4 4.7 VFV Lands Management Law and the Farmland Law The 2012 Vacant Fallow and Virgin (VFV) Lands Management Law and VFV Rules are clearly aimed at providing a legal framework for implementing Government land policies to maximise the use of land as a resource for generating agricultural income and tax revenues. Tenure security is deliberately circumscribed to allow the Government the flexibility to do what they believe is needed for development. Civil society groups and farmers organisations have pointed out that land regarded as VFV may in fact be occupied by people or subject to shifting cultivation according to traditional farming practices, but which the Government classifies as “vacant” under the VFV. The complicated registration procedures under the 2012 Vacant Fallow and Virgin (VFV) Lands Management Law and the 2012 Farmland Law mean that smallholder farmers, a large percentage of Myanmar’s population, will struggle to register their land tenure claims and are at risk of having their land registered by more powerful interests. By not recognising informal land rights, and formalising land rights through titling despite preexisting informal claims, the new laws may reinforce existing inequality and/or create new injustices. This has potential to create or exacerbate tensions and disputes. 515 With respect to farmland, the 2012 Farmland Law makes clear that applicants who are individuals must be citizens (Articles 6(a)(v), 7(a), (iv)). Under the 2012 Foreign Investment Law (FIL), there are restrictions on foreign investment in agriculture under Article 4(h), but Article 5 provides for the Myanmar Investment Commission, with approval from the Government, to allow investment. 516 The 2012 Farmland Law also allows for the repossession of farmland “in the interests of the state or the public” 517 provided that “suitable compensation and indemnity is to be paid and the farmland rights holder must be compensated “without any loss” (Article 26). As with the VFV Law, the Farmland Law and Rules do not provide for procedures for objections to be made to the acquisition or compensation awarded, or for judicial review. Non-Citizens’ Use of Land Private investors may acquire land rights from private persons through ordinary contractual agreement, subject to the following legal restrictions. First, land ordinarily The cannot be sold or transferred to a foreigner through private transaction. 518 Government may however allow exemptions from these restrictions and Union Government Notification No. 39 of 2011 519 sets out the circumstances in which a foreign investor may lease land. Second, private investors cannot acquire VFV land rights or farmland through private transactions without the permission of the Government (Article 16(c) VFV Law) (Article 14 Farmland Law). Under the 2012 Foreign Investment Law, foreign investors can obtain leases for an even longer period, 50 years, extendable for 10 years twice, depending on the type of business, industry and amount of investment. Leases can be even longer for land in “the least developed and less accessible regions”. 520 515 Transnational Institute, “Access Denied: Land Rights and Ethnic Conflict in Burma”, (May 2013) Myanmar Foreign Investment Law 2012. 517 The distinction drawn between interests of the state and interests of the public is troubling, but it may be premature to draw conclusions without knowing the nuances of the provision in Burmese. 518 The 1987 Transfer of Immoveable Property Restriction Act prohibits the sale or transfer of immoveable property, and the lease of such immoveable property for more than one year, to a foreigner or foreignerowned company (Articles 3-5). 519 Notification 39/2011 on the Right to Use of Land relating to the Myanmar Foreign Investment Law. 520 Ministry of Planning and Economic Development, “Notification 11/2013, Foreign Investment Rules”, (31 Jan 2013). 516 214 PAGE CHAPTER 4.7: LAND