All you need to know about the Sai Thong National Park Case: Unfair Criminalisation of 14 Land Rights Defenders

กองบรรณาธิการ TCIJ: Wed, 4 September 2019 | Read 384

All you need to know about the Sai Thong National Park Case: Unfair Criminalisation of 14 Land Rights Defenders

As of 29 August 2019:

  • All 13 prosecuted Human Rights Defenders who were sentenced to imprisonment have been released on bail until their trial by the Supreme Court at a later date. Please note that 2 of the released Human Rights Defenders have confessed.
  • 1 Human Rights Defender has been sentenced to 1-year monitoring. His appeal petition is yet to be accepted by the Supreme Court. 
The criminalisation of the 14 Sab Wai villagers in the Sai Thong National Park is a representative case of the false climate solution adopted by Thailand and the misuse of the Forest Reclamation Policy and NCPO orders related to its enforcement (NCPO orders 64/2014 and 66/2014), targeting poor communities and land rights defenders to evict them from their lands, rather than criminalising large-scale businesses and capitalist investors. Forest communities must be recognised as key caretakers and protectors of the forest, and should not be unfairly casted as 'criminals'.
 
The case showcases ongoing human rights violations committed against prominent land rights defender, community leader and board member of Isaan Land Reform Network (ILRN), Ms. Nittaya Muangklang, who is facing court cases in relation to her legitimate human rights actions along with thirteen other villagers of the Sab Wai Village, all members of the ILRN. The other villagers are: Mrs. Seenuan Phasang; Ms. Pattama Komet; Ms. Sunee Nalin; Mrs. Sakl Prakit; Ms. Narisara Muangklang; Mrs. Thongpan Monggang; Ms. Suwalee Phongam; Mrs. Suphaphorn Seesuk; Mr. Suwit Rattanachaisi; Mr. Samon Somchitr; Mr. Put Sukbongkot; Mr. Wanchai Arphonkaeo, and Mr. Sompitr Taennok. Ms. Nittaya leads her community, including the thirteen villagers, in their resistance against the Royal Thai Government’s push for eviction from their lands that is based on the misuse of the military government’s forest reclamation policy adopted in 2014.
 
Access the Profiles and Summary of the Charges faced by the 14 Land Rights Defenders here: English / Thai

Thailand’s false climate solution & the misuse of forest conservation policies to criminalise rural communities rather than capitalist investors

Thailand is one of the developing countries participating in the Forest Carbon Partnership Facility (FCPF), which is a global partnership of governments, businesses, civil society and indigenous peoples focused on reducing emissions from deforestations and forest degradation, forest carbon stock conservation, sustainable management of forests, and enhancement of forest carbon stocks in developing countries (activities commonly referred to as REDD+).[ii] The FCPF hosted by the World Bank has created a framework and processes for REDD+ readiness, which helps participating countries get ready for future systems of financial incentives for REDD+.[iii] Thailand was selected as one of the REDD participant country in 2009. Its REDD+ readiness preparation proposal was approved in 2013 with a condition to undertake additional consultations with the concerned stakeholders, in particular indigenous peoples and local communities that have been monitoring the REDD+ implementation in the country.[iv] Subsequently, in 2014, the Forestry Master Plan, the ‘Forest Reclamation Policy’, was issued based on NCPO Order 64/2014.

1. The Forestry Master Plan: ‘Forest Reclamation Policy’ as a strategy to evict the Poor
With this policy, the Thai government, specifically the Internal Security Operations Command (ISOC), the Ministry of Natural Resources and Environment (MNRE),[v] and the Royal Forest Department (RFD), aims to combat problems such as forest destruction and trespassing on public land, while intending to increase Thailand’s national forest area by 26 million Rai or upto 40% of the total area of the country. The Master Plan was around the discourse that commercial investors’ exploitation of Thailand’s natural resources is responsible for deforestation and must be stopped. The government appeared sincere in its intentions to target only wealthy investors after it released Order 66/2014, a supplemental directive which states that government operations must not impact the poor. However, implementation of the Master Plan has overwhelmingly targeted impoverished villagers and indigenous peoples who lived on their lands for decades as “investors” or alleged that local communities were being funded by wealthy investors, while it was found that in ISOC’s operations, no organisations or capitalists have been arrested or charged for conducting illegal logging or encroachment.[vi] This has resulted in a complete disregard of the protection measures set out by Order 66/2014. The Royal Forest Department does so by misusing laws and policy by confiscating land and evicting villagers from their land, by enforcing various forests and national park related laws such as (a) the Forest Act B.E. 2484, (b) the National Reserved Forests Act B.E. 2507, and (c) the National Park Act B.E. 2504.

