//Ashish Kothari : Miss the trees for the wood

Ashish Kothari : Miss the trees for the wood

Ashish Kothari, Hindustan Times, June 20, 2006

The Tribal Forest Rights Bill is back, and again creating ripples of alarm amongst environmentalists. A revised version of the Bill, submitted by a parliamentary committee, has significantly enhanced forest-related rights, without sufficiently enhancing responsibilities and mechanisms to ensure forest conservation.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, sought to provide rights to forest land already occupied by tribal people, as also rights to forest produce essential for livelihoods. It was a step long overdue. The ensuing public debate saw sharp divisions between some conservationists, who thought it would spell the ‘death-knell’ of forests, and some human rights activists who argued it needed to be even stronger in providing rights. Many people took a more balanced approach, emphasising that we need to protect forests to protect livelihoods, as also establish clear livelihood rights to create a long-term stake in conservation. In December 2005, the Bill was referred to a Joint Parliamentary Committee (JPC), consisting of 30 MPs cutting across party lines. The JPC placed its report, including a significantly revised Bill, in Parliament on May 23, 2006.

The revised Bill extends forest rights to not only Scheduled Tribes, but to other ‘traditional forest dwellers also’. This includes communities living in or near forests for three generations or more, as also those forced to occupy forest lands after being displaced from development projects and not provided rehabilitation, or due to other failures of the government.

A greater say in determining the validity or otherwise of claims has been given to gram sabhas, which is in consonance with India’s stress on decentralisation. However, the final decision still vests with the district level committee containing officials of Forest, Revenue, and other government departments (as also community representatives). District and sub-divisional committees are mandated to build the capacity of gram sabhas, to effectively assess land claims.

The JPC has justifiably provided communities a greater role in conservation. There are thousands of ecosystems in India being conserved by communities, but without the legal authority to counter threats. The Bill now provides such authority. Additionally, the consent of the gram sabha has to be sought for any diversion of forest land. This provides communities the legal power to stop destructive ‘development’ projects such as mining and dams and expressways, something that conservationists should welcome.

The revised Bill also provides safeguards for important wildlife areas. It requires science and local knowledge to be used in identifying “critical wildlife habitats”, in assessing impacts of human uses in such areas, and thereafter deciding the need for relocation of villages and/or changes in existing resource use practices. It commits governments to not divert inviolate areas for any other purpose. However, the clause that people once relocated have a right to return if “unsatisfied” with rehabilitation, could be misused. A more systematic process of ascertaining failure of rehabilitation is needed, for people to have the right of return.

The JPC has extended the cut-off date of eligibility for making land claims, to anyone who has occupied forest land upto 2005, unlike 1980 in the original Bill. It has also allowed any amount of land occupied to be claimed, removing the earlier 2.5 hectare limit. Combined with a fairly expansive definition of “traditional forest dwellers”, this provides scope for state governments, land mafia and local elites to claim large areas of recently encroached land as legitimate. It could also exacerbate local conflicts, e.g. in the North-eastern states, where people from outside have occupied forest land recently, at the expense of the local tribal communities.

Most serious is the removal, from the original Bill, of responsibilities and duties imposed on rights-holders, penalties for failing to uphold these responsibilities, and the requirement that forest resources uses be sustainable. In their place, it has put the onus on the gram sabha to ensure conservation. A collective responsibility for conservation is always welcome, and stronger than only an individual responsibility. But the Bill does not specify any recourse if the gram sabha fails to discharge its responsibilities, and in any case does not make it responsible to ensure sustainability of forest resource uses.

The Bill also provides for diversion of forest land for development facilities such as schools, clinics, roads, electricity lines, etc. There is no justification for denying anyone basic health, education, and developmental inputs. However, vague terminology could be misused. For instance, there are many instances such as at Melghat Tiger Reserve where in the name of providing ‘road’ access to adivasi villages, the government built wide tarred roads which hardly helped the adivasis, but opened up the forests to illegal exploitation. The Bill should have required an impact assessment of the provision of all rights (including land, forest resources, and developmental facilities) before deciding on the course of action.

The JPC’s Bill specifies it will prevail in a situation where any other Act contravenes its provisions. This is understandable because forest and wildlife Acts have often been used to forcibly dispossess forest dwellers. But it makes the relationship with such Acts unclear. If someone hunts a wild animal or cuts a tree inside a forest or protected area where the Bill has provided rights to the local community, what precisely are the respective roles of the gram sabha and the forest department? Actual institutional jurisdictions on the ground need to be clarified before hunters and wood thieves misuse the confusion that the Bill could create. It would also help to include NGOs in the sub-divisional, district, and state-level committees.

Overall, the Bill needs to be revised to ensure integration of conservation and livelihood security. It could do this by explicitly mandating collaborative arrangements between communities and government agencies with help from NGOs, and by putting into place an integrated system of rights and responsibilities, or powers and duties, that would safeguard against misuse by either the community or the government.

The government, while accepting the strong positive points of the JPC’s draft, must modify those of concern listed above. It should also mandate a national statutory body to examine state and site-specific processes of settlement, and to ensure that any new encroachments are immediately detected and acted upon.

(The writer is a member of Kalpavriksh, an environment action group)