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What Plagues Implementation of Forest Rights Act 2006?

Forest Rights Act

The key provisions introduced by Government of India (GoI) in the form of Forest Rights Act (FRA)[1] hold high hopes for forest peoples; however, the system has yet to overcome many hurdles to realise the true potential of FRA.

The recent pronouncements by the Indian Government over two controversial projects – Vedanta Resources and POSCO – present a mixed outcome of the existing complexities of putting a newer system in place. Archana Vaidya, a natural resource management and environment law consultant, dwells in detail upon the provisions of FRA, and how it can be implemented effectively.

What is Forest Rights Act (FRA)?

Forest Rights Act (FRA) is the first of its kind legislative attempt to undo a “historical injustice”, to use the oft repeated phrase. It is a much delayed legislation but a step in the right direction, which envisages recognition of customary rights of forest inhabiting and forest dependent schedule tribe (ST) and non-schedule tribe communities, long after legislations for the protection and conservation of wildlife, ecosystem, biodiversity and forests have been made.

The objective of the Act is to recognize and vest the forest rights and occupation in forest land of forest dwelling STs and other traditional forest dwellers (OTFD) who have been residing in such forests for generations but whose rights could not be recorded. This Act also provides for a framework for recording the forest rights so vested, and the nature of evidence required for such recognition and vesting in respect of the forest land.

FRA also envisages sustainable use of forest produce, conservation of biodiversity and maintenance of ecological balance for strengthening the conservation regime of the forests along with ensuring livelihood and food security of the forest dwelling STs and OTFDs. This indicates a very clear diversion from the previously practised exclusionist approach adopted for achieving conservation objectives. This hopefully signals the heralding of a new era in forest management, where people living in the forest and dependent upon it for their sustenance and livelihood are not considered a hindrance for conservation of biodiversity, ecological balance and wild life protection. This Act envisages and mandates a process in case of any conflict of interests between their livelihood needs and wildlife conservation, and accords due importance to the latter wherever necessary or situation so demands. For the first time, not only historical injustice to the forest dwelling STs and OTFDs has been acknowledged and recognised, but they also have been accepted and recognised as an integral part to the very survival and sustainability of the forest ecosystem.

By integrating the livelihood needs of forest inhabiting and forest dependent tribal and non tribal communities into overall forest management and governance strategies, and by making these peoples’ participation mandatory in forest management, this law brings in a much needed democratisation in the field of forest governance.

Generic Issues Being Faced as Hurdles in Implementation of FRA

FRA basically envisages a three-step process to recognise the rights of forest dwelling scheduled tribes and other traditional forest dwellers who have been residing in such forests for generations. 

It includes – initiation of claimverification of claim, and vesting of right upon verification. The claim could be for individual forest right or for community forest rights. 

For initiation of claim, the interested person needs to follow the procedure laid down and fill up the claim form and submit the same to the Forest Rights Committee (FRC)[2]. However, there needs to be a generic system in place which can be applied all over the country, with some amendments and adaptations as per specific needs of particular areas, to ensure that there is requisite awareness in such people who are entitled to make a claim. We have to keep in mind that by conferring rights under this Act, we intend to empower the most marginalised, impoverished, illiterate and vulnerable communities. This intended empowerment would be just a hollow promise if we don’t ensure that they are in the first place made aware of their rights and then properly guided, assisted and helped in initiating their claim. The government can use the state owned media and Public Relations Department for spreading awareness about this Act.

The Government should urgently update national level information on villages inside and adjacent to forests, through Forest Survey of India, and provide this to the States and the States should pro-actively facilitate Individual Forest Rights (IFR) and Community Forest Rights (CFRt) claims, which has also been recommended by the Saxena Committee[3] in its report. The States should also on its own have ready lists of all such areas in which the intended beneficiaries live, and proactively seek them out to ensure that they are given their due. The State machineries will have to be geared up to ensure that all the documents that are required for initiating a valid claim are provided to such intended beneficiaries at their door-step. 

The Saxena Committee report notes that there are a number of cases of innovative, pro-active moves by civil society organizations, communities, and officials, that have helped in making claims and getting rights vested. These include awareness programmes and distribution of simple material in local languages, suo moto provision of documents by some block and district-level officials to Gram Sabhas (GS)[4], help in filing claims and finding evidences, advocacy to get the government machinery moving, and so on. These successful measures can be replicated at other places to implement FRA. The committee also noted that forest records, maps and working plans are almost invariably not available to the FRC, and if we can ensure access to all these documents, the claims can be filed and verified easily.

