Somsak Saelao’s community of Pang Kob is isolated, situated close to the top of the Khun Nan mountain, and follows the traditional way of life of the Hmong hilltribe.
Pang Kob is in fact located deep in the Khun Nan National Park, surrounded by the lush forest, where boundaries of the community and the park are hard to define. Neither, for that matter, are the rights over land of the eight households and 13 families there.
Pang Kob residents are not alone in having conflicting claims over land rights with the state. In Nan province, where only around 12 per cent of the province’s total area of 7 million rai (1.1 million hectares) is lowland, with the remainder forest, almost all of its communities are located in either forest reserves or national parks.
Nationwide, there are thousands of such communities with claims over land rights that have long conflicted with the state. As long as the claims are unresolved, the residents are deprived of their rights of access to basic needs and infrastructure, and more critically, to land security.
“Whenever we had conflicts with forest officials we lived in fear, because we didn’t know what we were allowed to do to make a living on our land,” said 37-year-old Somsak, the assistant village chief. “The fact is that we live among protected forestland and our land rights have come into question.”
Conflicting claims over land rights between forest residents and the state have long simmered in Thailand. During the reign of King Rama V, land experts say the first land deeds were issued to ordinary people as well as laws promulgated concerning land rights.
The critical turning point followed the sixth land deed issuance law in 1936, when land occupation and utilisation by ordinary people nationwide received stronger recognition – including for indigenous people.
These people were able to turn that recognition into actual land ownership under the 1954 Land Code, under condition that they must notify the state and get Sor Kor 1 documents in order to secure a land deed.
But if the land was declared part of a reserved or protected forest area, those previously recognised rights would be nullified. This prompted debate, as some forest experts said they were born on the land, and their land rights were actually recognised, and therefore they continued to exist regardless of declarations.
A second wave of mass forest occupation occurred during the late 1970s, when the government was in an ideological battle against Communism, with many of its believers fleeing into the forests. The forest laws were relaxed in 1975 to allow those living in forests to remain, triggering an influx of occupation and forest clearance.
The rate of deforestation was then at its height, with around 2-million rai gone. From 138.5 million rai, or around 43 per cent of the nation, in 1973, the forests shrank after this directive to 38.6 per cent in 1976, and continued being lost, according to the National Reform Steering Assembly (NRSA)’s report last year. (As of reported in 2018, the country’s forest area is now around 32 per cent at 102-million rai.)
Since 1990s, the governments have attempted to address the conflict, but their efforts were seen as not comprehensive enough to succeed.
A 1998 push from the Assembly of the Poor resulted in a respected resolution requiring that conflicting claims over rights to any kind of forestland be resolved via examination and verification.
For protected areas like national parks and wildlife sanctuaries, those found to have lived there “before they were first declared protected” could stay, but live in a modest way. If the areas were found to be ecologically critical, the people would be relocated or “supported to a suitable degree”.
Those living there after the declaration would also be relocated.
The NRSA noted in its 2017 report that the 1998 Cabinet resolution fell short of finding a comprehensive approach to help resolve the issue. For instance, the resolution fell short of guided action concerning relocation and community management after relocation. The forest laws, the report noted, also had no clauses supporting such requirements under the resolution.
The issue was further complicated by the fact that those proved to have lived in the forests before they were declared forest reserves could be subject to land-use rights documents, the Sor Tor Kor 1. But the documents approved have sometimes been sold or changed hands, a critical problem that the current government has tried to address.
But there is a more critical problem from the 1998 resolution, in the view of practitioners like Theerayut Somton, director of Royal Forestry Department (RFD)’s forestland management office, and Weerayuth Wanalertsakul, director of the Department of National Parks, Wildlife and Plant Conservation (DNP)’s protected forest land and community management division.
The resolution had the status of a policy or administrative instruction, just like its previous rules. It failed to produce a change in law that could be strictly applied.
In practice, forest dwellers are not allowed to live in forests to which they have a historical claim unless that area first has its protected status annulled – and governments have generally avoided doing so from fear of being labelled as forest destroyers, Theerayut said.
As such, there has been little progress in either protected areas or forest reserves, and people have been left living in the areas unlawfully.
“It’s critically a problem of our forest policies. We are in a deadlock where the problem cannot be resolved,” Weerayuth said.
Recent years have seen a massive number of the disputed plots change hands, while forest clearance and encroachment continues, further complicating the problem and adding to the headaches of local officials.
According to the DNP, 5.9-million rai of its land is occupied. About 3.6 million-rai was occupied before the 1998 Cabinet resolution, with 2.3-million rai since, nearly doubling the figure.
The RFD, meanwhile, reports that its 6.4-million rai of forests within watershed classes of 1 to 5 were occupied before the resolution, with another 6.5 million added since.
Khor Tor Chor, a new hope?
In a move to resolve the dispute, the junta issued orders 64 and 66, under which those who encroached into forested land after 2014 would not be spared from the law, except for the poor. That left the government two groups of forest occupants to deal with – those making claims dated before the 1998 Cabinet resolution and those since.
In consultation with the national land policy committee and the Natural Resources and Environment Ministry, the Cabinet issued the resolution concerning Kor Tor Chor on November 26 to address conflicting claims. It is seen as a major shift in the concept and the directive.
Under the resolution, people living in all types of forests and for varying times would be “lawfully” allowed to remain, but with different conditions depending on the fragility of the forest ecosystem. Related laws would be amended to pave the way for enforcement.
As well, their land plots would be collectively managed as one large-scale plot or Plaeng Ruam, a concept borrowed by Prime Minister General Prayut Chan-o-cha from Israel’s kibbutzim farm communes, according to Theerayut, also a member of the national land policy committee’s land-acquisition sub panel.
This, he said, would help prevent land from changing hands and an endless cycle of new forest encroachment.
According to Threerayut, the RFD has proceeded with the first watershed classes 3 to 5 with people living before the 1998 Cabinet resolution. The target area is 3.9-million rai, and the RFD has managed to approve 446,000 rai in 100 areas in 52 provinces.
In contrast to past practices, residents will be supported by relevant officials to make a living in a sustainable way. Their land rights, he added, would clearly reflect that their use is authorised and so give them better land security.
Still outstanding is how to deal with plots that have changed hands. Theerayut conceded that the issue has caused officials headaches. His view is that stringent measures are needed to deal with people or their nominees seeking to grab land.
The number of land plots to have changed hands has so far not been calculated. Weerayuth of the DNP said the number would emerge during the process of initial screening by communities, in line with the officials setting clear records and boundaries between their properties and forests nearby.
“It’s our dream to see people working with us to help protect the forest. This is new forest management with participation from the people, and is a challenge to all of us to see whether people can fully live in the forest, the subject of long conflict in our society,” Weerayuth said.
Warangkana Rattanarat, from the Centre for People and Forests, sees progress in the government’s approach to policy. At least it is now clear what needs doing, she said.
The government has tried to solve the conflict by coming up with a clear directive and a system to manage the problem. However, she cautioned, the problem’s complexity calls for further widening public participation. The latest decision is viewed by forest groups as continuing the previous top-down approach.
As for those grabbing land plots, she agrees they must be squeezed out and stringent measures taken against them.
“Overall, Kor Tor Chor should not be just about distributing land. The challenge is what we are distributing the land for – that’s the goal that we set our eyes on. If people can join together despite their differences, and decide the best use of the land, and can stand on their own feet, the land would not be grabbed.
“The success of the story really depends on their survival,” she said.