Down memory lane forest rights act yet to achieve major milestones

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special report JULY 31-AUGUST 06, 2016

Stuck in the

The Scheduled Tribes and Other Traditional Forest Dwellers Act (Recognition of Forest Rights) Act, 2006, or the Forest Rights Act (FRA), is among India’s most important legislation since 2005, along with the Right to Information Act and the Right to Education Act.

An Introduction to Forest Rights Act

FRA, which was passed in Parliament in December 2006 and which became operational in January 2008, recognises the rights of forest dwellers, including Scheduled Tribes and others, to use, protect and manage forest resources where they live. It looks to right the wrongs of government policies in both colonial and independent India toward forest-dwelling communities, whose claims over their resources were repeatedly ignored.

Almost a decade after the Forest Rights Act was passed, implementation leaves a lot to be desired :: G Seetharaman | Chhattisgarh

B

razil started recognising the rights of its forest dwellers over their land in 1980.

Mexico, after decades of struggle, began the process in 1986, and Bolivia a decade later. India, on the other hand, waited till 2006 to enact a law for the same. This is particularly inexplicable considering India has more than twice as big an indigenous population as the whole of Latin America and the Caribbean put together.

Despite the delay, the law was lauded for finally attempting to do what was long overdue. The traditional rights of tribals and other forest dwellers were taken from them right from the 1850s during the British rule, a policy continued through various laws even in independent India. The alienation of tribals was one of the factors behind the Naxal movement, which affects states like Chhattisgarh, Odisha and Jharkhand. But the law which aims to correct that has had a disappointing run so far.

not been recognised yet.

Some villages in Chhattisgarh’s Korba district, rich in coal reserves and known as the power generation capital of the state, are a case in point. A cluster of 12 villages, about 80 km from Korba city, have made use of FRA provisions to stand up to the forest department on different issues. One of the villages, Madan-

pur, was in the news last year, when Rahul Gandhi visited it.

These villages, most of whose inhabitants belong to the Gond and Urao tribes, got their community forest (CF) rights in May this year, around three years after they submitted their claims, but they still have not got their community forest resource (CFR) rights, which they claimed

Key Features of FRA Individual Forest Rights: Any person belonging to a Scheduled Tribe can claim rights to live in and cultivate up to four hectares provided she has occupied it and was depended on it as of December 13, 2005. In case of a non-tribal, in addition to this requirement, she will have to prove her family’s residence in the vicinity of the forest land for 75 years prior to December 2005 Community Forest Rights: The Act recognises the rights of a gram sabha over forest land within the traditional boundaries of a village or seasonal use of landscape in case of pastoral communities.

This allows the villagers to own and collect, use and dispose of minor forest produce besides timber and the right to use grazing land and water bodies, among others

Rights’ Path Nearly 10 years after the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, better known as the Forest Rights Act (FRA), was passed in Parliament in December 2006, its rollout has been patchy at best. Even as questions are raised about the shortcomings in the implementation of FRA, which came into force in January 2008, what is evident, at least in some parts of the country, is that the potential beneficiaries of FRA are laying claim to their rights under the Act, even if some of those rights have

Community Forest Resource Rights: The most significant part of the Act, CFR rights give the gram sabha the right to protect and manage their forest. No project can come up in the forest nor can any conservation plan for the forest be carried out without the approval of the gram sabha A meeting on forest rights at Morga village in Korba district in 2014

Kerala has honoured most FRA claims No. of individual and community rights titles distributed over No. of claims received (%)

65.5

64

61

51.6

50.3

46.5

42.3

41.2

40.5

36.6

31

30.9

27.5

19.8

6.1

Kerala

Tripura

Odisha

Jharkhand

Rajasthan

Telangana

Chhattisgarh*

Andhra Pradesh

Gujarat

Madhya Pradesh

Maharashtra

West Bengal

Assam

Uttar Pradesh

Himachal Pradesh

Bihar

Karnataka

33,018

4,37,953

7,60,847

87,990

54,840

20,92,418

7,70,460

14,56,542

11,92,351

21,01,016

16,24,066

20,343

77,609

1,39,626

0.35

NA

37,441

Total forest land for which titles have been distributed (in acres)

2.8 2.2

Source: Ministry of tribal affairs | *Data from tribal affairs department of Chhattisgarh

