A long and winding path

Raika herders in Rajasthan. They will benefit from the Forests Rights Act if their claims are accepted by gram sabhas along their migration route.-PHOTOGRAPHS: ASHISH KOTHARI

Measures are needed to optimise the positive potential of the Scheduled Tribes and Other Traditional Forest Dwellers Rights Act.

Raika herders in

The Scheduled Tribes and Other Traditional Forest Dwellers Rights (Recognition of Forest Rights) Act, 2006, had already made an impact on the ground when it came into operation on January 1, 2008. There were reports that the State Forest Departments were rushing to carry out evictions from allegedly encroached lands before its provisions to stay all evictions came into force. Reports from Andhra Pradesh, Gujarat and other parts of India spoke of fresh clearing of forests at the instance of political parties, with the promise that these would be regularised under the Act. More quietly, communities and civil society organisations at some sites began preparations for implementing the Act in such a way that both forest protection and livelihood security could be enhanced.

Now that the Act has been operationalised (with the notification of Rules), the question is: will it achieve what it sets out to do, and what will be the larger impact?

The preambular text of the Act clearly lays out the context for its operative provisions. It is meant to undo historical injustices meted out to forest-dwelling populations in not recognising their rights to land and resources. But it also stresses that the rights of forest-dwelling communities include responsibility for the sustainable use and conservation of biodiversity. Will its implementation help achieve this rather difficult balance between livelihood security and ecological conservation, which has eluded most conservation or development programmes in India so far? In a sense, this Act is 60 years late. The Indian state should have granted forest-related rights to Adivasi and other forest-dwelling communities, whose survival and welfare was integrally connected to their natural surrounds, immediately after Independence. This did not happen, and over the last few decades such communities have been massively dispossessed and often rendered criminals in their own homelands. In Orissa, for instance, over 25,000 sq km of land has traditionally been under shifting cultivation; those lying above 10 degree slopes were unilaterally declared government lands, and much of these as forest land. Suddenly, the cultivators, many of them Adivasis, became encroachers.

This should not, of course, hide the fact that significant forest loss has also taken place because of encroachment. The motivations for this are mixed, from desperate forest clearing by poor people with no other alternative to encroachment by oustees of development projects who received no rehabilitation to powerful vested interests forcibly occupying forest lands for various purposes. It should also not obscure the painful reality of forest-dwellers being alienated from their homelands by development projects or by powerful vested interests, instances of injustice that have hardly been addressed by the Indian state.

Simultaneously, forests across the country have seen a horrendous onslaught from industrial and commercial interests and agricultural expansion. Over 4.5 million hectares of forest was officially diverted from 1952 to 1980. Slowed down by enactments such as the Forest (Conservation) Act (FCA) of 1980, the pace of forest diversion has once again increased in the past decade as the full force of globalisation and unbridled economic growth has made itself felt. Of the total 1.1 million ha of forests officially diverted since 1980, about a third has been only in the past five years.

Responses to this devastation have mostly been in the form of laws and judgments resulting in stricter regulation of how forest lands are to be used. The most stringent have been protected areas (PAs) set up under the Wildlife Protection Act, 1972. The nearly 5 per cent of Indias territory covered by PAs has been invaluable in stemming the tide of wildlife destruction. But the manner in which PAs have been set up, ignoring the rights and needs of several million people dependent on their resources, has only created mass hostility and anguish. The tremendous traditional knowledge and practices, which were often strongly conservation-oriented, have also been ignored. This is an approach now rebounding on conservation itself, as these communities either simply refuse to cooperate with forest officials in stopping forest fires or reporting poachers, or actually become conduits in poaching and wood theft. The disappearance of tigers in Sariska is no surprise to anyone observing the brewing of a disastrous conservation recipe: ill-equipped and often unmotivated forest staff, hostile local villagers, and the absence of the political will to change things.

The Forest Rights Act is a product of this history. Indeed, it is doubtful if it would ever have come into being if the people behind the Indian Forest Act, the FCA, and the Wildlife Protection Act integrated a livelihoods perspective into their vision. Had the interests and traditions of forest-dwellers been taken on board in the past few decades, the country would have had several million more supporters of conservation.

The debate on the Forest Rights Act has seen some incredible assertions about what it is going to result in. On the one side are a handful of conservationists (and prominent journalists) claiming that the Act will end up destroying all of Indias forests and be the final nail in the coffin for the tiger. One sees a lot of rhetoric in their position, but little logic. On the other side are human rights advocates who wax eloquent about how the Act will revolutionise Adivasi existence and save Indias forests from being destroyed by the industry-bureaucracy nexus. Again, more rhetorical heat than light.

