The lengthy legal battle between Karen forest dwellers and Kaeng Krachan National Park officials, which ended bitterly for the former on Tuesday, shed light on the need to add a human rights dimension to our top-down lawmaking and oppressive law enforcement on forest protection.
The Supreme Administrative Court ruled this week that the indigenous group cannot return to ancestral land where they have lived for generations, but which the state declared a national park in 1981, because they have no legal land ownership papers.
The disputed land is located within Kaeng Krachan National Park in Phetchaburi. To the knowledge of indigenous Karen people, the majority of whom cannot read Thai because they never had any formal education here, their ancestors lived in the remote forest for centuries without the need for land title deeds. Reports from the National Human Rights Commission (NHRC) and other rights groups also suggest that the Karen people had lived in the forest before it became a national park.
As the state was unable to reach out to all remote areas to conduct land surveys for the purpose of issuing land ownership documents, forest dwellers had maintained their indigenous livelihoods.
But the 1961 National Park Act has brought about changes, allowing top bureaucrats to decide which areas should be demarcated as national parks. Then, cabinets approved their decisions and turned them into royal decrees.
When the cabinet made Kaeng Krachan forest a national park it simply wiped out the ancestral right to land of the Karen people. Tragic incidents took place in 2011 when Kaeng Krachan National Park officials carried out raids against the Karen, torching their homes and evicting them.
The court's verdict on Tuesday brings an end to their quest to return home, even though they have been awarded damages of 50,000 baht each for the destroyed properties.
It is not just this group of Karen people who have been forced out of their ancestral land, however. The Department of National Parks, Wildlife and Plant Conservation in past decades has demarcated national parks in areas which overlapped with land that people had lived and used for generations. In the past decade the department has brought criminal and civil lawsuits against a number of these people whom it branded "illegal dwellers" in a bid to evict them.
Even though there was a nationwide forest survey in 2002 to document people who had used land in preserved forests before that year in order to allow them the "temporary right" to continue using it, the survey was not comprehensive.
The problem with this and other land disputes lies with the National Park Act, which gives officials ultimate authority to make decisions on the demarcation of preserved areas while excluding indigenous communities from the process.
The demarcation and declaration of national parks had been made by elite groups of people who were members of cabinets or high-ranking officials, ignoring the fact that the state had taken away land rights from its people who had also played their role in looking after forests.
The NHRC this week has made the right call in suggesting that the government should revise the National Park Act by engaging indigenous groups in the discussions prior to the demarcation, and by designating certain zones for indigenous groups to live and use the land. It also suggests the state should grant indigenous forest dwellers community rights to live in and use their ancestral land instead of awarding them temporary rights to this effect.
The laws giving Kaeng Krachan and other forests legal status as national parks were all approved by cabinets. Therefore, they should be able to be revised by the current or a new cabinet to acknowledge the ancestral rights of indigenous groups whose forest settlement precedes the laws. They should just not be legal tools to unfairly deprive indigenous people of these ancestral land rights.