2. Focus on the controversial NCPO orders operationalizing the Forest Reclamation Policy
To operationalise the forest reclamation policy, orders were also passed by the National Council for Peace and Order (NCPO) consisting of the military junta. The two most relevant orders include NCPO Order No. 64/2014 and 66/2014.

  • NCPO Order 64/2014 related to the suppression and cessation of encroachment and destruction of forest resources, provides that authorized state agencies are to suppress violations and arrest those who encroach on, seize, possess, destroy, or act in any manner that may cause damage to the forest, specifically on protected land. The aim of the NCPO Order 64/2014 is to stop deforestation which has been caused by commercial investors’ exploitation of Thailand’s natural resources.

  • NCPO Order 66/2014 suggests that the primary targets of these measures must be investors or large-scale outside developers, whereas the poor, landless and those who have settled in the land before it was declared as a protected area, should not be affected by the NCPO order 64/2014. NCPO Order 66/2014 establishes a list of such people who are permitted to use the land. The Order 66/2014 appeared to focus only on wealthy investors. However, during its implementation of the Forestry Master Plan, the government has persistently identified impoverished villagers who lived on their lands for decades as “investors” or alleged villagers as being funded by wealthy investors, resulting in the loss of protection as set out by Order 66/2014. Five strategies have been followed by the NCPO to evict people, namely stopping illegal logging, stopping forest encroachment, seizing encroached areas, destroying villagers produce while filing lawsuits, and conducting area surveys.

3. Discrepancies in the application of NCPO Order 66/2014, meant to protect poor people from being evicted for forest land
In order to target HRDs protecting their land and protesting against land evictions, the government has purposely excluded villagers from the protection guaranteed to poor people under NCPO Order 66/2014. The Sai Thong National Park case clearly demonstrates the discrepancies in the application of NCPO Order 66/2014: the Royal Forest Department (RFD) said that NCPO Order 64/2014 is meant to target investors and NCPO Order 66/2014 is meant to exclude poor people from NCPO Order 64/2014 and protect them from being sued by the government. The definition of poor, according to the Royal Forest Department, is not properly defined and depends on the appreciation of the Thai authorities and judges. In the case of the 14 Sab Wai villagers currently prosecuted, the judges did not consider them as poor because they were allegedly owners of 2 to 3 plots of land[vii] but villagers find themselves unfairly targeted as they are only small-scale farmers. This highlights the unequal application of the NCPO Order 66/2014, considering that those who were supposed to be protected, not only lost their land but also were found guilty of the charges of trespassing, having to pay a fine of between 40,000 THB to 1,6587,211 THB, together with jail time ranging from 5 months 10 days to 4 years. Finally, their criminalisation further put them in poverty situation, leaving their families, elders and children behind, with insufficient financial resources and care. 

4. Unlawful usage of the Cabinet Resolution of 30 June 1998 which is by itself flawed in its implementation
Another reason why the 14 Sab Wai villagers were declined protection under NCPO Order 66/2014 is because the appeal judgment ruled that the villagers had newly moved into the area. The court concluded that the villagers had no proof that they had lived in the national park area before its’ establishment in 1992 because their names are not listed in the survey, which was conducted under the Cabinet Resolution of 30 June 1998. Even though it is stipulated in NCPO Order 66/2014 that an investigation and rights-proving procedure would take place for new encroachers, verification methods of communities’ land rights, such as examining the traditional, cultural, and historical context, have been neglected by law enforcers[viii] and instead, the Cabinet Resolution of 30 June 1998 was utilised as a land-rights identification method. Under the Cabinet Resolution of 30 June 1998, aerial photographs and satellite images were taken and surveys amongst villagers living in national parks and reserved forest areas have been conducted. Based on the images and surveys, a list was created and those included in it were allowed to make a living in national reserved forest and national park areas.[ix] The lawyer, Mr. Somnuek Tumsupap, pointed out that the 14 prosecuted villagers of Sab Wai villagers were not on the list because survey data is missing, and even though they are heirs to the land, their names are not included on survey documents. This is due to the flawed implementation of Cabinet Resolution 30 June 1998 as: (1) authorities have limited time available to conduct surveys; (2) the number of personnel conducting surveys is limited, and (3) the budget allocated for surveying is insufficient. Therefore, in the case of the Sab Wai villagers, when authorities ran out of funds to survey, they did not continue the surveys but allowed villagers to continue living on the land.[x] The villagers also pointed out that surveys were not conducted fairly. Villagers had approached surveying rangers on various occasions to ensure that their land was surveyed and they would be included in the list, but the rangers made excuses not to survey their land and told them that another survey would take place after four years.

