The NLD government’s actions on the environment have not changed significantly in five years. Laws are still being amended; there are weaknesses in the enforcement of existing laws. The environmental ministry’s 30 year plan from 2001 is still being implemented as before.
The 2020 election is the third election in Myanmar’s democratic transformation. In 2015, when the NLD won a landslide victory, it had announced its election programme on Natural Resource and Environmental Policy only three weeks before the elections. In 2020, NLD party’s social media released its party manifesto on September 1st, including 12 statements concerning the environment and natural resources. In reality, the manifesto primarily displays what is perceived as the achievements of the NLD Party during its government term in the last five years. The manifesto becomes more practical and more detail contrast with 2015 manifesto only because the NLD party has gained some experiences of the government mechanism mainly relying on their previous achievements.
Environmental Policy and Law Reform after 2010 and 2015
The President Thein Sein government in 2012 made a new Environmental Protection Law and thus laid a foundation for other necessary legislation and legal reforms. Since the beginning of the democratic transition in Myanmar, over the last 10 years altogether seven laws related to environmental protection and natural resource management have been enacted or reformed.
Four laws were reformed in the last five years of NLD government: Forest Law, Myanmar Gems Law, Myanmar Pearl Production Law, and Mining Law. New laws approved are Environmental Conservation Law, and Biodiversity and Nature Conservation Law. The Environmental Conservation Law of 2012 stood to be revised in 2020, as civil society organisations were asking for increased participation and monitoring opportunities and parliamentarians welcomed this initiative, but the Covid-19 pandemic has interrupted the process.
Three important policies relating to the environment and natural resources – Land Policy, Water Policy and Energy Policy – were initiated during the President Thein Sein’s term, but have been discussed for revision in various stages over the last years. The Water Policy is controversial because of hydropower dams and its relevance in the ethnic minority areas. Perhaps most controversial has been the Land Policy, with three versions submitted to the Parliament in 2016, but none of them agreed unanimously. In the meantime, land grabbing continues.
Members of the Myanmar Extractive Industries Transparency Initiative (EITI) and environmental civil society organisations such as ALARM believe that that NLD should not get much credit for its performance in this area during its first five years term because it did not bring new ideas to change the plans and policies that have been existing for decades.
Situation on the Ground: Forestry
The most severe environmental degradation happening in Myanmar is the forest depletion. According to FAO records, Myanmar is among the first 3-4 countries in the world with the highest forest depletion rates. Even though President Thein Sein stopped the legal export of logs in 2014, the forest depletion rate during his term was higher than in the previous 20 years before democratic transition.
According to the FAO, the forest depletion of Myanmar during the U Thein Sein’s term (2011-15) was above 450,000 hectors per year. Overall, Myanmar’s forest coverage reduced from 46.96 % in 2010 to 42.92% in 2015; by 2020, Myanmar’s forest coverage further fell to 42.19% of the country’s area. These data show that the NLD has been able to significantly reduce the forest depletion rate, compared to the previous government. This is a result of the new Forest Law and policy reform that has stopped timber extraction from the Pegu Mountain Ranges for 10 years and banned the export of logs.
However, even though forest depletion has been reduced, illegal logging for domestic use has not disappeared. The Ministry of Natural Resources and Environmental Conservation (MONREC) claims that more than 30,000 tons of illegally logged hard wood were arrested in 2020. However, legal prosecution and punishment of companies remain weak.
“If the government cannot reform the policy on the domestic demand of wood, the illegal logging sector will not be stopped. Even though a logging ban for the Pegu Mountain Ranges has been announced, there are about 70 trucks per day looting timber”, said Olar, an observer on illegal logging and member of Forest Law Enforcement, Governance and Trade (FLEGT), a tripartite coalition of governmental and non-governmental actors that is working towards a certification system for timber export to the EU. Olar also mentioned that the black market price of timber before cutting is 15 million MMK (ca. 1,200 USD) per ton and it is 25 million MMK (about 2,000 USD) per ton when it has reached Yangon.
Illegal logging is rooted deeply in Myanmar; other than the business people, the field staff and every level of government officers are also involved in the process. Corruption is still deeply rooted in the lower ranking government officers in transporting of the logs. The logs are cut into short pieces, to be carried with HIACE wagons; the bribe to transport illegal woods is 100,000 MMK (ca. 77 USD) for each wagon. Thus, deforestation and illegal logging is still going on.