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Why FRA is significant Forests account for over a fifth of India’s geographical area

There are about 150 million forest dwellers in India There are over 100 million people belonging to Scheduled Tribes, comprising 8.6% of India’s population and

nine out of ten live in or around forests

According to a global study of 16 countries in Asia, Latin America and Africa, protected areas managed by the government, on average, lose 1.47% of forest cover every year,

while community-managed forests lose only 0.24% As per another study, 1,70,000 villages, more than a fourth of the country’s total, are eligible for community forest resource rights

over 40 million hectares or 98.8 million acres Source: Rights and Resources Initiative, Vasundhara, Center for International Forestry Research, Environment Ministry, Collaborative Partnership on Forests

at the same time. “Though (Congress vicepresident) Rahul Gandhi’s visit was not related to FRA, there was pressure on the local administration to implement it after his visit,” says Alok Shukla of Chhattisgarh Bachao Andolan, a non-governmental organisation.

Among the key rights in FRA are individual forest rights, CF rights and CFR rights. Any person belonging to a Scheduled Tribe can claim individual rights to live in and cultivate up to four hectares provided she occupied it and was dependent on it as of December 13, 2005. Non-tribals, in addition to this requirement, will have to prove their family’s residence in the vicinity of the forest land for 75 years prior to December 2005.

Under CF rights, FRA recognises the rights of a gram sabha, which comprises all the adults of the village, over the forest land within the traditional boundaries of a village or seasonal use of landscape in case of pastoral communities. This allows the villagers to own and collect, use and dispose of minor forest produce besides timber and the right to use grazing land and water bodies, among others.

Authority of the Gram Sabha

which had been recognised till then. More recent data is not available. In comparison, just under a third of Latin America’s forests are managed by indigenous communities.

There are around 150 million forest dwellers in India, of which 90 million are tribals.

The villages in Korba district, some of which abut the road from Raipur, the state capital, have been playing an active role in monitoring activities carried out by the forest department even before they got their CF rights. For instance, in Keraihapara, the de-

“The villages’ capacity to think on their own has been crippled. That’s why the government can’t oscillate between complete control and a complete hands-off policy” Residents of villages in Korba district which got their community rights in May

Excerpts from an interview with Union Tribal Affairs Minister Jual Oram

Sharachchandra Lele, senior fellow, ATREE

The biggest game changer in FRA, CFR rights give the gram sabha the right to protect and manage their forest. No project can come up in the forest nor can any conservation plan for the forest be carried out without the approval of the gram sabha.

The authority of gram sabhas was upheld in a historic ruling by the Supreme Court in 2013, which gave 12 affected gram sabhas the right to decide on a bauxite mining project of Vedanta group in Niyamgiri, Odisha. All of them voted against the project.

In July last year, a report pegged the total area in India eligible for CFR rights at 40 million hectares (1 hectare = 2.47 acres), 1% of Fencing is a constant source of conflict between villagers and the forest department

O

n his ministry’s response to the forest department’s resistance to FRA

Had we not taken necessary actions and resolved the issue of resistance, the implementation rate would not have been so high. We can’t take direct initiative. If at the sub-divisional level, a claim is rejected, one can go to the district level. There is a provision for appeal.... We inform them (forest-dwellers) of ways in which they will not face rejection. We tell authorities to take a more liberal view of affirmative actions.

On attempts by states to dilute FRA with new regulations that vest more powers with the forest department Nothing of this sort is happening. 43% achievement (individual forest rights titles distributed as a share of claims; publicly available data puts the figure at around 40%) is not a small figure. Moreover, it is a continuous process. If at one level, an appeal is rejected, it goes to the next level at which it gets approval.

What is the role of Forest Rights Act in CAMPA?”

partment was engaged in a routine exercise of marking diseased and dead trees for cutting.

“What we found was they had marked healthy trees so the villagers reached and protested and got them to stop,” says 31-year-old Ujiar Singh, a resident of the village.

