9.1 Introduction

Tension has existed for decades between the central Thai Government and the ethnic minority communities over access to and use of land and forest along the Salween River. Thailand’s national law and policy have not acknowledged the rights to these resources for the ethnic minorities living along the Salween River, even as their livelihoods have long depended upon them (Vandergeest/Peluso 1995). Compounding these challenges is the Hatgyi Dam proposed to be built just across the border in Myanmar that the Electricity Generating Authority of Thailand (EGAT) has backed through a largely opaque decision-making (Magee/Kelley 2009; Middleton et al., Chap. 3, this volume).

This chapter focuses on three Karen villages along the Thai side of the Salween River in Sob Moei and Mae Sariang districts of Mae Hong Son province , and the implications for them of Thailand’s national law and its ongoing evolution. I will show how state officials’ activities toward these communities , backed by their claims of the legitimacy of the national law , have impacted the ethnic minority people living there. I also show how the communities have responded to these challenges from the state through their own assertions for legitimacy based upon their history, their local traditional practices, and their claims of indigeneity. Overall, I argue that the use of national law is not only about the state trying to regulate livelihood practices, but it is also a challenge to the definition of Karen identity in these villages.

Karen people have lived in this area along the Salween River for centuries. The rich forest is central to their way of living and livelihoods, including providing for food, medicine and building materials. However, with the establishment of the Salween National Park in 1993 in the area village lands were enclosed within it, thus defining many of the livelihood activities of these communities illegal. Article 16 of the National Park Act (1961) prohibits community members from using or gathering any products from the land and forest within the National Park . This is further complicated by the fact that a significant portion of the population in these three villages do not have citizenship , and under the Land Act (1954) non-Thai citizens are prohibited from owning land. Within the communities themselves, Thai and non-Thai citizens have de facto ownership of land; however, this is not recognized by the Thai government.

This chapter argues that there remains an institutional bias in Thai laws and policies that serves to marginalize the interests of ethnic minority people. Government officials have racialized upland ethnic minority communities as backwards and as a national problem that contribute to deforestation, drug use and proliferation, and national security (Vandergeest 2003: 27). This is evident, for example, in the track-record of forest management planning of the Department of National Parks , Wildlife and Plant Conservation (DNP). It labels upland ethnic minority communities , like the Karen, as forest destroyers, accusing traditional practices like shifting cultivation as the major cause of deforestation within the country (Johnson/Forsyth 2002; Vandergeest 2003; Roth 2004; Forsyth/Walker 2008; Wittayapak 2008).

The structure of the chapter is as follows. First, I introduce the three case study villages and discuss about how the communities use the land, forest, and river. Then I discuss the national law and policies that affect these communities , specifically regarding citizenship , community rights, the land law , the forest law and policies related to hydropower projects, and the communities ’ response. In the chapter’s conclusion, I analyze the tension between local practice and national law and how this is a challenge to the definition of Karen identity .

9.2 Local Context: Indigenous Karen and Livelihoods in Villages on the Salween

Community members along the Salween River in Thailand, particularly those that will be directly affected by the Hatgyi dam , are mostly Karen ethnicity (Karen Research Team et al. 2005). This chapter focuses on three communities : Sob Moei village and Mae Sam Lab village in Mae Sam Lab sub-district, Sob Moei district, and Tha Ta Fang village in Mae Youm sub-district, Mae Sariang district, Mae Hong Son province . Tha Ta Fang and Mae Sam Lab villages border the Salween National Park that was established in 1993, and Sob Moei borders the Salween Conservation Area established in 1963. All three villagers are predominantly Karen, but each have their own unique history, which is introduced briefly in the following sections (Fig. 9.1: Location of Salween National Park and Tha Ta Fang, Mae Sam Lab and Sob Moei villages).

Fig. 9.1
figure 1

Location of Salween National Park and Tha Ta Fang, Mae Sam Lab and Sob Moei villages. Source Cartography by Chandra Jayasuriya, University of Melbourne, with permission

