Lawsuits aggravate forest poor’s plight
The polluters must pay. Most definitely. But when state authorities encroach on indigenous peoples’ customary land, send them to jail for living in “protected” forest and — on top of that — demand exorbitant compensation for causing global warming, this is not the “polluters pay” policy. This is oppression beyond being unjust. It’s pure malice.
Since 2005, the Department of National Parks, Wildlife, and Plant Conservation (DNP) has been slapping the forest poor with so-called “global warming” civil lawsuits, demanding steep financial compensations to crush them.
It is estimated that more than 1,000 indigenous people and agroforest farmers across the country have been sued for causing global warming in addition to being arrested for living in state-owned forests.
Among them are three ethnic Karen forest dwellers from Ban Pa Phak, a small forest village in Suphan Buri’s Dan Chang district, home of a large number of indigenous Karen since days of old.
In the Karen’s rotational farming system, the forest dwellers have several plots to farm and return to them in a cycle, ideally up to 10 years. The fallow period allows the old plots to regenerate, which maintains forest health and biodiversity. Yet when the farmers return for a new round of farming, forest authorities accuse them of destroying good forest and send them to jail.
That was what happened in 2005 when three subsistence Karen farmers — Mali Ngamying, Malaeying Ngamying and Amornthep Supakornsakul — were manually planting rice seeds in one of their old plots. They were arrested for forest encroachment and sued for 310,474.12 baht for causing global warming by “destroying” about 3.5 rai of forest.
Like other so-called global warming civil court cases, the compensation is calculated using a DNP simulation model. Here’s the standard formula for the damages per rai per year: 60,042 baht for timber loss, 232.25 baht for forest value, 767.97 for loss of soil nutrition, and 7,220 baht for reforestation, plus 7.5% of interest.
The arrests and the global warming lawsuits were the latest examples of persecution by the state suffered by the Ban Pa Phak Karen.
Though natives to the land, the indigenous Karen in Pa Phak forest were turned into illegal encroachers when their customary land was declared part of Phu Toei National Park. They were forced to relocate several times; first to give up their customary land for a tree farm plantation business, then construction of a livestock office, and later a reservoir.
State authorities dismissed the park’s original inhabitants’ plea for a piece of communal land where they can continue their rotational farming for subsistence. The arrests continue. Then the global warming lawsuit to break their backs. If this is not pure malice, what is? Farmers and rights groups have been protesting against the DNP’s simulation model and compensation standard as unscientific and untransparent. In 2012, they petitioned the Administrative Court
to revoke it. After three years of court deliberation, the Supreme Administrative Court dismissed the petition, saying the petitioners must be those currently affected by state actions. Since they are not, they have no right to petition.
All eyes were then on the Pa Phak ruling since, being the first from the Civil Court, it would set a precedent for other global warming cases.
Earlier this month, 13 years after the lawsuit ordeal, the three Pa Phak Karen had reason to smile. The Supreme Environment Court on July 3 dismissed DNP’s effort to fine the defendants under its global warming compensation criteria.
The verdict in a nutshell: The compensation criteria is only an internal DNP guideline. The court does not need to follow it. The criteria is also from an outdated simulation model which does not fit reality on the ground. Furthermore, the area in question is now lush forest, not destroyed as claimed by DNP.
Many environmentalists hailed the ruling as a victory for the forest dwellers. I beg to disagree.
Though certainly a setback for the DNP, the ruling still upholds earlier court verdicts that the three subsistence Karen farmers must pay a combined fine of 37,000 baht plus 7.5% interest since 2005.
Though the fine is 10 times lower than DNP wants, it upholds the notion that the Karen indigenous forest dwellers are encroachers. By law, yes. But in reality, definitely not.
The DNP’s global warming lawsuits have raised many questions:
Why target small poor, rural farmers, not the industries or city lifestyles that largely produce the greenhouse gases?
Why punish subsistence indigenous forest dwellers not local mafia’s and agrogiants’ plantations which cause largescale deforestation?
Why lease forest lands to private
investors but not to small farmers?
Why mouth state commitment to protect the environment, but push for coal-fired power plants and other environmentally destructive schemes?
And why are the facts and reality on the ground not the first priority in court rulings?
The answer lies in the fixed and false belief that emptying the forest of inhabitants is the best way to save the forest. It’s not. But it’s certainly the best way for forest authorities to empower themselves as the sole owner of forests nationwide.
The first forestry bill in 1941 aimed to extract timber money through logging concessions and punished the locals who collected forest goods and used forest trees, even for own consumption.
When forest authorities finally took up conservation, they issued the national park law in 1961 to outlaw forest dwellers, blaming them for deforestation — not their own logging concessions.
Modelled after the Western concept of a wilderness free of people, the national park law prohibited human settlements with harsh punishment although tropical forests have been home to indigenous peoples for centuries.
Accelerated efforts over the past few decades to expand national park areas, used as an index of park performance, have affected millions of forest dwellers.
Meanwhile, the forests keep dwindling due to weak legal enforcement on the rich and powerful. Yet, the government still continues its ruthless conservation policy to empty the forest of inhabitants. Sadder still, society largely turns a blind eye to the injustice. After decades of state indoctrination portraying the indigenous peoples and the forest poor as “outsiders”, forest destroyers, drug traffickers and enemies of national security, such public indifference is understandable.
But it’s no longer acceptable.
Not only because the eviction policy violates the forest dwellers’ human and customary land rights. But also because without the forest dwellers to protect their source of livelihood and identity, the end of the forest is near amid fastexpanding plantations and weak state control.
I just returned from Nan and Uttaradit. The differences between the two mountainous provinces are stark.
In Uttaradit, the villagers are engaging in agroforest orchards in the national forest with support from provincial authorities. The province is lush green and famous for a large variety of fruits.
In Nan, authorities cannot contain corn plantations supported by agrogiants. The result is massive deforestation, soil erosion and severe environmental pollution from the heavy use of toxic
farm chemicals. The Karen’s rotational farming system and the Uttaradit agroforest orchards are among a growing body of evidence worldwide that forests do much better when they are left under traditional communities’ care as opposed to placed under state control.
In mid-July, the United Nations Rapporteur on indigenous people, Victoria Tauli-Corpuz, released a report, “Cornered by Protected Areas”, condemning “fortress conservation” — the policy to empty the forests of inhabitants — which fails to protect the forests, destroys the indigenous people’s way of life, their knowledge of forest biodiversity, and ruthlessly violates human rights.
According to the report, indigenous peoples and local communities protect the forest twice as well as other policies or methods.
Since 80% of biodiversity is found in the indigenous peoples’ territories, they also the main custodians of most of the world’s remaining tropical forests and biodiversity hotspots, said the rapporteur.
To save the forest, Thailand, too, needs to listen, respect, and trust the indigenous peoples’ and local communities’ ability to protect their customary lands and sources of livelihoods.
Is there a chance?
Not when the draconian forest laws remain intact.
Not when the forest mandarins keep persecuting the forest dwellers but kowtow to business interests.
Not when the judiciary considers unjust forest laws more important than traditional communities’ constitutional rights.
Not when the public doesn’t care. Can we save our forest? As things stand, soon it will too late.
Sanitsuda Ekachai is former editorial pages editor, Bangkok Post.
This is not the ‘polluters pay’ policy. This is oppression beyond being unjust. It’s pure malice.