In the middle are a range of observers, cautiously supporting or questioning the Act, recognising that its impact is going to be extremely mixed. Already one sees evidence of this:

In 2007, it was reported that 24,000 ha of forest was cleared in Gujarat, under political incitement, to claim it under the Act;

In 2007, nearly 150 acres (1 acre = 0.4 ha) of forest was cut down inside the Kawal Sanctuary, Andhra Pradesh, by Adivasis from outside;

In November 2007, more than 100 families were evicted from their villages in Nepanagar tehsil, Burhandpur district, Madhya Pradesh, with forest officials reportedly wanting to hurry up evictions before the Act came into force;

Communities in Orissa are preparing to use the Act to claim control over forests they have been conserving, in particular to stop mines, industries or other destructive development projects that the government is allowing in these areas. In the ongoing case against the proposed mining by Vedanta Alumina Ltd in the Niyamgiri Hills, the Acts provisions protecting Primitive Tribal Groups have been cited since the hills are the abode of the Dongariya Khonds, a highly vulnerable Adivasi group;

A number of conservation organisations are preparing to influence the process of declaring critical wildlife habitats under the Act so as to strengthen conservation greatly while also safeguarding bona fide livelihood interests;

The Soliga Adivasi community in Biligiri Rangaswamy Temple (BRT) Wildlife Sanctuary in Karnataka is being helped by the non-governmental organisation (NGOs) Ashoka Trust for Research in Ecology and the Environment (ATREE) and Vivekananda Girijana Kalyana Kendra (VGKK) to map resource uses, sacred groves and habitats considered by them to be critical for wildlife, and other aspects, and then invite the sanctuary authorities to prepare a consolidated plan for the implementation of the Act;

Several States are beginning to identify critical wildlife habitats within their protected areas with the purpose of making them inviolate (which could mean a range of situations from no human use to only those human uses that are absolutely compatible with the conservation objectives of the area). Once notified, such areas would be totally off limits to any damaging industrial project (see box). The medley of positive and negative impact of the Act is partly a result of the structure of the Act and Rules, partly an outcome of the serious lack of readiness amongst the government and civil society to implement their provisions.

Fresh encroachments in some States, if the reports above are valid, could be a result of the Acts provision that in the case of Adivasis, lands could be claimed for regularisation if encroached before December 2005. The original version of the Act had specified 1980. With a cut-off date that was many years behind, any fresh clearance of forests for encroachment could have been much easier to detect and pronounce illegal. Even now, satellite imagery could be used to detect any post-December 2005 encroachments, but this will be more difficult and the political pressure to regularise these would be much stronger.

Another serious issue is the possibility of opening up forest lands that are currently safeguarded by the FCA. This would happen in two ways. One is forest lands under cultivation that would get regularised (and presumably converted into revenue land). These lands are not alienable in that forest-dwellers cannot sell them off; however, it is not clear if they would be eligible to be acquired by the State under the Land Acquisition Act and would no longer have to go through FCA procedures. In the worst-case scenario, this is one way in which the Act could become another tool in the hands of the State and industry to access lands for commercial activities.

The second is forest lands that would be diverted for one or more of the development facilities (roads, health centres, transmission lines, and so on) that the Act provides as a right to villages, which are exempt from the purview of the FCA. These are within limits (for example, only one hectare per facility, with less than 75 trees per hectare), but subject to violations under political pressure. At least in some parts of India, these provisions could lead to the fragmentation of forests. However, this is not yet manifest on the ground, and civil society organisations can at least raise an alert if they see misuse of this kind taking place.

A Soliga Adivasi

There are likely to be severe problems in establishing genuine rights too. Even the definition of who is eligible is not clear; the Act says those residing in and who depend on forests or forest lands for bona fide livelihood needs. This leaves unclear what residing in means. Does it include villages that are immediately adjacent to forests, does it include villages that are surrounded by forests but are on revenue land? Also, do both conditions (residing in and dependent on) need to be fulfilled in which case this leaves out communities such as nomads who are primarily dependent on forest resources but not necessarily residing in them.

Moreover, neither the Act nor the Rules specify time limits for the work to be done by the various committees in recording and accepting claims, which means that people can be waiting forever for their rights to be established.