He claims that villagers managed to get the forest department to remove a fence as it was blocking the movement of people and animals. “The fence was there for three months before they removed it, but the trenches they dug are still there,” claims Singh. In other vil-

On whether the Compensatory Afforestation Fund Management and Planning Authority are in consonance with FRA Look, what are the amendments that are being passed in Parliament? Under CAMPA, we will be giving funds to the tune of `40,000 crore to the states. What is the role of FRA in this? The Supreme Court says if you have destroyed any forest due to mining, industry or irrigation pro-

ject, you must give money for commensurate afforestation on an equal area. Does CAMPA say that the afforestation should happen in the same tribal areas?

Why is Jairam Ramesh creating apprehension among people that this will be done on tribal land? Afforestation will be done wherever there is free land. He is creating fear. In other words, it is an excuse for playing obstruction by the Opposition... If the states do any wrong, one can bring it to our notice. On our part, we can only distribute money and monitor.

On whether gram sabhas will be consulted on afforestation projects This is something (to be considered) at a later stage. As of now, it is important that CAMPA is passed and money is distributed to the states. (CAMPA was passed by the Rajya Sabha on Thursday; it had been passed in the Lok Sabha in May.)

On reports last year of the environment ministry’s order to sidestep the veto powers of gram sabhas for mining projects and the tribal ministry’s objection See FRA is a Central Act. If there is any amendment regarding any FRA provision, it will go to Parliament. But there is nothing pending in Parliament by way of cabinet note related to FRA. This is a result of some small clarification that is in circulation — hardly a big issue. There is no such decision from the Central government.

On the recent cancellation of community forest rights in Ghatbarra, Chhattisgarh, a BJP-ruled state, to favour a mining project We have written to the state government that they can’t do it and it has already backed off.

— Prerna Katiyar

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special report JULY 31-AUGUST 06, 2016

lages, people have filled the trenches with mud, an act they could have only imagined a few years ago.

Hriday Tigga, sarpanch of Dhajak, one of the other villages, says gram sabhas are now consulted by the forest department before a plantation drive. “If a thief enters someone’s home, will they keep quiet?” asks Tigga. Vivekanand Jha, divisional forest officer of Korba, says the department has no option but to listen to villagers. “Whenever we plan to do plantation, someone comes and says they have patta for a particular piece of land there. The pattas should not be spread through the forest or else we won’t be able to do our duty.”

Tigga says the villagers encounter resistance from the forest department in getting their titles. “We keep telling them it is not a fight between the department and us.” Jha denies this and says villages, which rely on forest produce like tendu (whose leaves are used in beedis), mahua (whose flowers are used to make alcohol) and a kind of mushroom, are being given rights in accordance with the law. However, when asked about the delay in these villages getting their CFR rights yet, he says: “They continue to enjoy rights over village forests as they always have but we can’t demarcate a new area and give it to them.” This betrays the forest department’s lack of understanding of FRA or its blatant disregard for the law.

Distinguishing Rights FRA clearly states CFR rights apply not just to village forests, but also to protected forests, reserved forests (which have more restricted access than protected forests), and even protected areas like wildlife sanctuaries and national parks. “There is resistance (to FRA) from the forest department not at the state level, but at the field level. They think they are custodians of forests,” says an official at the Chhattisgarh tribal affairs department.

P Dayanand, collector of Korba district, concurs. “It is more because of the ignorance of the lower-level staff. It will take some time (to change their minds).” The 12 villages on the whole have got CF rights titles to only a third of the land they claimed, with only one village, Paturiadand, getting rights over all the land it claimed. Dayanand says one reason for that is the claims are exaggerated, which could be true in some but not all cases.

Chhattisgarh, where tribals account for a third of the population compared with the national average of 8.6%, has so far denied more than a half of individual rights claims and more than a third of community rights claims. Moreover, the number of titles distributed so far as a proportion of claims received is 42.3%. Kerala’s is the highest, at 65.5%. As of April, around 40% of overall claims received have been settled across the country and over 30% of the land distributed is under community rights.