9.2.1 Sob Moei Village

Sob Moei village is located at the confluence of the Salween River and the Moei River before they flow into Myanmar. The village is named after this significant feature; Sob in Thai language means ‘convergence,’ and thus the village name reflects the convergence of the Moei River (with the Salween River). Before Sob Moei village was officially registered by the Thai government, Karen people had lived for centuries in more dispersed clusters in the general vicinity, on both the Myanmar and Thailand side of the Salween River, that centered around the location of their rotational agriculture (shifting cultivation ).Footnote 1 Approximately 40–50 years ago, Mr. Pa-Kortoo’s household became the first to settle at the village’s current location. Surrounded by more mountainous terrain, the village’s location has a relatively large flat area and is thus suitable for sedentary farming activity. Until 1973, there were only nine families in his village; however, around this time King Rama IX (King Bhumibol) came to visit the village. Before the visit, local government officials tried to gather those families who were still dispersed and living close to their rotational agriculture fields to move into Sob Moei village itself. The government officials led the community to prepare paddy fields and dig a simple canal for irrigation. When the King visited Sob Moei, he presided over a land ownership ceremony that assigned de facto rights for eight paddy fields to the village, although land documents were not issued at the time. After that, the majority of villagers, who had not yet relocated, moved to live in Sob Moei village (DCCN 2009).

As Sob Moei village grew, some important communal buildings were built in the village. In 1991, the (national and provincial) government built a healthcare center to be the central health care service not only for Sob Moei village , but also over ten villages nearby. Also in 1991, a school was built to service Sob Moei and five nearby communities , located near an older Buddhist temple that the community had built themselves with support from a monk from Myanmar. Although at the time the majority of villagers practiced Karen traditional Animist beliefs, in 1995 the Buddhist temple was moved beside the river near the convergence point, organized by Kor Tor, a well-known monk from Myanmar (DCCN 2009).

The majority of the population of this village are Karen ethnicity, and in 2005 there were 132 households with about 600 people (Montree et al. 2007: 103). Of those 600 people, about 30% of them do not have Thai citizenship ; therefore they have a non-Thai citizen ID card (issued by the Thai Government). Non-Thai citizen ID cards restrict travel beyond the province of residence, whereby special permission is required to travel and work outside. There are two major kinds of non-Thai citizen ID card, the first kind permits for a permanent stay, while the second kind is for a temporary stay and needs to be renewed every ten years (DCCN 2009). In Sob Moei village , there is a mixture of both non-Thai citizen ID cards.

Sob Moei village is 72 km away from Mae Sariang city and it is very difficult to travel between them. During the dry season, it is possible to travel to Mae Sariang by motorbike; however, during the rainy season villagers must travel by boat on the Salween River to Mae Sam Lab and then by motorbike or car to the city. In Sob Moei village , livelihoods rely on agriculture , the river, and non-timber forest products (NTFPs). For agriculture , there are three kinds of farming , rice paddy fields in flat areas, rotation farming for rice and a variety of vegetables, and river bank gardens for vegetables. The Salween River, tributary, and streams provide fishing for local consumption and for income. The forest is for personal use and for income; people gather many NTFPs including forest vegetables and medicinal plants, and also hunt wild animals (Montree et al. 2007: 104).

9.2.2 Mae Sam Lab Village

Mae Sam Lab village is located alongside the Salween River and is roughly 45 kilometers from Mae Sariang city. They have a better road that can be used during the rainy and dry seasons to connect the community to the city. Mae Sam Lab was established in 1961 by three families who practiced agriculture in the area. As commercial trade increased between Thailand and Myanmar, goods would travel from Mae Sariang to Mae Sam Lab village by road, and at Mae Sam Lab they would be loaded on to boats bound for Myanmar. As this trade increased more people came to live in Mae Sam Lab. The population especially grew when the government of Thailand provided a logging concession to a private company to log along the Salween River. Logging occurred both on the Thai-side and the Myanmar-side, and has taken place for a long time. Because Mae Sam Lab is located in the center of the Salween forest and its role as a river port became important for transporting the logs, many people came to live in this village (DCCN 2009). After 1992, armed conflict between Burmese Military (the Tatmadaw ) and the Karen National Union (KNU ) escalated and many people fled from Kayin (Karen) State in Myanmar to Mae Sam Lab.

Now Mae Sam Lab is the largest village along Salween River in Thailand, and has had six generations of official leaders (DCCN 2009). The population of the community consists of three different ethnicities: Karen, Shan, and Karen-Muslim. This village is different from other villages in the same district because the number of people without Thai citizenship is greater than those with Thai citizenship . This is because many of the people in Mae Sam Lab village are first- or second-generation families who fled Myanmar (Montree et al. 2007). As of 2011, there were 280 households with 1,521 people, and approximately 20% have Thai citizenship and the remainder have non-Thai citizen ID cards (DCCN 2011).

