Flaws in the Forestry Bill

Thailand - At least two provisions in the approved law are seen to deprive many communities of the right to utilise forests which they have been protecting for a long time.

Indigenous peoples have made their homes in the forests of northern Thailand for many centuries. For example, Lauo tribes have lived in harmony with the forests around Samoeng for more than 700 years, and the Karen for more than 200. The minimal amount of exploitation by these peoples was apparent from the health and fertility of the woodlands.

But when past governments began to grant concessions to private companies to cut down trees, the situation began to change. Companies were supposed to follow regulations on matters like reforestation, but there was no transparent system in place to enforce them. For example, the Royal Forestry Department granted the concessions and also monitored compliance of the regulations.

The scale of forest destruction grew at an alarming rate, and reforestation was for the most part only on the books.

In January of 1989 logging was made illegal in Thailand, but in a number of cases influential persons collaborated with officials to log illegally, a practise which continues to this day. There are a number of competent and dedicated forestry officials, but they have had to play hide and seek with these influential poachers. Forestry officials say they just don't have enough manpower to stop the illegal logging.

Also since 1989, people who live in the forests have proposed a law that would allow them to participate in forest management, in cooperation with the short-handed government. The first draft was made in 1992, and after many revisions, villagers sponsored their own draft bill in 1999, after a campaign to obtain 50,000 signatures as stipulated by the 1997 Constitution.

However, after a number of further revisions in the halls of Parliament, the law deviates substantially from the people's original 1999 draft proposal. On November 21, 2007, the National Legislative Assembly (NLA) passed the Community Forest Bill (CFB) and it now waits for royal endorsement.

At least two provisions in the approved law- articles 25 and 35- are seen to deprive many communities of the right to utilise forests which they have been protecting for a long time.

Article 25 limits eligibility to set up community forest to those who lived and managed the protected forest area for at least 10 consecutive years before the bill was promulgated in 2007. It thereby excludes about 20,000 communities scattered on the rims of protected forests countrywide.

Buntoon Srethasirote, former member of an NLA committee which studied the bill, noted that the article requires that community forest be located in a protected area, which he said strips some communities of their rights.

"Communities located at the rim or outside the protected areas have no right to propose the establishment of a community forest. But the fact is that many communities were managing their community forests long before the declaration of protected forests. There are about 1,000 communities in the North alone which served as models for the drafting of the original CFB. The NLA's CFB has deprived these communities of their rights to set up community forest," he said.

Article 35 stipulates that logging is not allowed in protected community forest. Therefore, despite a community having access to the resources within a protected area, they are not allowed to cut down trees within the conservation zone.

Many academics and forest dwellers view these articles as being no different from the conventional forest laws which aim to suppress people's rights rather than allow them to make wise use of forests.

"We can foresee that people will get into trouble when the law takes effect in the near future, as people will have to prove that they have been practicing the concept of community forest for at least 10 years. The method for proof is complicated,"said Prayong Doklamyai of the Northern Small Scale Farmers Networks.

Buntoon added that evaluation methods are also complicated. Decisions have to pass through provincial and national level committees chaired by state officials, such as provincial governors and cabinet ministers.

In the end, he said, "the authority to consider and approve each community forest largely relies on the state officials".

After the CFB was passed, 25 NLA members submitted a petition to the Constitutional Court to examine whether the law is in conflict with articles 66 and 67 of the new 2007 Constitution. These articles specifically recognise community rights in natural resources management (see box).

The National Parks, Wildlife and Plant Conservation Department has already submitted its opinion to the Constitutional Court that the CFB has no conflict with the Constitution. However, the people's networks have a different view, and are eager to make it known.

"We are discussing the bill within our networks, especially articles 25 and 35, and provisions regarding the punishment for violating the law," said Prayong.

Prue Odochao, a community leader in Paka Nai village in Chiang Mai province, said villagers are concerned that they will not be able to use their forest as they had in the past and that this will be the cause of many troubles.

Separating myth from fact

During the debate to pass the CFB, those who opposed the draft promoted by the people's sector often portrayed it as giving blanket access to forest areas.

For example, Pitipong Puengbun na Ayudhaya, the Permanent Secretary for Natural Resources and Environment Ministry, said: "We are going to transfer natural resources management from the state to the people. Isn't it too fast?" He also remarked during the debate that local communities should have the right to manage natural resources, but that the process should go step by step.

"If we want to have it that fast, we have to prepare for negative impacts," he said, adding that in fact those living on the periphery of protected forests can already use the forests.

"There is no need to grant them legal rights," said Pitipong.

However, Dr Anand Kanchanaphan of Chiangmai University said that the new CFB will make it impossible for communities to fully participate in community forest management.

"Instead of writing the law to provide for community participation in forest management, such rights have been prevented. Traditionally, people have had rights and have benefited from the forests, and these rights are upheld by the Constitution. The law now puts constraints on these rights and reduces the communities' potential role in forest management. It simply violates their constitutional rights," said Dr Anand.

He commented that it was a misunderstanding that people would be able to access the forest freely under the people's sector proposal, as there is a system of checks and balances. He added that in the past the government has taken an exclusive role in forest management, something he disagrees with. The CFB was originally intended to provide a more balanced management system.

