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Centre’s draft rules on compensatory afforestation allow gram sabha consent to be bypassed
The draft Compensatory Afforestation Fund Rules have several
loopholes that will threaten the rights of Adivasis and forest dwellers
over their lands.
Parivartan Sharma/Reuters
Over a year ago, the Union government assured Parliament
that village councils of Adivasis and other forest-dwelling communities
would be consulted before Forest Departments start plantations on their
traditional lands under the Compensatory Afforestation Fund Act, 2016.
The
promise was a step down from the requirement of seeking consent from
forest dwelling tribals and other communities under the Forest Rights
Act, 2006. While the requirement of consent would have given Adivasis
and other forest dwellers veto power over any plantation proposals,
consultation does not.
Going a step further in that direction, the
Union government has now drafted rules for the Compensatory
Afforestation Fund Act that contain loopholes that will enable forest
officials to set up plantations on traditional forests without even this
consultation in many of the 1.77 lakh villages across India that have
forests.
For this afforestation work, Forest Departments in
states are expected to spend money from a corpus of more than Rs 42,000
crore, and future flows of over Rs 6,000 crore a year.
The Union Ministry of Environment, Forest and Climate Change sent the draft rules to the states for their comments in April. Scroll.in
has reviewed the draft that is yet to be made public by the ministry.
The Union ministry did not reply to detailed queries sent by Scroll.in
on the subject. When contacted on the phone, the Inspector General of
Forests, one of the senior-most officials in the government managing
forest-related issues at the ministry, refused to talk on the subject.
The plan
Since
2006, the Union government has levied a charge on industries, miners
and others who need to fell forests for their projects. This levy,
called the “compensatory afforestation” charge, goes into the
Compensatory Afforestation Fund, which will be used to plant trees in an
area similar in size to the forests that have been lost due to
development activity.
Till last year, the fund lay largely unused
with the Centre, even as states demanded that it be handed over to them.
In June, 2016, the Centre agreed, and passed the Compensatory
Afforestation Fund Act. With this, the Centre handed over Rs 42,000
crore that had accumulated in the fund already to the state Forest
Departments. It also committed 90% of all future flows to the states for
afforestation work.
However, during the passage of the bill in the Rajya Sabha, Opposition parties demanded
that provisions to safeguard the rights of Adivasis and other forest
dwellers under the Forest Rights Act, 2006, be inserted into the Bill.
They demanded that consent be sought under the Forest Rights Act from
gram sabhas or village councils before any money is spent on plantations
in traditional forests of Adivasis and other forest dwellers.
In
response to the demand, the Union government said it would ensure that
the gram sabha consultations are held. The Compensatory Afforestation
Fund law was subsequently passed without any clarity on how it could do
with mere consultations when the Forest Rights Act demanded nothing less
than the consent of gram sabhas for using forests for any other
purpose.
Notwithstanding this, the Union government’s assurance in
Parliament held great significance for more than 200 million Adivasis
and other forest dwellers in India who depend on forestland for their
livelihoods. Members of the Dongria Kondh tribe at the Niyamgiri mountain in Odisha. (Photo credit: Reinhard Krause/Reuters).
The Forest Rights Act
Since
colonial times, most Adivasis and other forest dwellers did not had
recorded rights over forests or were classified as encroachers on their
own land, which was controlled by the Forest Department.
To
correct this, Parliament in 2006 passed the landmark Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, also known as the Forest Rights Act. The law gave back to
traditional forest dwellers their individual and community rights to
access, manage and govern forest lands and resources within village
boundaries. This law makes the gram sabhathe statutory body
for managing claims, and then protecting the forests. It provides that
no activity should be carried out in these forests till the individual
and community claims over these lands have been settled.
It also requires that the consent of the gram sabha issought
before any activity is carried out on these lands, including by any
government agency, after the rights of people and communities are
settled. This was reiterated in the Supreme Court’s landmark
2013 judgement on Vedanta’s mining project in the Niyamgiri hills of
Odisha in which the court directed gram sabhas in the area to take a
decision on whether the mining should go forward or not.
Not just
industrial projects, even government plantations can lead to the
displacement and curtailment of rights of Adivasis and other forest
dwellers. In the past year, such cases have been reported from states
like Odisha, Andhra Pradesh and Chhattisgarh where Adivasi communities
have complained to authorities that the state Forest Departments are
fencing off and setting up plantations on land over which they have
received titles of forest rights, or land where their claims of rights are pending.
More
than a year after the government’s assurance in Parliament, the rules
for the implementation of the Compensatory Afforestation Fund Act,
called the draft Compensatory Afforestation Fund Rules, 2017, have been
prepared. However, they contain many loopholes that bypass the need for
consultations with village councils to set up plantations on forest land
that Adivasis and other forest dwellers have traditionally used.
Tricks in the draft rules
On
first reading, the draft rules come across as more progressive than the
regulations that the Union government promised in Parliament. For
instance, where the rights of Adivasis and forest dwellers have been
settled, the rules require not only consultation but also consent from
the village gram sabha.
But in large parts of the country
the Adivasis and other forest dwellers have either not yet filed claims
over their lands, or their claims have not been settled even after a
decade. The Union government has often reported the inefficiency and
even reluctance of many states to facilitate and promote the
implementation of the Forest Rights Act. Its reports have talked of how
even when claims are filed, states either do not settle the claims or
reject many on flimsy grounds. This is particularly the case of
community rights across the country.
