Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaState conservation policies impact significantly on the sustainablemanagement of rotational farming, forcing indigenous peoples to dependmore and more on external production systems and agricultural practices.An example of how this works in practice is the case of Mae Lan KhamMoo 6 T. Sameong Tai A. SaMeong Chiang Mai Province, a settlement ofKaren (or Pgaz K’ Nyau as they refer to themselves) people who havepractised rotational farming since their ancestors’ times, using a ten yearcycle of farming, strongly based on self sufficiency. In 1957, a road wasbuilt linking the settlement to the outside world, effectively putting thecommunity under more direct control of the State. Following this, in 1977,the State implemented a project of tree (eucalyptus) planting in watershedareas, which overlapped with areas where rotational farming was practised.This has impacted upon the system of rotational farming and Karen peoplehave found themselves having to change to adapt to the new conditions andlimitations caused by government-sanctioned tree planting in traditionallyfarming areas. 19This case fits with the findings of Chalardchai et al’s (1992) study on landuse (usufruct) rights for people who have settled in forest areas (e.g. Karenand Lua) which shows that these communities lost their rights to practiserotational farming and that when land was left fallow, people had no rightsto return to farm it, forcing them to abandon their traditional fallow land. 20This also meant people were forced to abandon a self-sufficient system oflocal and communal land control and management. In summary, the loss oflocal control and communal land rights perpetuated by the policies of theState not only impacts on land use (usufruct) rights but also impactsstrongly on indigenous traditional livelihoods, the practice of rotationalfarming and all systems of traditional natural resource management, as wellas on the environment.Another study, Chanon (1994), considered the consequences of the State notrecognising local communities’ usufruct system, and found this created anexpanding conflict between the State and communities, since the State relies19 Prasert 200820 Chalardchai 1993147
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaon State law to control the area, while local communities rely on theircustomary laws which do not depend on land titles, but rather support asystem of traditional land inheritance and management. 21 Under State lawand conservation policy, it was found that communities faced manylimitations due to prohibitions on the practice of rotational farming andusufruct rights, denying communities the right to manage their naturalresources under local control.Anan’s (1996) study shows that land use within a system of rotationalfarming is complex and not easy to explain or clarify. 22 Indigenous peoples’customary land use laws give rights to families to use the land during afarming year, but require that after that year, the land be left fallow toregenerate the soil. After the fallow period, the rights to farm the land againrest with the previous user. However, if they choose not to farm that area,other members of the community are allowed to farm there as long as theyinform and consult with the previous farmer. From this it can be seen thateven when land is considered communal, the transfer from one farmer toanother necessitates careful negotiation to avoid conflict.Alongside this are many activities which a community will perform togetheras a form of collective labour. These include: slashing the field to preparethe farming area, collecting or harvesting forest products, managing theirrigation system to preserve the watershed areas, and controlling andmanaging sacred sites. These examples show the diverse ways in whichindigenous peoples traditionally manage their lands. What this reveals isthat rotational farming is not only an agricultural system but is about thecontrol and management of all natural resources within the environmentupon which the Karen depend.The complex legality of land ownership in Thailand means that landmanagement is dependent on conditions of access. There are three possiblelegal categories which define land ownership. In the first two, State propertyand private property, access to the land is controlled by individual owners orthe State. The third category, common property, does not emphasise21 Chanon 199422 Anan 1996148
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