1 CHAPTER 1: INTRODUCTION 1.1. Introduction Forests cover about 30 per cent of the planet’s surface and store some 80 per cent of all terrestrial carbon, as well as provide the food, water and wildlife essential for the survival of billions of people. Thai forests provide many ecological and social goods and services, including biodiversity, mitigation and adaption to climate change, soil and water conservation, valuable timber, fuel wood for energy, forest food and herbs for subsistence and livelihoods, andcultural enhancement for rural people.1 A century ago, about 72 per cent of Thailand’s area was covered in forestland – approximately 230 million rai of forest (around 35 million ha). By 1961, this forest cover had decreased to 53 per cent.2 In the mid-1960s, logging concessions to harvest about 40 per cent of forests in the north of Thailand were granted by the Thai Government.3 In 1968, the government issued additional logging concessions, together with concessions to convert native forest areas to commercial plantations. These measures contributed to further loss of forestlands.4 By 1998, only 25 per cent of Thailand’s forests – around 12 million ha – remain.5Thailand’s State of the Environment Report in 2008 noted that one of the most important causes of environmental deterioration in Thailand is forest degradation.6 In an effort to halt losses to Thailand’s forest areas, the Thai Cabinet approved a National Forest Policy in 1985. This required retention of at least 40 per cent forest cover in the country, with 25 per cent allocated to commercial forest and 15 per cent to conservation forest. Four years later, in 1989, the Thai government banned logging and revoked all concessions.7 In 1990-1995, the government launched the forest-sector master plan for the long-term conservation of forests and biodiversity, both 1 Right and Resources Initiatives (RRI), What Rights?: A Comparative Analysis of Developing Countries’ National Legislation on Community and Indigenous Peoples’ Forest Tenure Rights (RRI, Washington DC, 2012) 3;The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), 'Thailand: National Report on the Implementation of the Convention on Biological Diversity' (The 4th National Report, Ministry of Natural Resources and Environment, Thailand, 2009) 12; Sureerat Kritsanarangsan and Komchai Thaiying, 'Thailand: Forest Management Through Local Level Action; Small Grants Programme for Operations to Promote Tropical Forests (SGPPTF)' (European Commission, UNDP, Southeast Asian Regional Centre for Graduate Study and Research in Agriculture, 2008) 7. 2 1 ha is 6.5 rai, see Jannie Lasimbang and Chingya Luithui, 'Natural Resource Management Country Studies: Thailand' (UNDP: Regional Indigenous Peoples’ Programme, UNDP, November 2006) 15. 3M. Poffenberger and B. McGean, Community Allies: Forest Co-Management in Thailand (1993) Asia Forest Network . 4Komon Pragtong, 'Recent Decentralization Plans of the Royal Forest Department and its Implications for Forest Management in Thailand' in Thomas Enters, Patrick B. Durst and Michael Victor (eds), Decentralization and devolution of forest management in Asia and the Pacific (RAP Publication, 2000). 5 Sureeratna Lakanavichian, 'Trends in Forest Ownership, Forest Resources Tenure and Institutional Arrangements: Are they contributing to Better Forest Management and Poverty Reduction? Case study from Thailand' in Forestry Policy and Institutions: Understanding Forest Tenure in South and Southeast Asia (Working Paper 14, FAO, 2007) 325. 6The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), 'The State of Environment Report 2008' (ONEP, 2008) 8. 7V Brenner et al, 'Thailand's Community Forest Bill U-Turn or Roundabout in Forest Policy?' (SEFUT Working Paper No. 3, Albert-Ludwigs-Universität Freiburg, Revised edition, 1999) 15; Sureeratna Lakanavichian, 'Impacts and Effectiveness of Logging bans in natural forests: Thailand' in Patrick B. Durst et al (eds), Forests Out of Bounds: Impacts and Effectiveness of Logging Bans in Natural Forests in Asia-Pacific (RAP Publication (FAO) 2001) 167. 2 inside and outside protected areas.8 In addition, the government passed legislation dealing with forest practices to protect and maintain forest areas.9 Unfortunately, these actions to safeguard Thailand’s forests have not achieved the expected result of reducing the destruction of forest. The failures have been largely blamed on poor forest governance.10 A review of the literature on forest governance suggests that ‘good’ governance plays a key role in ensuring sustainable natural forest management. Unfortunately, published research specifically on Thailand’s forest governance system is relatively sparse. Such research as exists is discussed in Chapter 2 (see, particularly, the 2.1) and research on specific aspects of the system is incorporated in discussions of those issues (especially in Chapters 3 and 4). Like many countries, Thailand has laws and institutions that, arguably, ought to have led to sustainable use of forest resources. Thailand is also party to many international agreements to secure forests and community interests in forests. However, as will become evident in this thesis, Thailand’s present forest management system is confounded by an unresolved tension between production forestry, conservation forest management, and social justice issues. Existing legislation, including the country’s Constitution, emphasise different issues with the result that government departments, in charge of implementing the legislation, arrive at different decisions about how forests should be managed, and the form of rights that people can have to forest resources. Attempts by governments and government departments to underplay the social justice issues is a cause of social conflict and ongoing attempts by civil society to introduce Bills that will enshrine the rights of forest dependent people to forest resources – rights that are already recognised in the country’s Constitution. To place this issue of ‘social justice’ in context, it is pertinent to note that one in six people in Thailand depend on natural forests for their livelihoods.11 In 2007 the Royal Forest Department (RFD) found that 480,426 households lived in forest areas.12 Legislation setting boundaries for forest types (‘protected’, ‘community’ and ‘plantation’) meant that by the 1990s, approximately 11 million people (over 20% of all Thai villages) were noted as settled in protected 8 Lakanavichian, above n 5, 334. 9 Chaleo Kanjan and Jessada Kaewchote, 'Community for Watershed Protection: Mae Khan, Thailand' (Community Forest Management Trends in Southeast Asia, Asia Forest Network, 2004) 11-12. 10See FAO- Regional Office for Asia and the Pacific, 'Thailand Forestry Outlook Study' (Asia- Pacific Forestry Sector Outlook Study II- Working Paper Series No. APFSOS II/WP/2009/22, FAO, 2009) 31-33; MD. Abdus Salam, Toshikuni Noguchi and Rachanee Pothitan, 'Community forest management in Thailand: current situation and dynamics in the context of sustainable development' (2006) 31(2) New Forests 273, 287-288; Lasimbang and Luithui, above n 2, 43-45; Fujita Wataru, 'Dealing with Contradictions: Examining National Forest Reserves in Thailand' (2003) 41(2) Southeast Asian Studies 206; Louis Lebel, 'Institutional Dynamics and Interplay: Critical Processes for Forest Governance and Sustainability in the Mountain Regions of Northern Thailand' in Uli M Huber, Harald K M Bugmann and Mel A Reasoner (eds), Global Change and Mountain Regions: An Overview of Current Knowledge (Advances in Global Change Research, vol 23, Springer, 2005) 531, 533-537. 11 Suree Bhumibhamon, 'Forest and Poverty Alleviation in Thailand' in Proceedings of the Workshop on Forests for Poverty Reduction: Changing Role for Research, Development and Training Institutions (RAP Publication, 2005) 188. 12The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), 'Thailand's National Parties Self-Assessment: United Nation Convention to Combat Desertification' (ONEPand UNDP, 2010) 32. 3 forest areas, thus with restrictions to rights to forest resources they depend upon.13Such categorisation of forestlands meant that by 2000, there were approximately two million ha of forest areas illegally occupied.14 This thesis aims to propose feasible reform directions for forest governance in Thailand that will provide greater social and environmental benefits from forestry and help overcome identified forest governance deficiencies. The overarching research question posed in this thesis is: How can Thailand's forest governance system be reformed to help overcome identified forest governance deficiencies? To respond to this question, this research begins by conducting a literature review of the forest governance issues confronting Thailand, including an examination of the legislation guiding the governance system. With this background to the system, the research moves on to deriving a set of criteria that could be used for determining how reform can be achieved. The criteria are a distillation of issues that have been raised by various international forest governance organisations. The discussion in this thesis is focused on providing sufficient detail to ensure that policy makers will be able to understand the issues and background of the forest governance in Thailand. It is also focused on providing a sound rationale for examining the current forest governance system and establishing where reform can feasibly be carried out. 1.2. Significance of the research The research conducted for this thesis will add to the knowledge-base of how best to preserve Earth's forests, especially those of Thailand; this thesis contributes to the policy literature on good governance as well as to forest literature. Developing proposals that are likely to be effective on how losses can be reduced is vital. Developing a well-functioning governance system will help to ensure sustainable forest management that will significantly benefit Thailand’s environment and those who depend upon the country’s forests. In addition, this thesis demonstrates the applicability of a mixed methods approach to research on legislative and governance reform. The significance of the research will be further discussed in Chapter 9. 13 International Centre for Environmental Management (ICEM), 'Thailand National Report on Protected Areas and Development' in Review of Protected Areas and Development in the Lower Mekong River Region (ICEM, 2003) 49. 14Korn Manassrisuksi and Weerawat Sangkrajang, 'Forestland Management in Thailand' in Country Reports on Forest Tenure in Asia and the Pacific: Proceedings of APFNet Workshop on Forest Tenure (APFNet, 2011) 125, 131. 4 1.3. Structure and content of the thesis The thesis comprises nine chapters. This first chapter provides a brief background on the origins of the motivation for the research, the research problem, its focus and importance, and its purpose. This section provides information on the structure of the thesis. Chapter 2 discusses the research methodology and how the research question will be ‘unpacked’. The research used a mixed-methods approach, utilising: 1. Doctrinal methods and documentary analysis, which involved reviewing literature from a wide range of sources. The discussion in Chapter 3 and 4 contain most of the detail of this review, which is again utilised in the final chapters of the thesis. 2. Engaged policy methods. This step involved identifying and interviewing stakeholders. Three sets of consultations were carried out in the course of the research. The first two sets were interviews of stakeholders to ‘ground-truth’ findings from the literature review and analysis. The third set of consultations was conducted to discuss draft recommendations for forest governance reform with key stakeholders. 3. Systems thinking, which helped analysis of findings. Throughout the thesis, and particular in Chapter 8, systems maps are used to illustrate the linkages between issues and how these links can be influenced to bring about reform of forest governance. 4. Comparative analysis, to aid in providing insights into possible solutions to the identified problems and to add validity to findings. Given the scope of the subject matter and the time frame in which the research needed to be completed, the different approaches were used to triangulate findings to add validity to them and confidence to the recommendations. Chapter 3 and Chapter 4 are closely associated. Chapter 3 provides the background and context of the forest governance system in Thailand. It discusses forest authorities, forest laws and the international obligations that Thailand has agreed to. Chapter 4 discusses (a) the history and evolution of forest governance and (b) criteria for good forest governance against which to measure Thailand’s forest governance system. The Chapter provides the rationale for the derivation of ten criteria that could guide analysis of Thailand’s current forest governance system and guide action for reform of the system. The nature of the discussion in Chapter 3 was, in part, informed by the criteria discussed in Chapter 4. With the criteria in mind, it was possible for the researcher to develop a systems map to help understand the relationships within the governance systems and to identify key stakeholders within the system. The published article, included in Chapter 3, (Country Report: Thailand-Recent Developments of Forest-Related Law (Plantation Act), which is a detailed study of the operation of the Thailand’s amended, forest plantation laws and illustrating how aspects of the legal system impact the forest governance system, utilises the criteria in its discussion. Chapter 4 includes the published 5 paper, ‘Country Report: Thailand Recent Development in Forest Rights in Thailand’, which particularly utilises Criterion 7 – Fairness and Equity, and Criterion 10 – Stakeholder relationships, as guidelines for investigating forest laws broadly, particularly the Community Forest Bill in Thailand. Chapter 5 details findings of the first set of interviews. The interviews aimed to verify the validity of the ten criteria for good forest governance derived in Chapter 4 for both diagnosing forest governance problems in Thailand and to provide insights into potential solutions to identified problems. The Chapter also includes a paper ‘A systems perspective on forest governance failure in Thailand’, authored by the researcher that uses the criteria to examine the forest governance system in Thailand. Chapter 6 details findings from the second set of interviews. Analysis of the results of the first set of interviews together with findings from the literature review indicated that reform of the current forest governance system would require changes to the property rights system over forests. To obtain further information about the operation of the property rights system over forests, a second set of interviews was conducted. Chapter 7, supported by details in Appendix 4, explores the experiences of forest governance in an international context. The Chapter contains two articles, which explore possible options for reform from a wider, international perspective. The first paper, A System Perspective on Forest Governance Failures and the Implications for the Western Ghats, India, provides information about forest governance failures from a variety of sources and jurisdictions. The paper considers comparable experiences from other jurisdictions to better inform forest governance in the Western Ghats. This international data informs the key reform issues for Thailand, outlining the framework of international developments in forest governance. This paper has been accepted for publication. The second paper, REDD+ Implementation in Thailand – Legal and Institutional Challenges, provides additional information about the standards of forest governance expected by the international community if Thailand is to participate in the economic opportunities associated with new, international, environmental markets. This paper has been accepted for publication. Chapter 8 focuses on how the range of issues challenging good forest governance in Thailand, might be addressed. Both the paper by Phromlah, ‘Reforming Governance for Sustainable Forest Management in Thailand’, included in Appendix 5, and the article by Phromlah and Martin, ‘REDD+ implementation in Thailand – legal and institutional challenges’ included in Chapter 7 discuss a number of the recommendations. Ten recommendations were drafted and, in keeping with the engaged research methodology adopted for this research, the recommendations were discussed with key stakeholders before finalisation. Chapter 8 lists the recommendations, provides a rationale for the inclusion of each and summarises feedback received from consulted stakeholders. 6 Finally, Chapter 9 summarises the content of the thesis before listing the final recommendations. Chapter 9 also discusses: the significance of the research, the limitations of the research and methods used to minimise the effects of the limitations; and further research that could be carried out to further develop this study’s findings. 1.4. Conclusion This chapter has provided an overview of the importance of the topic of forest governance in Thailand. The thesis aims to examine why reforms to the forest governance system have, to date, been ineffective and what directions exist for reform. This chapter also explains how the thesis discussion will be organised in following chapters. Chapter 2 lays the groundwork for the thesis discussion and conclusions by explaining the methodology used in the research. 7 CHAPTER 2: METHODOLOGY 2.1. Introduction This chapter provides an overview of how the research was conducted. As explained in Chapter 1, forests in Thailand continue to degrade in spite of government efforts to stop the degradation. As will be further discussed in Chapter 3, legislation to protect the forest is apparently strong. However, the institutional and social support for the implementation of legislation and of government programs, that is, the governance system, is weak. Research on Thailand’s forest governance system is relatively sparse, generally based on case studies of specific issues, and more than a decade old.15 The researchers employed combinations of desk research and surveys to collect data.16 Siangsai studied the issue of the participation of community leaders in forest governance in 2003. He employed a doctrinal approach and a questionnaire to collect data from community leaders within two districts of one province in the Northeast Thailand.17 Sritanatorn (2009) and Jinarat (2007) studied public participation. As with Siangsai’s work, Sritanatorn conducted desk research of documents supported by interviews with four forest communities.18 Jinarat studied the Community Forest Bill and employed both a documentary method and interviews for collecting data; he interviewed 11 people who were involved in the drafting the Community Forest Bill.19 An FAO study endeavoured to investigate Thailand’s whole forest governance system. The researchers studied documents and used data from a working group meeting to gather data. Participants in the meeting were limited to those involved in the RFD and the Department of National Parks, Wildlife and Plant Conservation (DNWPC).20 Like the FAO study, this study endeavours to look at the whole system of forest governance in Thailand but to include the views of a broad range of stakeholders. To do so, the study employed an engaged policy research approach, aimed at understanding the context and nature of the social issues 15Thailand Library Integrated System, Thai Theses Online (2013) Science and Technology Knowledge Services (STKS) ;NSTDA, Thai Thesis Database (2009) NSTDA ; Chiang Mai University (CMU), e-Theses (2013) CMU. 16 Weerawut Siangsai, Community Leaders' Participation in The Prevention and Suppression of the Forest Resource Destruction(Master Thesis, Mahidol University, 2003); Pornthep Sritanatorn, Sustainable community forest management in local development : community practice, people participation and the success of forest conservation (PhD Thesis, National Institute of Development Administration (NIDA), 2009) 51-54 and 317; Nuthawut Jinarat, The process of public policy formulation: A case study of the Community Forest Bill BE 2550 (2007) (PhD Thesis, Ubon Ratchathani University, 2010) 86-87, 294; FAO- Regional Office for Asia and the Pacific, above n 10, 5-6. 17 Siangsai, above n 16. 18Sritanatorn, above n 16. 19Jinarat, above n 16. 20FAO- Regional Office for Asia and the Pacific, above n 10. 8 concerning forest governance, and incorporating the views, values and capabilities of stakeholders. The objective of the approach is to derive meaningful recommendations for change. To obtain an understanding of the context of the problem the researcher first conducted a literature review then verified the findings from the review by interviewing a range of stakeholders, analysing data from the interviews and checking back with stakeholders in three steps. The following three sections explain the theoretical underpinning of the research methodology, beginning with an explanation of the engaged policy research method used to guide the research strategy, followed by an outline of how systems thinking helped to map the data. Section 2.3 outlines the method for the literature review. Section 2.4 discusses the method for interviews and describes how findings were verified. Section 2.5 describes the employing of comparative study in this thesis. The Chapter ends with a brief discussion of the validity of the methodology adopted in this thesis. 2.2. Engaged policy research An engaged policy research approach was employed in this thesis aimed at understanding the context and nature of social issues and incorporating the views, values and capabilities of stakeholders, and then deriving meaningful recommendations for change. The overarching research question is: How can Thailand's forest governance system be reformed to help overcome identified forest governance deficiencies? There are also two sub-questions: 1. To what extent do laws and institutions in Thailand ensure a feasible forest governance system? 2. How can laws and institutions in Thailand be reformed to overcome identified forest governance deficiencies? Basically the research question deals with the effective implementation of policies. Typically, policy research is characterised by mixed methods, aiming to suggest systematic and transparent changes to policy.21 Although there are various types of research processes for social problems, policy research is unique in focusing on action-oriented recommendations – implying that, in an attempt to provide decision makers with useful recommendations, many possible actions for resolving fundamental problems are submitted to examination and those actions that are the most appropriate are recommended. Thus, policy research is mostly focused on creating pragmatic courses of action for solving complex social 21Ann Majchrzak, Methods for policy research (Sage, 1984)12-13. 9 problems. The policy research focus for this thesis, therefore, requires a strategy based upon a realistic understanding of the context and the resources available in Thailand to make such strategy work.22 For policy research, existing laws are only one of many inputs to a policy decision. Other inputs include: the views and wishes of constituencies, colleagues and superiors; staff opinions; existing policies; and preconceived attitudes. The ability of the policy researcher to indicate to decision makers why the recommendations proposed are worthwhile to be implemented is also important.23 Policy research often deals with social problems that are complicated and not easily resolved. As a result, social problems can generally only be resolved through a series of successive approximations in which policies are continually suggested, implemented, evaluated, and revised. Policy research is able to provide the empirical evidence to support this series of successive approximations – it is gradually collaborated by numerous actors operating at different policy-making levels and using different policy mechanisms with different intended consequences.24Engaged policy research is an approach that serves a practical purpose and is grounded in the ‘real’ lives of the society. It is a process that brings academic intellectual capital to bear on social need by engaging stakeholders to jointly scope and identify potential resolutions of a social problem.25 By employing an engaged research approach, the researcher is able to draw upon a variety of forms and sources of intelligence to support inferences addressing legal/doctrinal issues, institutional arrangements, and social and environmental policy. In this study, the researcher employed pragmatic methods, drawing upon systems thinking, purposeful policy enquiry, key informant interviews, and legal and institutional analysis (both of governance arrangements in Thailand and forest governance arrangement in other jurisdictions). The applied policy approach in this thesis allowed the researcher to consider the ‘voices’ of different stakeholders in defining the problem and exploring feasible solutions to problems. Applied policy research generally requires a substantial use of inference from viable evidence, rather than proof based upon deduction. The researcher has attempted to overcome the limitations of subjectivity by obtaining data from various sources, including benchmarking and comparative studies of other countries, to ‘triangulate’ findings, and help with the analysis of the issues and the justification of recommendations.26 There is a growing trend for employing engaged research in social science and humanities research. The emergence of ‘engaged scholarship’ in the early 21st Century strengthened the combination of 22Paul Martin and Miriam Verbeek, Sustainability Strategy (The Federation Press, 2006) 66-67. 23Majchrzak, above n 21, 14-15. 