Exciting times in Myanmar! In May, a new Conservation of Biodiversity and Protected Areas Law was passed, and Issue 7 of “REDD+ Knowledge Myanmar” discussed the promising implications for implementation of REDD+. In mid-September, the Union parliament passed a new Forest Law, which replaced the previousLawof 1992. So, what does the new law offer in terms of opportunities for implementation of REDD+?
An initial comparison of the new Law with the 1992 version suggests that there are no dramatic changes, other than huge increases in penalties for offences under the Law. For example, previously the maximum penalty for seizure of teak under 1 ton or non-teak under 3 tons was a fine of MMK 10,000. Now, the minimum fine is MMK 100,000, and the maximum is MMK 500,000. Similarly, the fine for an illegal charcoal kiln has increased from a maximum of MMK 20,000 to a minimum of MMK 300,000 and maximum of 500,000 (plus 2 years’ imprisonment). However, when changes in the value of money are taken into account, the financial deterrents are not much different from 1992.
An issue which has been of great concern to community organizations is the capacity of the Forest Department to incorporate land into “Reserve Forests” or “Protected Public Forests”. This process incurs a risk that communities which may have customary tenure rights of residence, cultivation, access and/or extraction might lose those rights. Under the 1992 Law, the Minister would appoint a “Forest Settlement Officer” (the Law did not define this position) “to inquire into and determine … affected rights[and to] carry out demarcation”. Having considered the report of the Settlement Officer, the Minister could then publish a notification. Since the consent of the affected communities was not required, this process failed reflect the principles of Free, Prior and Informed Consent (FPIC).
Under the new Law, the process remains similar, except that the inquiry, determination, demarcation and reporting is now the responsibility of a committee led by the (still undefined) Forest Settlement Officer, but also including community representatives and technical experts. The text of the new Law does not explicitly specify that consent of the affected communities is required for the Minister to publish a notification, meaning that the principles of FPIC are still not guaranteed. The procedures to ensure that the (free, prior, and informed) consent of the affected communities is secured will need to be clearly specified in the Rules/By-law that will now be developed.
There is also an interesting addition in the new Law relates to the authority of the Minister (with to cancel or alter the categories of reserve forest and protected public forests. Now the Minister (with inputs from the relevant State/Region government and approval of Union government) can also “recognize the communities’ traditionally managed natural forest and mangrove.” The implications of the term “recognize” still require further clarification. This, again, is something that needs to be captured by the forthcoming Rules/By-law.
In conclusion, the new Law is certainly a step in the right direction in ensuring that governance of forests in Myanmar is transparent, effective and participatory, but further clarifications are required through the process of development of Rules/By-law.