Taking away forests: Tribal consent regulations to be diluted -Nitin Sethi

Against nodal ministry's protest, under PMO guidance, MoEF prepares to largely remove need for gram sabha agreement to use or give away forest land

The central government is set to dilute the rights of tribals and other forest-dwelling communities, doing away with the present legal need for their consent while handing over their forest land to industry in large parts of the country.

Business Standard has reviewed documents that detail how the government is to re-interpret the laws to allow this in all except Schedule V areas. The government plans to soon notify the changes, in effect leaving the power in many parts of the country to give away forest land with government officials and politicians in power at the Centre or states. The government plans to go ahead despite strong opposition from the tribal affairs ministry, the nodal central government office in charge of protecting these rights of tribals and others under the Forest Rights Act (FRA).

Under the Constitution, the government notifies selected tribal-dominated districts, villages or blocks as Schedule V areas. The lands under the Schedule do not cover the entire tribal population, such as any of Northeast India, and cover only a part of the country's forested belt.

At present, under the Forest Rights Act of 2006, the veto power of tribals and other jungle dwelling communities to protect their forests against destruction, including use by industry, extends to forests all over the country where their traditional rights have been claimed or settled and not only in Schedule V areas.

On September 9, Business Standard had reported the initiation of this process under the supervision of the Prime Minister's Office. (http://mybs.in/2QhIae8).

PMO, MoEF push

Several ministries, including those of environment & forests (MoEF), tribal affairs and law, have been meeting under instructions from the Prime Minister's Office (PMO) to change these provisions to remove the tribals' veto.

The reviewed documents show a decision was taken by MoEF in early October that, "For the projects located outside the scheduled areas, consent of gram sabha (village council) is not a statutory requirement."

The ministry also decided that in cases where plantation lands were classified as forests in government records less than 75 years ago and are located in areas where the Census records no tribal communities, the government need not seek the consent of people to use the forests.

MoEF has recently given effect to this second dilution through a formal order. It is based on the premise that under the FRA, only those tribals and other communities have legal rights that can prove they've been living in a forest patch for more than 75 years.

Dumping green checks

The dilution ignores the fact that the law extends not only to Scheduled Tribes but also other forest dwelling communities. It also ignores the fact that government revenue records do not match those of the forest department over what areas should be classified as forests. In fact, the Supreme Court (SC) had passed an order that all lands on which forests grow, regardless of official classification, should be treated as forest lands under the environmental laws. The dilution takes away the rights of village councils to determine the claims and hands it over to district administrators, based on the above criteria.

The second dilution, to do away with tribal rights in lands outside the Schedule V areas, which would have a more far-reaching impact, is on the anvil and should be ordered soon, sources in the government said.

Only opposer

One reason holding up the formal notification is the continuing opposition from the tribal affairs ministry. The ministry had earlier written to the PMO, as well as others, that the FRA provided no room for exceptions on the issue of veto power of forest dwelling communities over their lands. It had cited the SC orders in the Vedanta mining case and provisions of the law to say any dilution through executive fiat would be a violation of the Constitution. Such changes could be contemplated only through an amendment to the law.

The tribal affairs ministry has again, on October 21, reiterated: "No agency of the government has been vested with powers to exempt application of the act in portion or in full." And, "It is further advised that any action or process inconsistent with the due process laid under the Act would not be legally tenable and is likely to be struck down by the courts of law. Orissa Mining Corporation vs Ministry of Environment and Forests in 2013 (the Vedanta Niyamgiri episode) is a case in point."

In this case, the SC had asked the affected tribal communities to decide whether Orissa Mining Corporation should be permitted to mine bauxite in their traditional forests for Vedanta's aluminium refinery. All the 10-odd tribal village councils in the impacted area had rejected the mining project. The order came as the first judicial stamp of approval on the reading of the law.

The tribal ministry has also warned that as the nodal department, it holds the power to inquire into any complaints against violation of FRA and infringement of the rights of people under the law. These emphatic views were put on record specifically in response to MoEF's decision to go ahead and effect the dilutions in tribal rights, documents reviewed by Business Standard show.