Livelihoods in this village also differ from Sob Moei village and Tha Ta Fang village , due to the history of the village as a center of commercial trade among people in the Salween River Basin from both Thailand and Myanmar. Many people in the village work in transportation, as shopkeepers, in animal and agriculture product trade, in restaurants, or as labor at the river port. However, there are also some villagers, especially earlier settlers of the village, who have de facto ownership of land for rotation farming , river bank gardens and paddy fields. More land cannot be acquired for agriculture in this village because of the Salween National Park , which was official established in 1993. The acquisition of more land is further prohibited by the fact that most of the people in Mae Sam Lab do not have Thai citizenship (Montree et al. 2007: 96–99).

9.2.3 Tha Ta Fang Village

Tha Ta Fang village is one of the older and bigger Karen communities along the Salween River. Like Sob Moei, Tha Ta Fang has a long history. In the past, many people lived in more temporary settlements that were located near their rotational agriculture fields dispersed around the current location of the village. The village, as it is located today, was formed before 1941 by Mr. Jor-ou. At this time, the village was called Jor-ou village and was not registered by the Thai government. Before World War 2, commercial trade in the Salween River Basin was relatively prosperous, and travelling between Thailand and Myanmar for trade was common. Tha Ta Fang village was the place merchants would stay on the way, and there was also a Thailand Police check point in the village. In 1965, when there were more villagers, Thai solders built a school and in 1975 Jor-ou village was officially registered by the Thai government and changed its name to Tha Ta Fang village . After it was registered, the government appointed Mr. Jor-ou as the village leader (Montree et al. 2007: 84–89). The village’s population is mostly Karen, and in 2007 had a population of 83 households with 743 people (Montree et al. 2007: 90).

This village is similar to Sob Moei village , in that it is far away from Mae Sariang city and the community’s main livelihood is now agriculture , as trade now passes primarily through Mae Sam Lab. Forty families have de facto ownership of paddy fields, and at least 10 families have rotational farming fields. River bank gardens are also common and villagers rely on forest products and the river for fishing and transport (Montree et al. 2007: 90).

Tha Ta Fang village is also surrounded by the Salween National Park . Before the national park was established, the local administrative government negotiated with the DNP to allow Tha Ta Fang villagers to maintain access and use of their paddy and rotational fields. The village area was mapped and agreements were reached between the village and district officials, and the DNP officials. In these agreements, the DNP would not confiscate any more land and Tha Ta Fang villagers would not use the forest and land inside the national park boundaries. This has allowed Tha Ta Fang villagers to hold more agricultural land than Mae Sam Lab. Yet, further growth of the village is limited because villagers are no longer able to build new houses, cultivate new land, or expand infrastructure like roads.

9.2.4 Community Use of Land

Most of the Karen people in the Salween River basin, including these three villages, practice farming for their livelihoods. The location of these communities , far away from large urban areas such as Mae Sariang city, limits commercial trade, meaning that subsistence farming is very important. Agricultural land along the Salween River can be divided into three forms: rotation farming , paddy field, and riverbank gardens, discussed in turn below.

The terrain along the Salween River in Mae Hong Son province is mountainous, with few flat areas. Therefore, most communities practice rotation farming , also called shifting cultivation . They cultivate rice and other vegetables such as cucumber, taro, and pumpkin on the slopes of the mountains. Rotation farming is a part of upland ethnic minority culture, and is a pattern of sustainable land use. It is also important to maintain food security among Karen people (Forsyth 1996). Of the three villages in this chapter, Sob Moei village relies on rotation farming more than the other two villages. On average, the families practicing rotation farming still own five to seven farming areas (Deetes 2005). Rotation farming takes place on customary land that is a form of common property; each year the land farmed will be rotated to a different area, and the community members share the land with each other. Community members distinguish between rotational farming land and forest. Rotational farming land has been used for a long time; community members will not expand the rotational farming into the remaining forest, which is for other livelihood purposes (NTFP collection, hunting etc). By local tradition, the land is reserved for people in the community only, and it is not permitted to sell the land or to be owned by anyone outside the community (Kanchanapan 2004).

Rotation farming is well known in Thai society and scholarship, and while it is still criticized as destructive to the environment by the DNP and Royal Forest Department (RFD ) (Forsyth/Walker 2008; Roth 2004; Wittayapak 2008), it has also been recognized as indigenous peoples ’ way of living, which does not harm the forest (Kanchanapan 2004). In 2003, Thailand’s Ministry of Culture, which is responsible to oversee culture, religion, and art, offered a resolution regarding the Karen way of life and issued statements about natural resource management , citizenship , traditional culture, and education. Regarding natural resource management, the Ministry supported Karen peoples’ traditional practice of rotation farming as a culturally significant practice (Council of Ministry Resolution 2010).