The official reforestation program, including replantation and re-establishment of community forestry, is being pursued by the government under a 30 years plan of MONREC operating already since 2001. Current implementation of this 20-year old plan has not changed much in recent years.
Mineral Resources Extraction and Revenue Allocation
The activist and observer Daw Moe Moe Tun (Director, Citizen’s Action For Transparency (CAFT)), who monitors the extractive industry and natural resource sharing says that there are only two achievements of the NLD government in the mining sector. “There is not much done by NLD government in a big way in the natural resource sharing. The current government’s work is only implementing the previous USDP government’s guidelines.” On the side of achievements, there is the decentralization of mining licenses, with tax for the small mining projects going now to the respective States and Regional Governments. Furthermore, the areas available for of gold-mining have been reduced in the course of the reform of the Mining Law.
While the authority for licensing and taxation has been transferred to the Regional and local governments, the law still says that licensing has to follow the law of the national government according to the 2008 constitution. This is a contradiction. Despite administrative decentralization, there is no separate law for regulation of the small mining industry.
Under the previous legislation, a small gold-mine was defined as having a maximum area 20 acres; but applicants could get permissions for several small projects next to each other, each of which with a size of 20 acres. This was used by companies to avoid taxation and environmental regulation. Under the new law, one company or person cannot apply for more than one project under the small mining rule. If a company applies for more than 50 acres of land, it will be treated as a medium-size mine. There cannot be several small mines next to each other.
The objective of this legal reform is to eliminate mining projects that are avoiding tax doing large scale mining projects without proper permits. In practice, however, red tape in the government bureaucracy makes sure that the application process is taking a long time.
“The government wants to reduce illegal mining but it takes a long time to get the license. There are 900 companies waiting to make contract with the government under the new law. But the mining is still going on without permits”, Daw Moe Moe Tun said.
According to the Environmental Protection Law, medium-sized mineral mining projects need to draft an Environmental Management Plan (EMP) and submit this to the Environmental Conservation Department (ECD) of MONREC. When companies submit their EMPs to the government, the screening and decision-making by ECD usually takes a long time, due to limited administrative capacity. Up till now, small-mining project licenses under the new law are approved and implemented only in Sagaing Region, Shan State, Mandalay Region and Tanintharyi Region.
Beyond illegal logging, the illegal mining business remains a major challenge. The implementation of the policy reform process suffers from lack of expertise and capacity among the government staffs. The mining sector is largely monopolized by the national government, but the areas under control of ethnic armed organisations such as Kayin State, Kachin State and Tanintharyi Region are beyond the authority of government. Corruption and lack of autonomy of government in the armed conflict areas are making difficult to obtain precise information and data on actually existing mining ventures.
In the conflict areas that are beyond governmental control, both governments since 2010 have been trying to negotiate and keep peace. At the same time, they tried to draft policy reform and legislation for natural resource sharing. As part of this process, Myanmar signed up to be a member of EITI to bring transparency in natural resource policy.
The NLD government is still largely incapable of law enforcement related to natural resource management. The newly adopted Environmental Protection Law mentions that the Environmental Impact Assessments (EIA) of large gemstone mining project have to include a management plan, but this still needs to be implemented. The jade mines in Hpa-Kant continue to not piling mining wastes properly; as a consequence, there are landslides causing hundreds of causalities of the workers scavenging on the mining sites. Even though the NLD government suspended postponed the jade mining in Hpa-Kant during their term, the government is incapable of taking action according to the law toward the illegal jade mines and gold mines.
Civil society organisations monitoring the environment and natural resource sharing are threatened – not only by companies, but also by court cases initiated by the government.
Under the current NLD government term, three environmental activists are being sued by the government. These are Saw Tha Boe, a campaigner against the Myaing Kalay cement factory in Kayin State, U Gay Gwan, an advocate on the logging ban in Natmataung National Forest in Chin State, and Yan Naung Htun, an activist monitoring illegal logging in Nga-Phae township in Magwe Region. According to interviews with environmental activists and observers, NLD government’s action on the environment and natural resource sharing is no better than the previous government.
The NLD government’s actions on the environment have not changed significantly in five years. Laws are still being amended, but policy cannot be put forward. Previously formulated policies have not been completed. There are weaknesses in the enforcement of existing laws. For example, the environmental law stipulates that a Green Fund must be set up, but this has not yet been done. From this fund, it would be possible to finance entrepreneurs who have to write EIA and EMP, but this has not been possible yet. The environmental ministry’s original 30 year plan is being implemented as before.