Tag: Forest Rights 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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Human Rights

“Under which law?” – A village responds when the gram sabha’s consent is sought for a mining project

CommunitiesAndLegalAction_KanchiKohliLate in the morning on an autumn day, a group of villagers had gathered under the shade of huge Mahua tree for a meeting called by Hemant, a community extension worker associated with a local NGO who had developed a great rapport with the villagers over the years. He was there to discuss the latest set of government schemes that had been declared specifically for tribal areas.  Tea and biscuits arrived and he spelt out the details.

He was a bit confused. Otherwise a vibrant and spirited gathering, the villagers were pensive today. Keeping his papers aside, he asked if there was a problem. After a few murmurs, Laxmi, who was usually a quiet one, spoke up. The Sub Divisional Magistrate (“SDM”) had visited their village yesterday with a representative from a large mining company and other government officials from the revenue and forest departments.

“So”, asked Hemant, “what did they say, why were they here”? Restless, Laxmi got up from his seat and said, “Brother do you see that Jhirmiri hill range? Remember we have climbed it so many times to reach the origin of the Jhirmiri stream? Where we have eaten so many wild foods? The SDM said the mining company had received a contract to extract iron ore from there and that we need to call for a gram sabha (village assembly) to give our consent.”

What is a gram sabha?

Hemant was puzzled and asked if the government officials had told them why they want the gram sabha to be called and if they had given any documents to explain the circumstances. Kishore promptly got on to the cycle and rode off to the panchayat office located about ten minutes away to get the document. While waiting for Kishore to return, Hemant began to explain what he knew from his understanding of the legal procedures.

Under the Constitution of India, a gram sabha is a “a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Panchayat at the village level.” He added that the tribal hamlet they were all part of was one of five hamlets that were part of the village panchayat, that is, the local self government.

In fact, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”) elaborates the definition of the gram sabha. It is “a village assembly which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women.” So the full gram sabha of the panchayat is actually all the people who belong to that panchayat, including the hamlets, which are called by different names, like padas or tolas, in different parts of the country.

(Left) A hillock in Orissa where mining has been proposed and (right) a meeting, similar to the one described in the article, is in progress . Both photographs are by Kanchi Kohli.

(Left) A hillock in Orissa where mining has been proposed and (right) a meeting, similar to the one described in the article, in progress. Both photographs are by Kanchi Kohli.

Why was the gram sabha being called?

In recent years, the role of the gram sabha has been recognised under different laws, which have a bearing on the transfer of land for a mining operation, industry, or an infrastructure project. “It needs to be understood”, Hemant explained, “under what law the gram sabha is being called”. The villagers were clueless.

He knew at least three critical laws under which the consent of the gram sabha is prescribed. The SDM may have come to the village to satisfy any of these processes.

The first, he said, was the Panchayat Extension to Scheduled Areas Act, 1996 (“PESA Act”). The Jhirmiri Hills are among the tribal areas that have been defined as Scheduled Areas under Clause (1) of Article 244 of the Constitution. In addition to the environment, forest, and land acquisition related safeguards prescribed under specific laws, these areas have specific constitutional protections. Under Section 4(i) of the PESA Act, the gram sabha needs to be consulted “before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas.”

“But Hemant bhai”, remarked Kusum, “the SDM was mentioning something about a consent. He did not use the word consultation. So are you sure it would be under the PESA?” Even as Hemant was thinking about explaining the requirements under the FRA, Kishore returned with the sheet of paper, which the SDM had brought with him. A loud reading of this hand written notice revealed that the government officials and the mining company representatives had come to the village hamlet asking the residents to call for gram sabha to give their consent for the diversion of forest land for mining purposes.

“Ah!”, sighed Hemant, “this is how they are implementing the circular of the Ministry of Environment, Forests and Climate Change dated August 3, 2009.” He explained that the FRA is a law through which individual and community rights of people over an area of forest has been recognised. The process of diversion of the same forest land for a non-forest use such as mining however, is determined under another law, the Forest Conservation Act, 1980. While the FRA is implemented under the Ministry of Tribal Affairs, the Ministry of Environment, Forests and Climate Change is the holder of the FCA and the August 3, 2009 circular.

“The SDM had come to you because your forest rights are still under process and the 2009 circular clearly states that the forest land cannot be given to this company till the process of recognition is complete and the gram sabha consent has been received.” “Oh Ho!”, said Kusum, she signaling to the hillock in the backdrop. “Looks like the hand written letter that they have given us is to reduce the consent process to a mere administrative tick off for Jhirmiri hills! This is totally unacceptable, Hemant Bhai”, she added.

