Allocated plots in Bangkloi are being demarcated to help secure their land use rights.
As a village head, 53-year-old Karen Nirund Pongthep felt emotional relief after one of six plaintiffs from his Bangkloi Lang village, who won a court case against the state, would finally have the temporarily allocated 7-rai plot of land demarcated.
He, along with the six, had filed a petition in the Administrative Court following the 2011 burnings of properties deep in Kaeng Krachan National Park by the park officials.
The official demarcation of the temporary plots was a major step in securing Karen's life and future, Nirund said, and he hoped that the other two plaintiffs, and 10 other families in the village, would finally receive the same treatment by the park, now headed by a new chief, Mana Phermpool.
“Whatever you call it, land rights or anything else, we just hope that the state would not take [the land] back, but allow us, our children and grandchildren to use it. We are not demanding or anything, we just need it to allow us to continue living,” said Nirund, who has given his land to his son.
The problem of Karen villagers in Kaeng Krachan was little known until 2011 when news broke that a joint force of military and park officials at Kaeng Krachan, led by a former chief Chaiwat Limlikhit-aksorn, had burned 98 properties in the deep forest close to the Thai-Myanmar border. Some were later claimed by the Karen of Bangkloi Lang and nearby Pong Luek.
The case, being the first concerning customary and land rights reclamation in the country, was brought to the Administrative Court and the Supreme Administrative Court last month ruled that the National Parks, Wildlife, and Plant Conservation Department, must pay Bt50,000 to each of the six plaintiffs for the damage done. (Read SPECIAL REPORT: A painful judgement on land rights)
The court decided that they were indigenous Karen who once lived in the old communities known as Bangkloi Bon (the Upper Bangkloi) and Jai Pan Din (the heart of the land) in the deep forest. However, as they were located in the park their properties and farms violated forest laws.
Officials, on the other hand, violated their rights because they did not properly follow official procedures, although they had negotiated with people they described as “the encroachers of a minority group”.
Through the courts’ six-year-long deliberations, which began in 2012, the case rejuvenated the call for the Karen’s land rights and unveiled painful facts once hidden in the deep forest of Kaeng Krachan.
The status of Jai Pan Din and Bangkloi Bon villages has been debated at length, on whether they really exist and whether they are “communities” acknowledged by the state, thus qualifying for Karen’s customary land rights.
According to the courts’ rulings and others – including Nirund and the first chief of Kaeng Krachan, 73-year-old Samart Moungmaitong – Karen had been living on the highland and in the deep forest close to the Thai-Myanmar border for decades.
Nobody can confirm when they first went to live there, but there have been reports of people roaming along the border, deeper in Kaeng Krachan forest, and down along the Bangkloi and Phetchaburi rivers, resettling in houses scattered in the area.
This prompted park officials to deny they were a community. Jai Pen Din was actually just a marker on a military map, said Samart, with makeshift shelters of “encroachers” scattered across the area.
Nirund said the Karen lived that tough life, clearing forest land to grow rice and rotate their plots over eight to 10 years. Relatives would build houses close to each other, while others would build houses far away, but they were called a community, such as Bangkloi Bon or were simply known as Bangkloi.
He said Bangkloi was once proclaimed as a village part of Tambon Song Phi Nong in 1971 despite the houses being scattered the area.
Living deep in the forest, these Karen had no record of land rights claims with the state, although the 1936 sixth land deed issuance law recognised such rights nationwide for those who had occupied and utilised the land.
However, this has left them in conflict with the state in recent years, as forest officials enforce forest laws that prohibit the occupation and utilisation of forestland.
Complicated by an influx of newcomers, the problem boiled over into a security issue resulting in sporadic clashes that even left some Thai officers dead.
As a chief of Kaeng Krachan, Samart enforced his authority in 1996 to relocate 57 Karen families living in Bangkloi Bon and Jai Pen Din to Pong Luek's vast field to resettle as the new village of Bangkloi Lang.
Without any policy framework but his sole authority under Section 19 of the National Parks Act that enabled him to proceed with some activities prohibited by other sections, Samart allocated plots of land averaging 7 rai each to the villagers along with new houses.
However, he did not finish his work of helping the villagers resettle as he was transferred, and park chiefs after him did not continue the work, leaving the Karen in despair.
Eventually, some of them decided to leave Bangkloi Lang to their old communities.
“It’s a very tough time for us as we moved just to realise that we could not do anything much to live. We left the land where we were once able to grow rice, to find out that the new land could not grow anything. The villagers asked me what to do next, and I said I had no idea any more. As a village head, it’s really a headache,” said Nirund.
After the relocation, Bangkloi villagers lived in desperation for about 10 years. Nirund recalled that the land at that time was too lateritic and gravelled to allow them to grow rice to feed their families. Despite being located next to the Phetch River, there was a lack of irrigation and water for households.
