Tag: Forest Conservation Act

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Litigation Specialised

A railway line through a forest belt – environmental impact assessments and forest rights

CommunitiesAndLegalAction_KanchiKohliSarita tai was worried about the construction of a railway line between the iron ore mine and the railhead located 30 kilometres from the village she worked at. At least 15 kilometres of this railway line would cut through an important part of the central forest belt. She called me with many questions: What was the process for taking permissions for using forestland for railway lines? Had this process been completed? What was the role of the gram sabha? What if the forest rights of people had not been fully recognised yet?

Some of these answers came easy but the others required the study of some recent circulars and directions of the environment ministry, the tribal affairs ministry, and the National Green Tribunal (“NGT”).

EIAs for railway lines

Surprising as it may seem, the railway line and its related infrastructure are not in the list of projects that need to go through the procedure laid out in the EIA Notification, 2006 issued under the Environment Protection Act, 1986. We have long tried to find the logic behind it, but without success. Railway projects simply do not require an environment impact assessment and a public consultation for an environmental clearance.

If the railway line is separated from the other components of the project like it was in the case of the mine that Sarita tai was worried about, it could easily avoid the environment impact assessment process. The mine had been up and running for the last year and the proposal for the railway line was only mooted much after the environment clearance was procured for the mine.

Forest diversion and the felling of trees

All non-forest use requires the user agency to seek prior approval under the Forest Conservation Act, 1980. There is a detailed procedure under Section 2, which remains away from public eye and only within negotiations between forest department officials; the Ministry of Environment, Forests and Climate Change (“MoEFCC”); and the user agency.

Until recently, no activity related to a project could be carried out for any non-forest use until the entire procedure, which includes a two-stage approval by the MoEFCC and an order by the government of the state where the forest is located, was completed. Felling trees would be illegal without it.

But during the last year, the MoEFCC has allowed the felling of trees to be carried out after a project receives “Stage 1 approval”, that is, the approval of the MoEFCC. This approval often contains conditions including additional studies related to hydrology, impact on wildlife, identification of compensatory afforestation land and others that have a bearing on whether the forest diversion should be approved or not. But in the case of linear projects such as railways, highways or transmission lines, the MoEFCC has attempted to be create a “simplified procedure.”

In a set of guidelines issued on May 7, 2015 and subsequently updated on August 28, 2015, the ministry said that to allow for the speedy execution of these projects, the in-principle approval will be enough to allow for both tree cutting and commencement of work if all “compensatory levies” and a wildlife conservation plan are ready.

Sarita tai was livid. The last time she had seen an in-principle approval, it listed 27 important conditions including that of redoing some important assessments. What is the point going through the remaining procedure for this project if the work can commence and trees can be cut, she asked. It defeats the entire purpose of any safeguards or conditions levied.

train_jungleI agreed and told her that these guidelines had been challenged before the NGT. In January 2015, the NGT first restrained the felling of trees after Stage 1 approval, but subsequently reviewed the order in the light of an affidavit submitted by the MoEFCC. In its direction, the NGT concluded that the while tree felling and commencement of work might be allowed for linear projects it would be treated as an order under Section 2 of the FCA and therefore can be challenged before the NGT. This is important to understand because the NGT had previously ordered that only those orders issued finally by state governments activating forest diversions could be brought before it. Till then no commencement of work or tree felling could be allowed.

The MoEF’s May 7 and August 28, 2015 guidelines lay down that while the “simplified” procedure for the speedy execution of linear projects remains in place an “aggrieved person” now has the option to approach the NGT with an appeal against this order.

Forest rights and linear projects

I knew that Sarita tai would also ask about the recognition of the rights of forest dwelling communities who have historically either lived or used the forest that is sought to be diverted. The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 mandates the recognition of individual and community forest rights of tribal and other forest dwelling communities.

On August 3, 2009, the MoEFCC issued an important circular, which, among other things, clarified that no diversion of forest land for non-forest use would take effect unless the process of recognition of rights had been completed. It also said that the consent of the gram sabhas would be required before the diversion process can be given effect. This has also been re-iterated and confirmed by the Ministry of Tribal Affairs (“MoTA”), which oversees the implementation of the FRA.