24 Ibid. 25 Daniel J. Buckles and Jacques M. Chevalier, Participatory Action Research: Theory And Methods For Engaged Inquiry (Routledge, 2013) 65; Jeffrey C. Bridger and Theodore R. Alter, 'The Engaged University, Community Development, and Public Scholarship' (2006) 11(1) Journal of Higher Education Outreach and Engagement 163; Malika Roman Isler and Giselle Corbie-Smith, 'Practical Steps to Community Engaged Research: From Inputs to Outcomes' (2012) Journal of Law, Medicine, and Ethics 904, 909. 26Terry Hutchinson, Research and Writing in Law (Lawbook Co., 2006) 64. 10 innovative practices and methodologies to build knowledge and benefit society. Enhanced collaboration within and, especially, across disciplines is an increasingly important approach that is helping to transform the way that scholarship is conceived to build successful cultures of innovation in dealing with a social problem.27 In August 2012, the National Sciences Foundation in the United States (US) reported that the percentage of research funds passed by US universities to the private sector for the purposes of research collaboration increased from 10 per cent in 2000 to over 15 per cent in 2009.28 This reflects a growing focus on engaged industrial research by scholarly institutions. Similarly, in Canada, as research questions have become more complex and practical research findings ever more in demand, researchers are more likely to employ engaged research to enable greater synergy among university, civil society and community within complex research inquiry. A 2008 survey conducted by the Social Sciences and Humanities Research Council (SSHRC) found that only five per cent of researchers in the social sciences and humanities described their work as ‘exclusively disciplinary’. A 2012 cross-disciplinary study of more than 1400 projects funded by the Canada Foundation for Innovation revealed that, between 2008 and 2011, over 80 per cent of projects included linkages with ‘partners’. Of these, 76 per cent of projects involved collaborations with the academic sector, 26 per cent counted partners in the public and not-for-profit organisations, and 29 per cent involved partnerships with the private sector.29 Engaged policy research is also increasingly employed for human resource development (HRD) and health service management. An example is a study by Tsui in 2013who reported that engaged research was adopted to effectively understand the nature of stress. This research project engaged stakeholders from the US workforce to share their experience of stress and to discuss how stress influences the capacity of workers to learn and adopt change in the workplace.30Tsui noted that, in China, there have also been calls to employ engaged research methods for development of HRD policy. The rationale is that by employing engaged research in HRD, views and feedback of managers and employees can be obtained to help overcome human resource problems. The belief is that engaged research will produce research that is more scientifically sound and more meaningful.31 Isler and Corbie-Smith noted that engaged research is being increasingly driven by the recognition that inclusion of diverse perspectives in multidisciplinary teams is necessary to address complex social problems in responding to issues of health equity.32 27 Ted Hewitt, Examining the Growing Trend of Engaged Research in the Social Sciences & Humanities (2013) Federation for the Humanities and Social Science . 28 Ibid. 29 Ibid. 30 Anne S. Tsui, 'Making Research Engaged: Implications for HRD Scholarship' (2013) 24(2) Human Resource Development Quarterly 137, 138. 31 Ibid, 140-142. 32 Isler and Smith, above n 25, 906-907. 11 In relation to natural resource management, Oija et al report that, in 2012, engaged research was conducted in different areas of four countries: Bangladesh, Ecuador, Nepal and Zimbabwe. This research combined different systems of knowledge related to agriculture and natural resources management, ranging from farmer field schools, to floodplain management and community forestry in a way that generated and maximised innovation and the translation of research into practice. The research aimed to discover solutions that responded to the social and biophysical complexity of natural resource systems.33 2.2.1. Systems thinking Pursuing sustainable natural resource management involves consideration of a complex set of variable, issues and relationships. It involves consideration of ways to change behaviours. This demands an understanding of how social and economic systems shape that behaviour. Martin and Verbeek propose that there are two controllable factors influencing the behaviour of individuals: flows of information (from the senses, sciences, communications, literature, and media), and the flow of resources (providing individuals with incentives or disincentives to behave in certain ways).34 In other words, to change behaviour, the only tools available to the change agent are those that adjust the flow of resources and information that influence how people make their decisions. A useful method for determining the nature of flows of information and resources is to identify or map relevant transactions. Transactions occur whenever there is a decision by an actor (including an organisation) that has the effect of changing either or both of the two flows – information and resources flow. Transactions can occur between people and other people, such as when buying and selling or communicating with one another (such as a negotiation to purchase the forest products); or between people and their environment (for instance, harvesting, cutting down, or removing the trees). In natural resource management, there is a large number of relevant transactions, for example informal or social transactions, such as: when a group of people get together to plant trees or to advocate for protection of a forest; market transactions, such as trading transactions within environmental markets; regulating and policing, such as the enforcement of a policy against tree clearing; and issuing permits for limiting natural resources consumption.35 Patterns of transacting are shaped by incentives and disincentives. Problems in transactions may include differences in aims of the parties (such as conflicts of expectations and interest), bureaucratic impositions, as well as challenges associated with the number of stakeholders and the necessary decision-making process to maximise their interests from natural resource consumption. These 33Hemant Ojha, Andy Hall and Rasheed Sulaiman V (eds), Adaptive Collaborative Approaches in Natural Resource Governance Rethinking Participation, Learning and Innovation (Routledge 2012). 34Martin and Verbeek, above n 22, 29. 35Paul Martin, Jacqueline Williams and Christopher Stone, 'Transaction costs and water reform: the devils hiding in the details' (CRC IF Technical Report No. 08/08, CRC for Irrigation Futures 2008) v; Martin and Verbeek, above n 22, 34. 12 problems increase the costs of transactions by, for instance, increasing the need for more information or time to implement the transaction, or more time for negotiation.36This thesis uses these basic tenets of systems thinking. From the system analysis viewpoint, it would, arguably, be possible to uncover all elements in a system and to identify the connection between those elements. Behaviour change is the crucial constraint on achieving sustainable natural resource exploitation, which requires individuals to change their decisions and actions to maximise environmental welfare, economy, and social equity. Effective natural resource legislation must recognise the complex nature of changing human behaviour and must acknowledge the existing societal structure and norms for behaviour and how these are adjusted by legislation.37 Systems thinking about policy problems requires information from a variety of perspectives to identify the elements and the dynamic interactions.38 A systems approach is more complex than a static or limited evaluation (for example a doctrinal analysis of legal instruments, or a cultural perspective on forest practices). However, the result of an investigation using systems thinking is likely to be more holistic, and the proposals for reform more likely to simultaneously address different aspects of the problem being examined. This should generate a more reliable and relevant reform program than that arising from a more limited approach. Path dependence theory39 highlights that piecemeal reform of part of a social system is likely to be resisted by other, un-reformed, elements of that system. For example, reforming legal instruments is unlikely to be effective unless there is resourcing for implementation of the reformed instrument. Nor is reform likely to occur without a reduction of the power of those who are opposed to reform, who are likely to frustrate the creation or implementation of reforms. For this reason, the proposition underpinning this thesis is that systemic reform is essential to address deep-rooted governance system failings. The holistic method employed in systems thinking enables a researcher to identify uncertain sets of outcomes (risk) that may result from proposed change strategies.40 Strategies implemented without understanding how they may impact a system, such as creating a structure for statutes and other rules for natural resources management without taking into account aspects of how the social system operates and how law is implemented, may lead to failures of implementation. For example: laws that 36 Martin, Williams and Stone, above n 35.; Martin and Verbeek, above n 22, 45-47,126. 37 Paul Martin and Miriam Verbeek, 'Cartography for Environmental Law: Finding new paths to effective resource use regulation' (Research Report, Land and Water Research and Development Corporation, 2000)14. 38Martin and Verbeek, above n 22, 28-35. 39Michael Howlett, M. Ramesh and Anthony Perl (eds), Studying Public Policy: Policy Cycles & Policy Subsystems (Oxford University Press 3ed, 2009) 191-201. 40Paul Martin and Jacqueline Williams, 'Policy Risk Assessment' (Technical Report 03/10, CRC for Irrigation Futures 2010)1. 13 merely focus on conservation of natural resources, such as the forest, but ignore forest dependants, can fail to be implemented, because forest dependent people may resist implementation; having a law but not providing agencies with capacity (such as money, or technology, or sufficient staff) to implement the law, can also lead to the failure of implementation; and creating laws which are very complex may lead to reluctance by people to comply. Understanding the forest management system, therefore, is a key aspect of formulating effective forest strategies. In particular, understanding the system helps to clarify the position law has in the system and the best opportunities for law reform. A systematic understanding of the system includes consideration of stakeholders in the forest management system, the interaction between them, the decision-making roles served by them and the factors influencing decision-making. The systems map and further discussion of the Thai governance system is in Chapter 3. 2.3. Literature review The researcher reviewed literature41 on forest governance issues in Thailand and other jurisdictions, as well as literature on the evolution of the understanding of effective forest governance. The literature used was diverse: policy research papers; government reports; journals; newspapers; websites; and books about forest management, governance, law and institutions. The literature review aimed to: inform the researcher about the key issues of forest governance; how forest laws affect the forest governance system (for example: have the goals of laws changed over time; are the goals lip-service or are they intended to create a real change; to what extent do laws address forest governance issues; the successes and failures of legislation; and how legislation was enforced and implemented, and who has been affected). The researcher also sought information about the public agencies and other key stakeholders in the forest governance system in Thailand. This information was used to guide the researcher in who should be consulted. Importantly, the literature allowed the researcher to develop a set of criteria that established a foundation for: the issues to discuss with stakeholders; guiding analysing of stakeholder responses; and guiding the formation of recommendations. The derivation of these criteria are discussed in Chapter 4 and further explored in the published papers included in this thesis. As will become more evident in Chapter 3, there have been several attempts to improve the forest governance system in Thailand. However, encroachment into and destruction of forestlands still occur. This suggests that whilst there may be a body of rules for forest governance, implementation is failing, at least to some degree – particularly lack of sufficiently accommodating the values of stakeholders in the forest governance system. This type of failure is far from unique to Thailand. The 41 Victor Minichiello, Rosalie Aroni and Terrence Hays, In-depth interviewing: principles, techniques, analysis (Pearson Education Australia 2008) 28-32. 14 researcher used opportunities to learn from other countries about challenges and solutions, to better inform forest governance. 2.4. Interviews and consultation Two sets of interviews and a consultation exercise were carried out to verify and add to findings from the literature review: 1. First interview set The first set of interviews was carried out to verify the applicability of criteria on good forest governance derived from the literature review (discussed in Chapter 4). 2. Second set of interviews Based on findings from the first set of interviews and further literature reviews, the researcher concluded that further information was required regarding the operation of rights to forest resources. Therefore, a second set of interviews with stakeholders who could provide information on this issue was conducted. 3. Consultation: Finalising recommendations As a final exercise in engaging with stakeholders, those who would be responsible for implementation – or could influence implementation – of recommendations arising from this research were consulted. This section begins with a discussion of the interview method used before describing how each set of interviews and consultation was carried out, and how data from the interviews was analysed. 2.4.1. The interview method There are a number of methods of data collection in social science research. The interview is commonly used in applied policy research.42 An interview is defined as a face-to-face verbal interchange to obtain information from stakeholders43 and it enables the researcher to obtain practical information44 – insight into the experiences, concerns, interests, beliefs, values, knowledge and ways of seeing, thinking and acting – from interviewees45. Interviews can be face-to-face, by telephone or via Internet.46 Telephone and Internet interviews are helpful to overcome the constraints of time, costs and geographic distances that may inhibit face-to- face meetings.47 42Majchrzak, above n 21, 36, 62. 43 Minichiello, Aroni and Hays, above n 41, 47, 55; Andrea Fontana and James H. Frey, 'The interview: From Structured Questions to Negotiated Text' in Norman K. Denzin and Yvonna S. Lincoln (eds), The handbook of qualitative research (Sage Publications, 2nd ed, 2000),645-646. 44Fontana and Frey, above n 43, 646. 45John Schostak, Interviewing and representation in qualitative research (Open University Press, 2006) 5, 10. 46 Andrea Fontana and James H. Frey, 'The Interview: From Neutral Stance to Political Involvement ' in Norman K. Denzin and Yvonna S. Lincoln (eds), The Sage handbook of qualitative research (Sage Publications, 3 ed, 2005),721; Minichiello, Aroni and Hays, above n 41, 47,55. 15 In this thesis, two sets of predominantly face-to-face interviews were conducted, the first to scope the nature of the forest governance issues in Thailand, the second to verify findings. Telephone interviews were kept to a minimum because of a concern that it may be more difficult to establish rapport with faceless participants. However, there is sufficient evidence for the validity of information obtained in telephone interviews to have it included as an interview technique. One study comparing face-to-face and telephone interviews gathered data from union representatives and human resources management staff at four Australian Universities. The study showed that there was no difference in maintaining rapport between interviewers and participants between telephone and face- to-face interviews.48 The Central Co-ordinating Team (CCT) of the European Social Survey (ESS), in collaboration with Gallup Europe and the University of Essex studied the likely impact on data quality of a switch from face-to-face to telephone interviewing. The study found no evidence that using telephones influenced response quality, either positively or negatively. However, the research found that telephone respondents were more likely to give socially desirable responses across a range of indicators.49 2.4.2. Interview sample The sample population for the research was selected purposefully. A purposeful sampling method enables the researcher to target representatives most likely to be able to provide relevant information.50 For example, in medical research, a targeted portion with a specific medical ailment (sample) of an entire group (population) is recruited to provide information about a specific ailment.51 In ethno botany research the sample might be people willing to impart their knowledge and experiences with plants.52 In social research, purposive sampling has been used to gather information about the utility and benefits of environmental enforcement networks. For example, in one study, the viewpoints of eight senior managers who represented seven countries closely involved in a number of environmental networks were interviewed.53In 2013, purposive sampling was employed to interview only knowledgeable people in a study of factors that influence community participation and 47 Internet interview can be referred to using computer mediated communication (CMC) to obtain data from respondents such as using asynchronous CMC - electronic mail, for sending message and getting reply from interviewees or applying synchronous CMC that allows interviewer to gather information from interviewees through chat room, see Chris Mann and Fiona Stewart, 'Internet Interview' in Jaber F. Gubrium and James A. Holstein (eds), Handbook of interview research : context & method(Sage Publication, 2002) , 603-604.; Fontana, and Frey, above n 46, 721; Minichiello, Aroni and Hays, above n 41,56-59. 48 Amanda Leigh Kennedy, Exploring individualism and collectivism within Australian Universities: procedural, substantive and process elements of the academic employment relationship (PhD Thesis, University of New England, 2006) 105-110. 49 Annette Jäckle, Caroline Roberts and Peter Lynn, 'Telephone versus Face-to-Face Interviewing: Mode Effects on Data Quality and Likely Causes' (ISER Working Paper 2006-41, ISER, 2006) 1. 50Ray Cooksey and Gael McDonald, Surviving and Thriving in Postgraduate Research (TILDE University Press, 2011) 462, 465-466. 51D Simkiss et al, 'Sampling' in D Simkiss et al (eds), Oxford Journals: MedicineJournal of Tropical Pediatrics (Oxford University Press, 2012) 40. 52 Ma. Dolores C. Tongco, 'Purposive Sampling as a Tool for Informant Selection' (2007) 5 A Journal of Plants, People, and Applied Research 147, 147. 53 Grant William Pink, Environmental Enforcement Networks: A Qualitative Analysis (Master of Arts Thesis, Charles Sturt University, 2010) 15. 16 participatory patterns in water and waste environment management in the Manawa District of Samut Songkram Province of Thailand.54 The initial literature review for this thesis revealed that it would be necessary to interview three key groups of stakeholders (central government; local government; and forest communities) to ensure that data gathered from interviews would provide the greatest insights into how stakeholders value forest governance characteristics and the problems of forest governance that occur at all levels of forest governance in Thailand. 2.4.3. First interview set The first set of interviews was to verify issues identified in the literature review and to open up opportunities to contact other relevant experts. 2.4.3.1 Interviewee selection Ten ‘front-line’ participants from central government, regional and local government and community groups were recruited for the first set of interviews, as shown in Table 2.1. The names and contact details of these interviewees were found from public information and records. The Central Government authority interviewees provided information about and highlighted the values relevant to forest governance from the Central Government’s perspective. Officials at the regional and local government levels are those who are charged with implementing forest laws and policies set by the Central Government and provided information about issues regarding forest governance at the level of implementation. Interviewees from community groups involved in forest governance were also chosen. These participants enabled the researcher to explore issues concerning the successes and limitations of the implementation of forest governance, particularly at the local level, because communities are directly involved in the day-to-day management of forests. 2.4.3.2 Interview technique A set of questions (see Appendix 1) for the first set of interviews was established in consultation with research supervisors, based on findings from the literature review, which derived the good forest governance criteria (see Chapter 4). A semi-structured interview style was chosen to provide the researcher with the flexibility to fit the characteristics of the interviewees’ expertise. In a semi- 54 Srisuwan Kasemsawat, 'Participatory Patterns of Community in Water and Waste Management: a Case Study of Municipality in Amphawa District, Samut Songkram Province' (2013) 73 World Academy of Science, Engineering and Technology 89, 89-90. 17 structured interview, the researcher is able to explore the issues raised, as well as clarify issues as they arise.55 Ethics clearance for conducting the research was obtained from the UNE Research Ethics Committee (see Appendix 1). Initial contact was made with each potential participant using an introductory telephone call to provide an overview of the research and to ask for cooperation. Each participant was told that participation in the research was voluntary and that they could clarify or withdraw any data provided during the course of the interview. After the initial call, interviewees were emailed supplementary documents to assist them in making their final decision regarding cooperation. The documents provided were (see Appendix 1): a formal letter on university letterhead from both the University Of New England and Mahasarakham University (the researcher’s sponsoring university in Thailand); an information sheet; a consent form; and a list of the research questions to be discussed in the interview. Interview times and location were then agreed to. Interviews were conducted between 18 June and 6 July 2011 in Thailand. The first set of interviews was conducted in face-to-face sessions by the researcher at a location nominated by the participants. Interviews ranged from half-an-hour to one hour. At the start of each interview, participants were again provided with a letter on Mahasarakham University letterhead and signed by the Head of School. Information on the research, the research questions, and details about the length of time and scope for interviews was also reiterated. This information included telling the interviewee about the researcher’s background and obtaining permission to record the interview. Also discussed was how interview data would be used; that is, that the identity of respondents would be kept confidential and only paraphrased information would be used in published material. Each interviewee was then asked to sign the consent form, which the researcher collected. To increase reliability of information from the interviews, all interviews were recorded, using an electronic recorder, and the researcher took notes and discussed answers to questions to clarify the answers.56 Some interviewees elected to answer questions sequentially according to the questionnaire previously provided. Other interviewees used the questionnaire as a stepping-stone for a more wide- ranging response. 55Pink, above n 53, 14.; Colin Robson, Real world research: a resource for social scientists and practitioner-researchers (Blackwell Publishers, 2002) 270, 275-278. 56 Cooksey and McDonald, above n 50, 481-482. 18 Table 2.1: List of first set of interviews Interviewee group Code Policy makers from the Central Government P1 P2 P3 P4 Local government L1 L2 Forestry community C1 C2 C 3 C4 2.4.4. Second interview set The researcher mapped the issues relevant to forest governance issues (such as the stakeholders and their relationship to each other, and the incentives and disincentives that shape the relationship) that influence sustainable forest management in Thailand (see Figure 3.4). The initial interviews verified the criteria for evaluation of the forest governance system in Thailand (see Chapter 4). As discussed in the Paper ‘Thailand Country Report on Current Forestry Rights Arrangements’ (see Chapter 4), the first set of interviews highlighted additional legal issues, as well as the significance of the community’s lack of trust of government and the divergent views of stakeholders. The second set of interviews was conducted to explore the issues in more detail. The conduct of interviews in the second interview set followed the same pattern as in the first interview set: a set of questions was constructed, ethics clearance was sought and provided by UNE Ethics Committee; request for participation was initially made by telephone; then information regarding the research and interview were emailed, together with the questionnaire, to the interviewees (see Appendix 2). There were 17 participants for the second set of semi-structured interviews. Table 2.2 provides information about interviewees, their backgrounds and organisation. Three interviewees had participated also in the first set of interviews. The other interviewees were either selected based upon recommendations by the first-set of interviewees or as a result of publicly available information. Ten interviews were conducted face-to-face. Seven interviews were conducted by telephone. The second set of interviews was conducted between 7 March and 30 April 2012. As with the first set of interviews, at the start of the interview, supplementary documents were provided, the interview process was explained, consent form collected, and interviews recorded and notes taken. Those who were interviewed by telephone were asked to provide verbal consent; the consent was recorded. 