Myanmar Safeguards Information

ကာကွယ်စောင့်ရှောက်မှု သတင်းအချက်အလက်စနစ်

Safeguard C

Principe C.  REDD+ Policies and Measures in Myanmar must be designed and implemented to respect the knowledge and rights of indigenous peoples and members of local communities

Criterion C1.  REDD+ Policies and Measures must avoid involuntary resettlement and respect the rights of indigenous peoples and local communities to use land and resources (this relates to statutory rights as well as locally recognized and customary rights).

Definition of “indigenous peoples”:
  • There is no commonly used definition of ‘indigenous peoples’ in the Myanmar legal framework, which is why the national clarification of safeguards mentions the need to agree on a clear and specific definition to be used in the REDD+ context. However, several documents do reference ‘indigenous peoples’. The final draft National REDD+ Strategy notes: ‘Various terms are used in Myanmar policies, laws and regulations to refer to groups that meet the conditions identified by the UN Permanent Forum on Indigenous Issues as being “indigenous peoples”. Throughout this document, the term “ethnic minority/ies” is used in this sense’.
  • The definition of “Indigenous Peoples” in the EIA Procedure (2015) is “People with a social or cultural identity distinct from the dominant or mainstream society, which makes them vulnerable to being disadvantaged in the process of development”.
  • Civil society organizations also refer to internationally accepted definitions, such as those of the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) and the Indigenous and Tribal Peoples Convention, 1989 (ILO No. 169) (noting this Convention has not been ratified by Myanmar).
Definition of ‘ethnic groups’ :
  • The 2008 Constitution refers to “national races” and “ethnic nationalities”, and references a list of the ethnic groups that are officially recognized in Myanmar. The term “ethnic groups” has been defined in the Ethnic Rights Protection Law (2015) as “ethnic groups who have resided continuously within the Republic of the Union of Myanmar, stipulating as the original State”. In this definition, naturalized citizens and associate citizens are not included.
Definition of “members of local communities”:
  • There is no definition of “members of local communities” in the Myanmar legal framework. The Community Forestry Instructions (2019) specifies that persons qualifying for participation in a Forest User Group should live within around five miles from a given forest area and that a person should have been resident in the area for a minimum of 5 years. Discussions during development of the national safeguards clarification have noted a need to not exclude persons who have been displaced by conflict or natural disaster.
Rights to land and resources:
  • Myanmar’s legal framework provides some protection of officially recognized land tenure rights, especially for holders of a land use certificate or other form of legal documentation, for example related to acquisition of land for a public purpose, such as declaration of a protected public forest, reserved forest or protected area (under the Forest Law 2018 and the Protection of Biodiversity and Protected Areas Law 2018); or when land is to be acquired for an investment project (under the Land Acquisition Act 1894 / draft Land Acquisition, Resettlement and Rehabilitation Law and the Investment Rules 2017).
  • The Farmland Law (2012) supports tenure security on cultivated land, since eligible farmers can apply for indefinite land use certificates (LUCs). The rights covered by LUCs include the right of possession, and the right to sell, mortgage, lease, exchange and gift, in whole or in part. Constraints imposed by LUCs include not changing the originally cultivated crop without permission, and not allowing any part of the farmland to lie fallow.
  • The National Land Use Policy (2016) stipulates that the process of land use planning should be conducted in a participatory manner and protect all land use rights, whether they are registered or not registered. It also recognizes shifting cultivation as a legitimate form of subsistence agriculture that should receive full consideration in the context of customary land tenure and use rights.
  • The Protection of Biodiversity and Protected Areas Law (2018) also includes mention of customary rights; it states that the Director General (of the Forest Department) shall, with the approval of the Ministry, make provisions for customary rights and privileges of the people in the region where it is proposed to establish a protected area.
