Authorities in the joint force transferred the aged Ko-I to Bangkloi Lang during the fourth Tenasserim operation. Credit: DNP/ KKNP

BACKGROUNDER: Bangkloi Saga

The unexpected move by young Karens to return to their ancestral land in Bangkloi Bon and Jai Pandin in Kaeng Krachan National Park has reignited the highly controversial issue concerning the relocation of indigenous Karens out of the forest and the resettlement attempt that followed, both have been seen as unfinished since they were first relocated over 20 years ago_and simmering conflict over rights to settlement in forestland

It’s somewhere deep in the jungle of Kaeng Krachan National Park, but they prefer to call it home as it was once the settlement of their ancestors, Jai Pandin and Bangkloi Bon Karens.

Some Karens, with the exact number still unclear, are reportedly occupying space in the jungle, under makeshift tents made of plastic sheets, tree branch roofs, and bamboo-based beds, with a hope for a better living condition than that offered at the resettlement villages down the hill they have left since last month.

“Actually, we had intended to return to our ancestral land for a while and we discussed this several times. We would have starved to death if we still lived down there because we don’t have our own land, on which we can farm to support our lives,” one Karen among the group told Transborder News exclusively early this week.

Without their own plots of land to make a living like the other residents in Bangkloi Lang and adjacent Pong Luek plus current hardship from Covid-19, these Karens, especially youngsters who had returned to the villages from labour work outside following Covid-19, decided to hatch the plan to leave the villages for their ancestral land uphill around mid-January.

The unexpected move by the group, reportedly to be between 40 to 60 persons, has reignited the highly controversial issue concerning the relocation of indigenous Karens out of the forest and the resettlement attempt that followed, both have been seen as unfinished since they were first relocated over 20 years ago.

The story about this Karen group would have not been in the spotlight if there had been no reports of the renewed relocation by a joint force led by Kaeng Krachan National Park following a helicopter crash in the deep jungle of the park in mid-2011.

The marked locations of encroached plots of land during the Tenasserim Operation.

Since, their story had been pieced together, with facts and allegations mixed, before landing in the Administrative Court and the Supreme Administrative Court in 2012 and 2016 respectively, as some six Karens including the most senior community member, Ko-I Meemi, aka Grand Pa Ko-I, had decided to file a court case against the park authorities for violating their rights.

Through testimonies, court deliberations and examinations of related documents and materials by the Courts, the public has eventually learned about what actually happened in the deep forest of Kaeng Krachan, as much as conflict over rights to settlement in forestland, which is still highly charged and has been lingering in the society up until today.

According to the Supreme Administrative Court, where all facts and proofs were finalised, Kaeng Krachan National Park by the new park chief at that time, Chaiwat Limlikhit-aksorn, had come up with the so-called Tenasserim Operation after he had inspected the park area upon his assumption of the office and learned about forestland encroachment along the border separating Thailand and Myanmar in the West.

From April 2010 onwards, the park authorities undertook field surveys at least three times during the year, travelling by foot over rough terrains to encroached plots of land where they found some wrongdoings including forest clearing, big tree cutting, wildlife poaching, and marijuana growing.

Along with community leaders from Bangkloi Lang and Pong Luek, the park authorities negotiated with the encroachers (whom they claimed to be of “a minority group”) to pack their belongings and leave before action was taken.

Authorities during the forth Tenasserim Operation in early May 2011.

The park then joined force with military officers and some others from other agencies in the fourth operation in early May 2011, travelling by foot and by helicopter to the marked locations to demolish the properties standing in the encroached plots of land.

They reasoned that this was to prevent re-occupation, accidental fires, and diseases. After all, these were just temporary makeshift structures, they claimed.

But it turned out that among 98 properties demolished and burnt down, some were claimed to belong to Ko-I and the other five plaintiffs in Bangkloi Bon and further Jai Pandin.

In May 2012, Ko-I and the other five plaintiffs decided to file a complaint to the Administrative Court with the help of human rights lawyers and advocates outside, accusing the park authorities including Mr. Chaiwat of having used excessive authority without advance notice, thus violating their rights.

Their arguments as appeared in the courts’ deliberations and verdicts was that the operation was unlawful, and had violated their rights and community rights guaranteed under the 2007 Constitution. The operation also failed the 2010 Cabinet Resolution to protect Karen’s rights both in immediate and long terms, including securing their occupational land rights, while breaking international human rights conventions, including the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The plaintiffs called for restitution worth Bt 9.53 million in total from the Department of National Parks, Wildlife and Plant Conservation, and the Ministry of Natural Resources and Environment, Mr. Chaiwat’s supervisors.

They also called on the courts to allow them to resettle in Bangkloi Bon and Jai Pandin, claimed to be their old communities, and to require that the two defendants adhere to the 2010 Cabinet resolution.

“The demolition and burnings on properties of the six plaintiffs are unlawful as it was an administrative act out of proportion. This resulted in the six losing their homes, food, and clothes, thus a violation against their rights and community rights,” claimed the six plaintiffs’ complaint submitted to the first court.