Saxena Committee recommended that a simple “How to file a claim” guide should be circulated by Ministry of Tribal Affairs (MOTA). This guide ideally should in simple, comprehensible local language illustrate as to people who can make a claim, whether IFR or CFRt under FRA, the type and number of individual and community rights that can be claimed, and an exhaustive list of what constitutes evidence in support of the claim being filed. 

All the documents that are needed to support the claim and the place or the government functionary who will provide them with those documents if they happen to be a part of the official government record or some record that the government has access to, should also be enumerated in detail in such guides. This guide should enumerate step-by-step procedure which will lead the claimant to filing his claim successfully to the FRC.

Once a claim is initiated, its receipt should be acknowledged by the GS/FRC so that the same can be tracked later on. All such data should be put in public space and information relating to the processing of claim should be accessible like any public record. The GS is empowered to verify the claim. We also need to ensure that the GS is competent to do this exercise. The GS or the FRC should be extended all the help that is needed and that the state machinery is capable of providing and the same should be made mandatory in the rules of FRA. GS or the FRC needs expertise and access to historical record or data, if any, in the actual process of identifying the forest land in relation to which an IFR or CFRt has been filed, verify the claim by using traditional and innovative technological methods, map the area, and then consolidate all the claims in its jurisdiction.

The Saxena Committee report has also acknowledged that application of spatial technologies {including remote sensing (RS)global positions systems (GPS) and geographic information systems (GIS)} have the potential to help in rapid delineation of boundaries, immutable positional information, and objective determination of the physical status of claimed lands, provided skills are built, transparency is ensured and safeguards are followed. Several states have utilized GPS technology for plot delineation. Only one state (Maharashtra) has used the full suite of technologies (RS+GIS+GPS) for all three purposes in a relatively transparent manner. This successful model should be followed and replicated throughout the country.

Once the claims are verified a resolution to this effect is passed and sent for approval to the Sub Division Level Committee (SDLC). SLDC examines the resolution and makes a record of forest rights which is then sent for approval to the District Level Committee (DLC). There are checks and balances provided for in the Act itself. Any person, who is aggrieved of any action or inaction of the GS/FRC, SLDC, DLC, can approach the appropriate forum for redressal within a given time-frame. To ensure that the intended people do avail of this redressal system, again we have to ensure that a system is in place to track the fate of any claim that has been filed, and the people affected are kept informed of its status at all times. The responsibility has to be fixed at some government level to ensure that the claimants are kept informed of the progress and the fates of the claims they have filed.

After the verification is successfully completed, the right is then vested. There should be a record of such forests rights which should be accessible to all at all time.  

State level monitoring committees are almost non-existent and non-functional. They include high-level functionaries of the state administration and are supposed to send regular reports to the nodal ministry. Unless effective monitoring is ensured by some accountability or financial punitive measure, it seems like a futile exercise.

To ensure successful implementation of FRA and to reach maximum intended beneficiaries, the nodal ministry MOTA has its work cut out. They have to get out of their current mind-set of doling out grants, scholarships and freebies, and rise to the occasion to help these STs and OTFDs get their rights, which has been long overdue. MOTA will also have to win a psychological battle with the Forest Department

The Forest Department needs to be reoriented and retrained to make it take on the critical role it will have to play in the overall forest management. Without their active and willing support, this transition in management of forests, from being only state-centric to people-oriented, where along with conservation and protection peoples’ rights are also looked at with same respect and urgency, will not be possible. Without a dramatic change in the mind-set of the forest bureaucracy, where they have to rid themselves off the landlordish attitude towards the forests and an exclusionist conservation approach, FRA would never be able to achieve its key objectives. Forest bureaucracy has to be convinced that the people residing in the forest for generations and dependent upon its resources for sustenance are also an integral part of the ecosystem they live in. To ensure sustainable management of forests, they have to learn to collaborate with the ST and OTFD whose very existence depends upon the health of these forests. As wildlife is inseparable from forests, so are these ST and OTFD, and a fine balance has to be maintained between our wildlife, forests and the indigenous people. They all have to coexist and flourish and give way to each other depending upon whose need is bigger in the larger national interest, which is a key deliverable of FRA.