Paddy rice growing is also a common means of agriculture for people along the Salween River. While there are not many flat areas, paddy fields can be modified and terraced to fit into the few narrow spaces along the river. In the paddy fields, rice is planted during the rainy season for household consumption (May–November) and soybean is cultivated during the dry season for sale (December–April). Ownership of paddy fields are de facto private and permanent ownership. Paddy fields are not officially registered and villagers don’t have any kind of land title. However, possession of paddy field is acknowledged among the community . Normally, people will not sell them to each other, but instead pass the land on to the next generation. Paddy fields are important to people because they are significant sources of food security.

River banks of the Salween River and Moei River are available during the dry season to plant vegetables and other kinds of food, as well as tobacco. People prefer to plant vegetables on the river bank because it is easy to grow and does not require fertilizers, as the soils are rich with natural fertilizer from the river (Deetes 2005). River banks are also treated as common property amongst the community . People believe that land on the river bank is provided by the spirit or nature, which is why everyone in the community has the right to use it. Because of the seasonal changes made to the river bank year-to-year, the locations of river bank gardens correspondingly change annually. When the water level turns low, people will choose suitable land for themselves (Deetes 2005: 72).

9.2.5 Forest

Forest is also very important as a source of local food security and income. For household use, people collect NTFPs like bamboo shoots, herbs, other forest vegetables, and wood for construction. People collect NTFPs for sale in the market like dry leaves for roofs in January and February; konjac, a sort of tuber for food in August to November; honey in April; and mushroom in May and June. These wild products can generate important income for villagers (Deetes 2005).

The Karen’s well-known proverb of “[if you] use forest [you] must maintain the forest” (Deetes 2005) shows common awareness in the community . When people collect any resource in the forest, they will always be careful and considerate not to destroy it, but maintain it for future collection (Montree et al. 2007). This customary belief is passed down through the generations and practiced in how people use and protect the forest. In Sob Moei village , this environmental ethos is reflected in how the community has tried to engage with local forest officials and the administrative government (see also, Hengsuwan, Chap. 11, this volume). Mr. Decha Sri-sawaidaoruang, a community leader said that the “community has tried to cooperate with the forest office and the local administrative government to maintain the forest, for example through wild fire prevention, monitoring the forest, and tree ordinations [Buddhist ceremony]” (Interview, 14 March 2017). Community members also designate sacred areas, such as the watershed, where people do not practice rotation farming or cut down the trees (Deetes 2005).

9.2.6 Water

Using the Salween River and its tributaries water resources for livelihood is common for people. The three main uses are fishing, agriculture , and transportation. On the Salween River itself, fishing is not only for subsistence, but also for selling the fish for income. Especially in the rainy season during fish migration , people can earn more from fishing. Importantly, fishers in communities alongside the Salween River, which include Sob Moei, Mae Sam Lab, and Tha Ta Fang villages , can earn daily income from fishing (Deetes 2005: 36). For now, the river is still largely a free-flowing system and is rich in fish species, with at least 70 known species (Deetes 2005). During the rainy season when people plant rice on their paddy fields, they commonly use water from the Salween River tributaries or streams to irrigate the paddy field. Moreover, when the water level of the Salween River increases in the rainy season, the river will bring natural fertilizer to the river bank, which benefits river bank farming . Additionally, as communities in this area have poor access to decent roads, many people prefer to travel by boat on the Salween River.

9.3 National Law and Challenges to the Salween Karen Community

9.3.1 Citizenship

In this area, the Salween River constitutes the border between Thailand and Myanmar. There are two main reasons for the movement of Karen people across the border . Firstly, some had little choice but to flee the fighting in Kayin (Karen) State, and secondly – mostly a long time ago – some migrated for farming and for commercial trade. Fighting was especially intense from the mid-1980s and during the 1990s, which led to major movements of people into Thailand that would not be possible nowadays. Many of those who fled the fighting are still not able to move back to their old community due to ongoing insecurity in their home villages (SCPP 2010).

Some migrants successfully gained Thai citizenship , depending on how long ago they moved to Thailand, as well as the season; in the rainy season transportation is more arduous making official processes such as registration more difficult to undertake. Thai citizenship is granted under the Nationality Act (1965). Section 7 states that:

The following persons acquire Thai nationality by birth: (1) A person born of a father or a mother of Thai nationality, whether within or outside the Thai Kingdom; (2) A person born within the Thai Kingdom except the person under Section 7 bis paragraph one. “Father” in (1) means also a person having been proved, in conformity with the Ministerial Regulation, that he is a biological father of the person even though he did not register marriage with the mother of the person or did not do a registration of legitimate child.

