MCRB submits comments to Parliament on the draft Land Acquisition Act
MCRB has submitted a set of bilingual comments to the Parliamentary Committees currently considering a new law to replace the 1894 Land Acquisition Act. These comments are based on the 5 June 2018 draft (MM) published by the Amyotha Hluttaw (it should be noted that the Hluttaw, rather than Government, has prepared this draft law).
MCRB's submission notes while that amendment and modernisation of the Act is welcome, if Myanmar is to adopt a comprehensive Land Acquisition Act (LAA) which is aligned with international standards and the Myanmar government’s duty to protect human rights, including under the UN Convention on Economic, Social and Cultural Rights (ratified by Myanmar in 2017), Myanmar law needs to recognise a wider range of land rights than at present, including customary tenure rights.
The question of recognizing and protecting customary tenure was addressed in the 2016 National Land Use Policy, with the recommendation that an ‘umbrella’ Land Rights Law should be adopted. MCRB understands that such a law is currently under consideration within government but has not yet been finalised or sent to Parliament.
MCRB, like many other groups working on this subject, therefore recommends that Parliament should pause further consideration of a new LAA until a law recognising customary tenure rights has been adopted, as these rights should then be incorporated in the new LAA.
In the meantime, MCRB has provided initial comments on the June 2018 draft. These are intended to align the issues, processes and terminology with international standards for resettlement and restoration of livelihoods such as International Finance Corporation (IFC) (part of the World Bank Group) Performance Standard 5. This is the main reference point for responsible investors on respecting land rights. Foreign and Myanmar companies which are seeking international finance need to comply with it.
Risks related to land acquisition remain the chief concern for the companies MCRB engages with. Land rights liabilities and legacies are one of the main reasons why responsible investors do not proceed with projects, according to a discussion which MCRB hosted in May 2018 with commercial lawyers, businesses and civil society organisations while seeking inputs into its updated Briefing Paper on Land Rights and Business. MCRB's recommendation is therefore that Myanmar's Land Acquisition Law and practice should align with international standards, processes, and terminology, as this will contribute to the ease of doing business in Myanmar, as well as providing protection to rights holders and existing land users.