In the villages that Savita tai was working in, several of the community forest rights claims were still pending final approval and the grant of individual rights had been contentious as people had only received rights over a part of the forest land that had been claimed. In their view, their rights over the forests were yet to be recognised. So the first question that came to our mind was whether the forest diversion and tree cutting could have come into affect if the recognition of rights was pending. The gram sabha (village assembly) had confirmed that their consent had not been sought.

This issue had been a bone of contention between the MoTA and the MoEFCC since 2013. While the MoEFCC had claimed through their February 5, 2013 circular that the requirement of the gram sabha consent could be dispensed for linear projects, the MoTA, the nodal ministry, said that the MoEFCC had no authority to make such an interpretation. All projects, linear or non-linear, had to be treated equally regarding forest diversions and consent provisions.

These different interpretations continue to operate and the MoEFCC has been approving proposals for forest diversion and allowing for tree felling for linear projects, interpreting that a gram sabha nod was not required, especially in cases where there has been an assurance from the state government that either the rights under FRA have been recognised or are in the process of being so.

A worrying scenario

Thus, with no requirement of EIAs once a railway line is segregated from other aspects of a project; tree felling permitted after in-principle approvals; and tentative interpretations for gram sabha consent; the situation did not seem very encouraging to Sarita tai and the affected people that she was working with. They could however, still petition the concerned ministries. No doubt, the fate of the project and the forest dependent people could still lie in bureaucratic interpretations and the application of mind by expert committees.

With no court action on the anvil immediately and the affected communities clearly aligned to question both the FCA guidelines and the dilution of the consent provisions; its anyone’s guess whether the railway line will be built or not. But it once again raises questions about why any project, which has a far-reaching impact on forests, wildlife, and people, should be granted exemptions from basic environmental scrutiny and  stringent safeguards. Meanwhile, people like Sarita tai have to grapple with many interpretations of the law on a case-by-case basis.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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Litigation Specialised

After the de-allocations – What happens to the clearances given to coal blocks, now up for auction again?

ItCommunitiesAndLegalAction_KanchiKohli made news last year when the Supreme Court of India “de-allocated” 214 coal blocks. The process of the allocation, the Court held, was illegal and arbitrary. Not all of them were operational, but where they were, the owners had to stop operations. While 42 of them got a six-month reprieve and four were “saved”, the remainder had to halt any mining operations with immediate effect.

All but 4 of the de-allocated ones have, as on April 1, 2015, entered into a process of auctions where either the current lease holders or someone else could emerge the highest bidder. Following the passing of the Coal Mines (Special Provisions) Act, 2015 in March 2015, the Ministry of Coal had published the details of the auction process. All these coal blocks may soon have new owners.

Given the changed circumstances, there is doubt among communities and activists about what is likely to happen next and how they should prepare for it. For example, for those who had prepared a legal challenge on environmental irregularities, where do remedies now lie? How should they prepare? To the affected communities, the impacts, unresolved illegalities, and the environmental and social liabilities of the coal blocks that are up for auction remain just as relevant.

Questions asked about clearances to coal blocks

Many of these coal blocks, whether or not they had started operations, had received “clearances” from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) after completing the necessary procedures. These approvals were challenged in courts, on the streets, and through petitions before the executive. For instance, when the Supreme Court delivered its judgment, a challenge to the forest clearance granted to the Mahan coal block in Madhya Pradesh was pending before the National Green Tribunal.

Similarly, the public hearing of the Parsa coal block in Chhattisgarh had been completed in the face of stiff opposition. Questions had also been raised about whether due process had been followed for impact assessment and public hearings. The NGT had quashed the approval for forest diversion given to the the neighbouring coal bloc in Parsa East Kanta Besan and had sent the matter back to the MoEFCC for re-examination. The stay on the mining and transportation of the already dug up area was lifted by the Supreme Court soon after.