According to this article, a person who is born in another country and escapes to Thailand or a person who is born from those people who escaped to Thailand are not eligible to get Thai nationality. However, the fourth amendment (2008) of the Nationality Act (1964) under article 23 offers an exception for those who were born in Thailand if they have official evidence to prove that they were born in Thailand between 1972 and 1992. It is also possible under Article 7.2 and 7 bis. that the Minister may grant Thai citizenship guided by other Ministerial Regulations and rules formulated by the Cabinet.

In summary, thousands of people entered Thailand without formal permission and without citizenship during the period of armed conflict . The Thai government created a policy to register them, providing them with non-Thai citizen ID cards, and allowing for a temporary (10 year) stay within a limited area. These ID cards allow for basic rights such as access to education and health care, and to legally work in the country, but they do not grant voter rights or land tenure rights. In 2009, in the three districts alongside the Salween River, namely Mae Sariang, Sob Moei, and Tah Songyang districts, 17,437 people held one of the two types of non-Thai citizenship ID card. In Sob Moei , Mae Sam Lab and Tha Ta Fang villages , 237 people, 1421 people and 359 people respectively held a non-Thai citizen ID card issued by the district registry office (SCPP 2010). People who are eligible to get Thai nationality have tried to submit a claim, but it is a slow and complex process that is difficult to complete.

9.3.2 Community rights

Rights to land and forest for indigenous communities are restricted by four forest laws : the Forest Act (1941), the National Park Act (1961), the National Forest Conservation Act (1964), and the Wildlife Sanctuary Act (1992). However, a high-profile campaign by civil society from 1990 to 1997 led to the recognition of “community rights” to natural resources (HRLA 2015). This first appeared in the Thai Constitution of 1997 article 46 as:

Persons so assembling as to be a traditional community shall have the right to conserve or restore their customs, local knowledge , arts or good culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources and the environment in a balanced fashion and persistently as provided by law .

Such a provision remained largely unchanged in article 66 of the subsequent Thai Constitution of 2007. Recognition of community rights has remained in the current Thai Constitution of 2017 in article 43 as:

A person and a community shall have the right to:

  1. (1)

    conserve, revive or promote wisdom, arts, culture, tradition and good customs at both local and national levels;

  2. (2)

    manage, maintain and utilize natural resources, environment and biodiversity in a balanced and sustainable manner, in accordance with the procedures as provided by law ;

  3. (3)

    sign a joint petition to propose recommendations to a State agency to carry out any act which will be beneficial to the people or to the community , or refrain from any act which will affect the peaceful living of the people or community, and be notified expeditiously of the result of the consideration thereof, provided that the State agency, in considering such recommendations, shall also permit the people relevant thereto to participate in the consideration process in accordance with the procedures as provided by law ;

  4. (4)

    establish a community welfare system. The rights of a person and a community under paragraph one shall also include the right to collaborate with a local administrative organization or the State to carry out such act.

While these articles in the 1997, 2007 and 2017 Thai Constitutions do provide for the concept of protecting indigenous communities ’ right to natural resources, they do not define the precise nature of those rights. As a result, 20 years has passed since the original definition of “community right” to land, forest, and natural resources, and it is still unclear if those rights extend to tenure, access or use, or the ability to extract resources. Moreover, as many of the people from these indigenous communities hold non-Thai ID cards they are not afforded full rights under the constitution. According to precedents set by previous court judgments, when communities have claimed “community rights” under the constitution to protect the environment or for public interest purposes, such as in case of pollution, then the courts have upheld “community rights.” However, in cases where communities claim “community rights” for the right to use or own land or natural resources, then those rights have been denied. Furthermore, the Administrative Court has demonstrated a tendency to recognize a wider interpretation for natural resource, environment, and public interest protection purposes, which means they are more likely to uphold “community rights,” compared to the Civil Court and Criminal Court. For example, in case 278/2556 (2013) in the Administrative Supreme Court, a community sued the government to cancel a biomass power plant building license, citing the issue of pollution. The court verdict accepted that “community rights” must be protected by the government against pollution to air and water. In contrast, in case 660/2557 (2014) between Mr. Kor-ei Mimi and others versus the National Park Department the plaintiff sued for “community rights,” claiming the community’s history as a right to property on the land. In this case, the Administrative Court did not accept their claim (Prachatai 2016).