  • The Community Forestry Instructions (2019) allow community forestry certificates to be issued for certain areas of forest land. They grant forest user group members a right to compensation for the loss of trees and crops due to development projects, and give them the ability to pass on community forestry assets to legitimate heir(s). Members can also receive assistance from the Forest Department in protection against encroachment and illegal logging or extraction of non-timber forest products in their areas.
  • The Law Amending the Vacant, Fallow and Virgin (VFV) Lands Management Law (2018) notes that VFV lands cannot include: a) lands that are allowed for shifting cultivation according to the existing laws and regulations; b) lands that are designated according to the traditions and cultures of local ethnic people; c) lands that are currently used for religious, social , education, health and transportation purposes for the public and ethnic people.
  • The National REDD+ Strategy identifies a number of approaches to ensure that REDD+ implementation is supportive of the rights of local communities and indigenous peoples, and specifically highlights the establishment community forests and Indigenous and Community Conserved Areas (ICCAs).
Procedures relating to involuntary resettlement and restrictions on land use:
  • For any projects that involve involuntary resettlement, or that could have adverse impacts on indigenous people, the EIA Procedure (2015) stipulates that, until national procedures governing such projects have been issued by the responsible ministries, international good practice shall be applied. Where a project causes people to be displaced, the project proponent is responsible to support affected persons until they have regained at least their former level of socio-economic stability.
  • Procedures for settling grievances in relation to land use rights and compensation are provided in the Farmland Law (2012), the Law Amending the VFV Lands Management Law (2018), the Land Acquisition Act (1894) and the new draft Land Acquisition, Resettlement and Rehabilitation Law, the Forest Law (2018) and the Protection of Biodiversity and Protected Areas Law (2018).
  • Although the Ethnic Rights Protection Law (2015) does not include language on rights to land and resources, it notes that development works, major projects, and extraction of natural resources in the areas of ethnic groups shall require informing and coordinating with the respective ethnic groups.
  • Some projects in Myanmar are applying other international safeguards frameworks or instruments related to this criterion. For example, under World Bank safeguard policies,Free, Prior and Informed Contest (FPIC) of indigenous peoples is required for all interventions that involve land acquisition or that would lead to displacement and/or entail cultural harm or appropriation.
  • The UN-REDD Myanmar Programme has drafted and piloted FPIC Guidelines for REDD+ projects expected to have impacts at the local level, to effectively engage with rights-holders to implement a consent process, and to maintain consent. The Forest Department has also prepared a set of FPIC guidelines, developed with support from the International Tropical Timber Organisation (ITTO) (see also Criterion B1).
  • The National Reforestation and Rehabilitation Programme (NRRP) (2017-2027), which is expected to contribute to the enhancement of forest carbon stocks, is undertaking the establishment of community forests and new plantations in degraded forest areas, as well as the restoration of natural forests. To avoid the involuntary resettlement of local communities, the NRRP is only implemented in areas where no local communities are residing. In cases involving forest areas with encroachment by local communities, the Forest Department will offer to establish community forestry, without the requirement for people to vacate those forest areas.
  • The Ministry of Ethnic Affairs has carried out 64 awareness-raising sessions on the Ethnic Rights Protection Law in various states and regions to date, in order to help people, understand their rights. The Strategy on the Rights of Ethnic Groups in Myanmar (tentatively 10 years, 2019-2028) is currently under development to effectively implement the law.
  • Further information related to the implementation of specific REDD+ PaMs and this criterion is not yet available.