While they had to adopt a new farming style, there was not much support as their new village was located in the national park where development was not allowed.
The situation, however, started to improve when Chaiwat took office in late 2008, Nirund said.
Without any framework to address conflicting land rights claims, Chaiwat applied a similar authority as Samart to enable more development.
He was asked by villagers to help build a road, a bridge, a school, a malaria surveillance and treatment unit, irrigation system, and also issue Thai IDs.
In 2011, the Pid Thong Lung Phra Foundation stepped in to help with development. The lives of the Karen started to improve as they were assisted in adjusting to their new lifestyle, shifting from rotational farming to irrigated farming. Water and soil improved, with selective crops, including bananas, durians, and other items.
“I thought at that time that if they could make a living and feed their families, and we could manage and differentiate them from newcomers as well as control our area not to be encroached upon further, it should be okay to let them develop.
“I just did my best,” said Chaiwat, who was later labelled by human rights activists as cruel-minded for burning and demolishing the Karen’s properties.
The way forward
Chaiwat left Kaeng Krachan in 2014 – following a controversy concerning the disappearance of a young Karen named Billy – and Bangkloi Lang villagers were left to struggle with their new lifestyle.
While things have improved to a certain degree, Nirund said the land rights issue remained the most problematic.
Nirund said villagers now want to have security over new plots of land. Some have not yet received allocated plots, or their land is so infertile that it is impossible to farm. Without arable land, some villagers are forced to sneak into the forest and clear it to farm.
“There was a case where an elderly woman sneaked back to her late husband’s field to farm, but was arrested. She was arrested in her field, and that was sad,” said Nirund.
When Mana entered office at Kaeng Krachan two years ago, he applied the land occupation and utilisation examination concept, under the 1998 Cabinet Resolution, and the 2014 National Council for Peace and Order order No 66, which became available to help guide his work for the villagers.
The department last year also put in place a new guideline to manage protected areas and watersheds.
Following the new guideline, the management of communities in the forest was addressed more clearly. They were separated in three groups following periods of time: before 1998, during 1998 to 2014, and after 2014.
The group before 1998 would have their land rights examined by cross-checking with the declaration dates of the forest they lived in. If they were found to have lived earlier, they would be subject to land use rights (CN), following the 1998 Cabinet Resolution.
The second group would be allowed to continue living in the forest, but only if they are poor, as determined by a provincial committee. Big encroachers and those found living in the forest after 2014 would face law enforcement.
So far, the park has managed to examine the villagers’ rights in Pong Luek and Bangkloi Lang, and learned that they could only allocate them land use rights, under the 1998 Cabinet Resolution. This involved 75 people, 106 CN plots, totalling 356 rai at Bangkloi Lang, and 111 people, 138 CN plots, totalling 1095 rai at Pong Luek.
Land plots boundaries have also been set for 59 poor people, totalling 447 rai in both villages.
There were 42 relocated families, to whom the park could not allocate land plots, with a few encroachment cases near the villages.
The next major challenge would be land demarcation, under which villagers check their land boundaries with park officials, a joint initiative along with others, where park officials hope to gain understanding and acceptance from the villagers.
Mana said it would be impossible to reclaim land rights over plots in old communities any more as the present laws do not allow it. Land-use rights, he said, would be the best compromise for the villagers.
Nirund said the villagers did not expect much by reclaiming their rights. The younger generation, he said, is adapting to a modern lifestyle and does not want to farm like their parents.
But as the villagers sacrificed their land for the sake of conservation, they should be helped to get back on their feet.
“We lived for a long time on our land, but suddenly we became “encroachers” just because the forest was declared and covered our land. Is it us who invaded, or the state? They found us and labelled us as “encroachers”, is that right? It’s not,” said Nirund.
“It’s a lack of understanding between us. I myself do not think that we want to go back there anymore, but the challenge is how to help us get on our feet and continue living here. It’s some sacrifice needed from all of us.”
Chief Mana during the recent consultation meeting with some villagers in the park.
A big picture
Bangkloi is not the only community, which has conflicting claims over land rights with the state. According to the National Reform Steering Assembly’s report last year on resolving land conflicts in protected forest areas, around 5.9 million rai of protected forest areas, totalling 70 million rai of national parks and the wildlife sanctuaries principally, have been occupied by those having conflicting claims over land rights with the state.
Around 3.65 million rai have been identified as having been occupied before the 1998 Cabinet resolution took effect. Of these, 1.59 million rai have been occupied by 167,654 people who have reported their claims to the state. Of 1.59 million rai, 426,204 rai, or around 27 per cent, have been identified as ecologically critical forest areas, with 51,290 people reported to be having conflicting claims over them
So far, around 2.06 million rai occupied before the 1998 Cabinet resolution are still under the registration process.
The rest of around 2.33 million rai are protected forest areas found to have been occupied after the 1998 Cabinet Resolution, with the number of people under examination.