In the case of the Hatgyi dam , if it is built just across the border downstream in Myanmar, it will certainly result in some negative impacts on these upstream communities in Thailand. Yet, the precedent set by Administrative Court above suggests that if community members from Tha Ta Fang, Mae Sam Lab, and Sob Moei were to sue the government over damages from the dam claiming “community rights” they would likely be unsuccessful. The challenge is, furthermore, that as Tha Ta Fang and Mae Sam Lab are surrounded by the Salween National Park and Sob Moei borders the Salween Conservation Area , as the case with Mr. Kor-ei Mimi versus National Park Department demonstrated, their ability to sue for damage and their rights to property or land would also unlikely be upheld.

9.3.3 Land Law

The legal system for land in Thailand can be separated into two categories: land law and forest law . Almost all land with land titles falls under the Land Act (1954), except land for agriculture purpose, which falls under the Agricultural Land Reform Act (1975). The main idea of the Land Act is to grant land rights to private individuals and companies with Thai citizenship by providing a land title. Land rights under the Land Act (1954) allows for the transfer of land through sale or through inheritance. However, the Agricultural Land Reform Act (1975) prohibits the sale of land, although it does allow for inheritance. In practice, land documents are only provided to lowland flat areas and are not issued for forested areas.

Forests are governed by the four forest laws mentioned above, which all hold similar core principles. The objective of each is that of preservation. They also authorize the government to declare preservation areas without local people’s consent. Each law regulates prohibitions and granting permissions and define sanctions for those who break the rules. Additionally, at the policy level, the Natural Resource and Environment Ministry released the National Forest Policy (1992) in which article 17 prohibits land titles for land with greater than a 35% slope. Thus, for the communities in Tha Ta Fang, Mae Sam Lab, and Sob Moei that in part live in mountainous areas with slopes greater than 35%, they are not permitted to be given land documents under the four forest laws and the National Forest Policy (1992).

Along the Salween River, many local people’s rights to land have been deprived by the Land Act (1954), Agricultural Land Reform Act (1975), and the series of forest preservation laws . The government, via the Ministry of Natural Resource and Environment, has tried to maintain control over all forested areas in the country. Each year, actions enforcing these laws have resulted in the confiscation of land used by ethnic minority people for generations, and some people have been arrested and sued for criminal charges, and often judged to be guilty.

For example, the Supreme Criminal Court verdict of 10578/2559 (2015) Mae Sot Prosecutor versus Dih-Paepoe rejected the right to Karen rotation farming , favoring the forest law over local customary land rights. The case of Mr. Dih-Paepoe, better known as the “Mea Omki case” given that the defendant, Mr. Dih-Paepoe, was from Mae Omki village, occurred in April 2008 when Mr. Dih-Paepoe, a 79 years old man of Karen ethnicity was arrested by a government Forestry Officer while he was farming . The Royal Forest Department sued for a criminal charge of trespassing in the national preservation forest. The Human Rights Lawyer Association represented him and defended him by claiming community rights under the Constitution 2007 for rotation farming . The defense also argued he did not intentionally trespass in the forest. On March 22, 2017 the Supreme Criminal Court ruled that Mr. Dih-Paepoe was not guilty in his rotation farming because of his lack of intent to trespass in the forest, as the disputed land had been used in his family for over a generation. However, he was still forced to vacate the land because it was designated as preservation forest under the National Preservation Forest Act, 1964. This Supreme Criminal Court ruling demonstrated that it would not recognize rotation farming as a constitutional “community right” of ethnic minority communities , even when the community’s existence precedes the establishment of a preservation area (HRLA 2015).

This precedent also has been demonstrated in the Administrative Court verdict 660/2557 (2016) of Mr. Ko-eyh Mimi versus the Ministry of Natural Resource and Environment (2016). Known as the Grand Ko-eyh case, it addressed the case of a Karen community in Kanchanaburi Province who had lived in Keng Krachan National Park before it was established. In this case, it was ruled that being on ancestral land without land titles precluded the community from having legal rights to that land. Thus, the national park officer legally had the authority to burn the villager’s house, as had occurred.