In an interview with Prachadham News Agency, Dr Anand pointed out that the draft proposed by the people's sector stipulated the involvement and oversight of several key segments of society.

"The system that we proposed set out conditions that require the involvement of academics, the state and civil society (including at the community level). To cheat in this system, you would have to bribe all three parties, which is not very easy," he said.

Dr Anand expressed his concerns that the law on forest resource management has been guided by an exclusive point of view hinging on the exclusive leadership of one sector or another. This view tends to forego the interdependence of all the relevant agencies.

"We tend to look at the ownership aspect - who owns and controls the resources, and who should be the host organisation in management," he elaborated.

"We have to shift from thinking that natural resource management should be in the hands of one single authority. Resource management should be treated as a collective right."

He pointed out that this right is also multidimensional; different roles can be assigned to different actors.

"The ownership rights (of the forest) belong to the state, the rights to preservation and management to the community, and the rights to monitoring to some other agency. All the rights must be spread out among different parties and subject to checks to prevent monopolisation," he explained. Different actors are assigned the roles they are capable of.

"The rural folk live close to nature, so they should be encouraged to look after it. It does not mean that the state should leave it entirely in the hands of the community. We can also have monitoring performed by independent entities, such as academics, or NGOs."

Dr Anand, who has conducting research on community forests for more than three decades, expressed his thoughts on Article 25.

"The article was put in to change the requirement of experience in forest management from five to ten years. This may lead to problems in verification. How can we know how long a community has been involved with community forest management? There has been no system for registering community forest."

Dr Anand said the crux of the matter is that the framers of the law do not grasp that there are different layers of rights, and also many relationships between these rights.

"They tend to focus on physical topography and then divide the area for management. But if we rely on the notion of relationships, the physical topography will no longer matter. Given that the management relationship is subject to checks and balances, any community should be allowed to help manage a forest provided it has had such experience for at least five years," said Dr Anand.

Law Against Convention

Lecturer Chupinich Ketmanee of Srinakharinwirot University, who has worked with many groups of ethnic people in northern Thailand, expressed his thought that the new forest bill is in conflict with the United Nations Convention on Biological Diversity, which Thailand ratified on Jan 19, 2004.

"The convention recognises the rights of traditional communities in preserving and managing the forest, but the new law does not allow people to use the forest except to supply materials for their home consumption," said Chupinich.

He raised some examples of communities that would be affected by enforcement of the new law, such as a village in Pai district of Mae Hong Son, which has been growing tea for many generations in their community forest.

"They maintain their forest and at the same time use it to earn their living by growing tea. They grow rice just to feed their families, therefore growing tea is their main income.

"The new bill will not allow them to do this, as it is not for home consumption," said Chuwinich, who also noted that the bill would prevent collection of mushrooms, bamboo shoots and other forest products beyond the capacity for home consumption.

He remarked that it is ridiculous that the Land Law allows people to claim land rights when they have occupied a plot of land for more than 10 years, but forest dwellers who have been living in the forest for many generations are not entitled to a similar right.

"They don't ask to own the land; they ask for the right to use it," he added.

The National Parks Department has already submitted their observations on the new bill to the Constitutional Court. Prayong, Prue and many community leaders are now planning to submit their opinion that the proposed CFB would deprive them of their right to manage and maintain their traditional forests, as granted by the new Constitution.

"If that method does not work, we plan to use another mechanism outlined in the new Constitution - collect 10,000 signatures to petition for an amendment of the law," said Prayong.

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2007 Constitution, articles 66 and 67, (official translation)

Article 66: Persons so assembling as to be a community, a local community or a traditional community shall have the right to conserve or restore their customs, local knowledge, arts and culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources, the environment and the biological diversity in a balanced and sustainable fashion.

Article 67: The right of a person to give to the State and communities participation in the conservation, preservation and exploitation of natural resources and biological diversities and in the protection, promotion and preservation of the quality of the environment for regular and continued livelihood in the environment which is not hazardous to his or her health and sanitary condition....

Community Forest Bill, articles 25 and 35 , (unofficial translation)

Article 25: A community can request the right to protect its forest in any protected area if it can be proven that the community had existed before the protected area was declared by the government. The community must also demonstrate that it has been preserving and managing the local forest for no less than 10 years before enactment of the Community Forest Bill (CFB).

The community must also demonstrate that its culture is in harmony with the forest ecology.

Any request for the establishment of community forest (CF) must be made within five years of the enactment of the CFB.

The protected areas specified must not be government reserves for protection of wildlife, research and academic studies or other state benefits.

The proportions of the CF should follow the criteria, methods and conditions which the Community Forest Policy Committee stipulated and declared in the Royal Gazette.

Article 35: Logging is prohibited in CF within protected zones and in the area for conservation in CF outside the protected area. Logging in CF outside protected or conservation areas is allowed only for home consumption by members of the communities or for public activities within the community, in line with Community Forest Policy Committee regulations.Collecting forest products also must comply with the regulations of the Community Forest Policy Committee.
Link to original news report


edited:04/02/2008
uploaded:04/02/2008