As against these and other possible areas of concern, the Act also has significant potential for achieving conservation along with livelihood security. Of immediate interest, and one that relates to the Orissa example cited above, is the possibility of communities getting legal backing to conserve forests around them. States such as Orissa, Uttarakhand and Maharashtra have thousands of sites where communities have, on their own or with help from NGOs or government agencies, conserved patches of forest. But they have no legal mandate to do so and face constant threats from the timber mafia, from diversion of lands by government for mining or industrial projects, and from other factors. Sections 3 (1) (i) and 5 of the Act empower villagers to protect forests though the Rules are disappointingly weak on operationalising these provisions.

Also of significance are provisions relating to critical wildlife habitats (CWH). Such areas can be notified within protected areas (national parks and sanctuaries) and can then be secured from all damaging human activity; indeed, for the first time in any Indian legislation, these would be sites that cannot be diverted for any other purpose whatsoever. Even the Wildlife Act does not have such a strong provision. However, establishing CWHs has its own complications.

Finally, activists hope that the provision of greater security of tenure (rights to resources coupled with responsibilities) would be a powerful incentive for long-term conservation. Studies around the world have established this connection. However, these studies also show that a number of other factors need to be in place: the capacity to conserve, institutional structures with the right balance of powers and accountability, and the ability to counter divisive and exploitative forces.

How does one optimise the positive potential of the Act while countering the negative? A number of actions are needed, not necessarily in chronological order.

Amendments to the Act: These would especially relate to the cut-off date, taking it back to a year that would make it much easier to detect fresh encroachments and reduce the conflicts in places like Assam where significant recent encroachment has affected long-resident Adivasi communities. Also needed is a provision to place development projects back under the screen of the FCA, albeit with decentralised functionaries so that genuine needs of villages do not have to go through a maze of bureaucracy.

Changes and additions to the Rules: The establishment of rights needs to be made much more efficient by putting time limits to the process from the gram sabha to the district level, and ensuring that officials dealing with the process are deputed full-time rather than handling this as one small part of their duties. From the conservation perspective, the Rules need to be much clearer about the on-ground relationship between gram sabhas, rights holders and government agencies such as the Forest Department in the fulfilment of management and conservation functions. They also need to specify what precise authority, powers and responsibilities gram sabhas have to enable the implementation of conservation functions specified in Sections 3 (1) (i) and 5 of the Act.

Site-specific approach: It is also vital to recognise that a uniform approach to implementation will not work. Urgent attention is needed to a site-specific, more nuanced process of implementation, which takes into account the ecological, cultural, legal and administrative diversity across the country.

In some north-eastern States, for instance, much more attention may be needed to deal with possible conflicts between older Adivasi residents and more recent Adivasi or non-Adivasi settlers; in the Western Ghats, the issue of non-Adivasi forest-dependent communities may be most relevant; in eastern-central India there needs to be considerable preparation to ensure that industrial interests do not misuse the process and, in fact, are countered through it; in central and western India, the complexities of nomadic populations would need focus. And so on.

Women in Zaheerabad

On-ground preparation: In many areas where mobilisation has taken place over the last few years, communities and civil society organisations are already mapping resource uses and customary boundaries, and finalising claims. In some of the examples mentioned above, this is being accompanied by mapping areas that communities and independent wildlife experts consider important for wildlife.

At the BRT Sanctuary, the people concerned hope that the Forest Department can also be brought on board to synergise peoples views and official views on critical wildlife habitats. Such collaborative work has also been initiated in three protected areas (PAs) of Ladakh in anticipation of the Jammu and Kashmir government accepting the Forest Rights Act in ways that are complementary to the Wildlife Act under which the PAs have been declared.

Organisations coming under the banner of Future of Conservation in India are exploring ways to help in these processes to move away from the polarised debate that has otherwise characterised the Act. In all these instances, local and State governments need to consider appropriate local institutional arrangements that could reduce possible conflicts between agencies mandated by the Indian forest or wildlife Acts and communities empowered under the Forest Rights Act.

Current mechanisms such as joint forest management and eco-development committees are often (not always!) highly iniquitous and will need to be replaced or transformed into institutions that truly allow sharing of power and responsibilities.

Monitoring: Finally, it is crucial for civil society to keep a lookout for and raise alarm bells regarding any damage arising from the Act, especially from its misuse. The NGO Kalpavriksh has initiated a systematic tracking of the Act to collate information from across the country and enable interventions based on information of its positive and negative impacts. Intense work along these lines is needed in each State.

Ashish Kothari is with Kalpavriksh Environmental Action Group.