19 Table 2.2: Participants in the second set of interviews Participant code Background Organisation 1a 25-years experience on management of rights on forestland Central Government 2 Leading role in Community Forest management. Central Government 3b Leading role in community forest management in the Northern Region of Thailand, 33-year experience in forest management. Regional Government 4 Leading role in community forest management in the Northeast of Thailand. Regional Government 5 b Retired official from the RFD.37-year experience in forest management, including: forest village project; allocation of forestland for poor people (Kor Jor Kor); community forest in Thailand; and direction for development. Consultant to RFD regarding reforestation and community forest policy, as well as private commercial plantations. Consultant for forest governance 6 Retired official from RFD. 21-year experience of forest management, particularly the advocacy of common property for forest management. Key advocate for Community Forest Law in Thailand since 1979. Consultant for forest governance 7a Working in reserved forestland management and more than 30-year experience with management of reserved forestland and community. Central Government 8 b 19-year experience in forest management, including community forests in the northeast of Thailand. PhD thesis focused on community forests. Regional Government 9 Thailand country program coordinator of an international forest organisation. Coordinates and conducts research in support of effective property rights on forestland, including encouraging community forest management. Directly supporting more than 100 communities in setting up community forest sites in 19 subdistricts. Collaborates with governments, universities, private sector, local NGOs, and international bodies to strengthen and help advance Thailand's community forest movement. Has played a leading role in the expansion of community forest in Thailand for more than two decades. Non-government organisation (NGOs), forest Activist 10 b Advocates for the education and retention of the basic culture of indigenous people. Focus is on the rights of people, particularly indigenous, who live in forest areas to participate in forest management 25-year experience on the issues of indigenous people and natural resources management in Thailand. NGO, forest activist 11b 17- year experience in land reform and forest management issues Received award for a research project on land reform and forest management (provided by The Thailand Research Fund (TRF) Part of a team of lawmakers for land title deed. Forest scholar 12a The head of a forest community in the northeast of Thailand Community 13 b Project coordinator of Community Forest Network Community 14 The head of a community forest network (Northeast of Thailand) Community 15 b The head of community and the head and coordinator of Community Forest Community 16 Consultant to a community forest program Community 17 Project Coordinator and the head of Community Forest Network (the west of Thailand) Coordinator for the UN in the issues of small-scale community forest. Community Notes: a The interviewee also participated in the first interview set of interviews. bThe interviewee was interviewed by telephone. 20 2.4.5. Finalising recommendations The researcher evaluated the validity of findings and the practicality of resultant recommendations by listing draft recommendations and discussing them with stakeholders who would be potentially able to influence governance decisions.57 Influencers of decisions can be: those who have resources, such as money, volunteers, contacts, or information, that are helpful to decision makers in progressing particular recommendation; people who have sufficient influence on social action – such as stakeholders who are strong and dedicated leaders of highly centralised groups with committed members; and stakeholders who have the power to access the decision makers, and share information and opinions directly with decision makers.58 Of the interviewees who participated in interview sets one and two, a subset of 13 people fitted this category of stakeholders, as summarised in Table 2.3. Eight consultants were classified as decision makers and were from relevant agencies. As described in Table 2.3, they occupy different roles, including lawyers, foresters, planner, academics and community developer. A number had been involved in implementing and reforming laws and regulations in forest management for nearly 25 years. Some had been working for community forest projects for nearly 30 years. Influencers were front-line stakeholders from various organisations. Consultant 9 has had 21-years experience in forest management, particularly in advocating for the application of common property for forest management and Community Forest Law in Thailand. Consultant 10 has worked as the coordinator of forest management between government and community and has 19-years experience in forest management, including in property rights to forest and Community Forest. Consultant 11 has worked for over two decade for an international forest organisation, which has played a leading role in the expansion of community forest in Thailand. This interviewee coordinates and conducts research and supports effective property rights allocation on forestland, including encouraging community involvement in forest management. The organisation is involved in directly supporting more than 100 communities, setting up Community Forest sites in 19 subdistricts of Thailand. It also collaborates with governments, universities, local NGOs and international bodies to help communities to advance Thailand's Community Forest movement. In the past, Participant 11 worked as the coordinator of the first ‘Policy Dialogue on Forest and Land Tenure Review and Reform’ in Bangkok. Attendees at the Dialogue included high-level policymakers, academics and representatives from civil society and community forest networks, who all agreed on the urgent need 57Majchrzak, above n 21, 77. 58Ibid, 77-78. 21 for policy reforms to ensure fair and sustainable management of shared natural resources.59 This interviewee was able to provide updated and comprehensive information to help to verify the feasibility of the reform directions proposed in this thesis. Table 2.3: Participants consulted with regard to recommendations Consultant code Role influencing final decision of forest governance 1 Decision maker. Leading role in Community Forest management. 2 Decision maker. Leading role in Community Forest management in the Northeast of Thailand. 3 Decision maker. Working for reserved forestland management more than 30-year experience with management of reserved forestland and community. 4 Decision maker. Leading role in community forest management, particularly for forest policy planning. 5 Decision maker. 25-years experience in management of rights on forestland. 6 Decision maker. 37-year experience in forest management, including: Forestry village project; allocation of forestland for poor people (Kor Jor Kor); community forest in Thailand: direction for development. 7 Decision maker. Leading role in drafting community forest law and allocating forestland and community forest management. 8 Decision maker. Leading role in community forest management. 9 Influencer. 21-years experience in forest management, particularly in advocacy for the application of common property for Thailand forest management and Community Forest Law. 10b Influencer. Has worked as the coordinator for forest management between government and community and has 19-years experience in forest management, including in property rights. 11 Influencer. More than 20 years working for an international forest organisation, which has played a leading role in the expansion of community forest in Thailand. Coordinates and conducts research and supports effective property rights allocation on forestland, including encouraging community involvement in forest management. 12b Influencer. 25 years working to protect the rights of indigenous people, including their rights to forest resources, participate in forest governance. Advocate for people who have traditionally protected forest. Coordinator in a number of international organisations for protecting and developing indigenous people’s rights. 13b Influencer. 17-years experience in conducting research on forest and land management, particularly in projects of communal land title deed, for reform direction for the government. Notes: b The participant was consulted by phone. Similarly, Consultant 12 had worked for 25 years to protect the rights of indigenous people, including their rights to forest resources, to participate in forest governance, and to be respected as people who have been traditionally protecting forests. This participant had been a coordinator in a number of international organisations for protecting and developing indigenous people’s rights. This participant was able to provide in-depth and comprehensive information. The information provided by Consultants 11 and 12 helped to identify the feasibility of recommendations, particularly of opportunities for Thailand to be recognised internationally. 59 Estelle Srivijittakar, Thai Experts Push for Forest and Land Tenure Policy Reforms (2012) RECOFTC . 22 Consultant 13 had 17-years experience on conducting research on forest and land management – particularly in relation to communal land title deeds – to ascertain reform directions the government should take. All Consultants were emailed a document detailing (in Thai) the draft recommendations and reform directions derived from the study, and asked for feedback. A week after this document was sent, the researcher discussed the proposed recommendations and reform directions with the eight decision- maker stakeholders in a face-to-face group session in a government office in Bangkok. The discussion was recorded and the researcher also made notes. Discussions with stakeholders who were ‘influencers’ also occurred a week after they received their documentation. Consultants 9 and 11were interviewed in face-to-face sessions in their offices. The discussions were recorded and the researcher took notes. Discussions with Participants 10, 12, and 13 were conducted over the telephone. The telephone conversations were also recorded and the researcher took notes. The feedback was then considered as a whole, and conclusions and recommendations amended, as discussed in Chapter 8. 2.4.6. Data analysis Data from the two sets of interviews was subjected to thematic analysis. Such an approach is commonly used for analysing qualitative data, particularly research that employs interviews as the method of data collection.60 Discussion from the consultation regarding recommendation was simply sorted. 2.4.6.1 Interviews set 1 and 2 All forms of thematic analysis require interpretation by the researcher, giving rise to problems of validity, with the possibility that the researcher selectively imputes meaning. To reduce subjectivity, the researcher analysed interview data using the predetermined theory that emerged in the literature review61 – that is, the criteria and principal components discussed in Chapter 4. The first set of interviews was based on criteria derived from the literature review. Applicability of the criteria was also verified in the first set of interviews. The second set of interviews were also analysed using the criteria but particularly focused on issues found to be significant governance issues in Thailand. This method of utilising criteria allows new inquiries to benefit from and build on previous insights.62 60Maggie Walter (ed), Social research methods: an Australian perspective (Oxford University Press, 2006)271;Greg Guest, Kathleen M. MacQueen and Emily E. Namey, Applied Thematic Analysis (SAGE Publication, 2012)10-11. 61H. Russell Bernard and Gery W. Ryan, Analysing Qualitative Data: Systematic Approaches (Sage, 2010)62-63. 62 Elizabeth H. Bradley, Leslie A. Curry and Kelly J. Devers, 'Qualitative Data Analysis for Health Services Research: Developing Taxonomy, Themes, and Theory' (2007) 42 Qualitative Data Analysis for Health Services Research 1758, 1761-1763. 23 In an attempt to ensure that data from the interviews was correctly interpreted, the researcher maintained good communication with interviewees and discussed those issues that appeared unclear as analysis progressed.63 The researcher took the following steps to ensure that the data was accurate: 1. All interviews were transcribed verbatim by the researcher into the Thai language, which is the language in which interviews were conducted. Transcripts were checked against recordings for accuracy and with interviewees for clarification. 2. The verbatim texts in Thai were read through as a whole to provide a general sense of the information and to provide an opportunity to reflect on the overall meaning of the information, and the general ideas provided by the interviewees. 3. Each part of individual interviews was given equal attention in the coding process in order to organise the data and uncover and document additional links within and between concepts and experiences described in the data. The information was then sorted into the 10 criteria of good forest governance. The method employed for coding was:64 a) Text was bracketed (sentences or paragraphs) and organised into categories that represented the criteria derived from the literature review and verified in the first set of interviews. b) The themes were then checked against one another and against the original transcripts. Quotes in the text are translated from Thai.65 2.4.6.2 Consultation re recommendations The discussion with stakeholders was not subject to thematic analysis since the issues raised (the recommendations) were quite specific. Comments regarding the issues were sorted by the researcher into the relevant drafted recommendations categories (see section 8.2). Because consultants 1 to 8 provided their comments in a group session, the Researcher’s notes are used, instead of verbatim quotes. 2.5. Comparative analysis Implementation failure of forest governance is far from unique to Thailand. Other countries have researched and implemented various methods for overcoming forest governance problems. To benefit 63Cooksey and McDonald, above n 50, 419. 64 Joseph A. Maxwell, Qualitative research design: an interactive approach (Sage Publication, 3 ed, 2013) 105-115; John W. Creswell, Research Design: Qualitative, Quantitative, and mixed methods approaches (Sage Publication, 4 ed, 2013)194-201; Christine J. Yeh and Arpana G. Inman, 'Qualitative Data Analysis and Interpretation in Counselling Psychology: Strategies for Best Practices' (2007) 35 Counselling Psychologist 369, 389-392; Virginia Braun and Victoria Clarke, 'Using thematic analysis in psychology' (2006) 3(2) Qualitative Research in Psychology 77, 96; Walter, above n 60, 271.; Bernard, and Ryan, above n 61,55-63. 65 Although, this was not the language in which the thematic analysis was conducted in. 24 from international experience, the problems and experiences of other countries were compared to those of Thailand. In addition the researcher studied experiences resulting from international efforts to curb deforestation, such as through Reducing Emissions from Deforestation and Forest Degradation (REDD). Details of the comparative study and international expectation (such as through REDD+) are the subject of Chapter 7, supported by Appendix 4. However, use of the finding in the main text of the thesis is integrated generally into the discussion. The information is also extensively used to support the draft recommendations in Chapter 8. 2.6. Issues of validity Validity refers to whether the research generates accurate and credible data and conclusion.66 In this study, the researcher has sought to ensure validity of results through: using established theories of good forest governance to guide research questions, analysis and recommendations;67 ensuring accuracy of data from interviews by careful transcription of recording and note-taking in interviews, and by verifying unclear information with the relevant interviewee;68‘triangulation’69 of data by comparing the findings from literature reviews with information from interviewees and with information from comparator countries.70 2.7. Conclusion This Chapter provides the conceptual framework for how this research was conducted. An engaged policy research methodology was employed, enabling the researcher to use multiple methods, and to draw upon a variety of forms and sources of intelligence to obtain information and derive conclusions. The methods used draw upon systems thinking and purposeful policy enquiry, key informant interviews, and legal and institutional analysis (of both governance arrangements in Thailand and forest governance in other countries). The methods helped the researcher to obtain insights into important forest governance issues, and the likely impact and feasibility of recommendations. 66 Robert M. Lawless, Jennifer K. Robbennolt and Thomas S. Ulen, Empirical Method in Law (Aspen Publishers 2010) 36. 67Bernard, and Ryan, above n 61, 55-63. 68Cooksey and McDonald, above n 50, 419. 69Fontana, and Frey, above n 46, 722. 70 Lawless, Robbennolt and Ulen, above n 66, 39-40.; Matthew B. Miles and A. M. Huberman, Qualitative data analysis: an expanded sourcebook (Sage Publications, 1994) 131-133. 25 CHAPTER 3: FOREST GOVERNANCE IN THAILAND 3.1. Introduction Chapter 1 briefly outlined the reasons why forests are important to Thailand’s environmental and social wellbeing. This Chapter begins with a more in-depth discussion of how those who have traditionally relied on forest resources have cared for forests in the past and how they have been impacted by current forest governance structures. Section 3.3describes the governance structure in Thailand, how laws are made and who is responsible for implementation and enforcement. Section 3.4 discusses the laws that apply to forest governance, how they impact the current forest system and whom the laws impact. The section shows how impediments to good forest governance have arisen as a result of the evolution of laws that have different and, at times, competing objectives, causing gaps and overlaps in the setting of forest boundaries and rights to forest resources, and institutional complexity. Section 3.3.4 discusses what is influencing changes to the forest governance system in Thailand, what changes are occurring and who is leading the change effort. In this section the possible impact of Thailand’s international obligations on forest are also discussed. The Chapter concludes by examining the social consequences of the Plantation Forest Act and discussion of the impacts of changes upon forest governance. In line with the systems thinking approach, the discussion focuses upon key transactions and stakeholders influencing the forest governance system. Identifying the key transactions, the influencers and those who are most affected by the governance system helps to define problems and possible solutions. The reader should keep in mind that the structuring and findings reported in Chapters 3 and 4 were iterative processes in the research, even though the two discussions are reported separately. 3.2. The importance of forest resources As noted in Chapter 1, Thailand’s forests are key to the country’s economy, environment (with an important role in safeguarding biodiversity) and the everyday livelihoods of its rural population. In 2009, approximately 31 per cent of Thailand was covered in forests. This forest cover represented approximately eight per cent of total flora and fauna habitats around the world, the highest level among the countries of Indo-China, with approximately 25,000 species of vascular plants, including around 15,000 species of ferns, flowering plants and orchids, some 4,591 species of animal – consisting of 302 species of mammals, 982 bird species, 350 species of reptiles, 137 amphibious 26 animal species, and more than 2820 fish species.71 In addition to the importance of intact forests to maintain this rich biodiversity, about 1 out of 6 Thai people depend on forests for livelihood.72 As noted in Chapter 1, in the 1990s, there were approximately 11 million people (over 20 per cent of total Thai people) settled in protected forest areas.73By 2000, there were approximately two million ha of forest areas illegally occupied. In 2007 the RFD found that 480,426 households lived in forest areas.74Many Thai people believe that forests are integral to their lives and that forests are important for ensuring social harmony. This is particularly the case for forest communities, such as those who live in the highlands who are referred to as the ‘Hill Tribes’. They include the Karen, Hmong, Lahu, IU Mien (Yoa), Lisu, Akha, Lua (Lawa), H’tin (Kachin), Khamu, and Mlabri. In 2006, the total population of Hill Tribes was approximately 1.2 million, with the Karen making up the largest group. The Hill Tribes exist in fifteen provinces in the northern and western parts of Thailand. Their communities are often the poorest and most vulnerable community sector in Thailand. They use and manage forests based on their beliefs, and have done so for hundreds of years, though their management regimes vary from region to region.75 The ‘Chao Khao’, who live predominantly in the mountainous area in the northern and western regions, practice agriculture in the forest by growing crops such as rice, vegetables and corn on cleared slopes in the upper watershed. The Karen grow rice on terraces along narrow valleys adjacent to streams, which they use for irrigating the crop. They also collect wild forest products, such as ant eggs during summer, various kinds of mushrooms and honey, for sale.76 The Hill Tribes of the north have traditionally divided forests into different types based on topography, climate, humidity, vegetation and altitude.77 Karen, based on climate and physical characteristics, classify forests into three types: the ‘ker ner meu’ (mountain evergreen forest), the ‘ker ner pa’ (evergreen forest) and the ‘kaw be kho’. According to belief, Karen also classifies forests as the Taboo Forest that the community has declared as taboo and cannot be used to perform any activities that will intentionally disturb the ecology. This type of forest area includes forest with powerful spirits, the ritual areas forest and the burial sites. People are not allowed to perform any activities in these areas; otherwise they are associated with unpleasant events that occurred to them. Forests are also classified for use, such as the areas for constructing house, collecting forest products, 71ICEM, above n 13, 26. 72 Bhumibhamon, above n 11. 73 ICEM, above n 13. 74The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), above n 12. 75Inter-Mountain Peoples’ Education and Culture in Thailand Association (IMPECT) and Forest Peoples Programme, Indigenous Knowledge, Customary Use of natural Resources and Sustainable Biodiversity Management: Case Study of Hmong and Karen Communities in Thailand (IMPECT, 2006) 8, 15; Lasimbang and Luithui, above n 2,1; Mark S. Flaherty and Vesta R. Filipchuk, 'Forest management in northern Thailand: a rural Thai perspective' (1993) 24(3) Geoforum 263,265; Minna Hares, 'Forest Conflict in Thailand: Northern Minorities in Focus' (2009) 43(3) Environmental Management 381, 383. 76Lasimbang and Luithui, above n 2,1; Kanjan and Kaewchote, above n 9, 11-12; IMPECT, above n 75, 15-16, 24-25 77Lasimbang and Luithui, above n 2,8; IMPECT, above n 75, 30-31 27 swidden, gardens and wet rice filed.78The Karen people in Ban Pa Gluay-Pong Lom Rang categorises forest into three types: sacred forests, headwater forests, and multiple use. The sacred forests are used as a holy place for rituals, while headwater forests are managed as watersheds, and the multiple use forests are used for harvesting forest food and forest products. People believe that the headwater forests should be protected to ensure water for agriculture and daily living. This kind of forest is called ‘Paa Khun Nam’ by the Mae Tha community,79 and the Karen community call it ‘Paa Tikomeh’. The sacred forests are protected because the communities believe that any use of these forest areas or harm to the trees in such areas could result in illness or bad luck. Each year, the Karen hold a ceremony and offer sacrifices to the forest spirits, and pray for good luck and protection.80 Villagers in the Mae Tha Community in the north of Thailand make offerings of food to the watershed spirit of the forest, praying for abundant water and prosperity.81 The Lisu Hill Tribe, who traditionally carry out nomadic land use, identify forest areas in which they can grow their crops. Forests can only be cleared for planting after a ceremony, handed down from generation to generation, which respectfully asks permission from the forest spirit residing in that forest.82 The Karen have a large body of knowledge and local wisdom about living in the forests, such as the practice of rotational swidden agriculture, managing sacred forests, taboo forests and religious-use forests. Many of their customs are relevant and appropriate to forest management. They use traditional rules and conventions for controlling, conserving and using forest resources in a sustainable manner.83 Each Ban (village or group) of the Karen establishes its own rules based on its beliefs and traditions. For example, the Ban Pa Gluay-Pong Lom Rang has a rule that sale of timber to outsiders is strictly prohibited; cutting trees for sale or for lumber or for household use is only allowed upon approval by the Village Committee. Hunting wild animals is not allowed and will be punished. This rule was set based on the belief that hunting causes forest fires that can damage the village. Such forest fires may occur when poachers burn areas in order to drive animals out of hiding. To deal with forest fires, each year every household sends one member of the family to join in constructing a firebreak, and the community uses controlled fires every year to help reduce weeds and control pests in the forests.84 In the northeast and central regions of Thailand, and along the east and south coasts, rural populations depend on the forests for forest foods such as bamboo shoots, mushrooms, ant eggs, wild fruits, honey 78Lasimbang and Luithui, above n 2,8; IMPECT, above n 75, 30-34. 