Chhattisgarh does not report data separately for CF rights and CFR rights, with activists inferring that this masks the poor implementation of CFR rights. Even the monthly data available with the Union ministry of tribal affairs does not distinguish between the two rights. What is worse is most states do not report any kind of community rights data. Moreover, nine states have not distributed any titles so far and Ta-

How Beneficiaries are Exercising their Rights Villages in Chhattisgarh’s Korba district, known for its coal reserves, have forced the

forest department to take down fences and filled up trenches dug by the department to enable easy movement People of one of the villages, Keraihapara, have managed to

stop the felling of what they claimed were healthy trees during a routine forest department exercise to cut down dead and diseased trees Paturiadand, another village in Korba, protested the

creation of an artificial pond by the forest department. While they eventually failed, they managed to delay the construction by six months and got some changes made to the design of the pond

Villages in Odisha’s Sundargarh district have put up boards with the map of the forest within their boundaries and stating the rights and powers of the gram sabha

As tribals are not a big vote bank in most states, governments might find it convenient to subvert FRA

try has written to the Chhattisgarh government on the issue.

The state, which was carved out of Madhya Pradesh in 2000, has been ruled by the Bharatiya Janata Party since December 2003. The party also heads the ruling National Democratic Alliance at the Centre.

Chandravati Paikra, sarpanch of Paturiadand, where two blocks have been allotted to the state power generation company, is confident that Paturidand and other villages that fall within the coal mines, will not face the same fate as Ghatbarra, which is only five km away. “It will be very difficult for mining to happen here,” says Shukla.

Tushar Dash of Vasundhara, an NGO in Bhubaneswar, says there are similar

Roadblocks to FRA In several cases, gram sabhas are given titles to only a part of what they have claimed, even when previous government records legitimise their claims Activists claim states like Maharashtra and Odisha, which have been among the better performers in the implementation of FRA, are

now trying to subvert FRA by vesting more powers with joint forest management committees, which are controlled by the forest department and which take power away from gram sabhas mil Nadu could not do so till February this year when the Supreme Court vacated a stay on the implementation of FRA by the Madras High Court.

Chhattisgarh has the notorious reputation of being the first state to revoke rights granted under FRA when earlier this year the government withdrew the CF title of Ghatbarra village. This was done to facilitate mining in two coal blocks allotted to a Rajasthan government enterprise. Land had been diverted for the project in 2012 without completion of the FRA process and seeking the gram sabha’s approval. The matter has now been taken to the Bilaspur High Court by activists.

Union Tribal Affairs Minister Jual Oram, in an interview to ET Magazine, says his minis-

Implementation of community forest resource rights has been worse than other rights in FRA and very few states report

data regarding titles to resource rights

Questions have been raised over how the `40,000 crore corpus of the Compensatory Afforestation Fund and Management Planning Authority will be spent. Critics

say any afforestation project should have the approval of the gram sabha and funds should be directed to it

examples of villagers’ assertion even in Odisha, one of the best performers in FRA implementation. “Around 50 villages in Sundargarh, which have not got community rights yet, have put up boards in the forest with a map of the CFR area, which also mentions the authority and powers of the gram sabha.” Interestingly, Sundargarh is represented by Oram in the Lok Sabha.

Sharachchandra Lele, a senior fellow at the Ashoka Trust for Research in Ecology and the Environment, says even if villages are given CF and CFR rights, they will still depend on state largesse for governance.

“Their capacity to think on their own has been crippled. That’s why the government can’t oscillate between complete control and a complete hands-off policy.” He adds that while money from the state creates dependence, resources create independence for forest dwellers.

Controlling Resources Activists say one of the biggest hurdles for FRA is that states like Maharashtra, among the better performers, and Odisha are introducing policies which will help the forest department retain control of forest resources through joint forest management committees or similar bodies, which will dilute the powers of the gram sabha.

Equally contentious is the Compensatory Afforestation Fund (CAF) Bill, which proposes to distribute over `40,000 crore available with the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) to states for afforestation. Former environment minister and Congress MP Jairam Ramesh said in the Rajya Sabha on Wednesday that the Bill should not contradict FRA and funds should be spent only after the approval of gram sabhas.

Oram finds Ramesh’s argument politically motivated. “Does CAMPA say that the afforestation should happen in the same tribal areas?...Afforestation will be done wherever there is free land, where there are no dwellers.” The Bill was passed in the Rajya Sabha on Thursday; it had been passed in the Lok Sabha in May. While the government has to make sure the CAF Bill is of a piece with FRA, there are larger issues with the implementation of FRA which could take the bite out of it. As tribals are not a big vote bank in most states, governments might find it convenient to subvert FRA or not bother about it at all, unless the Centre takes a more proactive role in pushing states to honour a law that could change the lives of millions.