Access and use of land is very important to the life and livelihoods of upland ethnic minority people. Much of it is located in areas categorized by the Thai government as forest, making it a challenge for ethnic minority people. Ethnic communities have tried to negotiate the forest laws and policies with the local forest department for temporary permission. Sob Moei village and Tha Ta Fang village have provided land use evidence by participating in a land mapping project. Sob Moei village ’s mapping project is ongoing and supported by the Community Organizations Development Institute (CODI), and mapping is done in partnership with local forest department officers. Tha Ta Fang village ’s mapping project was supported by the local administrative department and completed roughly a decade ago. Even though these maps are not official land documents, because they are created with local administrative governments and local forest officers it gives community members a way to locally negotiate around the land and forest laws. Importantly, it grants them the ability to use customary land without fearing arrest from local forest officials.

9.3.4 Forest Law

As discussed above, Thai forests are subject to four forest laws : the Forest Act (1941), the National Park Act (1961), the National Forest Conservation Act (1964), and the Wildlife Sanctuary Act (1992). These laws grant ownership of forests to the central government, focus on the preservation of forests, and allows for permission to be given to private companies and individuals for specific purposes such as mining, forestry, and academic research. Under these laws , any use without official government permission is illegal . Therefore, wild resource collection by the community for their livelihoods is illegal, such as collecting wood to build, forest vegetables and herbs, hunting, and collecting leaves for roofs. However, many of these communities have dwelled in the forest for generations, well before the establishment of preservation forests (Kriyoonwong 2015).

According to the report of the Land Right Resolution Committee under the House of Representatives, in 2010, 635,916 people lived in areas classified as forest in Thailand (Kriyoonwong 2015), and between 2009 and 2015 an annual average of 2,652 cases per year were brought for forest trespassing (Forest Department 2017). The legal arguments in these forest cases do not acknowledge the context of indigenous communities nor their “community rights.” 39 cases brought in April 2013 highlight the tension between legal deployment and community livelihoods. These cases occurred when an official field investigation joined by forest officers, police, and soldiers went to Tung Parka village with search warrants to investigate for illegal teak possession. The operation found 39 villagers possessed some teak in their house, which was considered to violate the Forest Act (1954) (Thai PBS 2015). At the province (lower) court all 39 defendants confessed to the allegation, and the judge decided to jail 21 of them and release 15 with a fine for illegal teak possession used for house building (iLaw 2015). A subsequent ruling in the Appeal Court emphasized that teak possession for house building of these defendants, without official permission, contributed to both global warming and flooding in lowland urban areas (Appeal Court verdict No. 425/2014).

As with Sob Moei, Tha Ta Fang, and Mae Sam Lab villages, Tung Parka village is a predominantly Karen village and the villagers practice their traditional livelihoods. However, the collection of wood for building houses is illegal in all cases. The villages discussed in this chapter are still not allowed to cut trees within the forest. This is regardless of their customary use of the land and even though they have negotiated some use of the forest with their local administration and forest officers. In these cases, the forest and land laws are upheld over “customary rights .”

9.4 Tensions Between National Law and Local Practice: Implications for Karen Indigeneity and Culture

The discussion above on land and forest law reveals how the government’s objective of preserving land and forests challenges ethnic minority people in their customary use of land. Yet, the history of the three communities detailed in this chapter reveals that they have practiced traditional livelihoods along the Salween River for a long time. The administrative part of the government has released some regulations to resolve this problem. Three of them are particularly important: the Cabinet Resolution of 30 June 1998 regarding land rights resolution for ethnic minorities; the Cabinet Resolution of 3 August 2010 regarding Karen traditional protection, which includes rotation farming ; and the Office of the Prime Minister’s regulation of 2010 regarding land right documentation for “community land titles.” These three regulations offer alternative resolutions to protecting ethnic minority’s rights to land that have been largely dominated by the four forest laws . The verdicts mentioned in this chapter have stressed that even though the communities have lived on and used the land before it was classified as preservation area, they are still vulnerable to being declared as illegal settlers (HRLA 2015).

The problem of using the law to limit, control, and deprive civil and natural resource rights to upland minority populations has a long history in Thailand (Vandergeest 2003; Wittayapak 2008). Since 1957, the government has created an image of ethnic minority groups in Northern Thailand as security risks and involved in forest destruction. The National Security Council has further stigmatized them by using the negative discourse of “hill tribe.” Its meaning implies their diminished humanity as lower class and inferior people. This discourse becomes a way for the state to maintain control and deny rights to upland populations. Ethnic minority space in Thai society has been vigorously limited by law , policy, and field operations (Laungaramsri 1998). While indigenous community rights to land and forest are discriminated by the forest law , there is much evidence that the livelihoods of the ethnic minority and indigenous people do not harm forests or the environment. Research has clearly proven that Karen communities can use their traditional knowledge to protect the forest while they do rotation farming and collect resources from the forest for food and sale for earning an income (Kanchanapan 2004; Forsyth/Walker 2008).Footnote 2