The Ministry of Environment and Forests (MoEF) by its recent conditional approval to POSCO[5] has violated its own July 30, 2009 order, by which MoEF had directed all state governments that no permission for forest diversion would be granted unless the state government submitted evidence that the process of recognition of rights in the concerned forest area had been completed under the FRA, and that particular evidence of the recognition of primitive tribal groups (PTG) and community forest resource rights and Gram Sabha resolutions giving informed community consent must be attached[6]. Though this is a case of MoEF overstepping its jurisdiction, as any order regarding FRA should have come from MOTA, nonetheless this order had enabled communities to prevent diversion of forest land for a large investment project in Orissa for mining bauxite in Niyamgiri Hills by Vedanta Alumina Ltd.[7]

By granting conditional approval to POSCO, despite its own expert committee’s adverse findings, is beyond comprehension and smacks of existence of some extraneous circumstances. This looks like a classic case of the fence eating the crop. The GoI needs to come clean on this and has to send clear signals as to its commitment to successful implementation of FRA. The government flip-flop on POSCO has not done any good to FRA in general.

Notes:

[1] The FRA not only provides tribals and forest dwellers traditional rights to land and resources but also recognizes community rights over village commons or grazing land. Historically, tribal communities hold land as often in the collective as they do in their individual capacity. The forest land and resources can be used for non-forest purposes only after the affected forest dwellers have been resettled in ‘green areas’.

Any project proposed on forest land has to obtain a mandatory forest clearance from the Union government. If the land has to be used for non-forest purposes, the proposal makes it way from the gram sabha to the divisional forest officer (DFO) to the state conservator of forests to the state’s principal chief conservator of forests. It is then forwarded to the Union government with the opinion of the state’s forest secretary.

[2] Forest Rights Committee (FRC) is constituted by the Gram Sabha.

[3] Saxena Committee – The Saxena Committee, comprising of four members, was appointed on July 19, 2010 by the Indian Environment Ministry with the mandate to investigate the proposed diversion of nearly 660 ha of forest land (Niyamgiri Hills, Lanjigarh) in the Kalahandi and Rayagada districts of Orissa for bauxite mining. The Committee concluded that allowing mining these areas by depriving two primitive tribal groups (PTG) of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land. Since the company in question has repeatedly violated the law, allowing it further access to the proposed mining lease area will have serious consequences for the security and well being of the entire country. Based on the recommendations of Saxena Committee, the MoEF rejected the proposal to divert the land on Niyamgiri Hills for bauxite mining on August 20, 2010.

[4] Gram Sabha – The Gram Sabha is a meeting of all adults who live in the area covered by a Gram Panchayat. Gram Panchayats are local governments at the village or small town level in India. Anyone who is 18 years old or more and who has the right to vote is a member of the Gram Sabha.

[5] POSCO – The Pohang Iron and Steel Company, or POSCO, based in Pohang, South Korea, is the world’s third largest steelmaker by market value and Asia’s most profitable steelmaker. In June 2005, POSCO signed an MoU with the State of Orissa in India, under which POSCO planned to invest US $ 12 billion to construct a plant with four blast furnaces, an electricity plant, housing, and an annual production capacity of 12 million tons of steel, which was slated to start production in 2010. However, the project had not been able to proceed due to strong opposition from local residents in the area proposed to be given for the steel plant. On January 31, 2011, against strong opposition, the MoEF accorded conditional clearance to Posco project and has sought the state government’s assurance that the FRA was being properly implemented at the proposed plant site villages. The Orissa state government is yet to submit assurance in POSCO project.

[6] The new order is available here: http://envfor.nic.in/mef/Forest_Advisory.pdf 

[7] Vedanta Resources – Vedanta Resources plc. is an international mining and metals company headquartered in London, U.K. It is the largest mining and non-ferrous metals company in India. Vedanta has been criticised by human rights and activist groups due to their operations in Niyamgiri Hills in Orissa, India, that are said to threaten the lives of the Dongria Kondh tribe that populate this region. The Niyamgiri hills are also claimed to be an important wildlife habitat. The Union Environment Ministry in August 2010 rejected earlier clearances granted to Vedanta for mining bauxite from Niyamgiri hills. Vedanta has challenged the ban and the case is being heard in Orissa court since February 2, 2011.

The article originally appeared on ThinktoSustain.com in March 2011 and was authored/co-authored by one of FELPRs team member.