The affected villagers and campaign groups had also pointed out that the presence of an elephant habitat near the mining site was not disclosed and that the mandatory site inspection was done in a casual manner. Questions were also raised about the circumstances under which the environment ministry had, under directions from the empowered group of ministers, approved the project.

What happens to the matters before the Green Tribunal?

Mahan and a few other coal blocks, whose environment or forest diversion approvals had been challenged before the National Green Tribunal (“NGT”), were included in the Supreme Court’s de-allocation list. What did this mean? Did the appeals become infructuous? The NGT on September 26, 2014, while hearing the two cases filed against the Mahan coal block (Appeal No.18 of 2014 and Appeal No.34 of 2014) and also the PEKB coal block, held “the cause of action raised by the Appellant does not subsist any longer.” They also held that that the rights and contentions in relation to the “forest clearance” would be transferred to the third party who would get the coal block.

While dismissing another case challenging the environment clearance given to a BALCO coal block (Appeal No. 46 of 2012), on October 9, 2014, the NGT upheld the right of appeal in accordance with law. This meant that if the environmental clearance is transferred to another allottee, it does not take away the right of a legal challenge both on procedural lacunae and on the merits of assessment. This is yet to be tested before the tribunal but the order is in place.

MoEFCC Clarification

Both the EIA Notification and the process laid out under the Forest Conservation Act, 1980 for forest diversion allow for transferring the approval to another project authority, during the course of assessment or even after approvals are granted. For instance Section 11 of the EIA notification says, “A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written “no objection” by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases.”

On March 23, 2015, there was an additional clarification to Section 11 of EIA notification through an amendment. This allowed for the transfer of environment clearance on the terms above, in case “an allocation of coal block is cancelled in any legal proceeding; or by the Government in accordance with law”.

As on date, the environment clearances of 29 coal blocks have been transferred. Some of these are for approvals granted as far back as in 2000. The approval for  the captive underground coalmine village of Milupara Kondkel in Raigarh, Chhattisgarh is one such. It now stands transferred from Monnet Ispat to Hindalco. The most recently granted environmental approval that has been transferred is for the Ganeshpur Opencase mine in Latehar in Jharkhand. Here, the transfer is from Tata Steel to GMR Chhatisgarh Energy Ltd. Tata Steel had received the approval in January 2014, about seven months before the Supreme Court ruling.

For any affected community and for any of us working on the environment or the social and environmental impacts of coal blocks, this is an important space to watch. Many coal blocks where approvals are pending or where mining operations have not been initiated, are not yet on the radar of re-allocations and other revised regulatory approvals. A lot is likely to be tested in and outside of courts where communities and community-based organisations are involved in legal action.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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Human Rights

A company came to buy land for compensatory afforestation. Here’s how one woman learnt to respond.

CommunitiesAndLegalAction_KanchiKohli“I know the Divisional Forest Officer of my area well. I will speak to him and get back to you”, Kavita said to the company representative. “I cannot understand why have you come 200 kilometers away from where you are building a dam to tell me that you want to buy land to plant trees in my village. If you are cutting trees for the construction in one area should you not be planting them right there?”

Kavita had recently been elected the Sarpanch of the Village Panchayat (elected representative of the village local help government). The man she was addressing represented a contracting company building a 2000 MW hydropower project. He tried to explain, “You see, the problem is that we have got the first level permission to start constructing our dam, but we can’t do much till we fulfill this painful condition of compensatory afforestation. The local forest and revenue offices tell us that they can’t give us land in the same place, so we are having to move around all over the place looking for land.”

“So”, Kavita responded, “you want the land that people of this village own to compensate for the lakhs of trees you are cutting or the acres of land you are using. The 50 hectares you want is not going to be enough for this.” He was also speaking to some other villages to negotiate similar deals. But Kavita was not fully convinced and she did not want to engage with the man till she had more information. She sought some more time and told him that she would respond to him only after she had fully understood what it meant and all that it implied.