Although the country has changed and developed further since these discourses first emerged, the image of ethnic minorities still has not improved. Instead, arguably it has gotten worse. It continues to stigmatize ethnic minority and indigenous people as national security threats, and endangering the new government’s drug policy and reforestation efforts. In practice, projects have been created to target these “hill tribe” communities and force their relocation from national parks , accompanied by policies for forest reclamation, or increasing the area of forest in the country. These policies have significantly affected many indigenous communities (Laungaramsri 1998). In Tha Ta Fang, Mae Sam Lab, and Sob Moei, over half of the population are still not able to obtain Thai citizen ID cards. Thus, they have little legal recourse against the government should the DNP or RFD decide they are violating forest policies or land laws . Moreover, policies, like the forest preservation policy, which prohibits land titling on mountainous areas with a greater than 35% slope, represent a systemic prejudice against upland minority populations within the legal system.

Although many upland minority people, like those in the villages discussed in this chapter, can claim customary use and rights, the law does not privilege those rights and instead the discourse of “hill tribe” labels them as offenders and forest destroyers. In 2011, the National Park , Wildlife, and Plant Species Department, under the Ministry of Natural Resource and Environment, released the “Economic Modeling of Some Environmental Impacts of Deforestation” that calculated the economic cost of forest destruction. The damage was determined in terms of the release of stored carbon and the cost of reducing the assumed increase in temperature based on the required electricity to reduce the temperature using air conditioning (Meetam 2016). Here, the same discourse that motivates claims about “hill tribe” as forest destroyers accuses the ethnic minority and indigenous community livelihoods as causing global warming by rotation farming and tree cutting.

9.5 Conclusion

Most of the community in Sob Moei, Mae Sam Lab, and Tha Ta Fang villages discussed in this chapter are Karen indigenous people . They have lived in these communities alongside the Salween River for more than a generation; however, many of the people are non-Thai citizens and thus are deprived of their civil rights. Their livelihoods rely: on land for rotation farming , growing paddy rice, and river bank gardens where they plant rice and vegetables; on forests for collecting natural resources for building materials and food, and for selling the products; and on the Salween River for fishing, farming , and transportation. Regarding these natural resources, they also have local governance arrangements to protect them and control their use through a combination of customary rules and unofficial agreements between the community and local officials.

However, the government’s laws on forests, land, and citizenship have caused serious tensions between the government officers, especially forestry officers, and local community livelihoods. Meanwhile, the government has also strongly backed the Hatgyi dam project, which if built would create serious impacts on the livelihoods of these communities . The apparent purpose of these laws and policies is the central government’s desire for ‘pure’ forest area and to support the business of water development projects, to the exclusion of human rights and natural resource protection. However, in practice the local forest officers cannot uphold these forest laws and policies fully, as there are also contradictions between the forest laws and government regulations that seek alternative mechanisms to solve the conflict between forest law and ethnic community livelihoods. Through these alternative mechanisms, the communities have tried to negotiate with the local forest officers on land and forest use rights.

This chapter reveals that the use of national law is not only about the state trying to regulate livelihood practices, but it is also a challenge to the definition of Karen identity in these villages. The conflict between law and policy with indigenous community rights has been a critical issue for more than three decades. The government has become increasingly aware of the problem, but still intends to retain these laws and the villagers’ use of natural resources under its control. It reflects an imagination of the “hill tribe,” which is influenced by a national security discourse that links ethnic minority people to drug selling, forest destruction, and being non-Thai citizens. Thus, even as many indigenous communities have lived in these areas for a long time, the national law and policy still deny their right to access natural resources and land.

Given the challenges described in this chapter, the community members in Sob Moei, Mae Sam Lab, and Tha Ta Fang villages request the right to maintain their livelihood. First, they ask that their right to land for traditional farming for food security be officially recognized by the Thai state, which would include both individual rights and collective rights depending upon the community’s consensus. Second, they ask for the right to collect wild products be recognized to meet their daily needs, such as food, materials for building, as well as to collect products to sell for an income. The Hatgyi dam is also a common concern. Here, these communities want both the government and the private company to: ensure adequate community participation; recognize the challenges faced by the communities including how difficult it is to change their way of life, the limited options for resettlement available to them, and their relative disadvantage in negotiating given their current non-Thai citizen status; and acknowledge and incorporate community knowledge into decision-making.