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 Asiaownership but allows for conditions of access to be determined andmanaged by local communities and/or indigenous peoples. With commonproperty, land use (usufruct) is determined by a system of traditionalregulation by indigenous peoples as a mechanism of local control, and not amechanism of State law.When land is changed from common property to State or private property,traditional laws governing rights and usufruct which are dependent on localcontrol and management are changed to a law of ownership, which isdependent on State or individual control. In the case of communities whopractise rotational farming, such self-sufficient practices becomeunsustainable and communities are forced to shift to forms of permanentagriculture which make them dependent on financial and technical supportfrom outside their community.When a situation occurs in which most of a village’s families face problemsbecause they find themselves unable to practise rotational farming, villagerstry to solve their problems by working together to manage their resources atthe community level. In this way, problems which cannot be solved at afamily level alone are addressed at a collective, community level. This oftenresults in communities establishing committees, such as village committees,forest committees and committees of elders. Such committees work to adapttheir local knowledge and customary laws to solve their problems andmanage their resources, for example, by designating and cultivatingcollective areas to become community forests or bamboo forests to helpfamilies gain life security and become more self-sufficient. In this way,communities can support their member families to seek alternatives, toadapt and shift from an insecure system of cultivation to an agriculturalsystem which is more sustainable for them.At the same time, management at the community level can work to increasethe collective space for the community, playing an important role inensuring life security for its members by increasing the scope for alternativeforms of agriculture to be explored. Committees can serve as forums whichsupport a community in investigating and developing sustainable forms ofagriculture on its fallow land without having to resort to destructive andunsustainable agricultural practices, such as cash crop farming. For149
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaexample, fallow land can be used to plant harvestable and sustainable treessuch as tea trees, Makwaen trees, Makhom trees and so on. Such forms ofcultivation can become an important source of income for communities andare part of a system of agro-forestry, or integrated farming, which offerssustainable alternatives to rotational farming for development in the future.Customary land tenure and State policyThe idea of communal land rights/community land ownership is based onthe concept of communal land management of the communities who have ahistory of settlement in that area. This form of communal rights is expressedby community members as using the land together, as exemplified by themanagement of rotational farming by the Karen and Lua communities, andwater management by irrigation by native Northern Thai farmers.The concept of the communal land title implies the following aspects:• Ownership by the community• Rights to use (usufruct) by individuals• Land passed down through inheritance• Selling of land to outsiders prohibited• All members must use the land continuously (including in the form offallow systems of rotational farming)• The changing and handing over of land use between differentcommunity members is subject to approval by local committeemembersDuring the time of Prime Minister Aphisit Vejchachiva, the Regulation onCommunal Land Titling 2008 stipulated the need to “protect and preservethe land which is appropriate for agricultural cultivation and which alreadyhas developed infrastructure for irrigation for the sustainability of long termagriculture, recovering the quality of the soil, providing farm land for poorfarmers in the form of a land cooperation bank and supporting agriculturaldevelopment in the form of agricultural land settlement”.150
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Divers Paths to Justice - English - Forest Peoples Programme

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