79Pearmsak Makarabhirom, 'Traditional Forest Management in Mae Tha Community, Northern, Thailand' in IGES Forest Conservation Project (ed), A Step toward Forest Conservation Strategy(1) (IGES, 1998) 198,198, 202. 80 Kanjan and Kaewchote, above n 9, 19;IMPECT, above n 75, 31-37. 81Makarabhirom, above n 79, 204. 82Lasimbang and Luithui, above n 2,8. 83Andrew Walker, 'The ‘Karen Consensus’, Ethnic Politics and Resource-Use Legitimacy in Northern Thailand' (2001) 2(2) Asian Ethnicity 145, 150-151; IMPECT, above n 75, 8and31-37; Kanjan and Kaewchote, above n 9,3. 84 Kanjan and Kaewchote, above n 9, 27. 28 and wild animals for meat. They also harvest forest products including wood for fuel (mangroves along the coast are harvested for fuel and charcoal), medicinal herbs, vegetables and rattan to make baskets and brooms. The leaves of some trees, such as the Dipterocarpus tuberculatus, are harvested to make the rooves of houses.85 Rural people in the northeast region, such as the Dong Yai communities of Ubon Ratchathani Province, collect forest products (for example, grasshopper, honey, and mushroom) for local consumption or sale.86 The Dong Kum Kam Village Community in the northeast was established more than a century ago in the Ubon Ratchatani Province in the northeast of Thailand. It occupied 30,477 rais87 of forest area. It has traditionally managed forest through rules created by members of the community based on their belief and cultures. The elderly people are normally the mediators for the settlement of forest disputes. The community have classified the ages and species for harvesting timber. These practices are passed on to generation to generation.88 Thailand, in general, is an agriculture-dependent country that is transitioning to an industry-based economy.89 To accelerate its economic development, forests were targeted as a significant resource for sale on the international market. The Thai government issued two sets of commercial logging concessions in the 1960s to public and private enterprises. The first set of logging concessions were granted for harvesting timber in the north of Thailand and allowed logging in around 40 per cent of the region. In 1968, the government issued a second set of concessions that allowed logging throughout the country. The result is that deforestation accelerated at the rate of almost 4 per cent per year, which was among the highest in tropical countries.90 Deforestation has devastated Thailand’s biodiversity. The Thailand National Report on the Implementation of the Convention on Biological Diversity (2009) by the Office of Natural Resources and Environmental Policy and Planning (ONEP), Ministry of Natural Resources and Environment (MNRE) revealed that, because of considerable forest degradation, many species are threatened. The Siamese Tiger Fish has become extinct in Thailand. Twelve species of mammals, 43 species of birds, 11 species of reptiles, and 18 species of fish have also become significantly endangered. 85See Jonathan Rigg, 'Forests and Farmers, Land and Livelihoods, Changing Resource Realities in Thailand' (1993) 3(4/6) Global Ecology and Biogeography Letters; Suchitra Changtragoon, 'Opportunities in using the conservation of biodiversity to alleviate poverty in Thailand' (Paper presented at the workshop on forests for poverty reduction: opportunities with Clean Development Mechanism, Environmental Services and Biodiversity Seoul, Korea 2003) 168- 169; Kritsanarangsan and Thaiying, above n 1, 1-2. 86 Poffenberger and McGean, above n 3. 87 1 hectare (ha) is 6.5 rai, see Lasimbang and Luithui, above n 2,15. 88Mongkol Dantanin et al, Community Forest in Thailand: Guideline for Development (Community forest in the Northeast) (Local Development Institute (Thailand), 1993) 146, 163. 89Manassrisuksi and Sangkrajang, above n 14, 126. 90Poffenberger and McGean, above n 3;Philip Hirsch, 'Forests, Forest Reserve, and Forestland in Thailand' (1990) 156(2) The Geographical Journal 166, 170;Keith Barney, 'At the Supply Edge: Thailand's Forest Policies, Plantation Sector, and Commodity Export Links with China' (Asia Pro Eco Programme- China and Forest Trade in the ASIA-Pacific Region: Implications for forests and livelihood, Forest Trends, 2005) 10. 29 Approximately 1957 plant species have been categorised as rare, endangered or extinct. One species, which has become extinct in Thailand’s forest, is the Pride of Burma (Amherstia nobilis Wall).91 Communities who depend on the forest have also been significantly affected. Large numbers have lost their means of livelihood. Use of forestlands, as well as forest products have become more restricted; communities find it increasingly difficult to openly collect forest resources and become more impoverished because of the decline in sources of food and other products traditionally obtained from forests. For example, communities in a village in Roiet Province in the northeast of Thailand claim that diminishing forestlands have made droughts last longer and food harder to find.92 The significant loss of national forest cover has led to a shift of national forest governance towards forest conservation. In 1985, the Thai Government attempted to implement a range of measures to halt and reverse the alarming rate of deforestation, but the measures have proven to be largely ineffective.93 In 1991, Thailand had only approximately 26 per cent of national forest cover remaining. In 2011, Thailand was ranked eighth out of ten for its percentage of forest cover among the South East Asian countries.94 3.3. Governance structure in Thailand The term ‘governance’ refers to the way in which institutions and laws are arranged to provide public services and manage natural resources including forests.95 Thailand is a unitary state96 with a civil law system dependent upon statute or code law.97 However, the common law system has significantly influenced development of laws, particularly commercial law, procedural law and the law of evidence.98 The Constitution of the Kingdom of Thailand (‘Constitution’) forms the basis for the formulations of laws in the country. It is the supreme law of Thailand. If the provisions of a law are inconsistent with those of the Constitution, those of the Constitution prevail.99 91The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), above n 1, 13. 92Rigg, above n 85. 93Lakanavichian, above n 7.; FAO- Regional Office for Asia and the Pacific, above n 10, 82-83; Poffenberger and McGean, above n 3. 94 National Information Center (NIC): Thailand, Forest Situation (2010) National Information Center (NIC): Thailand . 95Sophie Higman et al, The Sustainable Forestry Handbook: A Practical Guide for Tropical Forest Managers on Implementing New Standards (Earthscan, 2012) 6-7. 96Constitution2007 s 1 (Thailand). 97Thailand Central Intellectual Property and International Trade Court, 'The Judicial System in Thailand: An Outlook for a New Century' (Asian Law Series Report No. 6, Institute of Developing Economies: Japan External Trade Organization, March 2001) 3;Tithiphan Chuerboonchai, 'Legal System in Thailand' (Paper presented at the Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World, Soochow University, Kenneth Wang School of Law, Suzhou, China, 17-19 October 2007) 1. 98Michael Ramirez, 'Thailand' in The International Comparative Legal Guide to: Product Liability 2010 A practical cross- border insight into product liability work (Global Legal Group, in association with Commercial Dispute Resolution (CDR), 2010) 293,294; Thailand Central Intellectual Property and International Trade Court, above n 97,3. 30 Figure 3.1 illustrates the structure of government in Thailand. The Constitution establishes three arms of Government: Legislature, Executive and Judiciary. The Legislature has the power to create legislation,100 and is called ‘the National Assembly’.101 It is equivalent to a parliament such found in countries operating under the Westminster System.102 The House of Representatives is normally where legislation is introduced and initially considered (a Bill),103 and the Senate is usually charged with scrutinising the Bill before it is passed into law.104 Bills can be drafted and introduced by Cabinet, by twenty of more Members of House of Representatives, by the Judiciary and by independent entities, such as the Election Commission, the National Anti-Corruption, and the Ombudsman or when 10,000 or more electors request a Bill to be considered by the National Assembly.105 The Executive (Central Government) consists of the Cabinet, Ministries, Government Departments, and some organisations, bureaus, or other independent entity such as the Office of Human Rights Commission and the Office of Natural Research Council. Offices of the Central Government are located mainly in Bangkok. Their functions include policy development, manpower planning, and financial and budgetary management.106 Executive power is exercised through the Cabinet, which is charged with the implementation of Acts, Codes, Emergency Decrees, subordinate laws, government policy and the Cabinet resolutions.107 The Cabinet comprises a Prime Minister, who is the leader of the party that wins the majority of votes to the legislature108and is appointed by the King;109 five Deputy Prime Ministers; Ministers and Deputy Ministers from all Ministries.110 Governments serve a four-year term with a limited consecutive period not exceeding eight years.111 Other parts of the Executive provide administrative support for the Office of the Prime Minister and the Ministries.112 99Constitution2007 s 6 (Thailand); Biorn Dbessel, 'Thailand's elusive quest for a workable constitution, 1997-2007' (2009) 31(2) Contemporary Southeast Asia 296, 296; Chuerboonchai, above n 97, 1;Thailand Central Intellectual Property and International Trade Court, above n 97, 5. 100Constitution2007 s 90 and s 143- s153 (Thailand). 101Constitution2007 s 3 and s 42 (Thailand). 102Commonwealth of Australia, About Parliament of Australia (2012) Commonwealth of Australia . 103Constitution2007 s 146 (Thailand). 104Constitution2007 s 146 (Thailand). 105Constitution2007 s 142 (Thailand). 106Aim-on Aramkul, 'Administrative Reform in Thailand' in The UN (ed), Administrative Reforms: Country Profiles of five Asian countries (The United Nations Department of Economic and Social Affairs in cooperation with the International Institute of Administrative Sciences and The Institute of Administrative Management (Japan), 1997) 122, 126-127. 107Constitution2007 s 3 (Thailand); The UN, 'The Kingdom of Thailand' (Public Administration: Country Profile United Nations, 2004) 5-6; Lasimbang, and Luithui, above n 2, 13; Don Hammond, 'Commentary on forest policy in Asia-Pacific region: A Review for Indonesia, Malaysia, New Zealand, Papua New Guinea, Philippines, Thailand and Western Samoa' (Working Paper No: APFSOS/WP/22, FAO, 1997), 69. 108Constitution2007 s 171 (Thailand); Central Intelligence Agency (CIA), The World Factbook: East and Southeast Asia: Thailand (2013) CIA . 109Constitution2007 s 171 and 172 (Thailand). 110 Office of Prime Minister, The authority of the Office of Prime Minister (2012) Office of Prime Minister . 111Constitution2007 s 172 (Thailand). 112The State Administration Act B.E. 2534 (1991) (Thailand) s 9 and 10. 31 Executive power operates through three levels of government: central, provincial and local governments.113 Often Bills are drafted by government agencies and passed on to Cabinet for initial consideration. For example, the Forest Plantation Act was drafted by the RFD, passed on to Cabinet, which tabled it for consideration and debate by the National Assembly. A Bill becomes an Act of Parliament (Act) when both Houses agree to pass it – by majority votes. Figure 3.1: Governance structure, Thailand Acts and Emergency Decrees provide the Executive, Cabinet and/or other agencies comprising the Executive with the authority granted to create subordinate laws, such as regulations, policies and strategies. Cabinet can also pass Cabinet Resolutions, which deal with the implementation of Acts, Codes, Emergency Decrees, subordinate laws and the policy of the government.114 Cabinet Resolutions are not classified as law and they cannot contradict the provisions of Acts, Codes and Emergency Decrees or subordinate laws. However, Cabinet Resolutions bind officials of Ministries and Agencies.115 The Central Government delegates power to Regional Governments (Provincial Governments), which serves a coordinating role between the Central Government and Local Governments. Provincial Governments are a territorial extension of the Central Government and have neither administrative 113 Aramkul, above n 106, 125; The State Administration Act B.E. 2534 (1991)(Thailand) s 4. 114 The Office of Secretary of Cabinet (Thailand), Question and Answer about the Cabinet Resolution (The Office of Secretary of Cabinet (Thailand), 2010), 1. 115Ibid, 2-3. 32 autonomy nor authority.116 There are 77 Provinces in Thailand, each headed by a Provincial Governor.117 The Provinces are administratively divided into Districts headed by a District Governor.118 Each District consists of subdistricts called ‘Tambons’ – which are headed by Subdistrict Chiefs called ‘Kamnans’ – and a number of villages, headed by Village Heads.119 Local Government was introduced into Thailand’s government system when the absolute monarchy system was abolished and a democratic system adopted in 1932. Local Governments were introduced to decentralise government. They were enshrined in the Constitution of 1997120 and again adopted in the current Constitution (2007).121 Local Governments operate through Local Assemblies (Councils) and Local Administrative Committees.122 Local Councils, made up of a Head and Councillors, are responsible for promulgating local legislation, and Administrative Committees administer such legislation.123 Local legislation must be in accordance with Thailand’s Constitution and Acts.124 The Local Assembly and Local Administrative Committee are elected by voting members of the local communities.125 Although Local Governments have been granted some autonomy under the Constitution, they remain under the strict control and supervision of the Central Government’s Ministry of Interior (MOI) through the Department of Local Administration (DLA). The MOI intervenes to control and supervise Local Governments by imposing regulations that control budgets and local regulations. Development Plans put forward by Local Government are subject to approval by the Provincial Governor and District Officers. In addition, the MOI, Provincial Governors and District Officers have the power to dissolve Local Councils and dismiss the Head and Councillors.126 Figure 3.2 illustrates the hierarchical structure of the Local Governance in Thailand. There are five forms of Local Government in Thailand:127 116Aramkul, above n 106, 125; Fumio Nagai, Tsuruyo Funatsu and Kazuhiro Kagoya, 'Central-Local Government Relationship in Thailand' in Fumio Nagai, Nakharin Mektrairat and Tsuruyo Funatsu (eds), Joint Research Program Report No.147 on Local Government in Thailand—Analysis of the Local Administrative Organization Survey, Joint Research Program (Institute of Developing Economies: Japan External Trade Organisation, 2008) 1, 4-5. 117Nagai, Funatsu and Kagoya, above n 116,5. 118The Organisation of State Administration Act 1991(Thailand) s 61and s 62. 119 Lasimbang, and Luithui, above n 2, 27; Nagai, Funatsu and Kagoya, above n 116, 5. 120Constitution (1997), s 282 -290. 121Constitution (2007), s 281-290. 122The Constitution 2007 s 284 (Thailand). 123Office of Sonkhla Province Election Commission (Thailand), The Local Election (2012) Office of Sonkhla Province Election Commission (Thailand) . 124The Constitution 2007 s 284 (Thailand). 125The Constitution 2007 s 284 (Thailand); Manassrisuksi and Sangkrajang, above n 14, 130. 126Nagai, Funatsu and Kagoya, above n 116, 1, 8-11; The Determining Plan and Process of Decentralisation to Local Government Organisation Act BE 2542 (1999) (Thailand) s 6 and 12;Ministerial Regulation on Administrative Divisions of Department of Local Administration, Ministry of Interior 2008 (Thailand) s 2; The Municipal Act 1953 (amended 2000) (Thailand) s 71-74; The Tambon Council and Tambon Administrative Organisation Act 1994 (Thailand) s 90-92. 127 Nagai, Funatsu and Kagoya, above n 116, 1; The Determining Plan and Process of Decentralisation to Local Government Organisation Act BE 2542 (1999) (Thailand) s 4. 33  Bangkok Metropolitan Administration (BMA), which is controlled by MOI, provides public services within the Bangkok area under the Bangkok Metropolitan Administration Act 1985.128  The City of Pattaya Local Government provides public services within Pattaya City. It is monitored by the Provincial Governor who regulates the Province within which Pattaya City is located, with the approval of MOI under the Pattaya City Administrative Organisation Act 1999.129  The Provincial Administrative Organisation (PAO) is the main form of Local Government of Thailand at a provincial level. Every Province, other than Bangkok, consists of one PAO. Pursuant to the Provincial Administration Organisation Act 1997, the PAO is empowered to provide public services within its Province.130 It is monitored by the Provincial Governor and the DLA under the MOI to ensure that the PAO complies with laws.131  Under the Municipal Act 1953 (amended 2000) the Municipality governs urban areas in each province. There are three sizes of municipality: city, town and sub-district. The designation of the municipality is based on population and annual income, such as the city municipality consists of at least 50,000 people. Each municipality is responsible for providing public services within its territory.132 The type of supervision of a municipality varies with its size. The smallest unit, the Subdistrict Municipality, is monitored by the District Chief, the Provincial Governor and the DLA under the MOI. Town and city municipalities are monitored by the Provincial Governor and the DLA under the MOI.133  The Tambon Council and Tambon Administrative Organisation Act 1994, provides for another form of local government, the Tambon Administrative Organisation (TAO), at a sub-district level.134 Each TAO is responsible for providing public services within its territory and is monitored by the district chief and the provincial governor to ensure that the TAO complies with laws.135 The jurisdiction of the PAO overlaps with the jurisdiction of the Municipality and the TAO. Public service activities beyond the jurisdiction of Municipalities and TAOs are under the jurisdiction of the PAO.136 128The Bangkok Metropolitan Administration Act 1985 (Thailand). 129The Pattaya City Administrative organisation Act 1999 (Thailand) 130The Provincial Administration Organisation Act 1997 (Thailand) 131 Nagai, Funatsu and Kagoya, above n 116, 8-9. 132The Municipal Act 1953 (amended 2000) (Thailand). 133 Nagai, Funatsu and Kagoya, above n 116, 8-9. 134 Nagai, Funatsu and Kagoya, above n 116, 8-9. 135The Tambon Council and Tambon Administrative Organisation Act 1994 (Thailand) 136The Provincial Administration Organisation Act 1997 (Thailand) s 45; The Determining Plans and Process of Decentralisation to Local Government Organisations Act BE 2542 (1999) (Thailand) s 17. 34 Laws are also enforced and implemented through the Judiciary, through the court system. Three kinds of courts are concerned with environmental cases: the Court of Justice,137the Constitutional Court138 and the Administrative Court.139 Figure 3.2: The structure of Local Government, Thailand140 The Court of Justice has three levels: Court of First Instance, Appeal Court and Supreme Court.141It adjudicates cases and uses Alternative Dispute Resolution (ADR) methods according to the laws pertinent to civil cases.142 137The Thailand Central Intellectual Property and International Trade Court, 'Dispute Resolution Process in Environmental Problems' in Institute of Developing Economies: Japan External Trade Organisation (ed), Alternative Dispute Resolution in Thailand, Asian Law Series (Institute of Developing Economies: Japan External Trade Organisation, 2002) 186, 196. 138FAO, 'Reforming forest tenure: Issues, principles and process' (Forestry Paper 165, FAO, 2011) 39. 139Laura Kay Roddan, To defend ourselves: common Property management of forests in Northern Thailand (Master Degree Thesis, The University of British Columbia, 1993), 6, 40-44; Jinarat, above n 16, 104-106 140Adapted from Nagai, Funatsu and Kagoya, above n 116, 7. 141Aramkul, above n 106. 142Thailand Central Intellectual Property and International Trade Court, above n 137, 188, 196. 35 The Constitutional Court has power and duties to rule on cases where there is a contradiction and/or inconsistency between the Constitution and a Bill or Act.143 The Administrative Court is responsible for those cases where government agencies and/or public officials are accused of either misusing their power, delaying in undertaking their duties, or failing to perform their duties in relation to administrative duties.144 3.3.1. Forest regulatory instruments Thailand has many laws, from the Constitution down to Cabinet Resolutions that ought to have secured social and environmental interests in forests. Figure 3.3 shows the categories of law that are relevant to the protection of forests. Figure 3.3: The current forest regulatory system 3.3.1.1 The Constitution of the Kingdom of Thailand (2007) The Constitution recognises the rights of native communities to preserve their customs and to participate in the management, maintenance, and exploitation of natural resources:145 143Constitution2007 s 6, s 154-155, and s 211 (Thailand). 144Thailand Central Intellectual Property and International Trade Court, above n 137, 196. 145Constitution 2007s 66-67, s 85 and s 87 (Thailand) 36  Section 66: The community was given the right to preserve traditional knowledge and to participate in natural resource management in a balanced and sustainable fashion.146  Section 67: The rights of people to participate with the community and the state in natural resource management shall be protected as appropriate. Environmental impact assessment, public consultation, and expert consultation have to be undertaken prior to conducting any activity which may severely affect the natural resources in the community. The community has the right to sue the government to force it to comply with this section.147 These rights were reinforced by provisions in relation to rights and liberties contained in Chapter Three of the Constitution:148 the rights to information and to petition;149 the rights to freely express ideas,150and the rights to legal services to be protected in judicial procedures.151 Forest communities also have rights to be protected based on international agreements in section 82 of the Constitution. The State must comply with international agreements, which can include the international agreements related to forests.152 These rights are also provided in sections 85 and 87 of the Constitution. Section 85 requires the state to implement policies pertaining to land, natural resources and environment in ways that will be consistent with natural resources and environment conditions in each community, including safeguarding community livelihoods. Section 87 requires that the State promote public participation in the formulation of policies on economic and social development, public service and monitoring state action by strengthening public capacity in politics through a fund to subsidise people in political activity and encouraging people to express their ideas, as well as educating people about the parliamentary democracy with a constitutional King as the Head of State, and encouraging people to vote in national parliamentary elections.153 These provisions enable the community to introduce laws, including forest-related laws, to Parliament under section 163 of the Constitution, which empowers groups of 10,000154 or more electors to introduce a draft law to the Parliament.155 3.3.1.2 Legislation In relation to forest management laws, there are a number of forest-related Acts. These include Acts that directly govern forest resources, those that provide a framework for environmental management 146Constitution2007 s 66 (Thailand). 147Constitution2007 s 67 (Thailand). 148Constitution2007 s 27-29 (Thailand). 149Constitution2007 s 56-60 and s 62 (Thailand). 150Constitution2007 s 45 and s 48 (Thailand). 151Constitution2007 s 81 (Thailand). 152Constitution2007 s 82 (Thailand). 153Constitution2007 s 85 and s 87(Thailand). 154 Decreased from 50,000 people contained in Constitution (1997). 155Constitution2007 s 163 (Thailand). 