The next morning, Kavita decided to visit the Divisional Forest Officer (“DFO”) of her area. She had not sought a prior appointment and had taken the risk of not finding him at his seat. Unfortunately, she caught him just as he was leaving for a surprise inspection to a forest nearby. Since he was in a rush, he asked her to come back in the evening.

When he returned, he found Kavita waiting for him right where he had left her. She had spent the day talking to forest rangers over cups of tea and trying to understand the reasons why other citizens were visiting the forest department’s office. Some were there for seeking compensation damages to crops caused by wildlife, others were trying to get offences written off, and some others had come to enquire about new proposals for forest diversion in the area.

Photograph by Kanchi Kohli.

Photograph by Kanchi Kohli.

But Kavita’s mind kept drifting. Why did the company want to buy  land in her village to plant trees to compensate for damage or loss that was taking place really far away from where she lived? After hearing her questions, the DFO smiled and assured her that he might have most of the answers about what this meant, legally and administratively.

Diversion under the Forest Conservation Act

He first explained to her that since 1980, every state government has had to take prior permission from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) before diverting forest land for non-forest use, de-reserve a forest, or allow for the felling of trees. This happened with the promulgation of the Forest Conservation Act. “For the sake of our conversation”, he said, “lets call all these instances as diversions of forest land.”

Now, when a DFO like him, who is also called the Deputy Conservator of Forests in some places, prepares a proposal for the diversion of forest land on behalf of a user agency, it is also his job to add the details of the compensatory afforestation scheme. This has to be done in accordance with the format provided in Part II of the Forest Conservation Rules, 2003. He decided to start by explaining how compensatory afforestation really worked.

Compensating for the change of land use

Each time forest land is diverted, the change of land use has to be compensated for. The requirement for compensatory afforestation is considered one of the most important conditions stipulated when forests are ‘diverted’ for non-forest use, or when the felling of trees needs to be done, or when forests are to be de-reserved. It is part of almost every Stage I approval granted by the MoEFCC, be it for a dam, mine, industry, road, railway line, or even a rubber plantation. Only when compensatory afforestation and other conditions are complied with is Stage II approval is granted by the ministry.  In most cases compliance means identification of the land in preparation for the afforestation scheme. Only after all this is done can an order issued by the state government granting the permission for diversion, dereservation, or felling of trees, under Section 2 of the Forest Conservation Act, 1980, come into effect.

The current legal regime requires compensatory aforestation to be carried out over an equivalent area of non-forest land. For example, for 200 hectares ‘lost’ to a non-forest purpose, another 200 hectares of non-forest land has to be afforested. If non-forest land is not available, compensatory afforestation needs to be carried out on double the amount of degraded forest land, which is being used for a non-forest purpose. “There are some exceptions which are part of the Compensatory Afforestation Guidelines. But this thumb rule is what you should remember”, said the DFO.

Usually, the DFO alerted Kavita, an effort is made to identify land which is contiguous to or in the proximity of an existing reserved forest or protected forest. This is to enable the Forest Department officials to to effectively manage the “newly planted area”. Looking for a distant site for afforestation outside the district or state should be done only if land in that particular state or district is not available. There are clear guidelines issued by the MoEFCC in relation to this requirement and user agencies and forest departments need to follow them.

“Perhaps the neighbouring district does not have non forest land or degraded forest land to give for compensatory afforestation. It appears like the user agency, which is a dam construction company in this case, is looking to get this condition ticked off so that they can move the government offices for the next steps of the approval. They might want to buy your land and hand it over for compensatory afforestation”, he explained. Perhaps all the degraded forest land has already been earmaked for compensatory afforestation related to other instances of non-forest use, so even that is not available.

He looked at the Range Forest Officer (“RFO”) working under him. Was buying land and then handing it over to the government for compensatory afforestation becoming a trend with new industries and builders, he wondered aloud. The RFO returned a thoughtful glance. He had heard about some enquiries from villagers who farmed and used forest land for specific produce but he was not sure.

