Missing the Forest for the Trees

Environment Magazine National

Traditional forest dwellers are the best protection against encroachment and deforestation. Yet they are being hounded out

It is an oven-hot noon at Nagarhole National Park, as Chinnappapatiently collects firewood for supper. He is tall, dressed in a dhoti, kurta and a colored turban and belongs to the Kattunayikka tribe of the DB Kuppe range at Nagarhole. “I have heard about this. I have lived here for decades. Leaving here is unimaginable,” he says when askedabout the eviction notice to ‘illegal’ occupants of forests issued by the Supreme Court.The recent order by the apex court, which hasprovisionallybeen stayed, has threatened the livelihoods of forest-dwelling communities across the country.

The apex court agreed to review its verdict, which would have displaced more than a million tribal and non-tribal people from their homes in the forests. On February 13, the court had ordered 21 states to evict nearly 11 lakh families of the tribal population and other forest-dwellers who couldn’t provide documentary proof to support their claim to forest land. These states included Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telangana,Tripura, Uttarakhand, Uttar Pradesh and West Bengal among others.

The apex court passed the verdictwhile hearing petitions challenging the constitutional validity of the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. This directly affected millions of adivasi and traditional forest-dweller families, now labelled as “encroachers”. The petitioners had demanded that state governments evict those forest dwellers whose claims over traditional forestlands under the landmark law had been rejected.In order to be eligible for rights under the Act, the person has to be a traditional resident of the forests.

PJ Dilip Kumar, former director general of forests and special secretary in the union ministry of environment and forests, believes that the issue has multiple layers and defies easy solution. “The problem isn’t just restricted to the non-availability of documents, but it’s the larger issue of the land ownership and title. There are lakhs of adivasis who have encroached in what is known as the “orange area”. These lands,mainly in parts of MP and Chhattisgarh are disputed and claimed by both the revenue and forest departments,” he says.

The Supreme Court on August 24, 2007, ordered Chhattisgarh and Madhya Pradesh governments to respond to a petition to clarify the status of at least 1.2 million hectares of orange land.  According to an article in Downto Earth magazine, in 1958 control of over 9 million hectares of forestland was handed over to the forest department by a blanket notification but the revenue department did not update the records. In 1965, 4.5 million hectares were brought underthe special category protected forests under section 34A of the Indian Forest Act. The other 5.6 million hectares were handed over to the revenue department because they did not fit the category of “forests”.

On December 12, 1996, the Supreme Court in a landmark judgment stated: “The word ‘forest’ must be understood according to its dictionary meaning,” suggesting that every (large) area with a group of trees is a forest. This description covers all recognized forests, whether designated as reserved or protected. However, under the threat of looming food shortagesin the 1960s, the revenue departmenthad issued pattas (deeds) to many forest dwellers for shifting cultivation.

To make matters even further complicated, the Central Empowered Committeeconstituted by the Supreme Court determined that all lands with trees are “forests’ andmust be managed by the forest department.“Across states, large areas have been declared state forests without any survey. Areas under multiple jurisdiction where ownership rights are in complete government-made mess are now being scooped into the forest department’s jurisdiction,” Mr. Kumar adds.

While state governments have time and again reiterated their commitment to protecting the rights of the traditional forest dwellers, there has been an alarming rise in the number of claims by the settlers.According to the government statistics, as many as 2,75,446 claims have been filed in Karnataka aloneby people belonging to scheduled tribes and other traditional forest dwellers.

Knowing that it would be hard for tribal to produce documentary evidence to support for their claims, rule 13 of the Act lays out numerous other proofs for conferring rights, including confirmation of residence by the eldest in the settlement and the condition of structures like houses and huts. “The primary duty of the Court, while interpreting the provisions of the Act, is to adopt a constructive approach. One should not overlook or ignore the hard fact that the claim petitions are filed by persons who would hardly possess any convincing and cogent evidence to the satisfaction of the authorities,” the Gujarat High Court had pointed out in a 2013 judgement. But these exceptions, according to activists, have also given enough opportunity for bogus and illegal claimants to stake claim on forest land and scuttle the claims of genuine and traditional settlers.

The Forest Rights Act in itself has several loopholes which come in the way of approving the rights of traditional forest dwellers. A 2014 report of the high-level Virginius Xaxa Committee, set up to study the socio-economic, health and educational status of tribal communities in India,noted that gram sabhas were rejecting claims of forest-dwellers without assigning reasons. “The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.” the report pointed out.Such criticisms of the Act’s implementation weren’t addressed in the Supreme Court’sFebruary 13 verdict.

State governments must now take the cue and ensure that due process is followed in deciding or rejecting the claims.The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is progressive in the sense that it is the first to legally mandate compensation and restitution forpeople affected by projects. However, it fails to address the need for minimizing of acquisition of land and resources. This is not surprising, since the objective of the Act, which seeks to address concerns of those whose livelihoods are affected, simultaneously aims at facilitating land acquisition for ever increasing industrialization and urbanization.

Interestingly, on the same day that union government filed a review petition against the Supreme Court’s February 13th verdict in support of the tribal population, it also issued a circular clarifying that obtaining consent of the gram sabha under the Act was no longer necessary to set up commercial projects on forest land.

What is needed most to strengthen the Forest Rights Act is an institutional system to support the process of implementation, including strengthening of the gram sabhas, restructuringthe functioning of the district/local level committees and improving the functioning of the monitoring committees. As Mr. Kumar concludes, “It’s a complicated issue and needs a well-planned resolutionrather than a pan-India order.”

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