Land and Natural Resources
Human Rights Implicated: Right to self-determination; right to autonomy or selfgovernment
in matters relating to their internal and local affairs; right to develop their
own strategies for development
Assessment
n Foreign investors are prohibited from obtaining rights to lease and use
“religious lands” or regions that are designated by the Government as
regions of cultural or natural heritage.346
• How these lands are designated, and any role that ethnic minorities might play in
such designation, is not clear from the Foreign Investment Law.
n Myanmar has a centralised (i.e. unitary) form of government.347 In particular, the
Union-level Government is given control over the administration of investment and
appointments to region or state government.348 The Union Government does not
need approval from state or regional governments for large-scale
investments in their local jurisdictions, although they must be informed.349
n Under Myanmar’s Constitution, all lands and natural resources belong to the
State, and the State has exclusive jurisdiction to authorise the use of all lands
and natural resources – i.e. Myanmar’s recognition of the right of self-government
in matters relating to internal and local affairs for some topics does not extend to the
jurisdiction (i.e. use and management) by ethnic nationalities over lands and natural
resources within their claimed territories. However state and division legislatures have the power to regulate on environmental protection, within the boundaries of
national legislation.
n Myanmar is undergoing a transition to more devolved government. The
regional and state governments were only set up in 2011, and there are still
ambiguities in the delegation and separation of responsibilities between Union-level
and state or region-level government. There are unlikely to be changes in central
Government control over natural resources in the near future, although ultimately
this will depend on the outcome of the ongoing peace talks and Constitutional
amendment process. Ethnic minorities have called for amendments to the
Constitution which would give them more control over their own resources and
governance.
n Once implemented, the Extractive Industries Transparency Initiative (EITI)
process will bring some transparency to the local or regional origin of extractive
sector-generated Government revenues.
n Promoting the involvement of local indigenous communities in resource
extraction is an emerging international approach to ensuring the local
communities can retain control over and benefit from use and management of
natural resources within their (communal) lands.350 Myanmar law limits on-shore
O&G production to companies that meet requirements set out in tender
requirements and therefore is not currently well adapted to explore new models of
indigenous ownership.