Properties found standing in allegedly encroached plots of land in Kaeng Krachan.

The truth told

Following court deliberations and examinations of the case which were finalized in the Supreme Administrative Court following the two parties’ appeals, it has revealed that Ko-I and the five plaintiffs were indigenous Karens who once lived in Bangkloi Bon (Upper Bangkloi) and Jai Pandin villages deep in the jungle of Kaeng Krachan.

The forestland was a forest reserve declared in 1965 and in 1981 it was incorporated into Kaeng Krachan National Park. In 1996, these Karen people from the two villages had been relocated to Bangkloi Lang (Lower Bangkloi) and Pong Luek, but they felt they could not continue their living there because it was not in harmony with their way of life (under which rotational farming is said to be a key part).

Some had decided to return to their old communities and continued utilising the land up there, the Supreme Court found.

However, they had no land rights or permit documents to show their lawful occupation of the land. So, the court stated that their occupation of the land violated the National Parks Act’s Section 16, which concerns prohibition against forest clearance and encroachment.

To discover such an instance of forestland occupation, park authorities have authority under Section 22 of the same act to enforce the law through an administrative order to remove properties found encroaching upon forestland in order to protect it. But this must be done within the law, especially if it is likely to affect people’s rights, the court noted.

Section 22, after all, is actually accompanied by procedures that require the accused to be informed officially and in writing and belongings to be removed properly before action is taken against them, it pointed.

Some wrongdoings including big tree cutting and forest clearing were found in the plots examined, prompting the authorities to take action against the encroachers.

Although they had no legal rights on the land, the six plaintiffs had the right as a damaged party to file a complaint to the Administrative Court and they had done so within a one-year timeframe given for administrative complaints, the court ruled.

So, the court then looked into whether the park authorities’s action in the operation had violated the six plaintiffs. Based on examinations of testimonies and documents, the court decided that among those demolished properties the park authorities had demolished and burnt properties of the six too.

They enforced Section 22 but did not inform the six officially and in writing, although terms were claimed to be made with “encroachers” before the operation, while removal of belongings were claimed to be made almost impossible due to difficult locations.

The court stated that although the authorities’ action had met the intention of the law, the law still did not allow them to use their judgement and discretion.

The park authorities’ action, the court said, amounted to an excessive exercise of power. They failed to follow proper procedures as required and the 2010 Cabinet resolution on the part, which requires cessation of actions against Karens and provision of protection, the court stated.

Their action had seriously affected the plaintiffs’ rights to make a living and possession of properties and such, the court said. The Supreme Court thus ruled that the action by the park authorities was unlawful and caused damage, thus violating the six plaintiffs and hence must be subject to liability.

Having considered the damage done to the six plaintiffs’ properties and belongings, the court ruled that the defendants must compensate the six Karens worth around Bt 43,000 to 51,000 each.

However, the court did not rule on an appeal concerning a violation to rights to possession of property guaranteed under the Constitution as it said this was included in the compensation for the damaged properties already, nor on an appeal for compensation for mental damage as it said no proofs were present to it.

On an appeal for compensation for the loss of ethnic identity and cultural inheritance, the court did not rule either, saying it was told by the plaintiffs that these cultural properties had continued in Kaeng Krachan. This, it viewed, amounted to being protected by the 2010 Cabinet Resolution, which aims to give Karens protection in a holistic way, and being in line with the Constitution on the part concerning community rights. 

Not living in their old communities did not mean they would lose their identity and cultural inheritance, and rights to expression on such the cultural identities could never be restricted or barred regardless of locations, the court stated.

Much debate on whether traditional rotational farming by Karens is ecologically sustainable still lingers in the society.

The Supreme Court, however, ruled against an appeal concerning a violation to the six’s rights to live and occupy properties in peace and that concerning their loss of opportunity to farm and utilise resources, citing their lack of land rights and violation of the National Park Act’s Section 16. The six plaintiffs, therefore, had no rights to live in or occupy properties located in the national park. Nor they could claim legitimacy or rights to occupy and utilise the plots of land, the court ruled.

Finally, the court ruled against an appeal to return to their old communities, saying it could not issue an order to enforce the six to return to their old communities and live there as appealed. This was because it had already ruled that the six had no rights to live in the plots of land there as they were located in Kaeng Krachan National Park, and the six had no land rights or permit documents to prove their occupational land rights on the land, the court stated.

Ko-I died months after the court’s ruling in 2018, leaving his court case legacy and saga of his mysterious community behind for his young generation to fight on with the belief that they still have original communal rights to claim and live on in their ancestral land.

A month so far, some members in the group have reportedly been in negotiation with the park and returned to the villages downhill. Other persistent spirits, however, still insist on living in their ancestral land, roaming somewhere with hopes in the deep forest.

Editorial: Solutions for Bangkloi Saga need facts and impartiality to start with