The Myanmar law on Protection of the Rights of National Races – current status Involvement of Ethnic Nationalities and Indigenous Peoples in Myanmar in EIA Hnin Wut Yee Workshop for EIA Consultants Environmental Impact Assessment in Myanmar: Lessons Learned and Recommended practices 17 November, 2017
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The Myanmar law on Protection of the Rights of National Races – current status
Involvement of Ethnic Nationalities and Indigenous Peoples in Myanmar in EIAHnin Wut YeeWorkshop for EIA ConsultantsEnvironmental Impact Assessment in Myanmar: Lessons Learned and Recommended practices17 November, 2017
Content
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Definition (Ethnic/Indigenous)
The Myanmar law and Draft bye-law on Protection of the Rights of National Races – current status
Involvement of Ethnic Nationalities and Indigenous Peoples in Myanmar in EIA
(a) tribal peoples whose social, cultural and economic conditions distinguish them from othersections of the national community, and whose status is regulated wholly or partially by their owncustoms or traditions or by special laws or regulations;
(b) peoples who are regarded as indigenous on account of their descent from the populationswhich inhabited the country, or a geographical region to which the country belongs, at the time ofconquest or colonisation or the establishment of present state boundaries and who, irrespective oftheir legal status, retain some or all of their own social, economic, cultural and political institutions
2015 Environmental Impact Assessment Procedures Chapter 1: Title and Definition2. (v) Indigenous People means people with a social or cultural identity distinct from the dominant or mainstream society, which makes them vulnerable to being disadvantaged in the processes of development.
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Voting Slides
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The Myanmar legal framework on protection of ethnic rights
2017 Myanmar Investment Rules“The Commission will consult with other Authorities as necessary or desirable in the conduct of the assessment of a Proposal, and all such Authorities shall be required to make relevant personnel and other resources available. Where the Investment may be subject to the Law on the Rights of Protection of Ethnic Nationalities 2015, the Commission will consider any specific consultations that may be required with the relevant State or Regional Government or other stakeholders as part of the assessment process or in connection with any conditions to be included in the Permit” (Article 61)ေား ငးး အဆးျပခ ာနြင အပပါ အ င ဌာ း၊ အ င အဖြြ႕အ းင းခာငႏ င ေဆြငေႏြငနငပငႏငၿပသငအ င ဌာ း၊ အ င အဖြြ႕အ းငးခာငးး ၍မပဂ းးဟန အးျာင အပေးာ အ ငငအးျး းခာင ေား ငးပ ပငေပင းး။ ငငႏ သင း ပႏ းႈ ပင ငးး နငင ငငးာင ၍မးခငးခာင၏ အြငအေ ငာြယေ ာငေ ားး ပေဒႏ ငအခ ငဝငးဆင ေ ပါ ေား ငးး ေ င ပင င ၏ အ နအပငငန ပအးျဖ းငောငင းးဟနြငးျပး နြင ပါဝင းး အးျာင အေးျအေ းခာငအးျဖ ဆးးြငင င ာင ာနြင းငောငင းဆင ာ နငငေဒး သငးးဟန းျပး ယအ င းခာင းးဟန ပါဝငပနးနး၍မးခာင င းသငးျာငေဆြငေႏြငနငပင း၊ းေဘာဆာင ယ၍မ အပးျငင း၊ း ဆးးြငင င ာငႏငးး။
(ပဒမ ၆၁၊ းျး းာႏငင ငငႏ သငးျးပႏ းႈ းငဥပေဒ)11
2015 Ethnic Rights Protection Draft Law
The need for further precision in the regulation/bye-laws as follows:
Definition of hta-nay tain-yin-tha (a definition was not included in Article 1 of the Law) and certain other terms will need definition
Scope of ‘business activities’ subject to this process Procedure to be followed by all parties (In accordance with article 61 of the
2017 Investment Rules and 2015 EIA Procedure and Draft Public Participation Guideline in EIA Procedure)
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2015 Ethnic Rights Protection Draft Law
Procedure to be followed by all parties (In accordance with article 61 of the 2017 Investment Rules and 2015 EIA Procedure and Draft Public Participation Guideline in EIA Procedure)
Consultation even prior to EIA process
Consultation as part of the EIA Procedure
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2015 Environmental Impact Assessment Procedure
Projects that involve Involuntary Resettlement or which may potentially have an Adverse Impact on Indigenous People shallcomply with specific procedures separately issued by the responsible ministries. Prior to the issuance of any such specificprocedures, all such Projects shall adhere to international good practice (as accepted by international financial institutionsincluding the World Bank Group and Asian Development Bank) on Involuntary Resettlement and Indigenous Peoples. (Article7)
Involvement of Ethnic Nationalities and Indigenous Peoples in Myanmar in EIA
What does the Draft Public Participation Guideline of EIA Procedure say about Indigenous Peoples/Ethnic Minority?
Definition/Participation
Specific Session on Indigenous Peoples/Ethnic Minorities
Definition
Chapter 1: Draft Guideline on Public Participation in Myanmar’s EIA Processes, 31 May 2017
1.3. a) (vi) Indigenous People means people with a social or cultural identity distinct from the dominant or mainstream society, which makes them vulnerable to being disadvantaged in the processes of development. (EIA Procedure, Article 2(v))
a) (viii) Vulnerable and disadvantaged individuals and group means any group of persons,and the individuals within those groups, who are disadvantaged in social, economic, cultural,religious, or political arenas, such that they are blocked from or denied full access to variousrights, opportunities, or resources that are normally available to others and are therebyprevented from participating fully in the economic, social, and political life of the society inwhich they live (including, but not limited to, ethnic minorities, indigenous peoples, women,people with disabilities, children, and the elderly). It also includes ……….