     

  • Myanmar does not currently have agreed definitions at the national level for either “indigenous peoples” or “ethnic groups”, and the two terms are often used interchangeably.‘Members of local communities’ is also not fully defined in existing official documents, and there are stakeholder concerns related to the 5-year residency requirement in the Community Forestry Instructions (2019).As indicated in the national clarification, when ‘members of local communities’ and ‘indigenous people’ or ‘ethnic groups’ are identified in the context of REDD+ planning and implementation, care should be taken not to exclude persons who have been displaced by conflict or natural disasters.
  • The comprehensive protection of the rights of indigenous peoples, ethnic minorities and local communities, and the application of mechanisms in practice, remain challenginge. There is limited protection for the rights of land users without formally documented use rights. Although shifting cultivation is recognized as a legitimate form of customary use in the NLUP, a number of policies, regulations and initiatives still treat shifting cultivation as a threat to forest and environment. Efforts to clarify land tenure may also be hindered by a lack of records of land ownership in some areas.
  • Not all programmes in the forest and land sector have fully applied the impact assessment (e.g. IEE/EIA/SEA requirements) or FPIC guidelines pertinent to such programmes.

Recommendations to address these challenges include:  

  • A clear and consistently used definition of ‘indigenous peoples’ should be agreed through a comprehensive stakeholder dialogue process involving key government departments and representatives of ethnic peoples, with reference to the criteria of self-determination. The development of the Strategy on the Rights of Ethnic Groups in Myanmar may provide an opportunity to address this need.
  • The legal framework on indigenous peoples’ rights should be strengthened, for example through the development of an Indigenous Peoples’ Rights Act, and/or establishment of provisions on indigenous peoples’ rights through the ongoing development of the Land Law and the revision of the Forest Law (2018). This process should have substantive involvement of indigenous peoples’ representatives, including validation of relevant proposed legal text.
  • There is a need to build the capacity of government staff for conducting participatory and inclusive planning processes, and where applicable meeting the requirements of the EIA Procedure and FPIC. Awareness raising should be carried out for local stakeholders (in particular vulnerable groups) about these and any other relevant REDD+ procedures, their opportunities to participate in REDD+, and options for raising complaints if they feel their rights are not respected (e.g. GRM, see Criterion C5 below). REDD+ PaMs related to strengthening land use planning processes can also help to address this gap.
  • The information systems being developed to support REDD+ and related initiatives (e.g. OneMap) should be used to improve the availability of, and access to, information on land tenure, land classification and land use rights.
RespectC1.1 Percentage of PaMs that are subject to FPIC requirements, for which complete documentation of duly implemented FPIC procedures exists
C1.2 Number of cases of resettlement linked to REDD+ PaMs; if cases of resettlement have occurred, percentage of cases for which complete documentation exists to show that FPIC procedures and any agreed compensation mechanisms have been implemented
C1.3 Area of land on which use rights (including locally recognized and customary rights) of members of local communities have been restricted through REDD+ PaMs
C1.4 Number of received and number of resolved grievances relating to resettlement and rights to use land and resources

Criterion C2.  REDD+ Policies and Measures should take into account existing land uses and avoid negative impacts on vulnerable stakeholder groups without documented rights to use land and resources (such as communities with customary land tenure), and where possible should support the fair and transparent clarification of use rights, avoiding risks of elite capture. EIA/SEA should be conducted for REDD+ PaMs where applicable. 

Definition of ‘vulnerable groups’:
  • The Myanmar National Social Protection Strategic Plan (2014) identifies the vulnerable and marginalized groups as orphans, women with special needs, children, persons with disabilities, older people, people in disaster affected communities to undergo rehabilitation, and persons with chronic diseases/disorders.
Consideration of existing land uses and rights:
  • Detailed information related to rights to land and resources is provided under Criterion C1.
  • The National Land Use Policy(NULP) (2016) aims to harmonize land-related legislation, strengthen land tenure security, and recognize and protect all land use rights, including customary land tenure rights and related procedures of the ethnic nationalities. Although the NLUP has yet to be operationalized, pilots of participatory land use planning are underway.
  • The Protection of Biodiversity and Protected Areas Law (2018) makes provisions for customary rights and privileges of the people living in an area if there is a proposal to establish a protected area, though it does not explicitly recognize customary tenure. The Law allows for co-management of protected areas between protected area authorities and local communities, and the definition of buffer zones to allow certain development activities.
  • The Farmland Law (2012) sets out how farmers can apply for land use certificates, giving them the right to cultivate the land with either seasonal or perennial crops. Rights to cultivate land categorized as “vacant, fallow or virgin” (VFV) lands can be allocated by the Central VFV Lands Management Committee; he VFV Lands Management Rules (2012) also require such land to be investigated to ensure that it is indeed vacant.
  • Rights to forest land / access to forest resources can be recognized by issuing a community forestry certificate under the Community Forestry Instructions (2019), while permission for the establishment of plantations can be granted under the Forest Law (2018).
  • As noted under Criterion C1,Free, Prior and Informed Consent (FPIC) is to be applied to REDD+ Policies and Measures (PaMs) that are expected to have impacts at the local level; the FPIC process will take into account existing land uses and aim to avoid negative impacts on vulnerable stakeholder groups, including those without documented rights to use land and resources.
Implementation of IEE/EIA/SEA:
  • Refer to Criterion B2 for more information on impact assessment requirements; all development projects, including those in the forest sector and those being implemented by government, are to follow the EIA Procedure (2015).
Supporting clarification of use rights:
  • A number of proposed REDD+ PaMs propose to strengthen planning instruments; the FPIC process for REDD+ will also support clarification of land use rights.
  • Information related to the implementation of REDD+ PaMs and this criterion is not yet available