The lawyer of the 14 Sab Wai villagers, Mr. Somnuek Tumsupap also identified another flaw by questioning the usage of the Cabinet Resolution of 30 June 1998 as a land-rights identification method because the usage of this Resolution is not specified in either NCPO Order 64/2014 or 66/2014. NCPO Order 66/2014 states that an investigation and right-proving procedure would take place for new encroachers but in the case of the Sab Wai villagers, officials have chosen to utilise the Cabinet Resolution of 30 June 1998 as a land-rights identification method. According to Mr. Somnuek, the Cabinet Resolution of 30 June 1998 can only be utilised if the NCPO Orders require to do so. In the case of the Sab Wai villagers, the court has interpreted and applied the NCPO Orders as the primary source on which the charges are based. The NCPO Orders overrode the Cabinet Resolution and thus the intentions of the NCPO Orders should be followed, with (1) villagers being protected from eviction under NCPO Order 66/2014 of the Forest Reclamation Policy and (2) a right-proving procedure taking place. Mr. Somnuek Tumsupap had attempted to use this argument to fight the cases of the villagers, but it was not considered by the court.

These existing laws, policies and NCPO Orders place limitations on community rights, while restricting land rights, management and utilisation of natural resources by local people, especially in protected areas. In this manner, authorities enforce strict legislative and implement coercive measures against those who have settled and sustained their livelihoods in forest areas. By December 2015, Order No. 64/2014 had impacted nearly 1,800 families, mostly in the north and northeast, home to large indigenous populations. At that date, 681 cases filed against exercise of powers under Order No. 64/2014 towards local and indigenous communities were recorded, and 168 of these cases amounted to judicial harassment.[xi] Further, since the 2014 military coup, there are at least 226 women human rights defenders (WHRDs) from rural areas who have been subjected to judicial harassment by State and non-state actors.[xii]

5. Abolition of NCPO Orders 64/2014 & 66/2014 but misuse of forest conservation policies will remain with controversial National Park Act of 2019
An important development with respect to the law used to criminalise the 14 villagers has been the repeal of 70 NCPO Orders including NCPO Orders 64/2014 and 66/2014 on 9 July 2019.[xiii] These orders were withdrawn using the newly issued NCPO Order 9/2019 by the Prime Minister of Thailand, Prayuth Chan-ocha in his capacity as the head of the National Council for Peace and Order (NCPO). However, NCPO 64/2014 and 66/2014 will continue to criminalise the legitimate actions of communities and individuals as: (1) This new order will take some time to come into effect, during which time the NCPO Orders 64/2014 and 66/2014 will continue to be misused; and (2) The content of the NCPO Orders 64/2014 and 66/2014, particularly their negative aspects have already been embedded into other laws including the new amendment to the National Parks Act of 2019.[xiv] [xv]

6. Focus on the National Park Act 2019
In May 2019, the National Legislative Assembly in Thailand passed the National Parks Act 2019, which will be effective from November this year. This law is the continuity of NCPO orders 64/2014 ad 66/2014 and is expected to affect the livelihoods of local communities, indigenous peoples and forest dwellers living adjacent and within national reserved forest areas and protected areas.

Article 65 of the new law allows communities who have traditionally lived in or near parks to access them and use some of the forest resources; however, the power to give permission to do so rests solely at the discretion of National Park authorities. Main concerns with the law are related to: 

  • Restrictions on the amount to be harvested by the communities allowed to live on the national park areas;

  • The use of natural and renewable resources from national parks can only be done legally through government-approved projects; therefore the process to obtain the approval might be arbitrary and complicated;

  • Forest officials will be provided with ‘search and destroy powers’ without the need to acquire court orders. Such powers are likely to result in forced evictions of communities and destroying of their properties, such as houses and crops;

  • The law will impose stricter penalties to further limit the rights of Thai farmers, indigenous peoples.

Under this new law, the penalties for those convicted of encroachment are much higher compared to the National Parks Act of 1961. Whereas in the National Parks Act of 1961, the maximum punishment for encroachment is 5 years of imprisonment and a fine not exceeding 20,000 Thai Baht, in the New National Parks Act of 2019, those convicted might face imprisonment not exceeding 20 years, and fines not exceeding 2 million Thai Baht.

  • The law will impose the use of Cabinet Resolution of 30 June 1998 to prove land rights of those living in reserved forest areas and national parks. As previously explained, the Cabinet Resolution of 30 June 1998 is problematic in its enforcement as forest officials tend to exclude community members who would need to be protected to remain on their lands. Additionally, it has been argued that the enforcement of the Resolution is flawed and has caused problems between authorities and local people. Communities’ rights to manage forests are not given importance by the Resolution, and on aerial photographs taken under the Resolution, it is almost impossible to determine traditional farms of indigenous peoples.[xvi].