A 2016 study by the
Washington-based think-tank Rights and Resources Initiative, conducted
along with several Indian organisations, showed that so far communities
have got titles to govern only about 3% of the 34.6 million hectares of
land traditionally used by them. The study estimates that the rights of
around 190 million Adivasis and other forest dwellers remain
unrecognised.
Data from the Union Ministry of Tribal Affairs shows
that as of April 2017, only 1,38,425 community claims had been filed
and of these only 62,893 had actually been granted over an area slightly
less than four million hectares. However, the Rights and Resources
Initiative study pointed out that actual community forest governance
rights were recognised on much smaller area as government data clubbed
the community’s forest use and access rights with governance rights. A Maldhari tribal woman and her child collect sand in the Gir forest in Gujarat. (Photo credit: Amit Dave/Reuters).
Rules violate Forest Rights Act
In
areas where claims have been made over traditional forest lands but not
yet settled, the draft Compensatory Afforestation Fund Rules ask for
only a consultation with the gram sabha.But here arises another problem.
Rules
are meant to be subordinate to the laws they are drafted under; they
are not permitted to alter or restrict any provision of their mother
law, or any other legislation. However, the draft rules have restricted
the definition of the gram sabha in a manner that the Forest Rights Act
does not permit. The draft rules say:
“‘Gram
Sabha’ means a general body of the village consisting of members that
include every adult of the village with population at least exceeding
1,500 people. However a Gram Sabha may be formed even if the population
is less than 1,500. If the population of several villages are less than
the prescribed minimum, then the villages are grouped together to form a
Gram Sabha.”
But the Forest Rights Act does not
require a village to have a minimum population size in order to
constitute its gram sabha and is particular that the village councils
must be formed at even hamlet level if need be. The Union Ministry of
Tribal Affairs clarified this in statutory guidelines to states that
said: “whether in Scheduled Areas or non-Scheduled Areas, the Gram Sabha
should be held at the hamlet level or the village level”.
This
was specially provided for at the time of legislating the Forest Rights
Act because it was known that most tribal villages are small in size.
The average population of a village having forestland is 1,150,
according to the 2011 Census. Tribal villages in forest areas are
scattered habitations with small populations, each of them having
specific traditional rights over resources. For instance, Madhya Pradesh
alone has over 19,000 habitations with an average population less than
1,000 people. The gram sabha in each of these villages is empowered to
protect its rights under the law, which may not happen if they are
clubbed together.
“This one rule [requiring minimum 1,500 members]
is sufficient to render any role for gram sabhas meaningless,” said
Shankar Gopalakrishnan, a legal researcher with Campaign for Survival
and Dignity, a forum of organisation working on tribal rights. “Even
calling a meeting of 1,500 people will be next to impossible. This is
even more pernicious in forest and hill areas, where settlements tend to
be small and widely scattered, and this would mean bringing together
people who do not live in the same settlement. The need for smaller,
habitation level gram sabhas has been a central demand of Adivasi
movements in central India for the last three decades.”
After
first inserting a minimum limit on the village population for
consultation with the gram sabha, the draft rules say that “a gram sabhamay
be formed even if the population is less than 1,500”. But this only
creates greater ambiguity as the rules do not say what would be the
criteria to constitute gram sabhas with only over 1,500 people, or when
fewer numbers would suffice.
Yet another route to bypass the need
for consent or consultations with the gram sabhas has also been created
in the draft rules. Instead of consulting gram sabhas, the rules say
that state Forest Departments can instead consult village-level Forest
Protection Committees that are constituted under the Joint Forest
Management Scheme of the government through which the department claims
to involve local communities in forest management.
However, unlike
the gram sabhas, these committees are controlled by the Forest
Department and do not come under the Forest Rights Act. Handing over any
role or power of the gram sabha to other committees or bodies had been
earlier prohibited by the Union Ministry of Tribal Affairs under the
Forest Rights Act.
The ministry has said:
“Conversion
of JFM [Joint Forest Management] Committees into Committee [of the
Forest Right Act] under Rule 4(1)(e) is neither mandated nor desirable
under the FRA [Forest Rights Act] as the objectives, structure and
mandate of JFM is different... The practice of equating JFM Committees
with community rights under FRA has been deprecated in clear terms.”
But, the draft rules say,
“For
activities to be undertaken on land not under the administrative
control of the State Forest Department, the prescription of the Annual
Plan of Operation (for plantations) shall be duly approved by the Gram
Sabha or any committee such as Van Sanrakshan Samiti or Village Forest
Committee or any such committee for management of forest constituted by
the Gram Sabha of the concerned villages following the provisions of the
Scheduled Tribes and Other Traditional Forest. Dwellers (Recognition of
Forest Rights) Act, 2006 wherever applicable.”
The
mentioned Van Sanrakshan Samiti or Village Forest Committee do not come
under the Forest Rights Act either, and are tightly controlled by state
Forest Departments. This small print could be used to bypass the need
for consultation or consent across many gram sabhas in the country as
the Forest Department runs its Joint Forest Management scheme on a
pan-India scale.
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