Poor quality of afforestation

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

The conversation turned to a larger question as the DFO asked for some chai. What might appear to be a simple administrative practice, the DFO told Kavita, had become one of the important policy issues of our time. While we have approved diversions, the practice of compensatory afforestation has hugely suffered. Land is often unavailable and where it is available, the quality of the afforestation has been dismal. At the same time several user agencies had not paid up all that they had to, for carrying out the compensatory afforestation. He told her not to quote him on what he was saying and Kavita agreed.

He asked the RFO to bring out the report of the Comptroller and Auditor General (“CAG”) on compensatory afforestation. Since 1998, several audited reports had pointed to the lacunae in the utilisation of the funds for carrying out compensatory afforestation. The latest, a report from 2013, brought out fresh figures.

Kavita was baffled. “Why has no one taken this to court?”, she asked. Well there had been some discussion in court, the RFO said. The Supreme Court’s resolution of the issue, informed by the recommendations of its Central Empowered Committee, was to direct the setting up of a Compensatory Afforestation Fund Management and Planning Authority (“CAMPA”) in 2002. It was finally notified in 2004 but actually began to function only in 2009 and that too as an ad hoc authority.

Following this, state governments now submit plans to the CAMPA and get the money released for compensatory afforestation as well as other conservation activities related to the payment of an amount of money, that is called the NPV. He was deliberately not telling her more about NPV, he said, as it would confuse her. There was news that not all the money for compensatory afforestation and NPV had been paid up and there remained huge problems with the quality of the plantations and that there had also been mis-ultilisation of funds. In September 2014, he said, the Union Minister for Environment, Forests, and Climate Change even said that his ministry was keen on releasing the Rs. 33,000 crore accumulated in the CAMPA to state governments.

While all this seemed like too much information, Kavita understood one thing – even if she and other villagers decide to sell their her land with the good intention of recreating a forest, such a forest might never set the light of day. Maybe she was better off doing her own farming and ensuring that some part of her land adjoining forests remained uncultivated so that there could be some natural regeneration there.

Leaving the forest department’s office, she was ready to face the representative of the dam building company. “Go looking for land elsewhere, sir”, she smiled and thought to herself, “ours is not available to fulfill your administrative formality.”

(Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.)

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Uncategorized

Are my forests going to be cut?

Kanchi KohliRecently, I received a query from Madhya Pradesh about whether a mining company was allowed to lop off branches and demarcate trees in a forest area. Such queries are common in many parts of the country where forest land is sought for “non-forest use” like industries, dams, roads, mines, and ports.

Confusion reigns, both among community organisers and affected people, about where the buck really stops, especially on what constitutes a “final” diversion of forest land and how the legality of some particular activity on forest land can be questioned. Legal aid practitioners (both formal and voluntary), affected people, and government agencies need to come out of this lack of clarity, illustrated in this case from Madhya Pradesh. The villagers, who had organised themselves into a sangharsh samiti (struggle committee) and had been resisting coal mining operations in the area, had seen the representatives of a mining conglomerate enter the Sal forests typical of this area. When asked by the villagers if they had permission to lop branches off and demarcate trees, these representatives reportedly responded that they had the approval of the Divisional Forest Officer (“DFO”) to enter the forest for such work. They also said that they had recently received permission from the Ministry of Environment and Forests (“MoEF”) to divert the forest land. The villagers should also be aware that it was only a matter of time before the company would be allowed to start mining activity.

On the other hand, local social activists had informed the protesting villagers that the MoEF’s approval was not enough for any mining company to start operations. With this information in hand, the villagers asked the companywallahs whether they had the permission in writing to enter the forest, and they were not able to provide any.

Laws applicable to diversion of forest land for non-forest use

The Indian Forest Act, 1927 (“IFA”), its corresponding state laws, and the Forest Conservation Act, 1980 (“FCA”) apply to the issue of diversion of forest land for non-forest use. In the Indian constitutional scheme, both the Union government and the state governments can make law on the subject of forests.