37 including forest management, and administrative laws and land law that influence forest management.156 3.3.1.3 Acts directly governing forest resources There are six Forest-related Acts directly affecting forest governance in Thailand: 1. Forest Act BE 2484 (1941) (‘Forest Act’). Before 1985 forest policy in Thailand was focussed on managing forests primarily for commercial timber extraction for domestic and foreign consumption. Teak was the first timber type to have applied to it a harvesting policy. Regulations relating to the management of teak concessions were imposed, for instance, by the Forest Preservation Order of 1897. This law regulated the minimum girths, cutting circle, and block sizes of teak to be logged.157 In 1941, the Forest Act, BE 2484 (1941) was passed and replaced the Forest Protection Act 1913, which had been the first attempt to regulate non- teak forest products. It set out the principles for long-term exploitation of forest for the benefit of the state.158The Forest Act of 1941 strengthened state ownership of forests by declaring that any land not privately acquired under the Land Law would be considered as state-owned forest.159 The Forest Act is mainly concerned with the collection of forest products, seeking to regulate activities within the forest (such as how to fell preserved species of timber, firing and land clearing).160 One outcome of the clarification of state ownership of forests under the Forest Act was the expansion of logging concessions to eligible private sector and State enterprises161 to harvest timbers for export.162 2. National Reserved Forest Act BE 2507 (1964). Because of rapid deforestation resulting from excessive logging concessions under the Forest Act, the government passed three Acts: Forest Preservation and Conservation Act (1938), Wild Animals Reservation and Protection Act BE 2503 (1960), and National Park Act BE 2504 (1961) that aimed to encourage forest conservation.163 The Forest Preservation and Conservation Act provided the first legal framework for forest area conservation. This Act categorised forestland into preserved and reserved forest.164 Because of insufficient funding, designations of preserved and reserved forests were slow under the Forest Preservation and Conservation Act and it was replaced by 156FAO- Regional Office for Asia and the Pacific, above n 10,87-88; Lasimbang and Luithui, above n 2, 15-23. 157Wataru, above n 10, 210. 158 Lakanavichian, above n 7; Wataru, above n 10, 210; Jin Sato, 'Public land for the people: the institutional basis of community forestry in Thailand' (2003) 34(02) Journal of Southeast Asian Studies 329,160. 159Lasimbang, and Luithui, above n 2,17; Masaki Matsumura, 'Coercive conservation, defensive reaction, and the commons tragedy in Northeast Thailand' (1994) 18(3) Habitat International 105, 109. 160Lasimbang, and Luithui, above n 2,17; RRI, above n 1, 16. 161Wataru, above n 10, 222. 162Kanjan and Kaewchote, above n 9,10. 163Theresa Wong, Claudio O. Delang and Dietrich Schmidt-Vogt, 'What is a forest? Competing meanings and the politics of forest classification in Thung Yai Naresuan Wildlife Sanctuary, Thailand' (2007) 38(4) Geoforum 643, 647. 164 Wataru, above n 10, 209-210. 38 the National Reserved Forest Act (1964).165 The 1964 Act enables the determination of National Reserved Forest area, and the control and maintenance of such areas.166 This Act aims to prohibit further encroachment on forest reserves by farmers.167 3. The Wildlife Conservation and Protection Act, BE 2535 (1992). After a ban was placed on logging in 1989, management objectives of forest policy focused on conservation. The National Forest Policy, adopted in 1985, was amended in 1989 to increase conserved forest areas from 15 per cent to 25 per cent. In 1992 the Government announced a policy to expand national forest cover from an estimated 26 per cent to 40 per cent of the Kingdom’s land area. The Wild Animals Reservation and Protection Act, BE 2503 (1960) was replaced by the Wildlife Conservation and Protection Act, BE 2535 (1992).168 This law provides for the establishment of wildlife sanctuaries and non-hunting areas, and the establishment of a Protection Committee which has the power to designate wildlife conservation areas and to identify protected wildlife species. The previous 1960 law provided total protection to nine species, prohibiting hunting of these species. This was increased to 15 species by the 1992 law.169 4. National Park Act, BE 2504 (1961) also resulted from the forest conservation policy. It enables national parks to be established, a National Park Committee and the regulations for the protection and maintenance of National Parks.170 5. Forest Plantation Act, BE 2535 (1992). An alternative to exploitation of native forest is to utilise trees from forest plantations. A policy to support this type of forestry was initiated through the Forest Plantation Act, BE 2535 (1992). By implementing this Act, the Government aimed to achieve 40 per cent forest-cover areas target and support recovery of forest areas lost as a result of extensive logging concessions.171This Act specifies which areas must be reforested, provides for private reforestation rights, ownership and exemption from royalties on forest products from reforested areas.172. 6. The Chainsaw Act BE 2545 (2002) results from the Forest Plantation Act, regulating the use and importation of chainsaws for logging.173 Even though the Constitution (2007) has aspects that might help recognise the rights of community to forest management, in practice communities have not been able to take advantage of this law. 165Ibid, 212 -213. 166 FAO- Regional Office for Asia and the Pacific, above n 10, 10. 167 Matsumura, above n 159, 109. 168Lasimbang, and Luithui, above n 2,20; Lakanavichian, above n 5, 330;The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), 'Thailand's National Parties Self-Assessment: Convention on Biological Diversity ' (ONEP, 2010) 23. 169Lasimbang, and Luithui, above n 2,20. 170FAO- Regional Office for Asia and the Pacific, above n 10, 10, 18. 171Lakanavichian, above n 7.; Matsumura, above n 159, 110. 172FAO- Regional Office for Asia and the Pacific, above n 10, 10. 173Ibid, 88. 39 Communities have rights to participate, as stated by law, but the final decision is made by the State. The government in fact enforces restrictive forest laws. All forest practices conducted by community are subject approval by the RFD and the DNWPC. Issues concerning community forest management in Thailand are directed by the Community Forest Management Bureau (CFMB), which is under the umbrella of the RFD. The CFMB implements four laws that are pertinent to the involvement of communities in forest management: 1. State Administration Act (No. 5) BE 2536 (1993), especially section 32; 2. The Ministerial Regulation on the Organisation of the RFD, Ministry of Natural Resources and Environment BE 2547(2004); 3. The National Reserved Forest Act; and 4. The Forest Act. The State Administration Act and the Ministerial Regulation are linked. The former provides the administrative power for the Regulation. The Ministerial Regulation specifies that the RFD is responsible for promoting forest planting; community forest management; and commercial forest plantation and so on. Article 32 of the State Administration Act emphasises that the RFD President under MNRE has powers, as stated in the Ministerial Regulation to take control of any affair in the RFD. Concurrently, section 19 of the National Reserved Forest Act and sections 17 and 32 of the Forestry Act empowers the President to appoint staff to conduct their roles as specified in the Ministerial Regulation. The President of the RFD relies on these administrative powers to approve projects for forest restoration, one of these being the restoration of Community Forest. 3.3.1.4 Act setting the framework for environmental management The Enhancement and Conservation of the National Environmental Quality Act BE 2535 (1992) establishes the standards for the maintenance and conservation of environmental quality including forest resources. Issues addressed include public participation, environmental funds, liability and penalties for violations of the Act.174 3.3.1.5 Relevant Administrative laws Local governments promulgate local legislation to manage forest within their area.175 The legal framework for doing so is:  The State Administration Act BE 2534 (1991), which divides the administration of Thailand into three levels: Central; Regional; and Local, and specifies the responsibility of those three administrative levels.176 174Lasimbang and Luithui, above n 2,23. 175Constitution 2007 s 284 (Thailand). 176The State Administration Act BE 2534 (1991) (Thailand). 40  The Reorganisation of Ministries and Departments Act BE 2545 (2002) specifies the details of governmental agencies and their responsibilities.177  Determining Plans and Process of Decentralisation to Local Government Organisation Act BE 2542 (1999). This Act establishes a committee of the central government. The committee called ‘The Determining Plans and Process of Decentralisation to Local Government Organisation Committee’ has the power to initiate decentralisation plans and identify public- service activities (including natural resource management) that local government should be responsible for in their own administrative districts.178 In spite of this Act, the power to manage forests is still under the control of the Central Government’s MOI through the DLA.179  Official Information Act, BE 2540 (1997) requires that the Government make certain information on the environment and health available to the public.180  The Bangkok Metropolitan Administration (‘BMA’) Act 1985 empowers staff of BMA to manage natural resources, including forests, within the Bangkok area.181  The Pattaya City Administrative Organisation Act 1999 empowers the City of Pattaya to manage natural resources, including forests, within Pattaya City.182  The Provincial Administration Organisation (‘PAO’) Act 1997 empowers the staff of the PAO to manage forests within its province.183  The Municipal Act 1953 empowers Municipalities to manage natural resources, including forests, within its territory.184  Tambon Council and Tambon Administrative Organisation Act 1994 empowers the staff of the TAO to manage forest within each sub-district territory.185 3.3.1.6 Land law The Land Code 1954 and Land Code Promulgation Act 1954 are administered by the Land Department (LD). The Act has its most important bearing on the question of land ownership in Thailand. The Act aims to formalise title deeds,186 and is relevant to private land. Forestland is 177The Reorganisation of Ministries and Departments Act BE 2545 (2002)(Thailand). 178The Determining Plans and Process of Decentralisation to Local Government Organisation Act BE 2542 (1999) (Thailand) s6, s12; Lasimbang and Luithui, above n 2,28. 179 Nagai, Funatsu and Kagoya, above n 116,8-9; Ministerial Regulation on Administrative Divisions of Department of Local Administration, Ministry of Interior BE 2551 (2008) (Thailand) s 2. 180The Official Information Act BE 2540 (1997) (Thailand) 181The Bangkok Metropolitan Administration Act 1985 (Thailand). 182The Pattaya City Administrative organisation Act 1999 (Thailand) 183The Provincial Administration Organisation Act 1997 (Thailand) 184The Municipal Act 1953(Thailand) 185The Tambon Council and Tambon Administrative Organisation Act 1994 (Thailand) 186Gershon Feder et al, Land policies and farm productivity in Thailand (Johns Hopkins University Press for the World Bank, 1988) 11; Lasimbang and Luithui, above n 2, 20; Xavier Gine, Land security in rural Thailand: Evidence from a property rights reform (World Bank, Development Research Group, Finance Team, 2005) 5-6. 41 classified as public land under the Forest Acts administered by the RFD.187 However, formalising title deeds may affect forest areas, such as when land classified under the Land Code overlaps with forestland.188 3.3.1.7 Decrees There are many subordinate laws concerning forest management, such as the Royal Decree Logging Ban 1992189 and other Royal Decrees declaring protected forest areas.190 3.3.1.8 Cabinet resolutions A number of Cabinet Resolutions are relevant to forest governance, such as that of: 10 August 2004 regarding initiating a ‘New Plan of Forest Villages Project’; 17 January 1989 (Order number 32/2532) revoking all logging licenses in natural forest and effectively banning all forms of logging, particularly in the uplands; and 30 June 1998 (BE191 2541) entitling ‘the approved opinion about measures for the forestland problems’.192 3.3.2. Stakeholders in the regulatory system Forest governance in Thailand is carried out through the interactions of the Government, the community, and activists (mainly NGOs). The regulatory system has a significant impact on the operation of the governance system and attempt, in turn, to affect the governance system. This section discusses how the forest regulatory system works and who the key stakeholders are within that system. The discussion is summarised in Figure 3.4 in the form of a systems map that shows the entities involved in forest governance, the sources of their power (eg legislation) and how they interact and influence forest governance. The map incorporates the entities involved (government and non-government organisations) and the source of power of these entities that enable them to influence other actors in the system. A significant source of power for government departments is the legislation they administer, but, as the map demonstrates, there are other sources of power, such as exerting influence through building or denying capacity – such as through education, budgets, and research and development. 187 Gine, above n 186, 5. 188The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), Executive Summary of Draft Strategy for Land Management:Land Tenure; Land Preservation for Allocation; and Land Preservation for Common Use (ONEP, 2008) 24. 189Ibid. 190The Royal Forest Department (Thailand), 'National Report to the Fifth Session of the United Nations Forum on Forests: Thailand' (National Report to UNFF 5, Ministry of Natural Resources and Environment (Thailand), 2005) 11. 191In Thailand, the name Buddhist Era (BE) is a year numbering system which is 543 years ahead of the Gregorian year. For example Year 2013 in Europe is year 2556 in Thailand. 192Lasimbang and Luithui, above n 2,25;Tim Curtis and Naomi Doak, Report on the Mission to Dong Phayayen – Khao Yai Forest Complex, Thailand from 28th February to 6th March, 2012 (UNESCO, 2012) 10. 42 3.3.2.1 Central Government The Government authorities involved in forest governance can be categorised as: those with direct responsibility; those with indirect responsibility; and agencies with general responsibilities that influence forest management. Direct responsibility Two Central Government authorities (coded green in Figure 3.4) are charged with implementing the six keys forest-related Acts. These are the RFD, and the DNWPC. Both authorities are under the supervision of the MNRE. Other authorities play a supporting and monitoring role, such as establishing relevant policies and standards, or conducting research for development of forest management, or allocating national budgets for forest management. Figure 3.4: The regulatory system influencing forest governance in Thailand (Highlight in yellow show other influencers) MNRE MNRE manages national environmental resources including forests.193 Under the MNRE, five agencies have direct responsibilities for forest management. 193The Thailand Ministry of Natural Resources and Environment (MNRE), 'the Forest Carbon Partnership Facility (FCPF): Readiness Plan Idea Note (R-PIN) Template- The Kingdom of Thailand' (FCPF R-PIN Template Version of March 8, Forest Carbon Partnership Program Organisation 2008) 13. 43 1. RFD is directly responsible for forest practices in forest areas classified as general forest and reserved forest.194 The RFD implements the Forest Act BE 2484 (1941); the National Reserved Forest Act BE 2507 (1964); Forest Plantation Act, BE 2535 (1992); and the Chainsaw Act BE 2545 (2002).195 2. DNWPC is directly responsible for forest practices within the reserved national parks and wildlife sanctuaries.196 The DNWPC implements the National Reserved Forest Act BE 2507 (1964); the Wildlife Conservation and Protection Act, BE 2535 (1992); and the National Park Act, BE 2504 (1961).197 There is an overlap in functions between the RFD and DNWPC in spite of Royal Thai Law Decree No 119/99 Kor of 2/10/2002, which mandates the separation of DNWPC from the RFD. On 10July, 2012, the Cabinet proposed a merge of the two agencies. This is currently being considered by Parliament.198 3. Department of Marine and Coastal resources (DMC) is appointed by the RFD and the DNWPC to implement the six forest-related Acts focusing on conservation and rehabilitation of coastal flora and fauna including mangrove forests.199 4. Forest Industry Organisation (FIO) is responsible for commercial forest plantations, reforestation and silviculture, conducting forest industry research, and raising public awareness of the importance of forest conservation.200 5. Thai Plywood Company Limited has the role of rationalising the use of wood resources using the latest technology and encouraging people to use low quality wood to produce standard products to decrease the utilisation of more valuable wood such as teak.201 194FAO- Regional Office for Asia and the Pacific, above n 10,11, 77; The Royal Decree of Transferring the Royal Forest Department from the Ministry of Agriculture and Cooperatives to the Ministry of Natural Resources and Environment and of adjustment the responsibility of Department of Marine and Coastal Resources; Royal Forest Department; and the National Park, Wildlife and Plant Conservation Department 2003 (Thailand) s 3; Ministerial Regulation on the Organisation of the Royal Forest Department, Ministry of Natural Resources and Environment BE 2547 (2004) (Thailand) s 1. 195The Royal Forest Department (Thailand), Law -related to Royal Forest Department (2013) Royal Forest Department (Thailand) . 196FAO- Regional Office for Asia and the Pacific, above n 10, 11,78; The Ministry of Natural Resources and Environment (Thailand), About Ministry: Organisation Info (2011) The Ministry of Natural Resources and Environment . 197 Department of National Parks, Wildlife and Plant Conservation (Thailand), Law-related to the Department of National Parks, Wildlife and Plant Conservation (Thailand) (2013) Department of National Parks, Wildlife and Plant Conservation (Thailand) . 198Confirmed December 2013; Prasit Tangprasert and Samatcha Hunsara, 'Forest and parks departments to be merged in a year', The Nation (Bangkok, Thailand), 12th July 2012; Apinya Wipatayotin, 'Forest dept merger backed: Encroachers easier to tackle with one agency ', Bangkokpost (Bangkok, Thailand), 12th July 2012. 199FAO- Regional Office for Asia and the Pacific, above n 10, 11; The Reorganisation of Ministries and Departments Act BE 2545 (2002)(Thailand) s 23; Law Division of the Department of Marine and Coastal resources (DMC): Thailand, The Responsibility of Department of Marine and Coastal resources (DMC) (DMC, 2009), 5-36. 200FAO- Regional Office for Asia and the Pacific, above n 10, 11. 201The Ministry of Natural Resources and Environment (Thailand), above n 196. 44 Indirect responsibility The Ministry of Agriculture and Cooperatives (MOAC) and the MOI play a key role in land use management and agricultural development. They can indirectly affect forest areas through their sub- agencies (coded blue in Figure 3.4): MOAC  The Land Development Department (LDD) is responsible for land-use planning. Several categories of forestland uses are included in its land-use-related work.202  The Agricultural Land Reform Office (ALRO). Cabinet resolutions on the 10th and 17th March 1992 classified forest areas, totalling 23.52 million ha, in 63 Provinces of Thailand into three types: conservation, economic and agricultural zones.203 The agricultural zone (deforested areas suitable for agriculture) was transferred to the ALRO under the MOAC.204The ALRO allocates agricultural lands to farmers who are landless or have insufficient land, as stipulated with the Agricultural Land Reform Act (2006).205  The Office of Agricultural Economics collects statistics and conducts economic studies concerning agricultural crops, as well as information on forests.206  The Office of the Rubber Replanting Aid Fund is responsible for the development of rubber plantations.207  The Office of Marketing Organisation for Farmers is responsible for developing possible alternative markets for forest products.208 MOI The LD surveys forest areas nominated as public land, and issues land title deeds and certificates of land use to people who are landless.209 The LD operates under the Land Code 1954. The LD, through the Land Code, can issue the land title on forest areas. On 30 November 1954, the Land Code provided an option for anyone occupying forestland to receive a land use claim certificate providing he/she can prove his/her claim within 180 days. The Land Code also declared 50 per cent of the country as technically forest and under the management of the RFD.210 The MOI itself also has a crucial role in classifying forest areas. For example, Cabinet Resolutions were proposed by the MOI 202 FAO- Regional Office for Asia and the Pacific, above n 10, 12. 203 Pearmsak Makarabhirom, ‘People’s participation in forest management in Thailand: constraints and the way out' (Paper presented at the 3rd IGES International Workshop on Forest Conservation Strategies for the Asia and Pacific Region, 1999) 174. 204Gine, above n 186, 10;Sato, above n 158, 162. 205The Thailand Agricultural Land Reform Office (ALRO), 'Agrarian Reform and Rural Development in Thailand' (National Report, ALRO, 2006) 16; Gine, above n 186, 10. 206 FAO- Regional Office for Asia and the Pacific, above n 10, 12. 207Ibid. 208Ibid. 209 FAO, 'Forestland for the people - A forest village project in Northeast Thailand' (Report Number 489E02, FAO, 1998); A. Awang, 'Land Ownership in Thailand' (1993) 4(2) Buletin Ukur 40. 210Lasimbang and Luithui, above n 2, 20-21. 45 in 1961 and 1962 to define ‘permanent forest’ and thus enable their classification for conservation.211 Land classifications to support the issue of land title deeds are also conducted by the LD. In 1976, Cabinet authorised the LD to issue ‘No So 3’ land titles (which would create a category of landownership with less security than an irrevocable title deed because it can be revoked if the land has not being used within the first ten years)212 in national forest reserves. However, No So 3 was strongly opposed by the RFD because the titled lands were created in national forest reserves. The land titling system was withdrawn and ‘No So 3’ titles already issued were revoked.213 General responsibilities The authorities listed below have general administrative responsibilities, but their role can influence forest management (coded purple in Figure 3.4). MNRE As outlined above, five agencies under MNRE have direct responsibility for forest management. The following agencies, also operating under MNRE, have general responsibility that can affect forest management. 1. ONEP develops and manages plans and policies for natural resources, environmental enhancement and conservation, including of forests.214The National Environmental Board (NEB), which is meant to formulate policy and coordinate natural resource management, including of forests, is also administered under ONEP.215 2. The NEB Board is chaired by the Prime Minister and consists of the heads of all relevant ministries whose roles affect natural resource management, experts on natural resources and environment and the private sector.216 To formulate plans and policies on natural resource management, the NEB submits draft policies and plans to the Cabinet for approval.217 The NEB is also responsible for delivering policy recommendations to the National Economic and Social Development Board (NESDB). Then NESDB prepares and submits the National Economic and Social Development Plan (NESDP) to Cabinet, which can include forest issues on a five-year cycle.218 The NEB also has the power to establish environmental standards, to approve the National Environmental Quality Management Plan including the action plan proposed by Provincial 211 The Cabinet Resolution of the 14 November, 1961 and 1962 (Thailand); The letter of the Ministry of Interior number 9911/2504 signed by 23rd June 1961. 212 Lakanavichian, above n 5, 335. 213Wataru, above n 10, 230. 214 FAO- Regional Office for Asia and the Pacific, above n 10, 11. 215 Lasimbang and Luithui, above n 2, 13. 216Enhancement and Conservation of National Environmental Quality Act 1992 (Thailand) s 13. 217 Lasimbang and Luithui, above n 2, 14. 218The Thailand National Economic and Social Development Board (NESDB), History and Role of the National Economic and Social Development Board (NESDB) (2012) The National Economic and Social Development Board (Thailand) . 46 Governments. It also has the power to recommend amendments to natural resource and environmental laws, enforce the laws and monitor whether sector-related agencies are complying with the laws.219 3. The Pollution Control Department (PCD) regulates, co-ordinates, evaluates, and controls potentially polluting activities.220 4. The Department of Environmental Quality Promotion (DEQP) conducts research to help improve environmental quality and raise awareness of the necessity of protecting and sustaining the environment.221 5. The Thailand Greenhouse Gas Management Organisation (TGO) is a newly established public organisation under the MNRE. This agency has a role in greenhouse gas (GHG) emission reduction in Thailand through promoting low carbon activities, providing GHG-related information, approving carbon sequestration projects, and taking a role as the Designated National Authority (DNA) for the CDM (Clean Development Mechanism) office in Thailand. The TGO can influence forest practices including reforestation and afforestation to accomplish GHG emission reduction.222 MOI Two authorities have general administrative responsibility in general, which can affect forest management: 1. The DLA. The everyday operations of provincial and district forest officers of the RFD are supervised by the office of the Provincial Governors, under the Local Administration Department of the MOI. In addition, the DLA has an active role through local government to help local communities develop integrated sustainable resource management plans, including plans for forest practices.223 2. The Community Development Department (CDD) under MOI also plays a key role in efforts to help local communities to be involved in sustainable resource management, including forest activities.224 219 Lasimbang, and Luithui, above n 2, 14. 