Furthermore, imposing the strict usage of Cabinet Resolution of 30 June 1998 will prevent Thai courts from ordering forest agencies to abide by other Cabinet Resolutions which are more beneficial to local communities[xvii], such as the Cabinet Resolution of 3 August 2010. The Cabinet Resolution of 3 August 2010 reaffirms article 70 of the 2017 Constitution[xviii], and states that Karen people have the right to stay in their ancestral land and continue their traditional farm rotation system. Moreover, the Resolution prohibits arrests of indigenous Karen forest dwellers.[xix] The Supreme Court referred to this Cabinet Resolution of 3 August 2010 in the case regarding the eviction of villagers belonging to the traditional Karen community, residing in Kaeng Krachan National Park, in 2012. The Court concluded that the eviction of the villagers and the destruction of their property through the application of the National Parks Act of 1961, the Forest Act of 1941, and the National Reserved Forest Act of 1964, was in violation of the protection guaranteed under the Cabinet Resolution of 3 August 2010.[xx] 

Finally, the implementation of the Forest Mastery Plan and the NCPO Orders continue to be in the hands of the military, with the Internal Security Operations Command (ISOC), established under the Internal Security Act involved in enforcement.[xxi]

7. The 20-Year National Strategy: increase the country’s forested area to 55 percent by 2037
As written in its 20-Year National Strategy, the Royal Thai Government (RTG) aims to increase the country’s forested area to 55 percent of the total Thai territory by 2037. The forested area will include 35 percent of natural forest; 15 percent of forest plantations, and 5 percent of recreational areas. [xxii] The RTG wishes to achieve this ambitious goal through the following strategies: (1) suppressing forest encroachment; (2) promoting the restoration of forested areas and the ecosystem; (3) communities’ participation in protecting forest resources and planting forests; (4) developing a tourism strategy to limit the number of tourists;[xxiii] (5) providing incentives to corporations doing business in the forest plantation industry;[xxiv] and (6) enhancing natural resources management by amending natural resources legislation.[xxv]

8. New Forest Plantation Model
In 2019, the Royal Forest Department (RFD) noted that through its current model and budget it will not be possible to increase the country’s forested area to 55 percent by 2037. The department blamed this on landless villagers who occupied newly planted forests, leading to a decreased rate of forested area despite replantation efforts made by the Royal Forest Department. Therefore, the Royal Forest Department introduced a new forest plantation model through which the cost could be reduced to 1,000 THB per Rai[xxvi]  and more forested area could be created. According to the Director of the Royal Forest Department, this new forest plantation model would economically benefit communities; solve problems of landlessness, and reduce income inequality.[xxvii] Under the new model, the recently appointed military government introduced a land allocation scheme in which 1.21 million Rai of public land in degraded forests will be given to communities, to plant trees from which they will economically benefit. Communities who will be allocated land will be given sprouts and have to utilise 20 percent of their land to plant three types of trees: (1) native trees that they will not be allowed to cut; (2) economic trees that they can cut for personal use but must be replanted, and (3) edible trees.[xxviii] 

As noted, only 1.21 million Rai of public land of degraded forest will be given to communities under the new forest plantation model. Even though this may sound like a lot, it is only 0.37 percent of the Thai territory, which amounts to approximately 321 million Rai. 1.21 million Rai would not be sufficient to accommodate all those in need of land, and who rely on it for their livelihood.

Moreover, the government aims to achieve its goal of expanding forested area to 55 percent by 2037 by suppressing encroachment and promoting restoration of forested areas and the ecosystem, which has proved problematic.[xxix] Consequently, the RTG makes significant efforts to increase the number of National Parks in the country and has established five parks, equal to 331,952 Rai, between 2016 and 2019. Currently, the RTG is in the process of establishing additional 22 National Parks, equal to 44 million Rai.[xxx] In total, Thailand will have 155 National Parks, which will together amount to 146,488,000 Rai[xxxi] or 45 percent of Thai territory. The increase of national parks to 45 percent of the country will be problematic for local communities living within and adjacent to such areas as they will be subject to the restrictive National Parks Act of 2019 described above and face increased risks of being evicted from their lands and not being able to make a livelihood. Therefore, it can be concluded that the plan to increase the forested area to 55 percent by 2037 is more likely to worsen the issues of poverty, landlessness, and income inequality, rather than enhancing them not just for at present but also for generations to come.

 
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