Anyone who wants to use the forest, whether it is a government department, or a private agency, or an individual, needs the permission of the relevant forest department, and the DFO in particular, to divert the forest land. The DFOs needs to inspect the site, prepare a report based on a series of criteria, and forward their recommendation on whether the forest should be given away for non-forest use. Based on the DFO’s recommendation, the Principal Chief Conservator of Forests (“PCCF”) should forward the proposal to the MoEF. This practice of taking prior approval from the MoEF by the state government was institutionalised through the FCA in 1980, when the Union government felt that the country’s uncontrolled and unprecedented rates of deforestation required central regulation.

At the MoEF, for cases like this, a Forest Advisory Committee (“FAC”) reviews the proposal and gives its recommendations. During this process of review, the FAC can call upon experts, take additional site visits, and seek any amount of additional information. In this case, the FAC had (as documented here) already reviewed the proposal thrice and had refused permission on the grounds that diversion would cause the loss of forests of a very good quality and that the coal from mining coal in the area would only last for fourteen years.

PanchmarhiValleyMadhyaPradesh_DhanbadCoalMine
The Panchmarhi valley (left) in Madhya Pradesh and a coal mine in Dhanbad in Jharkhand.
Both images are from Wikimedia Commons. CC BY-SA 3.0 and CC BY 2.0 respectively.

After extensive political and bureaucratic lobbying however, this company received approval in two stages — first in October 2012 and then in February 2014. In accordance with the MoEF’s practice, they received the first (in-principle) approval with a wide list of conditions including the recognition of the rights of tribal and forest dwelling communities under another critical national law, ensuring land is made available for compensatory afforestation, and carrying out a whole range of studies related to the cumulative impact of the mines on water and other resources. The approval at the second stage came amidst even more controversy.

Through this period, the affected community and local activists protested against the fact that the due procedures of law had not been followed, especially those related to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”). Before the final diversion takes place, the process under the FRA, including taking the necessary permission from the Gram Sabha (village assembly), needs to be complete.

The villagers, now armed with the relevant legal provisions with some help from local and national activists and legal empowerment practitioners, complained to the District Collector and the Minister of Tribal Affairs. Tools such as the Right to Information Act, 2005 were important for them to be able to procure panchayat records and verify the signature of the villagers. The company had and government had claimed that the process under FRA was complete as villagers had signed on their claims at a gram sabha meeting. Information accessed using the RTI Act revealed that many of the signatures were forged. What the company had hoped would be behind them, is now an issue that remains unresolved and open to a formal enquiry.

With the final approval from the MoEF, the coal mining company had entered the area to initiate the lopping and demarcation work. They still did not have the approval of the state government. They had applied to the State Forest Department for diversion, but without the permission required from the state government under Section 2 of the FCA and the corresponding provisions of the IFA, they cannot move ahead, especially if the forest is a “Reserved Forest”. At the time of writing this article, there is no information in the public domain that the state government has given its approval. The state government is waiting for the release of compensatory afforestation land in Sagar district of Madhya Pradesh before giving its permission. At the same time, the District Collector, based on the complaints of the villagers, has set up an enquiry on the process under the FRA and has been quoted in the media saying that his enquiry will only be completed after the national elections of 2014.

Now, the villagers have also filed a complaint with the MoEF and the state forest department. In their letter, they have said that the activity carried out by the company’s representatives was in contravention of the law and that action should be taken. While they are yet to receive any formal reply, the complaint has deterred the company from carrying out any further activity.

It is only a matter of time before the land required for compensatory afforestation is found and the collector’s report is finalised. The legal action might then move from the administrative and regulatory arena to the wisdom of the judiciary. All the build up till now, will then be the evidence, which is critical in any such situation to prove and illegality. In some of the future articles in these series, we will delve upon the nature of evidence in environmental law and challenges in being able to collect it and present it before a regulatory agency or judicial forum.

Many similar cases involving the issue of diversion of forest land for non-forest use may be developing across the country. Understanding the law and practice of forest diversion and recording illegalities will be critical for all concerned. Each case will be peculiar and as practitioners, we will need to delve deeper and work with the affected community to build evidence around it. Even when it comes to the environment, the law is best invoked when backed up with proof.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.