For years, the state has been attempting to address the issue. The first known effort to come up with a resolution appeared to be in 1975 when the government relaxed forest laws and allowed those living in forest areas to continue living there. At that time, it was reported that the rate of deforestation was at its height, with around 2 million rai of forest deforested.
The forest area in 1973 stood at 138.5 million rai, or around 43 per cent of the country’s total area. It sharply shrank after the directive, down to 38.6 per cent in 1976, and even less years later.
The attempt to address the issue seriously was made during the 1990s, when the Cabinet in 1990 resolved to solve conflicting claims over land rights in every type of public land through examination and verification of such rights.
However, according to retired General Surin Pikultong, a former member of the state land encroachment resolution committee and now a chairman of an executive committee resolving spiritual and habitation issues concerning Karen land, the resolution concerned only two agencies – the Treasury Department, and the military.
In 1992, the state attempted to resolve the issue again, by coming up with the PM’s Office’s order, but the Royal Forestry Department – responsible for all forest area in the country at that time – did not respond and no reasons were provided.
The state land encroachment resolution committee was also transferred from the PM’s Office to the Natural Resources and Environment Ministry in 2002 following the major restructure of the state’s bureaucratic structures, prompting General Surin to claim that work became sluggish due to changes in the work approach. For instance, the officials would only act on complaints and requests.
The effort was renewed critically in 1998 with the push from the Assembly of the Poor. The Cabinet resolved to issue the resolution, which was highly regarded among all concerned. The 1998 Cabinet resolution required conflicting claims over land rights in forest areas to be resolved via examination and verification, especially in the protected forest areas.
Principally, those found living in forest areas “before they were first declared” would be allowed to continue living there in a modest way. But if the areas were found to be ecologically critical, they would be relocated or “supported with a suitable degree”. Those living after the declaration would also be relocated.
At least seven other cabinet resolutions that followed, including those concerning Karen’s rights issued in 2010 appear to be not holistic, trying to tackle only certain issues of concern, such as the 2010 resolution which aims to tackle Karen’s rights issue.
The NRSA, which resolved following the promulgation of the national reform law last year and saw its inputs integrated into the new reform plans, noted in its report that the 1998 Cabinet resolution fell short of addressing a thorough and comprehensive approach to help resolve the issue.
As defined in the resolution, some wordings, including “forest areas first declared”, become problematic in themselves as some forest areas were declared as different types in different times. For stance, they can be both “permanently declared forest”, and the protected forest of a national park, with different dates of declarations. This has frustrated concerned parties up until now.
In addition, the resolution fell short of guided action concerning relocation and community management after relocation. The forest laws, the reported noted, also had no clauses supporting such requirements under the resolution.
The National Council for Peace and Order (NCPO), when it took office in 2014, immediately issued two orders to address the issue again. The NCPO order No 66 addresses additionally about the problem in regard to the poor, who would be spared from suppression.
Along with the 1998 Cabinet resolution, the orders have been enforced by forest officials, using them as their guidelines to cope with forest encroachment and overlapping claims in modern days.
In an attempt to address the issue further, the national land policy committee chaired by PM General Prayut Chan-o-cha decided in the middle of last month to allow people living in forests of all types to continue living there, with different conditions.
Those found to live in the protected forest areas of national parks, whether or not before or after the 1998 Cabinet resolution, would be allowed to continue living there with agreed boundaries by all concerned.
Those found to live in forest reserves, whether before or after the 1998 Cabinet resolution, would be allowed to continue their living, with different conditions set, including one large shared, commune-based land plots.
Buntoon Srethasirote, director of Good Governance for Social Development and the Environment Institute (GSEI), also a member of the national strategy committee, said the country has tried both driving people out of the forest, and keeping forests out of people, and they both have failed to address the issue.
The third approach, which is proposed to the public now, he said, is another attempt by the state to address the issue with more acceptance that people can live in the forest, but some conditions are needed to allow both them and the forest to be more secure.
For instance, to live in the forest, they may be required to help reforestation, Buntoon said.
To accomplish this, Buntoon said the committee’s resolution needed to be turned into law, and relevant forest laws needed to be amended to support the idea. Some irrelevant resolutions and laws may be eliminated, he added.
However, Buntoon pointed out that the new resolution is only part of the jigsaw to solve the long-time problems the country faces – the conflict between people and the forest, land issues, and forest issues.
Other mechanisms concerning forest and land management, including the new Forest Code, land taxes, and several others, are needed to be developed and put in place to help solve the problems that are interlinked, he added.
“The committee’s resolution is a critical shift in our policy that addresses this issue. It’s developed based on our experiences, and models, and others, but as I said, it’s not just one tool that cures all. It’s just one of a jigsaw. We have to develop several more of the tools to help us tackle the problems that we have had for long,” Buntoon said.