220 FAO- Regional Office for Asia and the Pacific, above n 10, 11. 221Ibid. 222The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), 'Thailand's National Capacity Self-Assessment: United Nations Framework Convention on Climate Change '(ONEP, 2010) 10-11; Thailand Greenhouse Gas Management Organisation (Public Organisation), About TGO (2011) Thailand Greenhouse Gas Management Organisation (Public Organisation) . 223Ministerial Regulation on Administrative Divisions of Department of Local Administration, Ministry of Interior 2008 (Thailand) s 2;The Ministerial Regulation of Bureaucrat Division of the Department of Local Administration BE 2552 (2009) (Thailand) s 2; ICEM, above n 13, 46; FAO- Regional Office for Asia and the Pacific, above n 10,12. 224The Ministerial Regulation of Bureaucrat Division of the Community Development Department BE 2552 (2009) (Thailand) s 2. 47 The Ministry of Industry (MI) and the Ministry of Commerce (MC) promotes forest-based industries, and their internal and overseas trade.225 The Office of the Prime Minister (OPM) This authority carries out the general administrative work of the Prime Minister and the Cabinet. Its responsibilities include general administration and proposing policies regarding national economy; society; politics; security; and it issues Cabinet Resolutions dealing with forest practices.226 Agencies under the OPM also have a role in influencing forest practices, including:  The NESDB prepares and submits the NESDP to Cabinet, which can include forest issues on a five-year cycle. These plans are implemented through action plans by various ministries including forest ministries. An example is the forest master planning process that needs to be coordinated with NESDP approved by NESDB.227 At present, Thailand is working through the Eleventh National Economic and Social Development Plan (2012-2016).228  The Budget Bureau is responsible for drawing up the annual government statement of expenditure for submission to Parliament. The Bureau also makes budgetary allocations to all government agencies, thereby influencing expenditure on forest practice.229  The Office of the Council of State (Thailand) prepares the draft laws as instructed by the Prime Minister and the Cabinet, and provides legal advice to government agencies, the Prime Minister and the Cabinet as well providing support for making, amending, and repealing laws.230  The Office of the Permanent Secretary has a delegated authority which may affect forest practices through the Office of Community Land Title. This office was established in 2010 to support land distribution and to deal with the issue of landless people. Large areas of land that was supposed to have been distributed to landless people under the community land title deeds are the responsibility of this Office.231 225 FAO- Regional Office for Asia and the Pacific, above n 10, 12. 226The Reorganisation of Ministries and Departments Act BE 2545 (2002)(Thailand) s 6;Office of Prime Minister, above n 110,Lasimbang, and Luithui, above n 2, 25-26; Curtis and Doak, above n 192,10. 227 FAO- Regional Office for Asia and the Pacific, above n 10,81-82;The NESDB, above n 218. 228The Thailand NESDB, 'Summary of the Eleventh National Economic and Social Development Plan (2012-2016)' (The Thailand NESDB, 2012) i-ii. 229The Thailand Bureau of the Budget, Thailand Bureau of the Budget (2012) The Thailand Bureau of the Budget ; Krungthep turakij, 'Budget cut: threaten to insecurity of three hundred thousand forest rangers', Krungthep turakij 2nd September 2010'. 230The Office of the Council of State Act BE 2522 (1979) (Thailand) s 7; The notification of the Office of the Council of State No. 197/ BE 2535 entitling ‘The Legal Case about illegal logging and forest clearing in the protected areas’; The notification of the Office of the Council of State No. 434/ BE 2536 entitling ‘the forest areas as prescribed by the cabinet resolution on 14th November BE 2505’. 231 Christian Erni, Community land title law passed in Thailand (2010) International Work Group for Indigenous Affairs (IWGIA) ;The Thailand Government Public Relations Department, Inside Thailand: Issuance of Community Land Title Deeds in an Effort to Push for Land Distribution (2010) The Thailand Government Public Relations Department; The Regulation of the Prime Minister Office on the Issuance of Community Land Title Deeds” BE 2553 (2010) (Thailand). 48  The Office of Knowledge Management and Development (Public Organisation) (OKMD) encourages people to develop their knowledge to keep pace with the rapid development of society. The responsibility of the OKMD influences forest management by encouraging people to learn and develop their knowledge regarding forest practices.232  The TRF is supervised by Office of Prime Minister but operates independently. The TRF is responsible for allocating funds and supporting research aimed at establishing a knowledge base to help the country overcome its problems. The TRF can affect forest practice by providing funding and supporting forest-related research.233  The Mass Communication Organisation of Thailand (MCOT) is formerly a state enterprise under the umbrella of Office of Prime Minister. The MCOT was established to produce and distribute media, including television programs and documentaries. The MCOT can therefore, influence forest practices through mass media.234  The Government Public Relations Department (Thailand) (PRD) has the role of communicating and distributing information to people to promote mutual understanding and to maintain sound relationship between people in Thailand. The PRD can influence forest practices through communicating information about forest practices.235 The Forest Policy Unit of the Police Department assists in forest protection and control of illegal activities.236 The Office of National Research Council of Thailand (ONRC) plays a key role in extension. It is responsible for proposing policy recommendations to Cabinet about issue that need to be researched, and then proposals to the Research Council. The ONRC also facilitates research and allocates funds for research.237 The role of ONRC, thus, can influence forest research (such as research in how to apply the ‘wet firebreak’ method, initiated by His Majesty the King, to prevent forest fires).238 232The Royal Decree on Establishment of Office of Knowledge Management and Development (Public Organisation) BE 2547 (2004) (Thailand) s 7; Naewna Newspaper, 'Opening of the exhibition of Forestry Film raising the awareness of conservation for Thai people', Naewna Newspaper (Thailand) 22nd February 2012. 233Research Endowment Act BE 2535 (1992)(Thailand) s 4; The Thailand Research Fund (TRF), The Thailand Research Fund (TRF) (2010) TRF ; The Thailand Research Fund: TRF (Thailand), List of Research Projects on Climate Change (2009) TFR. 234Office of Prime Minister, above n 110; Mass Communication Organisation of Thailand (MCOT), Company's Business (2012) MCOT; Mass Communication Organisation of Thailand (MCOT), Government set to launch mass reforestation plan (2012) MCOT . 235Ministerial Regulation of the Divided Authorities of Government Public Relations Department BE 2545 (2002) (Thailand) s 1; The Thai Government Public Relations Department, Inside Thailand (2004-2012) The Thai Government Public Relations Department . 236 FAO- Regional Office for Asia and the Pacific, above n 10, 12. 237The Research Council Act BE 2502 (1959) (Thailand) s 11. 238 The Thailand Government Public Relations Department, Inside Thailand: Creating Wet Firebreak against Forest Fires and Haze (2012) The Thailand Government Public Relations Department. 49 Office of the National Human Rights Commission of Thailand (ONHRC) is an independent authority enshrined in the Constitution.239 This authority is responsible for protecting human rights,240 by monitoring and reporting compliance with laws regarding human rights, as well as examining compliance with international human rights obligations ratified by Thailand. In case of violation of laws, the ONHRC has the power to propose remedial measures including reporting non-compliance to the Parliament. This power includes: providing suggestions to the Cabinet and Parliament on how to implement international human rights agreements ratified by Thailand, conducting cases (also on behalf of complainants) in the Constitutional or the Administrative Courts concerning provision in legislation or administrative acts that affect human rights in violation of the Constitution. In addition, the ONHRC is charged with promoting respect for human rights domestically and internationally; providing an annual report on the country's human rights situation to the Parliament and the Cabinet; providing recommendations for the revision of laws, rules or regulations, and policy to the Parliament and the cabinet for promoting and protecting human rights; promoting education; research; and knowledge about human rights; collaborating and coordinating with government agencies, NGOs and other human rights organisations. A division of the ONHRC is the Subcommittee on Land and Forests. This subcommittee works to protect human rights regarding land and forest management. In 2006, this subcommittee investigated the expansion of the factory area in Prajuab Kirikhun Province. The areas of proposed expansion included national reserved forestland that a number of people relied upon for their livelihoods. The people took their claim to the Subcommittee of Land and Forest under the ONHRC requesting that the expansion be disallowed. However, on 15 August 2012 the Administrative Court decided that the expansion of the factory was valid.241 3.3.2.2. Provincial Government In relation to forest management, the RFD and the DNWPC have regional offices throughout the country. These offices are directed by the RFD and the DNWPC242 and are supervised by the Office of the Provincial Governor under DLA. The DMC delegates its power to its regional offices to manage mangrove forest.243 239Constitution2007 s 256 (Thailand). 240Constitution 2007 s 257 (Thailand); The National Human Rights Commission Act BE 2542 (1999) (Thailand) s 15 and 32. 241 Sunee Chairos, 'The case of expansion of the Sahaviriya Cast Iron Factory and the Conflict regarding state policy and the communal rights', Matichon (Thailand) Sunday, May 20 2007;Regional Correspondence team, Administrative Court is making decision on the case of industrial estate land at Bang Sapan today (2012) Office the National Human Rights Commission of Thailand (ONHRC) ;National Public Health Foundation, Jintana Kaewkoa persistently claiming to court for protecting the watershed (2012) National Public Health Foundation . 242The Thailand Ministry of Natural Resources and Environment (MNRE), above 193, 3. 243 Department of Marine and Coastal resources (Thailand), Department of Marine and Coastal resources: The Responsibility (2012) Department of Marine and Coastal resources (Thailand) . 50 3.3.2.3 Local Government Five forms of local government under the supervision and control of the MOI manage forest resources within their own jurisdictions regulated by their individual Acts (as previously discussed).244 The jurisdiction of the PAO overlaps with the jurisdiction of the Municipality and the TAO. Forests beyond the jurisdiction of Municipalities and TAOs are under the jurisdiction of the PAO.245 3.3.2.4 Judiciary Decisions made in the Court of Justice,246 the Constitutional Court,247 and the Administrative Court248 impact the implementation of forest laws. The Court of Justice has three levels: the Court of First Instance, the Appeal Court and the Supreme Court.249 The Court of Justice adjudicates forest cases, for example the claim for compensation as a result of unfair eviction from forest areas.250 In 2007, it was claimed that the provisions of the Community Forest Bill, which was passed by the Parliament, contradict the provision of Constitution. This issue was brought to the Constitutional Court.251The court has made the decision that the Community Forest Bill was invalid because the process of drafting this Bill does not comply with the provision of the Constitution, which requires at least half of the ad hoc committee members to refer a Bill to the parliament.252 The Administrative Court hears cases in which members of government agencies and/or public officials are accused of misusing their power, delaying in undertaking their duties, or failing to perform their duties. For example, the Administrative Court hears cases in which the government arguably failed to follow the law regarding issuing the concession for commercial plantation. Those who believe they have been unfairly affected by issuing the plantation concession can bring their cases to the Administrative Court seeking to have the government decision reversed.253 244Constitution 2007 s 281 (Thailand). 245The Provincial Administration Organisation Act 1997 (Thailand) s 45; The Determining Plans and Process of Decentralisation to Local Government Organisations Act BE 2542 (1999) (Thailand) s 17. 246Thailand Central Intellectual Property and International Trade Court, above n 137, 196. 247FAO, above n 138, 39. 248Thailand Central Intellectual Property and International Trade Court, above n 137, 196. 249Aramkul, above n 106, 124. 250Thailand Central Intellectual Property and International Trade Court, above n 137, 188, 196. 251FAO, above n 138, 39. 252 Pattama Soobkambung, Introducing law by public: the lesson from past to the rights that could be implementable (2013) King Prajadhipom's Institute 253Roddan, above n 139, 6, 40-44; Jinarat, above n 16, 104-106. 51 3.3.3. Impact of legislation Forest governance in Thailand has been developed on the basis that use, access and management of forests is largely determined by the State. Privately owned forests are mostly plantation forest, which comprise a small percentage of total forest area.254Thus, implementing forest laws in Thailand affects, particularly, the rights of those whose livelihoods rely on forests. 3.3.3.1 The Forest Act, National Reserved Forest Act The RFD was established in 1896 and is the sole manager of public forest areas throughout Thailand. Its focus is a policy of ‘cutting and processing timber for export’.255 The Forest Act of 1941 further strengthened State ownership of forests by declaring that any land not privately acquired under the Land Law will be considered as State-owned forest.256 The Forest Act is mainly concerned with the collection of forest products, seeking to regulate activities within the forest (such as how to cut down the preserved species of timbers, firing and land clearing). For example section 54 of the Forest Act prohibits the clearing, burning, occupation or possession of forestland. Contravention of this section carries a penalty of between 50,000-100,000 baht and possible imprisonment for between two and 15 years.257 The National Reserved Forest Act, also administered by the RFD, affects the rights of those people who live in areas designated to be reserved or preserved forest. Under the Act, prior investigation of local people’s usufruct rights before designating areas is not necessary. Only a geographical survey is required for designation. The protection of local people’s usufruct rights is determined only after appeal by people who claim such rights and only monetary compensation is available, resulting in an acceleration of forest classification. Between 1962 and 1966, almost 26 million ha were classified as permanent forests and gazetted as reserves. People were no longer allowed to stay in these gazetted areas. The RFD had the legal authority to prohibit farmers from cultivating reserved land and to evict them from such land. The key sections of this Act are sections 14 to 16 which specify that within the National Reserved Forests, no one can occupy, possess and exploit reserved land. Logging, collection of forest products and logging of protected timber species may be carried out after obtaining permission from the Director General of RFD.258 254SeeFAO - Regional Office for Asia and the Pacific, above n 10,15; Lakanavichian, above n 5, 326; Wataru, above n 10, 209. 255See Lasimbang, and Luithui, above n 2, 17; Matsumura, above n 159, 109; Sato, above n 158, 160; Kanjan and Kaewchote, above n 9,1. 256Lasimbang, and Luithui, above n 2,17; Matsumura, above n 159, 109. 257Lasimbang, and Luithui, above n 2,17. 258Wataru, above n 10,213 -214; Matsumura, above n 159,109; Lasimbang, and Luithui, above n 2,18;R.J. Fisher, 'Thailand's Forest Regulatory Framework in Relation to the Rights and Livelihoods of Forest Development People' in Henry Scheyvens (ed), Critical review of selected forest-related regulatory initiatives: applying a rights perspective, Forest Conservation Project (Institute for Global Environmental Strategies (IGES), 2011) 69, 71. 52 Critics of the National Reserved Forest Act claim that the real purpose of the Act was to facilitate commercial logging. It reduces the need to consult the community and leaves the power of decision making on such issues as logging permits to government.259 3.3.3.2 National Parks Act The concept of national parks in Thailand largely reflects the model used for Yellowstone National Park in the US. The National Park Act has 30 sections, and is the law under which people who live in or nearby forestland, such as the Hill Tribes people, are most likely to be arrested and detained. The key section of this law is section 16, which prohibits a number of activities within a national park. The Act also imposes penalties for violations; fines vary from five hundred baht to imprisonment not exceeding five years.260 3.3.3.3 Wildlife Conservation and Protection Act, Forest Plantation Act The Wildlife Conservation and Protection Act 1992 significantly impacts upon the rights of people whose livelihoods traditionally rely on forestlands through, for example, hunting and gathering forest products. The relevant sections under the Wildlife Conservation and Protection Act 1992 with regard to forestlands are: a. Section 36: No person can hunt wildlife, collect or endanger any nest within a wildlife sanctuary except for educational purposes and then only with permission. b. Sections 37 and 38: No person can enter, possess or occupy land, construct, cut, fell, clear, burn or destroy trees within such wildlife sanctuaries. The three forest conservation Acts: the Wildlife Conservation and Protection Act, the National Park Act, and the National Reserved Forest Act are outcomes of protected area system (PA) policy adopted in Thailand and reflect a philosophy that people and forests are incompatible. It has become increasingly evident that the implementation of such an approach is difficult in a country where a great number of people rely on forest resources, and live inside protected areas. The efforts to enlarge protected areas have raised concerns at the local level over livelihoods. In particular, the intention to evict people who rely on the forest for their livelihoods from protected forest areas has caused conflicts between the government and such people.261 The implementation of the Forest Plantation Act is also problematic. For example, in order to establish forest plantations in the Northeast of Thailand, farmers living in national forest reserves who had not obtained land titles or certificates for the land, were classed as ‘illegal’ encroachers, and were 259 Wataru, above n 10, 222. 260 Lasimbang, and Luithui, above n 2,18-19; FAO- Regional Office for Asia and the Pacific, above n 10, 19;Reiner Buergin, 'Shifting frames for local people and forests in a global heritage: The Thung Yai Naresuan Wildlife Sanctuary in the context of Thailand's globalisation and modernisation' (2003) 34(3) Geoforum 375, 379; RRI, above n 1,16. 261Buergin, above n 260, 379; Matsumura, above n 159,106. 53 violently evicted –often by the military – from land intended for plantations. Farmers who did have certificates of title continued to live in national reserves, but with the risk of eviction as determined by Government.262 Planting under the Forest Plantation Act is mostly for commercial plantations. Private companies who have enough money to invest in industrial plantations can benefit, but communities who rely on forests rarely benefit.263 In addition, the planting of commercial trees, such as Eucalyptus, can cause secondary problems – the Eucalyptus species have deep roots and compete for water necessary for adjacent crop growing. As a consequence, affected local people have protested against the plantation program and called for the Act to be repealed.264 The Forest Plantation Act was amended in 2011 as a consequence of Thailand’s ratification of the Kyoto Protocol. Section 3.4.6 further discusses the operation of the amendments to the Act, and the impact of the Act on forest communities. 3.3.4. Efforts to change Thailand’s forest governance system The forest governance system in Thailand has contributed to an ongoing loss of forest cover and negatively impacts on rural communities and indigenous people whose livelihoods rely on forests. As a result, there have been efforts by both the Government and the community – supported by NGOs, to change the governance system. This section discusses efforts that are being made, who has or is leading the change effort, and who is resisting change and why. The section also discusses the possible impact of Thailand’s international obligations on forestry. Community efforts have been motivated by the successful actions of various groups and the actions of NGOs to help communities realise their potential and have those enshrined in recognised governance structures. The discussion under the subheadings begins by describing the nature of communities, their use of the lands they have traditionally lived in, their traditions for caring for the land and their interactions with government agencies. The discussion then outlines the history of community actions to gain greater participation in forest management and governance. Government efforts have been alternatively motivated by requirements for economic gain of forests and needs for protecting the environment. Funding issues and lack of capacity have significantly impacted on the ability of the government to deliver on its objectives – though the government’s 262Matsumura, above n 159, 106-110. 263 Hirsch, above n 90, 170; Lakanavichian, above n 5, 330. 264 The information in this section relies upon several sources: see Ubukata Fumikazu, 'The Expansion of Eucalyptus Farm Forest and Its Socioeconomic Background: A Case Study of Two Villages in Khon Kaen Province, Northeast Thailand' (2001) 39(3) (December, 2001) Southeast Asian Studies 417, 418;Alice Sharp and Nobukazu Nakagoshi, 'Rehabilitation of degraded forests in Thailand: policy and practice' (2006) 2(2) Landscape and Ecological Engineering 139, 142;Pornpana Kuaycharoen, 'Plantations are not Forests Commercial Tree Plantations in the Mekong Region: Commercial Tree Plantations in Thailand: Flawed Science, Dubious Politics and Vested Interests' (2004) 9(3) Towards Ecological Recovery and Regional Alliance (TERRA); Brenner et al, above n 7, 16; Hirsch, above n 90, 170. 54 often-unclear objectives have also played a part in impeding good governance outcomes. The section of government efforts shows how attempted modifications have been both pushed by and stymied by community efforts and, significantly, by international requirements – discussed in the final part of this sub-section. 3.3.4.1 Community efforts A push for change to the forest governance system in Thailand started with in Ban Huay Kaew, a village located in the Kaew sub-district of Chiang Mai Province, of northern Thailand. The village is partly located in a forest reserve area and its people rely heavily on the forest for their livelihoods. The Huay Kaew community manage the forest based on tradition. A Village Irrigation Committee is the traditional institution governing the use of forest resources. The committee is elected by villagers and has the role of coordinating and oversighting rules that are jointly made by members of the villages. These rules are not written but are understood by members of the villages. However, the rules have been gradually breaking down due to the fact that villagers hold no real authority and are not able to enforce the rules to exclude outsiders. In February 1989, the government had classified forest areas in Huay Kaew as degraded and leased land to an affluent investor from Chiang Mai for a commercial plantation. The Huay Kaew villagers protested against this concession and took the case to the Court of Administration, with the support from NGOs and academics. In December 1989, the Court cancelled the concession and declared that that Ban Huay Kaew has common property rights over the conflicted lands, making the Huay Kaew community the first group to have recognised common property rights to conflicted forestlands.265 In 1990, a Village Forest Conservation Committee was appointed by the Head of the District to formalise a local level institution for forest management.266 The Huay Kaew Village Forest Conservation Committee defines who the members of the community are and who are allowed to utilise forest resources. Outsiders can only extract forest resources, such as bamboo, upon permission from the Committee. Firewood is restricted for home use and villagers cannot sell firewood to outsiders. Violation of these rules results in a monetary fine and confiscation of the illegitimately obtained forest products. In decision-making on forest management, members of Huay Kaew Village pool their energy, working with the significant support of a NGO.267 265 Roddan, above n 139, 6, 40-44; Jinarat, above n 16, 104-106. 