So how should the village respond?

“Yes. It is important for all of you together across the main revenue village and the five hamlets to understand the repercussions of this before you call the gram sabha.” He also told the villagers that the requirement for consent was also part of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which was recently diluted through an ordinance awaiting parliamentary approval.

While this law did not mention gram sabha, it had required the consent of seventy to eighty per cent of the affected people in the case of acquisition of land for public-private partnership projects and private sector projects respectively. He promised that he would explain that procedure to everyone the next time he was in the village. However, he left behind the photocopies of the bare text of the law with Kusum, Laxmi, and Kishore who promised to try and read it.

All the villagers gathered there realised that the gram sabha was being called by the SDM to ensure that he can send a report to the MoEFCC, stating that the villagers have no objection for the mine to start, that they either stake no rights or claims on the forests or that would be agreeable to receive ‘compensation’ in return.

They were now clear what to say to the SDM when he returned the next day. None of them wanted to give up their thriving agricultural practice and the livelihoods dependent on the Jhirmiri Hills. Moreover, “this was home”, as Kusum said. “Why would I want to just get up and leave just because someone want to dig underneath and around? Consent can’t be constructed like this!”

Hemant heard the discussion, smiled and decided to leave. The bag full of forms meant for a loan subsidy scheme did not seem to matter today. He knew he had a target to achieve, and would come back in a couple of days when the mood was different. Today, the people of Jondhia Pada of Kaskala Panchayat living around the Jhirmiri Hills had a different engagement with the state.  When larger questions of constitutional powers, rights related to consent, and questions around displacement were at stake, an income generation scheme could surely wait.

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.

Categories
Human Rights

[Video] Forest Rights Act encourages people to improve their land and regenerate forests: Ambrish Mehta

http://www.youtube.com/watch?v=Agx48qg1jYM&feature

The implementation in the state of Gujarat, of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“the Forest Rights Act”), was the subject of a panel discussion at the India International Centre in New Delhi yesterday.

The distribution of land titles to members of forest dwelling communities is a key part of the law and about eight months ago, the Gujarat High Court chided the state government for not following the law while handling claims for titles. Acting on a Public Interest Litigation filed by an NGO named ARCH — Action Research in Community Health and Development, the Court ordered the state government to review all the claims to title that it had previously rejected. The Court also ordered the government to consider new types of evidence while evaluating the rejected claims and any new claims filed under this law.

Speaking on the panel, Ambrish Mehta, an ARCH trustee, placed the rights of the tribal cultivators of Gujarat in historical context. The conference was organised by the Centre for Policy Research, the Christian Michelsen Institute, and the University of Bergen.

Extracts from the edited transcript of Mr. Mehta’s talk:

ForestRightsGujarat’s tribal belt, in the eastern part of the state and neighbouring Rajasthan, Madhya Pradesh, and Maharashtra, had been largely ruled by Rajput kings. These kingdoms had British residents and the land settlement processes were quite sophisticated. Technically, the tribals were tenants of the concerned jaagirdaar or similar revenue authority. They were also forced to supply labour to the jaagirdar, which was a system similar to serfdom. At that time, even though the forests were owned by the kings, local communities could influence the way they were used. The British then nationalised the forests and reached an arrangement to exploit the timber from the Dang forests in exchange for a pittance. After Independence, the forests became reserve forests. Many people — even those who were cultivating — lost their land and were instead declared encroachers. Most of the land in villages was reserve forest and the communities did not even have rights to the forest produce.


The most serious deforestation in Gujarat also happened under the aegis of the Forest Department and in the name of scientific forest management. During the sixties and the eighties, the most productive mixed forests were felled to raise fast-growing teak plantations.

The Forest Rights Act came in this context and gave the tribals rights over the lands they were cultivating and rights over forest produce, including bamboo. They also have the right to manage forests as community forest resources.

We have been fighting an uphill battle with the state government for a proper implementation of the Act. Even though about 1,82,000 claims were filed, only 20,000 of them were approved. The rest were rejected. The Gujarat High Court held in May 2013 that all the rejected claims had to be reviewed and that all the evidence the government did not consider must be taken into account.

Previously, people did not act in the interests of the environment because they did not own anything. Once the rights came, they immediately started not only improving their land but also protecting and regenerating the forests. In many areas, there are forest regeneration committees. The enthusiasm had dipped when the government rejected their claims but now, with the judgment of the High Court, people are once again taking steps to improve their land and their cultivation.

(Aju John is part of the faculty on myLaw.net.)