There are currently no consistently applied definitions of ‘vulnerable groups’, ‘undocumented rights’ and ‘customary rights’. In the context of REDD+, the definition of vulnerable groups from the National Social Protection Strategic Plan may be insufficient, as it does not include ethnic groups and displaced people or make a reference to land tenure status.

The legal framework related to land tenure is complex, with challenges related capacity and incomplete documentation. With regard to VFV lands, land selected for reallocation is not always investigated to ensure that it is vacant, and it is unclear how conflicts between sectors are to be resolved. Due to a lack of information and capacity among vulnerable groups and government staff, there is a risk of elite capture in processes for the recognition of land use rights/management planning.

Although relevant laws and regulations are gender-neutral, women and men may not have the same opportunities to exercise or claim their rights. This is partly due to customary practices and prevailing norms, as well as unclear administrative and institutional frameworks when it comes to women’s rights to ownership of land and resources. Women also often lack information about their rights, and remain underrepresented in forestry planning & management meetings and decision-making processes.

Recommendations to address these challenges include:  

  • Raise awareness of local stakeholders (in particular women and vulnerable groups) about REDD+ procedures, their opportunities to participate in REDD+, and options for raising complaints if they feel their rights are not respected; linking to awareness-raising sessions carried out by the Ministry of Ethnic Affairs is an opportunity to address this need.
  • There is a need to build capacity in participatory planning and management approaches (see also Criterion C1). Participatory mapping should be considered as a way to support these approaches, as well as FPIC, particularly in situations where reliable spatial data is unavailable.
  • Guidance to be developed for REDD+ implementing agencies should cover obligations and procedures related to IEE/EIA/SEA and FPIC, including the consideration of existing land uses, the use of inclusive definitions and processes, and the needs of vulnerable stakeholder groups.
RespectC2.1 National trends related to land tenure: – Proportion of forests and other land under different types of land tenure / management arrangements – Area of land used by local stakeholders without documented use rights, disaggregated by ethnic group
C2.2. Number of IEE/EIA/SEA processes carried out for REDD+, and area covered
C2.3. Percentage of site-based REDD+ PaMs for which there is documentation to show that procedures to identify existing land uses (including by users who do not hold land use certificates or other official documents), to consider those uses in planning, and to avoid negative impacts from changes in land use, have been applied.
C2.4. Area of land on which use rights (including locally recognized and customary rights) of members of local communities have been clarified, enhanced or given official recognition through REDD+, through a participatory and inclusive process (disaggregated by type of tenure, gender, ethnic nationality)
C2.5. — link to indicator on restriction of rights/access(C1.3)
C2.6. —- link to indicator on on grievances (C1.4)

Criterion C3.  REDD+ Policies and Measures must be designed and implemented with respect for the cultural heritage[1] and customary practices of indigenous peoples and local communities.

