunity to participate in decisions regarding size, scope, compensation, and means of project implementation, and all development actors should prioritise the perspectives and consent of communities in all decision-making.

• All development actors must carry out environmental, health and human rights impact assessments prior to project implementation. These assessments should be carried out independently of the actor’s interests, in consultation with project-affected communities and made publicly available in all local languages.

Customary land rights, usage and national land policy

• The Myanmar government should ensure that the National Land Use Policy (NLUP) and other relevant land laws protect existing land use practices and tenure rights, and acknowledge that local communities may recognise land titles granted by multiple sources, including customary, colonial and local administrations.

• All policy reforms should ascertain and respect the land rights of communities and individuals displaced by conflict, including refugees.

• In cases where villagers wish to secure a land title from the Myanmar government, a transparent and inclusive process should be available for villagers to do so.

Support for community solutions

• Development actors should seek out and engage with local, broad-based, independent associations of villagers formed to address land issues, as well as local community-based organisations.

• Domestic civil society should promote knowledge-sharing among and give support to independent associations across the country.

• The media should expand their coverage of land conflicts in southeast Myanmar and sustained pressure should be maintained by the media and civil society on the Myanmar government to ensure that land confiscation issues remain a central component to the current reform process in Myanmar.

• The Myanmar government and civil society should provide communities with training and educational resources about domestic complaint and adjudication bodies.

• All armed actors, including the Tatmadaw, Karen BGFs, KNU/KNLA, Democratic Karen Benevolent Army (DKBA), and others, should support local villagers’ land rights and land tenure systems, and should commit themselves to following all of the measures included in these recommendations in areas under their direct control.

• The Myanmar government should ensure that access to domestic complaint and adjudication bodies is available to all villagers, and that land dispute mechanisms are community based and established according to customary practices.

Ceasefire context

• All development actors should ensure that they do not become complicit in human rights abuses by carrying out good faith due diligence to make certain that their partners do not compromise the rights and security of local communities.

• All armed actors should demilitarise former conflict areas and immediately cease the confiscation of land in southeast Myanmar for the purposes of: constructing military facilities, which include camps, barracks, and housing for the families of soldiers; or leasing land in order to generate income.

• The Myanmar government and EAGs in southeast Myanmar should ensure that any future ceasefire agreements include components which ensure that the land rights of all populations, including internally displaced persons (IDPs) and refugees, are protected.