266Roddan, above n 139, 55-56. 267Ibid, 38-66. 55 The northeast region, the largest and most populous region of the country, as a whole had become degraded between 1960 and 1990, losing approximately 12 per cent of its forest cover, predominantly because of concessions for logging and commercial plantations by Thai government.268 In 1992, a small village in Tambon Na Pho Klang sub-district of the Khong Chiam district of Ubon Ratchtani Province was affected by excessive logging concessions in Nong Song Hong Reserved Forests, nearby. The legislation at that time prevented their use of the forest. The affected villagers together claimed rights to rehabilitate the degraded forestlands, in the hope that the forest would serve their livelihood in the long term. After extensive negotiations, villagers and the RFD agreed to allow those who had been living in the disputed forest areas long before the forest preservation was announced to remain there. They had to prove their capacity to sustainably manage the lands.269 The Dong Na Tam Community in Ubon Ratchatani Province inhabits an area of 82,536 rais (approximately 12.698 ha) of forestlands. In 1995 forest community committees were established to coordinate efforts and to impose regulations for preventing forest fires and ensure sustainable forest exploitation. Forest authorities from the RFD became facilitators and technical supporters the forest communities. In 1995, spurred by the success of the Tambon Na Pho Klang, the forest communities mobilised and set up as the Dong Na Tam Community Forest Network. Eventually, the network of Dong Na Tam community forest encompassed 36 communities in three districts of Khong Chiam, Si Muang Mai and Pho Sai. Each forest community had its own management arrangements, reflecting the conditions and needs of the people, but all practise sustainable forest management. For example, the Ban Chat community forest committee adopted a forest management approach similar to the one observed by their ancestors. They classified forest areas into three zones: reserved forest (known as Pa Phee Puu-Taa) where cutting trees and extracting of forest product were strictly forbidden; utility forest (known as Pa Cha) where tree felling is not allowed but people could collect wood products; and animal farming forest where people could graze their animals, collect forest products and harvest trees with permission.270 The Dong Yai Community Forest management system is another example of how forests residents are involved in the governance of their forest. The subdistrict headquarters of Dong Yai is in Srang To Noi, Ubon Ratchatani Province. The Dong Yai Community was established over 150 years ago. It comprises twelve villages with a total population of 7,500 people. The people are mostly poor. Their major occupation is lowland paddy farming. In the last hundred years, the forestlands of Dong Yai have been periodically cleared and used with few controls. In the 1960s and 1970s, the RFD began 268Dantanin et al, above n 88, 11-12. 269Kritsanarangsan and Thaiying, above n 1,7. 270Kritsanarangsan and Thaiying, above n 1,7. 56 providing logging concessions on Dong Yai's ‘multiple use’ forest. Fifty per cent of upland forestlands in Dong Yai were also cleared for kenaf (a plant used to make paper) cultivation by its twelve villages.271 In 1989 the RFD had revoked the logging concession in Dong Yai forest areas and reclassified the lands as reserved forest. This classification impeded villagers' rights to benefits from the forest or and took away any authority to make decisions relevant to forest exploitation. However, the RFD regional officers encouraged villagers to participate in the protection of the reserved forests. The Tambon Council also supported village committees to informally request each household to assume responsibility for forest protection of small areas. The Tambon Council played a coordinating role between the RFD regional officers, academics and villagers to establish a forest management system.272 The Kamnan, the leader of a sub-district and a member of the Tambon Council were especially influential in developing the forest management system. As the forestland began to revive, wood and non-timber forest products flourished. The Dong Yai forests were then threatened by overexploitation of forest resources by neighbouring districts. The Kamnan called for a Tambon meeting to raise community awareness and discuss the increasing problems of forest overexploitation. This led the Dong Yai communities to adopt a more organised, proactive role in forest management. The Kaman also led the community in developing an improved fire management system, including the use of controlled fires, cutting down weeds to create fire breaks, and spraying with water extinguishers and sand. The Kamnan provides materials and logistical support for fire fighting.273 With the support of regional forest officers and several forest professors from Kasetsart University, village leaders (puyaibans) were provided with a training course on effective forest management. Village leaders were then expected to transfer their training to members of their communities. The Dong Yai forest community formed a ‘Forest Protector Group’ elected by villagers with a decision-making role for forest management in the community. The Group establishes rules such as requiring patrols throughout the community and for extracting non-forest resources, such as non- timber forest products, which remain open to all (including outsiders). The Forest Protector Group is formally recognised by the RFD and are given rights and responsibilities and supported with funds from the Provincial Government. This contribution provides a symbolic incentive that acknowledges the importance of the protection work being conducted by the community.274 The Dong Yai community also launched a forest program to raise additional income for people in its community. This program encourages villagers to plant the popular sweet bamboo in reserved forest; 271 Poffenberger and McGean, above n 3. 272Ibid. 273Ibid. 274Ibid. 57 bamboo shoots can be sold as food and stems can be sold for construction purposes. However, this action remains controversial since bamboo planting in the reserved forest of Dong Yai is not legal.275 Even though forest communities in Thailand have demonstrated they can successfully apply traditional practices to manage and live in forests in a sustainable way, such practices have not been formally recognised by the State. The livelihoods of forest communities continue to be threatened, in some cases the rules even casting responsible communities as law breakers subject to fines and imprisonment.276 Apart from the examples already discussed, other communities, with the support of NGOs and academic have made a bid to have forest customary activities practiced over the generation formally recognised. Such efforts began in earnest in 1985 when locals in the northeast protested against the establishment of commercial plantations.277 Efforts were further fuelled by severe flooding in 1989 in the south of Thailand, which sent cut logs and uprooted trees crashing down the hills, wiping out houses, bridges and roads, and burying whole communities. Around 300 people were killed. This situation was considered by Thai people to be caused by the dramatic deforestation generated by the State’s logging policy. In response, the Government announced a total logging ban in the country.278The media highlighted the success of the Ban Huay Kaew in gaining rights to manage their forests, giving hope to other forest communities that they could obtain similar rights. With support of academics and NGOs, such communities placed increasing pressure on government (the RFD) to create a Community Forest Law legalising the customary rights of forest dwellers.279 In 1989, NGOs held a national meeting calling on the government to issue a Community Forest Bill.280 The RFD provided the first draft of the Community Forest Bill in 1990. It was criticised by NGOs, academics and grassroots groups as being State-centred and inadequate.281In 1993, those NGOs, academics and grassroots groups who opposed the draft RFD Community Forestry Bill developed a ‘people’s’ draft that reinforced the rights of local villages to access and exploit forests. There were significant differences in the views of the RFD, and NGOs, academics and grassroots activists. Different concepts appeared in the RFD and the ‘people’s draft Community Forestry Bill 275Ibid. 276Soobkambung, above n 252,Supara Janchitfah, 'Grassroots resistance in the forest:Long-time residents in the Bantad mountain region have banded together to oppose efforts by the National Parks Department to prosecute them for encroachment', Bangkok Post (Thailand), 2009; Supara Janchitfah, 'Tragedy in the Forest', Bangkok Post (Thailand), 2008 . 277 Barney, above n 90, 1; Brenner et al, above n 7, 16. 278 Lakanavichian, above n 5, 333; Brenner et al, above n 7, 16; Buergin, above n 260,381. 279 Roddan, above n 139, 6, 40-44;S. Zurcher, 'Public participation in community forest policy in Thailand: The influence of academics as brokers' (2005) 105(1) Geografisk Tidsskrift, Danish Journal of Geography 77, 82-86; Jinarat, above n 16, 104-106. 280Brenner et al, above n 7,16. 281Lasimbang and Luithui, above n 2,36;Craig Johnson and Timothy Forsyth, 'In the Eyes of the State: Negotiating a ‘‘Rights-Based Approach’’ to Forest Conservation in Thailand' (2002) 30(9) World development 1591, 1595-1596. 58 versions.282 As a result, in 1996, the Government (the Banharn Government) requested the NESDB, a policymaking body composed of both government and public sector, to draft a new version of the Community Forestry Bill (typically known as ‘Suanbua Version’), with participation of representatives from government, NGOs, academics, and grassroots communities.283 This version was approved by the Cabinet on 2 June 1996.284 However, not all groups agreed with the Bill, with some NGOs believing that community forests should not be established within protected forest areas such as National Parks or specifically identified watershed protection areas.285 The Bill was suspended with the change of Government in 1997.286 The new Chavalit Government, driven by the Forum of the Poor,287 continued addressing the issues of the community in the protected areas covered by the Community Forest Bill. A public hearing was conducted in 1997 outside parliament in Bangkok. The Government came to the conclusion that communities can be allowed to live in the protected forestlands if they can prove that they had settled in such areas before 1993. This decision was also criticised by some environmental activists who claimed that the decision continued State-centred management of forests and restricted the capacity of forest communities to participate.288 In 1998, the government changed and the new government was led by Chuan Leekpai. There was opposition to recognising the interdependence of forests and the community by the new Director General of the RFD, Plodprasob Suraswadi. He argued that people and forests cannot co-exist. Consequently, the Community Forest Bill was substantially redrafted and the controversy continued.289 In 2000, based on concepts from the new Constitution (1997), which allowed, under article 170, for the introduction of Bills to Parliament at the instigation of 50,000 voters, a revised ‘people’s’ version of the Community Forest Bill was submitted to the Parliament.290 The key differences between the people’s version of the Bill and that of the RFD version related to: whether a community is allowed to live in protected areas; what forest practices are legitimate in community forests; and what ‘community’ means.291 In terms of the definition of community, the people’s version states that, in 282Jinarat, above n16, 109-122. 283Lasimbang and Luithui, above n 2,36; Yanuar Sumarlan, 'How Participatory Is Thailand’s Forestry Policy?' (Policy Trend Report, Institute for Global Environmental Strategies (IGES), 2004), 52-53; Jinarat, above n 16, 123. 284Fisher, above n 258, 74. 285Johnson and Forsyth, above n 281, 1596; Sumarlan, above n 283,53. 286Sumarlan, above n 283, 53-54. 287The wave of evictions of some minority groups from forest areas in northern Thailand in 1994 led to the forming of the Forum of Poor in 1995. It was jointly by a loose Northern Farmers Network; about 180 people’s organisations and NGOs in Thailand. This collective action often turns the movements from negative to positive activity, such as opposition to a large dam to proposals and support for a series of smaller, more manageable dams: see Sumarlan, above n 283, 56. 288Jinarat, above n 16,143;Sumarlan,above n 283,56;Fisher, above n 258, 75. 289Johnson and Forsyth, above n 281, 1596; Sumarlan, above n 283, 54. 290Fisher, above n 258, 74. 291Johnson and Forsyth, above n 281, 1596; Brenner et al, above n 7,23-25;Sato, above n 158,332-334;Andreas Neef and Rainer Schwarzmeier, 'Land Tenure Systems and Rights in Trees and Forests: Interdependencies, dynamics and the role of 59 accordance with the 1997 Constitution, a local community is a social group living in the same locality and having the same cultural heritage. The Bill allows that such a group can apply for the status of Forest Community after a minimum of five years’ experience in safeguarding forestland. The government version (RFD version) defines ‘community’ as at least 50 individuals living in proximity to forest, regardless of how long they have been in the area or how the forest is managed. There was concern by the opposition that such a definition would produce a legal loophole enabling any 50 people to establish a community forest and use the forest in in desirable ways; for example, by establishing commercial plantations rather than managing forest in more desirable ways. This could contribute to more deforestation.292 After much discussion, the Senate made substantial changes that watered down the people’s version. This eventually passed in March 2002.293 However, that legislation did not come into effect because of stakeholder protests.294 With the change of government in 2007, activists hoped that the Community Forest Bill passed in March 2002 would be recalled. With the support and coordination of some members of National Legislative Assembly (NLA),295the Community Forestry Bill of March 2002 was finally passed by the Parliament in 21 November 2007.296 However, even though the Bill was passed by the Parliament, only requiring endorsement by the King, the Bill has not come into effect yet because of an appeal on two counts to the Constitutional Court on the ground that the Bill limits the rights of communities to manage forests:297 article 25 limits eligibility to establish community forest to groups that can be proven to have lived in and managed a protected area for at least 10 years prior to promulgation of the CFB, thus denying community forest rights to 20,000 communities living around the peripheries of protected areas; and article 35 prohibits logging within protected community forests, effectively jeopardising indigenous peoples’ rights to access forestland, and hindering the use of forest resources where local communities do have access. To date, this case has not been entertained by the Constitutional Court298on the basis that the process of drafting the Bill did not comply with the provision of the constitution and so the purported Act is not lawful (and thus no appeal on its provisions is needed).299 development cooperation-case studies from mainland southeast Asia' (Sector Project: Importance of Land Policy and Land Tenure in Developing Countries, GTZ, 2001), 34. 292Johnson and Forsyth, above n 281, 1596; Jinarat, above n 16,140. 293Lasimbang and Luithui, above n 2,36; Sato, above n 158,332; Fisher, above n 258, 74-75. 294Jinarat, above n 16,164-165;Fisher, above n 258, 75. 295 Jinarat, above n 16,164-165, 184. 296RRI, 'The Thailand Community Forest Bill', RRI January 03, 2008. 297Fisher, above n 258, 69, 75-78. 298RRI, above n 296; Jinarat, above n 16,174-176. 299 Soobkambung, above n 252. 60 3.3.4.2 Government efforts In addition to community efforts to create a better forest governance system, the Government has also attempted to develop a better system. In 1961 the NESDB prepared and submitted the first NESDP (1961-1966) with a target of 50 per cent forestation. The plan was approved by the Cabinet, but the targeted remaining forest cover has not been achieved. The second NESDP (1967-1971) reduced the forest areas target from 50 per cent to 40 per cent.300 The government has attempted two programs in pursuit of this plan. They are the Forest Village Program and the National Forestland Allotment Project. These two projects aimed to help diffuse the conflict between forest communities and the government by legalising the actions of people who have settled in national reserved forest areas. The Forest Village Program was initiated in 1975. The Program is run by the RFD and aims to locate people who were farming inside forests into villages that are allocated a specific amount of land for cultivation. In addition to land, people were also provided with support, such as extension services, to encourage farmers to adopt agroforestry systems and permanent settlements. The grant of land under this program was valid for five years period (between 1975 and 1980).301 The program encountered a number of challenges. There have been difficulties in persuading people to resettle in designated forest villages. This was due to the land allocated being generally less than the areas they already occupied and of marginal quality, such as land with inadequate access to water for irrigation.302 The support provided was also insufficient. Confusion and conflict over tenure were also the causes of problems with the Forest Village Program. For example, those involved in the Forest Village Project in Phu Hang Village in Dong Mun National Reserve Forest in Kalasin Province in the northeast of Thailand resisted implementation of the project by destroying trees and plants in project areas. Residents claimed that the boundaries declared by the RFD overlapped their land. Nevertheless, the project was implemented. The land claimed by villagers was confiscated for reallocation under the terms of the Program and no compensation was provided. Eligible villagers were allocated land under the Program, while those deemed not eligible were excluded from the land allotment process. 300 Lakanavichian, above n 7. 301Wataru, above n 10,227. 302James A. Hafner and Yaowalak Apichatvullop, 'Farming the forest: Managing people and trees in reserved forests in Thailand' (1990) 21(3) Geoforum 331, 341. 61 In other projects, people who had been granted project land did not have security over their granted lands. Some residents claimed ownership of land and sold project granted lands to new migrants.303 Funding problems, the slow progress in establishing Forest Villages, and the high costs of providing support for the Forest Village Project finally led to its cessation and replacement with the National Forestland Allotment Project. This assigned rights to the use forestland to individuals rather than communities.304 The National Forestland Allotment Project, aimed to allocate land and temporary usufruct rights to settlers in existing villages within the forests. In the Thai language, this kind of rights is called ‘Sor- tor-kor or STK’.305 The RFD, with World Bank support,306 launched the National Forestland Allotment Project in 1982 to issue certificates of land titles to cultivate in reserved areas and to provide people with an incentive to refrain from encroaching further into forestlands. With an STK certificate, a holder is permitted up to 2.4 ha of land in a reserved forest. The land is not available to sell; it is only transferable to family members through inheritance. No support services were provided, which meant that the STK project was less costly to implement than the Forest Village Project.307 However, there were also problems with the STK project. The certificates did not guarantee full rights to use of the forestland and farmers preferred a land title deed with full ownership. Many STK rights holders sold their rights, even though, legally, they could not sell the land.308 The STK program ended because, like the project before, it was not consistent with community needs.309 Forest-dependent people have generally been excluded from a role in the design and implementation of the programs that affect them. The planning and implementation of the programs relied solely on the Central Government, which lacked the capacity to respond to the diversity of community needs. The failure of the Government has meant that there is continuing pressure on forestlands. Even though the Government established the National Forest Policy in 1985310 and imposed a logging ban in 1989 (after the floods), logging enterprises continued to harvest timber. Demand for timber continued to be high and timber could be sold internationally for a good price. Table 3.1 shows the quantities of timber exported during the logging ban. 303Ibid. 304Hafner and Apichatvullop, above n 302, 337;J.E.M. Arnold, 'Case studies of contemporary collective and co-management systems' in Managing forests as common property, Forestry Paper 136 (FAO, 1998)67. 305STK stands for ‘Sit-ti-tum-kin’, meaning ‘usufruct rights’. 306 Matsumura, above n 159, 109; Lakanavichian, above n 5, 338. 307 Hafner and Apichatvullop, above n 302, 338;Lakanavichian, above n 5, 337 Matsumura, above n 159, 109; Hirsch, above n 90, 171. 308 Lakanavichian, above n 5, 337-338. 309Hafner and Apichatvullop, above n 302, 344. 310 Lakanavichian, above n 7. 62 Table 3.1: Quantity of timber exported from Thailand during the logging ban Year Timber export (m3) 1990 48,649 1993 53,806 1995 80,533 1998 108,232 2001 402,903 2002 1,562,222 2003 1,105,894 Source: Royal Forest Department, 2004311 The logging ban failed because of corruption and incompetence within the Government. For example, there are allegations of officials receiving a five million baht bribe to allow illegal logging in Salween forest. Another reason for the failure of the ban was the lack of Government resources to stop illegal logging.312 In 1992, in compliance with the National Forest Policy and the challenge of expansion of human resettlement and cultivation, the government categorized all national forest estates into three zones: the Conservation Forest Zone (Zone C); the Economic Forest Zone (Zone E); and the Agricultural Zone (Zone A). Zone C is the area covered by natural forest that are undisturbed and/or are minimally affected by human activities. Zone E was set aside from arable land suitable for commercial tree plantations for distribution to landless farmers. Zone A was set aside from degraded or deforested areas that were suitable for agriculture.313 In 1993, the government launched two key programs: the Forest-Sector Master Plan and the land reform program. The Forest Sector Master Plan for the long-term conservation of forest and biodiversity both inside and outside protected areas,314and the National Forest Policy (1989) was amended to encourage forest protection.315The Forest Sector Master Plan suggested a limit to the relocation of forest communities to only a few necessary cases and, instead, encouraged people to find alternative livelihoods outside reserved forest. However, the government has never formally implemented the Master Plan.316 311Chupinit Kesmanee and Prasert Trakansuphakorn, 'An Assessment of the Implementation of the Thai Government’s International Commitments on Traditional Forest-Related Knowledge from the Perspective of Indigenous Peoples' (Our Knowledge for Our Survival: Traditional Forest Related Knowledge and the Implementation of Related International Commitments, Akha Heritage Foundation, 2005) 6. 312 Human Rights Foundation of Monland - Burma (HURFOM), Corruption enables illegal logging in Karen State (2008) Rehmonnya . 313 Abdulbasit Elmagboul et al, 'Plantation Forestry in Thailand (Teak, Rubberwood, Eucalypt) Case study in Chiang Rai Province' (Viikki Tropical Resources Institute, Department of Forest Science, 2008) 6-7. 314Lakanavichian, above n 5, 334. 315 Brenner et al, above n 7.; Lakanavichian, above n 7. 316 FAO- Regional Office for Asia and the Pacific, above n 10, 20. 