Definition of ‘cultural heritage’ and ‘customary practices’:
  • There is no definition of ‘cultural heritage’ in Myanmar’s legal framework. UNESCO defines ‘cultural heritage’ as tangible and intangible cultural heritage: tangible cultural heritage includes movable, immovable and underwater cultural heritage and intangible cultural heritage includes oral traditions, performing arts and rituals.
  • Several policies, laws and regulations in Myanmar refer to customary practices or rights in relation to land use; see Criterion C2.
Respect for cultural heritage and customary practices:
  • The Ethnic Rights Protection Law (2015) sets out the right of ethnic groups to preserve their cultural heritage and gives the Ministry of Ethnic Affairs duties and powers to engage in development and preservation of culture and customs of ethnic groups. It also requires ethnic groups to be informed about major projects in their areas, and for coordination about these projects to take place (see also Criterion C1).
  • According to the Investment Law (2016), business investments that may affect the traditional culture and customs of the ethnic groups within the Union should not be permitted, and all investors should respect and comply with the customs, traditions and traditional culture of the ethnic groups.
  • Myanmar’s National Biodiversity Strategy and Action Plan (NBSAP) 2015-2020 includes goals related to traditional knowledge and access and benefit sharing (e.g. Target 18). A National Competent Authority for the implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization has also been established, and a Draft Policy Framework for implementing the Nagoya Protocol is under preparation, along with Guidelines for the Protection of Traditional Knowledge, an Ethical Code of Conduct for research and a Community Protocol.
  • Proposed REDD+ PaMS include promotion of Indigenous and Community Conserved Areas (ICCAs) and REDD+ shall follow processes such as FPIC, which will include respect for cultural heritage and practices.
  • Information on implementation of REDD+ PaMS and this criterion is not yet available.

As noted under Criterion C2, there is no consistently applied definition of ‘customary rights’ across the Myanmar PLR framework. There is also a lack of understanding and awareness among indigenous peoples and local communities about their rights related to cultural heritage and customary practices.

To address this challenge:  

  • Guidance to be developed for REDD+ implementing agencies should cover obligations related to conducting IEE/EIA/SEA and FPIC during the planning of PaMs, and shall include provisions for the appropriate consideration of customary practices and cultural heritage; as part of understanding existing land uses, important cultural sites shall also be identified together with communities prior to REDD+ implementation.
RespectC3.1. Number of ICCAs established (link to C2.5).
C3.2. Number of protected area management plans supported through REDD+ that include sustainable use of traditional knowledge and practices
C3.3. Percentage of local community members who state that REDD+ has had a positive impact on their wellbeing (including breakdown by key groups and potentially question on impacts of REDD+ on intangible heritage and sacred places)
C3.4. Number of received and number of resolved grievances relating to respect for cultural heritage and customary practices

Criterion C4.  Where impacts on the rights of indigenous peoples and local communities cannot be avoided without compromising the success of a Policy or Measure, consent needs to be obtained and appropriate forms of compensation must be offered and agreed through meaningfully implemented processes of Free, Prior and Informed Consent (FPIC). 

  • FPIC processes are to be applied to REDD+ PaMs that may have impacts at the local level. Guidelines for FPIC for REDD+ in Myanmar are under development (see also Criterion C1).
  • Several elements of the legal framework refer to land acquisition and compensation (see Criterion C1 for detailed information ). For example, the Land Acquisition Act (1894) and new draft Land Acquisition, Resettlement and Rehabilitation Law, and the Farmland Law (2012) offer options of compensation for persons with an interest in the land that has been acquired.
  • According to the Ethnic Rights Protection Law (2015) and Rules (2019), if a project is planned in the areas of ethnic groups, the benefits and risks of the project should be fully explained to the local ethnic people, using understandable languages and methods.
  • Information related to the implementation of REDD+ PaMs and this criterion is not yet available
  • Refer to Criteria C1 and C2 for the gaps/challenges related to the protection of the rights of indigenous peoples and local communities, and rights to land/resources and FPIC.To address these challenges:
  • Under Criteria C1 and C2, proposed measures are set out for capacity-building and awareness raising for FPIC and strengthening of the recognition of the rights of indigenous peoples and local communities
  • The FPIC guidelines for future application for REDD+ have yet to be finalized; compensation for the loss of use rights should be considered within these guidelines.d
RespectC4.1. — link to indicator on FPIC (C1.1)
C4.2 Amount of compensation provided to local rights holders/stakeholders (disaggregated by type of compensation (e.g. monetary, in-kind) and gender and ethnic group of the beneficiaries)
C4.3 Number of received and number of resolved grievances relating to compensation for negative impacts caused by REDD+ PaMson indigenous peoples’ and local communities’ rights

Criterion C5. Where indigenous peoples and local communities contribute to the implementation of REDD+ Policies and Measures, or REDD+ Policies and Measures have an impact on their territories, they should be offered a fair share of the benefits through a transparent mechanism.

