Tribals’ Rights: Ministries’ Stand-off

Above: A tribal family enjoys a meal in the forest in Odisha’s Koraput district/ Shiv’s Photografia/ commons.wikimedia.org

A letter by the environment ministry to state governments undermining the powers of gram sabhas has elicited a stiff reaction from the tribal affairs ministry

In a strongly worded letter, the ministry of tribal affairs (MoTA) has asked the environment ministry to “modify” a letter which it issued to all state governments in February 2019. The letter apparently undermines the powers of gram sabhas, provided under the Forest Rights Act (FRA), 2006, with regard to forest clearance proposals. It said that compliance with the Act was not required for getting Stage-1 or “in principle” forest clearances. It said such compliance could be carried out in the time period provided between Stage 1 and the final approval for meeting the conditions required to secure the final clearance stage.

When the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (often referred to as FRA) was enacted, there was a huge difference of opinion between wildlife and tribal groups about the impact this Act would have on the forests of India.

FRA was intended to redress the “historical injustice to the forest dwelling Scheduled Tribes” by recognising their individual property rights to land and non-timber forest produce, as well as their rights to control and manage lands that had been acquired by the Forest Department when IFA, 1927, was enacted. However, wildlife groups claimed that FRA was intended to distribute lands to the tribals and Other Traditional Forest Dwellers (OTFD), and would lead to new encroachments and fragmentation of the forests. Tribal groups claimed that they and OTFDs were entitled to occupy lands that were in their physical possession as on December 13, 2005. This debate is still ongoing, and the recent Supreme Court orders directing the government to evict all encroachers whose claims had been dismissed have added fuel to the fire.

However, one of the positive aspects of FRA that was welcomed by wildlife and tribal groups was that the Forest Conservation Act (FCA), 1980, was amended to ensure that all forest rights had been settled before approval was granted under the FCA for diversion of any forest lands.

The FCA mandates that prior permission of the central government is required before any forest land can be used for non-forestry purposes.

A statutory committee constituted under this Act, called the Forest Advisory Committee (FAC), assesses proposals submitted to the Ministry of Environment, Forest & Climate Change (MoEF&CC), and decides whether to approve or reject the proposals.

Unfortunately, the track record of the FAC in rejecting proposals has been dismal. More than 90 percent of the projects are approved in the first round itself, and the overall number of projects rejected by the FAC is less than three percent. Thus, the requirement that clearances under the FCA can be granted only after all the pending claims under FRA had been settled was welcomed by all as it was felt that this would delay the diversion of forest lands for non-forestry purposes.

The granting of a clearance under FCA is a two-stage process. In the first stage, an “in principle” approval is granted whereby the MoEF&CC writes to the concerned state government that its proposal for diversion of forest lands has been approved in principle, subject to numerous conditions that are mentioned in the approval letter.

The state government is required to comply with all the conditions stipulated in the “in principle” approval and communicate this compliance to the MoEF&CC. Once this is done, the state government is empowered to issue a notification under the IFA in the Gazette. This notification becomes the final approval for the proposed diversion of forest lands. The normal time taken between Stage I and Stage II clearances is 2-3 years.

In the past, the MoEF&CC has taken the view that all the pending claims under FRA had to be settled before the “in principle” approval, i.e. the Stage I approval, was issued. However, on February 26, 2019, the ministry wrote to state governments and Union Territories: “It is clarified that within the time period stipulated for compliance with the Stage I condition, Deputy Commissioner shall complete the process of compliance of FRA (including forwarding its findings to the concerned CF). Hence for the purpose of the MoEF&CC, as per the provision under the Forest (Conservation) Amendment Rules 2016, the compliance under FRA is not required for consideration of in principle approval. This has to be furnished by the State Government for consideration of the proposal by the Ministry for final approval.

“In view of the above, the State Governments are required to adhere to the provisions contained in the Forest (Conservation) Amendment Rules 2016 for FRA purpose whilst forwarding the proposal for seeking prior approval under Section 2 of the Forest Conservation Act, 1980 to this Ministry for consideration.”

Interestingly, this letter was not copied to MoTA, the nodal agency for implementing FRA. On April 5, 2019, MoTA wrote a stiffly worded letter to the MoEF&CC, pointing out that:

• This decision of the MoEF&CC would make it a fait accompli
• This decision was in violation of the FCA Rules of 2014
• This circular was not copied to MoTA
• This circular authorises state governments to violate FRA, and is therefore a violation of it
• The violation of FRA u/s 7 is a punishable act.

The letter ends with a request to MoEF&CC to amend its circular of February 26 accordingly. However, despite the veiled threat of prosecution, there has been no response from the MoEF&CC.

What is interesting, though, is that one central ministry is actually threatening another ministry with prosecution. Though MoTA’s interpretation seems a bit far-fetched, it will be interesting to see how this scenario plays out once the elections are over and a new government assumes office.

However, as things stand, we are all losers. Neither are forests being protected from diversion, nor are tribal rights secured.