63 Also in 1993, following the forest-zoning program launched in 1992, the RFD implemented a land reform program allocating degraded forestlands to landless people, preventing them from encroaching forest reserve areas. The RFD transferred 70,848 km2 of land from Agricultural Zone to ALRO. Then, the ALRO provided Sor Por Kor (SPK 4-01) documents to those settled within the forest transferred, up to a maximum of 15 rai. SPK4-01 certificates provide usufruct rights for farming purposes only; they did not entail full ownership and none of them can be transferred except to descendants. By 1994, SPK 4-01 certificates had been issued over 21 million rai (3.36 million ha, or approximately 14.6 per cent of Forest Reserve areas). The effectiveness of the Sor Por Kor land reform program has been limited, in part due to the recalcitrance of the RFD to relax the stipulations for maintaining tree cover in land reform areas and also due to numerous corruption scandals involving the misdirection of land reform certificates to ‘locally influential people’. One such scandal in Phuket province in 1996 led to the fall of the government in that time- the Chuan Leekpai government.317 In addition to Government attempts to introduce a Community Forest Bill, it has made other positive moves to formally employ common property regimes in forest management. In 1997, the country adopted a new constitution. This is the most democratic in Thailand’s history and is called the People’s Constitution.318 Article 46 of the Constitution recognises the rights of native communities to conserve their customs and to participate in the management, maintenance, and exploitation of natural resources.319 Article 56 also reinforces the right of people to natural resources.320 Article 56 of the 1997 Constitution stipulated the rights of individuals to collaborate with the state and the community to maintain, exploit, and conserve the natural resources.321 Article 59 recognises the right of people to receive information, explanation and reasons from state agencies, state enterprises and local government before permission is given for any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning an individual or a local community. It gives effected people the right to express their opinions on such matters in accordance with the public hearing procedure.322 Article 79 charges the State to encourage the public to conserve, maintain, and exploit natural resources.323 In 2000, the Community Forest Program was established by the RFD. It is intended to involve those whose livelihoods depend on forest in forest management, and enable them to collect firewood and wild fruits. The program enables a group of 50 members of a relevant community to propose the 317 Barney, above n 90, 18-19. 318Erik Martinez Kuhonta, 'The Paradox of Thailand's 1997 “People's Constitution”: Be Careful What You Wish For' (2008) 48(3) Asian Survey 373,374; Sato, above n 159, 329-330. 319Constitution 1997s 46, (Thailand). 320Actually, the Constitution of 1974 was the first constitution to recognise this right. The 1997 version then assured this right again see, Kriengkrai Charoenthanavat, The Thai Constitution of 1997: A study on Protection Rights and Liberties (2006) Public Law Net (Thailand) . 321Constitution 1997s 56, (Thailand). 322Constitution1997 s 59, (Thailand); IMPECT, above n 75,8. 323Constitution1997 s 79, (Thailand). 64 application accompanied by the forest management plan to the RFD for approval. A group that is approved will be registered by the RFD under the Community Forest Program to co-manage the forest with the RFD. The RFD applies the National Reserved Forest Act and the Forest Act, which empowers its General Director to approve the community forest project and to appoint staff to work with community.324 The Community Forest Program:325 (a) Aims to involve community in forest management; (b) Targets forestlands to be registered as community forests that are:  National reserved forest areas according to the the National Reserved Forest Act;  Forest areas under the Forest Act; (c) Focuses on areas that are:  Located adjacent to villages where the villagers are willing to participate in the project;  Not be so small as to restrict effective forest practices;  Not located in a national park or wildlife sanctuary;  Not occupied by any individuals or any organisations either public and private, unless with written consent of the occupier;  Not located in the areas preserved for biodiversity protection as enshrined in legislation. The Headman of village; or subdistrict; or the president of the TAO, submits Community Forest Form 1 (Por Chor Chor 1) to the Provincial Forest Office. This form proposes the boundary for community forests and lists at least 50 people over the age of 18 as constituting the community. The process for approval: i. The Provincial Forest Office (the Office of Forest Resource Management) considers the application (Community Forest Form 1). At this stage, staff of The Provincial Forest Office, together with other relevant authorities visit, and survey the proposed community forest area. Reports and comments are reported in ‘Community Forest Form 2’. ii. Community Forest Form 2 is returned to The Provincial Forest Office (the Office of Forest Resource Management) to approve. If not approved, the process is terminated. iii. If it is approved, the forest officials help the community to write a community forest plan. iv. The community forest plan goes to the community for a public hearing. This step is also used to complete the details of required for Community Forest Form 3 and to nominate Community 324 The Thailand Community Forest management Bureau, Community Forest (2013) The Community Forest management Bureau (Thailand) ; The Thailand Community Forest Management Bureau, 'The Manual of Implementation of Community Forest Project ' (Royal Forest Department, 2011) 4. 325The Thailand Community Forest Management Bureau, above n 324, 7, 17. 65 Forest Project committee. This form is to be ratified by the 50 people listed on Community Forest Form 1. v. Community Forest Form 3 is then considered by members of the TAO, district, province, and all authorities that are relevant. vi. Community Forest Form 3 is then returned to the Provincial Forest Office to review and to identify the responsible staff. vii. The reviewed Community Forest Form 3 is forwarded to the headquarters of the RFD for approval. viii. The relevant Provincial Forest Office is notified of an approval. ix. The Provincial Forest Office informs the community of the approval. Staff of the Provincial Forest Office monitor and evaluate whether the community manages forestlands as stated in the approval. x. The Provincial Forest Office uses Community Forest Form 4 to report progress of the project to the RFD. xi. The RFD, on the basis of Form 4, reports and approves continuation of the plan and a works budget for the Provincial Forest Office. xii. Forest staff from Local to Central levels work together for preparation of relevant information and advertisements. xiii. Forest staffs are responsible for this communication. The approved Community Forest Project is valid for five years. The project can be extended by repeating steps (i) to (xiii), but the community must demonstrate that they have effectively managed the forest and complied with the conditions of the original approval.326By September 2013, 8,256 community forest projects registered under the Community Forest Program of the RFD.327 The 2007 Constitution recognised rights of indigenous people and community to conserve their customs and to participate in natural resource management. Revising the 1997 version, the version of 2007 removed the qualifier ‘as identified by law’. However, in relations to the rights of native communities to participate in natural resource management, maintenance and exploitation, the Constitution retains the terms ‘in a sustainable manner’ and for this right to be protected ‘as appropriate’.328Overall, the Constitution suggests a policy vision of community rights in forests management and resources, but what is not clear is the nature or scope of those rights and the 326 Ibid, 14. 327 The Thailand Community Forest management Bureau, above n 324. 328 The Constitution 2007 s 66-67 (Thailand). 66 qualifiers ‘sustainable manner’ and ‘as appropriate’. Constitutional ambiguities are generally resolved through the Constitutional Court or through specific laws that implement Constitutional provisions. Currently, there is no proposed revision of any specific laws that would resolve the constitutional ambiguities. In 2010 the Government passed the Regulation of the Prime Minister's Office on the Issuance of Community Land Title Deeds, allowing communities to apply for a Community Land Use Permit administered by the Office of Community Land Title under the Office of the Permanent Secretary.329 The program aims to support land distribution and to deal with the issue of landless people preventing them from encroaching upon forest areas.330 This regulation aims to legally allow communities (both highland and lowland people) to collectively manage and use state-owned land for their living. There is no specified size of the group constituting communities, only that they have the mutual objective of sustainable management and development of society, economy, custom, and natural resource and environment. The regulation requires that a community have to periodically renew its land title deed with the respective government agencies that formally own the land. It was reported in February 2013 that 187 communities have submitted applications to be granted communal land title deeds and only 35 communities have been granted the land title deeds; the rest are under consideration. Implementing the communal land title deed faces a number of problems, such as land granted under the project overlapping with forest areas; the process to grant the title deed is slow because of the bureaucratic requirements. There is also misunderstanding of the meaning of ‘title deed’- communities those who are granted the title deed under this program believe that they have the ownership over the land granted, but actually they have not. The ownership remains with the State; the communities have only the usufruct rights. To deal with this misunderstanding, on 28 May 2013, the government repealed the Regulation of the Prime Minister's Office on the Issuance of Community Land Title Deeds and imposed the Regulation of the Prime Minister's Office on the Issuance of Certificate of Community Rights. This regulation removes the term ‘title deed’ and uses the term ‘certificate of community rights’ instead. This regulation is legally binding but has a lower legal status than other laws, so it is vulnerable to administrative change.331 3.3.4.3 The influence of international obligations Several international obligations that are ratified are relevant to the forest governance system in Thailand. 329 The Reorganisation of Ministries and Departments Act BE 2545 (2002) (Thailand) s 7. 330 Erni, above n 231, The Thailand Government Public Relations Department, above n 231; The Regulation of the Prime Minister Office on the Issuance of Community Land Title Deeds BE 2553 (2010) (Thailand). 331 Boon Saejung, Round Table Seminar: Policy on Community Land Title Deeds for equity: from theory to implementation (2013) Social Equity and Health ; Thai Post, 'Alert the Trang Governor to divide encroacher from community ', Thai Post 26 June 2013;Naewna Newspaper, 'Cabinet stop the problem of 'PeeMove': Establishing 'Kor Lor Sor' under the supervision of Chalerm', Naewna Newspaper 28 May 2013;Naewna Newspaper, ''PeeMove' face with the officials: Chalerm accepts to take four problems to the Cabinet Meeting', Naewna Newspaper 7 May 2013;Thai Post, 'From North to South: reviewing on the Community Land Title Deed ', Thai Post 1 February 2013. 67 Convention on Biological Diversity (‘CBD’) The CBD came into force on 29 December 1993. It aims to conserve biodiversity, to sustain the utilisation of the components of biological diversity, and to equitably share the benefits generated from the use of genetic resources.332 The CBD requires contracting parties to initiate protected area systems for biodiversity conservation, and to respect and preserve traditional knowledge for biodiversity conservation held by indigenous people.333 Thailand ratified the CBD on 29 January 2004.334 In relation to forest management, a range of policies, and plans have been adopted as a consequence:  The Thai Biodiversity Policy (2009), which aims to protect important areas for biodiversity conservation.335  Country Management Plan (2008–2011), which aims to balance economic development and biodiversity conservation. This policy seeks to encourage and strengthen communities to conserve biodiversity and to wisely manage biodiversity for poverty reduction.336  Policy, Measure, and Plan for Sustainable Biodiversity Conservation and Utilisation (2008– 2012), which is intended to secure biodiversity for the further livelihoods of Thai people. In addition, this policy facilitates research on biodiversity economic value and to discover ways to decrease the loss of biodiversity.337  Recognising rights of community and indigenous people to conserve their traditional forest- related knowledge in the Constitution (2007) section 66. Agenda 21 Agenda 21 is an international agreement established at the United Nations Conference on Environment and Development (Earth Summit), in Rio de Janeiro in 1992.338 Thailand ratified Agenda 21 in 1994.339 To implement this agreement, the NEB and the NESDB have been instructed to collaborate in environmental policymaking, including forest policy.340 Three agencies under the LD were established to achieve integrated management of land and forests: the Office of Land Development, the Office of Highland Development, and the Office of Coastal Land Development.341 332 UNEP, The Convention on Biological Diversity (CBD): Introduction (2011) UNEP . 333Lawrence C. Christy, Forest Law and Sustainable Development : Addressing Contemporary Challenges Through Legal Reform (The World Bank, 2007) 13. 334The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), above n 1, 8. 335Ibid. 336Ibid. 337Ibid. 338 UN, Agenda 21- Thailand: Natural Resource Aspects of Sustainable Development in Thailand (1997) UN . 339 Matthew J. Mohlenkamp, 'Sustainable Forestry in Thailand: The Effect of Agenda 21 on Forest-Related Non- Governmental Organisations' (2003) 76(3) Pacific Affairs 428. 340 UN, above n 338. 341Ibid. 68 As previously noted, in 1997 Thailand elevated its concern for sustainable forest management in Thailand’s 8th National Economic and Social Development Plan (1997-2001).342 This proposed that up to 25 per cent of forest areas would be preserved and rehabilitated, and that mangrove forests would also be maintained at not less than 160,000 hectares. Ratification of Agenda 21 motivated the Government to aim for a national total forest cover of 40 per cent.343 The United Nations Convention to Combat Desertification (‘UNCCD’) In 1977, the United Nations Conference on Desertification established the UNCCD for dealing with desertification and land degradation.344 Thailand acceded to the UNCCD in March 2001 and the convention came into force in Thailand in June 2001. As a consequence, Thailand has included forest issues in its 9th NESDP. This Plan prioritises ‘Conservation and restoration of natural resources and their utilisation, with the aim of no less than 25 per cent of conserved forest and 0.2 Million ha of mangrove forests’.345 International Tropical Timber Agreement (‘ITTA’) The ITTA addresses the trade of timber and the management of forests in tropical areas.346 Thailand ratified ITTA in 1994 and implements the ITTA through its RFD. In 1998, this agency proposed criteria and indicators for the sustainable management of the tropical forest to the RFD. The RFD established a committee to develop and implement those criteria and indicators.347 The Convention on Wetlands of International Importance (‘Ramsar Convention’) The Ramsar Convention is an international agreement that requires contracting parties to maintain and wisely manage areas designated as Wetlands of International Importance.348 Thailand became a contracting party to the Ramsar Convention on 13 September 1998. There are now 11 Ramsar wetland areas in Thailand covering approximately 372,800 ha, which include forests.349 342Ibid. 343Ibid. 344 UN, UNCCD: United Nations Convention to Combat Desertification: About the Convention (2012) UN . 345Land Development Department, Kingdom of Thailand: National Action Programme for Combating Desertification (Ministry of Agriculture and Cooperatives, Thailand, 2004) 5-9, 23. 346 UN, 'International Tropical Timber Agreement ' (Report No. 21996A0817(01) UN, 1997). 347 Chudchawan Sutthisrisinn and Adisorn Noochdumrong, 'Asia-Pacific Forestry Sector Outlook Study: Country Report- Thailand' (Working Paper No: APFSOS/WP/46, FAO, 1998). 348 Ramsar Secretariat, About the Ramsar Convention (2011) . 349 Ramsar Secretariat, The Annotated Ramsar List: Thailand (2013) Ramsar Secretariat ; Ramsar Secretariat, Marshland designated in the northeast region of Thailand (2010) Ramsar Secretariat . 69 United Nations Framework Convention on Climate Change (‘UNFCCC’) and Kyoto Protocol The UNFCCC was established in May 1992 and came into force on 21 March 1994. This Convention aims to reduce Green House Gas (GHG) emissions to the atmosphere.350 The Kyoto Protocol is an international collaboration linked to UNFCCC to achieve the objective of UNFCCC. It identifies binding targets for developed countries indicated in UNFCCC for reducing GHG emissions.351 Thailand ratified the UNFCCC in December 1994 and ratified the Kyoto Protocol in August 2002.352 Although Thailand was not bound to reduce GHG emissions under the Kyoto Protocol during the first commitment period (2008-2012), Thailand has already submitted its first national communication required by UNFCCC.353 The Thailand Greenhouse Gas Management Organisation (TGO) was established to take a role in GHG emission reduction and can influence reforestation and afforestation.354 The Thai Government has also created a Climate Change research group.355 Thailand also began its participation in the REDD+ project 2010.356Thailand is currently establishing the 2013 Readiness Preparation Proposal (RPP) for REDD+ implementation,357 but the process is quite slow as it is needs to be approved by the Cabinet prior to proceed.358 These issues are discussed in the journal article on REDD+ included in Section 7.3.1. On-ground impact of International Obligations To implement these international obligations, Thailand has created policies and agendas, as well as established committees and departments. However, at present, these moves are only at the policy or committee stage. For example, to implement the CBD Thailand has a policy and plan, and recognises traditional forest-related knowledge in its Constitution. However, the policies have only been partly implemented (as discussed above) and there is no specific legislation to give specific effect to the requirements of the Constitution.To enable the CDM to operate, the Forest Plantation Act (1992) has 350 UN, Background on the UNFCCC: The international response to climate change (2013) UN 351 UN, Kyoto Protocol (2013) UN 352 The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), UNFCCC and Kyoto Protocol Implementation in Thailand (2011) ONEP 353The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), UNFCCC and Kyoto Protocol Implementation in Thailand (2011) ONEP. 354 Thailand Greenhouse Gas Management Organisation (Public Organisation), above n 222. 355The Thailand Office of Natural Resources and Environmental Policy and Planning (ONEP), above n 353. 356 REDD+Partnership, REDD+Partnership Document 2010 (2010) REDD+Partnership 357Theerapat Praurasiddhi et al, 'Readiness Preparation Proposal (R-PP) For Country: Thailand' (Forest Carbon Partnership Facility (FCPF), 2012) 8-12. 358Asia Indeginous Peoples CCMIN, REDD+ implementation in Asia and the concerns of Indigenous Peoples (2011) Asia Indeginous Peoples CCMIN . 70 been amended (25 October 2011). The objectives of the amendments are to comply with the international agreement. The amended version of this Act has limitation, including excessive discretionary power, which is vested in the Government, a lack of consideration of stakeholder needs, particularly community stakeholders. These are detailed in Phromlah 2012359 (this paper is included as part of this Chapter, see Section 3.3.4.4) so they will not be re-iterated here. 3.3.4.4 The social consequences of the Plantation Forest Act This section incorporates a paper by the researcher published in the International Union for Conservation of Nature (IUCN) Academy of Law eJournal, which discusses, as a case study, the impact of Thailand’s international obligations on legislation (specifically, Plantation Forest Act) and the possible consequences of the amended Act on the capacity of the forest communities to manage their forest areas. As well as discussing the specifics of the Plantation Forest Act, the paper introduces concepts and pre-empts discussion that will be further explored in other chapters of this thesis, particularly in Chapter 4, which explores the concept of good forest governance. 359 Wanida Phromlah, 'Country Report: Thailand- Recent Developments of Forest-Related Law' (2012) (1) IUCN Academy of Environmental Law e-Journal 219-227. 71 72 73 74 75 76 77 78 79 80 Journal-Article Format for PhD Theses at the University of New England STATEMENT OF AUTHORS’ CONTRIBUTION (To appear at the end of each thesis chapter submitted as an article/paper) Publication Wanida Phromlah, 'Country Report: Thailand- Recent Developments of Forest-Related Law' (2012) (2012 (1)) IUCN Academy of Environmental Law e-Journal 219-227. Published We, the PhD candidate and the candidate’s principal supervisor, certify that all co-authors have consented to their work being included in the thesis and they have accepted the candidate’s contribution as indicated in the Statement of Originality. Author’s Name (please print clearly) % of contribution Candidate Wanida Phromlah 100 Name of Candidate: Wanida Phromlah ___________ 23 December 2013 Candidate Date Name of Principal Supervisor: Professor Paul Martin _________________ 23 December 2013 Principal Supervisor Date 81 Journal-Article Format for PhD Theses at the University of New England STATEMENT OF ORIGINALITY (To appear at the end of each thesis chapter submitted as an article/paper) Publication Wanida Phromlah, 'Country Report: Thailand- Recent Developments of Forest-Related Law' (2012) (2012 (1)) IUCN Academy of Environmental Law e-Journal 219-227. Published We, the PhD candidate, and the candidate’s principal supervisor, certify that the following text, figures and diagrams are the candidate’s original work. Type of work Page number/s* Journal Article 71–79 This refers to page numbers in the thesis rather than in the published article. Name of Candidate: Wanida Phromlah _____________ 23 December 2013 Candidate Date Name of Principal Supervisor: Professor Paul Martin _________________ 23 December 2013 Principal Supervisor Date 82 3.4. Conclusion The purpose of this chapter has been to explain the forest governance system in Thailand. The chapter began by explaining how forests play a key role in Thailand’s social, economic and environmental wellbeing, and noting that Thailand has institutions and laws, and has ratified several international obligations that should ensure that it is in position to achieve effective forest governance. Under executive power, three levels of government: the Central, Regional and Local governments regulate forest management. In the Central Government, the institutions influencing forest management can be classified into three groups: authorities that have direct responsibility for forest governance; the authorities with responsibilities indirectly affecting forest governance; and the authorities with general responsibilities which influence forest governance. Regional governments take a coordinating role between the central government and local government. They are a territorial extension of the Central Government and have neither autonomy nor authority over administration. Local Government Organisations are empowered by the Thai Constitution to govern forest practices but remain under the strict control of the central government. Provincial Governors and District Officers are officials of the Central Government and have the power to direct the staff of the Local Government. Local government operates through five forms of administration:  The BMA manages natural resources including forests within the Bangkok area;  The City of Pattaya local government manages natural resources including forests within Pattaya City;  The PAO is empowered to manage forests within its province;  The Municipality governs natural resource management including forest within urban areas;  The TAO is responsible to manage forest within individual Tambon areas. Its operations are monitored by the District Chief and the Provincial Governor to ensure compliance with forest laws. Forest management in Thailand has been developed based on the concept of state-owned forests. All forest areas in Thailand are owned by the state; legislation to use, access and manage forest is determined by the State. Only trees on private land are counted as privately owned forests. These are mostly plantation forests. The implementations of forest laws under the concept of ‘state-owned forest’ has contributed to the decline of Thailand’s forestlands and been the cause of chronic conflict between the Government and the forest communities. Then there have been efforts to involve traditional forest dependants in forest governance, with significant efforts to pass the Community Forest Bill. However, this law have not 83 been put into effect on constitutional grounds and it was failed by the Constitution Court reasoning that the process of drafting the law is violating the provision of the Constitution. The Constitution recognises the rights of native communities to preserve their customs and to participate in the management, maintenance and exploitation of natural resources, but legislation has largely failed to resolve Constitutional ambiguity or give effect to Constitutional ideals. Forest management in Thailand is currently regulated by six keys forest-related Acts: the Forest Act (1941); the National Reserved Forest Act (1964); the Wildlife Conservation and Protection Act, (1992) the National Park Act (1961); the Forest Plantation Act (1992); and the Chainsaw Act (2002). Although the Constitution, several international agreements to which Thailand is a party, and government efforts encourage decentralisation in forest management, power of forest management continues to be vested in the State. The next Chapter discusses how, internationally, there is an increased understanding of what constitutes good forest governance. This research uses these international lessons to develop criteria to diagnose Thailand’s current forest governance system and propose reform directions.