  • Although there is no specific legislation explicitly dealing with REDD+ benefit sharing, a number of policies, laws and regulations are relevant: the Community Forestry Instructions (2019) support benefit sharing within Community Forest User Groups and set out provisions related to the sale of products from community forests(the Forest Department has established 3,883 groups for community forestry on 521,688 acres, as of March 2018); and the Law of Protection of the Farmer Rights and Enhancement of their Benefits (2013) aims to support farmers through appropriate access to finance, technology, market and information access, rights to small plots, and recovery from natural disasters.
  • The final draft National REDD+ Strategy notes that a REDD+ benefit-sharing system (BSS) will be developed and a Finance and Benefit Sharing TWG is to be established to formulate proposals for the benefit-sharing system. The BSS is to abide by the following principles:
    • Fair and equitable sharing of benefits, as well as “pro-poor” implementation, meaning that benefits accruing to poorer stakeholders are proportionately greater than to wealthier or institutional stakeholders;
    • Being fully transparent, meaning that all data and information used to calculate benefits, including the methodology used, should be fully available;
    • Based on broad stakeholder consultation;
    • Capable of transferring benefits to all stakeholders, governmental and non-governmental, including EAOs.
  • Information related to the implementation of REDD+ PaMs and this criterion is not yet available.
There are currently lack of provisions in the PLR framework that would specifically require benefits from REDD+ PaMs to be shared with indigenous people and local communities, outside of community forestry.To address this challenge:
  • An inclusive and equitable approach should be developed and piloted for the sharing of benefits from REDD+ with stakeholders, including indigenous people and local communities. Efforts should be made to ensure the role of people without documented rights to land and resources is considered.
RespectC5.1. Link to indicatclass=”td_C5″or for survey on wellbeing (C3.3)
C5.2. Number of people participating in and receiving incentives via community co-managed monitoring programmes
C5.3. Number of received and number of resolved grievances related to benefit-sharing / distribution of benefits
C5.4 Trends in type and extent of benefits shared and number of beneficiaries (disaggregated by gender and ethnic group)

Criterion C6.   A functional  Grievance Redress Mechanism, developed with the agreement of indigenous peoples and local communities, must be provided to address and resolve any concerns related to impacts of REDD+ Policies and Measures on the rights of indigenous peoples and members of local communities.

  • Procedures for settling grievances are provided in the Farmland Law (2012), the Law Amending the Vacant, Fallow and Virgin (VFV) Lands Management Law (2018) and to some degree in the Forest Law (2018) and the Protection of Biodiversity and Protected Areas Law (2018). Another channel for communicating complaints and discussing public issues is the ‘public hearing system’, whereby public discussions may be held. This may include meetings with local members of parliament.
  • According to the EIA Procedure (2015), Environmental Management Plans (EMPs) should set out the complaints and grievance management mechanism for the project in question. The draft Guidelines for Public Participation in Myanmar’s EIA Process (2017) also propose that public participation plans for EIA processes include complaints management and grievance redress mechanisms.
  • Development of a Grievance Redress Mechanism (GRM) for REDD+ in Myanmar has been proposed, and its design is being refined following piloting of FPIC and GRM in Mon State in 2019.
  • Information related to the implementation of REDD+ PaMs and this criterion is not yet available
There are concerns that members of minority ethnic groups and some stakeholders may be less able to access the available mechanisms under existing laws, due to lack of awareness and language barriers. In addition, the authorities in charge of these mechanisms lack sufficient staff and resources to deal with complaints; awareness raising and coordination among these staff is needed. Recommendations to address these challenges include:
  • The further elaboration of the proposed REDD+ GRM should take into account proposed Key Performance Indicators and response timeframes, through consultation with stakeholders.
  • The REDD+ GRM should be accessible in local languages for key ethnic groups in REDD+ implementation areas.
  • Information on the available channels for communicating feedback and grievances, people’s rights to access these channels, and the roles and responsibilities of those administering them, should be improved and provided to all relevant stakeholders.
RespectC6.1 Number of grievances received and number of grievances resolved, disaggregated by topic and complainant group
C6.2 Average time taken for cases to be resolved, disaggregated by topic and complainant group
C6.3 Average satisfaction of complainants with the outcome of the process, disaggregated by topic and complainant group