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ParticipationChapter 1: Draft Guideline on Public Participation in Myanmar’s EIA Processes, 31 May 2017
1.4. Meaningful public participation for the purposes of this Guideline
1.4.5 Information requirementsb) Similarly, for an EIA process to be a useful decision-support tool, the Project Proponent and decision-makers also need to base their analyses on all relevant and up-to-date information. This includes local and indigenous knowledge, which is often obtained through meaningful public participation.
k) Project Proposals that will impact indigenous peoples or other vulnerable groups will usually require the utilization of additional methods for information disclosure to ensure they have the opportunity for full and meaningful participation.
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Specific Session on Indigenous Peoples/Ethnic Minorities
2.8.2. Specific Attention for indigenous peoples and ethnic groups
2.8.2.1. General
a) Requires specific consideration to ensure that concerns and views of indigenouscommunities are fully considered and responded to
b) The Guideline provides guidance on implementing Article 5 of 2015 Ethnic RightsProtection Law
c) Consequences for both the substance of decisions on the project and the process ofpublic participation
d) More vulnerable to adverse impacts from Project Proposals than non-indigenouscommunities (loss of identity, culture, natural resource-based livelihoods and exposureto impoverishment and diseases.)
e) Address potential adverse impacts (culture, beliefs, cultural heritage; customary landuse and natural resources; resource based livelihoods)
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Specific Session on Indigenous Peoples/Ethnic Minorities
2.8.2. Specific Attention for indigenous peoples and ethnic groups
2.8.2.2. Stakeholder identificationa) Identification of PAP and other stakeholders including indigenous peopleb) Consult with the Ethnic Affairs Minister and expertsc) Stakeholder mapping process to identify those people who self-identify as indigenousd) Self-identification as a fundamental criterion for determining the groupse) Definition of ILO Convention 169
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Specific Session on Indigenous Peoples/Ethnic Minorities
2.8.2. Specific Attention for indigenous peoples and ethnic groups
2.8.2.3. Application of FPIC
a) (i) The United Nations Declaration on the Rights of Indigenous Peoples recognizes specific rights of IP including throughthe application of the FPIC principles(ii) self-determination over their lives including decisions on development projects that might affect them(iii) FPIC process(v) Indigenous PAP raise voice via FPIC in the EIA process
b) The application of FPIC (the project to be developed natural resources on, lands traditionally owned by, or under thecustomary use of IP; relocation of IPs or restriction of their natural resources; impacts on the cultural heritage)
c) Application of the IFC Performance Standard 1 on Assessment and Management of Environmental and Social Risks andImpacts and PS 7 on Indigenous Peoples
d) Good Faith negotiation
e) ECD to take any agreements or lack of agreement into account when reviewing the IEE or EIA Report, if the Project Proposalis approved, attaching conditions to the ECC.
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Specific Session on Indigenous Peoples/Ethnic Minorities
2.8.2. Specific Attention for indigenous peoples and ethnic groups
2.8.2.4. Resettlement
a) Serious consequences for IP
a) Inform ECD and the Union Minister for Ethnic Affairs at the earliest possible stage; Comply with IFC PS 7 and PS 5 on Land Acquisition and Involuntary Resettlement; Consider feasible alternatives; if no, obtain FPIC for the resettlement
b) ECD to take into consideration of agreements and non-agreements
c) If IP consent to the proposed resettlement, agree on a Resettlement Action Plan and Livelihood Restoration Plan with ECD and the indigenous peoples involved
d) Public Participation plan allocate sufficient time and resources
e) ECD to make compliance with, and successful completion of, the Resettlement Action Plan and Livelihood Restoration Plan a condition of the ECC for any approved Project Proposals
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Specific Session on Indigenous Peoples/Ethnic Minorities2.8.2. Specific Attention for indigenous peoples and ethnic groups
2.8.2.5. Approach to public participation processes
a) Many barriers to effective participation (language, remote locations, lack of familiarity with the EIAprocess, the need to explain scientific and technical issues using indigenous languages, lack ofknowledge by Project Proponents and EIA consultants in engaging with IPs)
b) Recognize and respect for (culture and beliefs; traditional practices and perspectives on land andnatural resources; communication approaches; and decision making processes)
c) Public participation processes and the Plan must ensure-(i)culturally appropriate manner(ii) understandable to the IPs (to employ more proactive measures)(iii) Involve indigenous peoples’ representative bodies and organizations and other members ofaffected IP communities (women, youth etc.)(iv) provide sufficient time for IP’s decision-making processes
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Key Points on Indigenous Peoples/Ethnic Minorities
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Identify potentially affected Indigenous peoples/ethnic minorities; consequences for both the substance of decisions on the project and the process of public participation, consult with the Ethnic Affairs Ministry and expert anthropologists)
Meaningful consultation with IPs (respect language, culture, traditions, decision making processes…, sufficient time and multiple meetings)
Application of international good practices (IFC PS 7, FPIC process)
Ethnic Regions affected by conflict (to discuss on next session ……..)