Report of the Western Ghats Ecology Expert Panel - Part II : Actionable points for the WGEA : 3. Towards Multi-centred Governance in the Western Ghats : 3.5. Forest Rights Act :-

Opinion
       13/12/2018
                1607.

Sub : Report of the Western Ghats Ecology Expert Panel - Part II : Actionable points for the WGEA : 3. Towards Multi-centred Governance in the Western Ghats : 3.5. Forest Rights Act :-

Ref :  3. Towards Multi-centred Governance in the Western Ghats :  3.5. Forest Rights Act :-

3.5. Forest Rights Act :-

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, passed in 2006, is a landmark legislation that aims to undo the historical injustice done to tribals and other forest dwellers as a result of non-recognition of their forest rights.

However, it has not yet succeeded fully in achieving its objectives because of some difficulties in implementation.

Lands classified as forest, constituting about 23% of the country's land area, are inhabited by some of India's poorest and most marginalized communities, who traditionally have depended on these areas for cultivation, collection of minor forest produce, use of water bodies, grazing of animals, etc. The historic significance of the Act was because forest laws often deemed tribals and other forest dwellers as ‚encroachers‛ or criminals while exercising their customary rights. The Forest Rights Act was intended to address this situation by providing legal recognition to forest dwellers' rights, while making forest management more open and participatory.

The difficulties in implementation of this Act have resulted in the majority of claims by forest dwellers in many States being rejected: in some States, rejection rates are higher than 60%. The failures to recognize community rights, especially to minor forest produce, have been even more widespread. Due process in deciding on the claims has been compromised in many cases, and specific documentary evidence is being insisted upon, contrary to the letter and spirit of the law. Gram sabhas are not being held at the village or community level as required by the law, and where these are held, their recommendations are often not given sufficient weight.

One of the key innovations of the Act was to provide recognition to communities’ rights to use, protect and conserve community forest resources. This was intended to be a first step to shift towards a democratic frame of forest governance. However, these rights have not been recognized in almost all states.

 Box 12: N.C. Saxena Committee report (2010) on the status of implementation of FRA :

3.5.1 : The current state of implementation (of FRA) is characterized by a series of serious problems, including in particular : -

1. Constitution of Gram Sabhas is at the panchayat level, rather than at the village/hamlet level. As is evidently clear from section 2(g) and 2(p) of the Act, the gram sabhas are to be convened at the hamlet level in schedule V areas, and the revenue village level in other areas. However, in a number of states, such as AP, WB, and UP, these are being called at the panchayat level, which is illegal.

2. Extensive and wrong rejections, primarily due to hasty enquiries and lack of a thorough examination of the rejected cases by senior officials. Claimants whose cases are rejected are not given any ‚reasonable opportunity‛, as provided in Rule 4(c). Decision rejecting the applications has not been communicated to the claimant in writing anywhere, with the result that the people have not been able to exercise the right to appeal. The Tribal Development Departments of the state governments have neither cross-checked the work being done at the village level by the revenue and forest officials, nor did they engage any outside agency to do independent assessment.

3. Powers of the FRC and GS are exercised by the village level officials, and the non-officials of the FRC and GS are just putting their signatures to the reports written by the officials. The village level enquiry reports have not been verified (not even one percent) by block or district level officials.

4. As per rule 10, the State Level Monitoring Committee has to devise criteria and indicators for monitoring the process of recognition and vesting of forest rights; and monitor the process of recognition, verification and vesting of forest rights in the State. It was for the Tribal Department in the States to develop qualitative indicators, call meetings with peoples’ representatives, hold public consultations, put pressure on the Revenue and Forest Departments at the district level to do justice to the forest dwellers, and improve communication between officials and the people. In most states, on the other hand, it appears that monitoring has been only statistical with a focus on quick disposal, rather than on ensuring that all occupations are regularized as per law

5. In almost no instance has the SDLC and DLC pro-actively provided maps, documents, and evidence to FRCs and GSs, though this is required by the FRA.

6. Though the FRA provides for multi-stakeholder verification and decision-making at various levels, in many places the opinions of forest staff/officers appear to have over-ridden all else. This is due to lack of interest and capacity in Tribal Department officers to handle matters of forest rights. These departments are used to giving scholarships and grants to beneficiaries, but have no experience of dealing with programmes that require inter-departmental coordination. Most nodal officers were thus quite happy collecting statistical information (often from FD) on FRA, but took no initiative in verifying the figures, arranging for a supervision infrastructure, or assessing the quality of performance of districts.

7. Evictions are taking place in violation of Section 4(5) of the FRA, which states: ‚Save as otherwise provided, no member of FDST or OTFD shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete‛. There have been widespread reports of evictions in violation of this provision, before and during the tenure of the Committee. There is little evidence that such illegal actions have been dealt with seriously by either state governments or by MoEF and MoTA.

8. OTFDs: The committee has observed that, in all the states where FRA is being implemented, OTFDs have been generally excluded from the claims process on the grounds that they have not been cultivating the claimed plot for 75 years. MoTA needs to clarify that the requirement ‚for at least three generations prior to December 2005‛ applies to the residency clause only, and relates to the recognition of a non-Scheduled Tribe person as an OTFD under the Act. This requirement does not relate to the parcel of land for which a claim is being made, or to the forest on which other rights are being claimed. The claimant need not have occupied the land, or been using the forest, for 75 years. If s/he was dependent on the forest as of 13 December 2005 for her/his bona fide livelihoods needs as defined in Rule 2(b) of the FRA Rules, s/he would be eligible under the Act.

9. Non-recognition of community forest resource rights and other non-land rights.

3.5.2 : Progress on community forest rights (CFRt) :

The foundation of FRA is the assertion that only security of tenure and formalized recorded rights in favour of forest users would lead to its responsible management and sustainability. The Act and the Rules made under FRA, therefore, give details of institutional arrangements for the protection, management and regeneration of community forest resources (CFR). These are defined in section 2(a) of FRA as customary common forest lands where the communities had traditional access, or which could be construed to be customary boundaries of a village, in other words, those areas where communities can demonstrate their traditional access.

Despite the fact that the main intention of FRA was to promote community participation and management, our field work shows that recognition of individual rights has taken precedence over community or group rights, and the focus seems to be confined only to land rights for agriculture – one amongst the thirteen sets of rights recognized under the Act. Out of the remaining 12, at least the following seven rights constitute community forest rights (CFRt), the formalization of which has unfortunately been ignored by the district administration : -

1. Community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes; (Section 3(1) (b))

2. Other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities; (Section 3(1) (d))

3. Rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities; (Section 3(1) (e))

4. Right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use; (Section 3(1) (i))

5. Rights which are recognized under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State; (Section 3(1) (j))

6. Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity; (Section 3(1) (k))

7. Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal (Section 3(1) (l))

In addition to these seven rights, section 3(1)(c) recognizes right of ‘ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries’, and this right is both for individuals and communities of the village.

3.5.3. : The reasons for neglect of the community perspective in the implementation of the Act are summarized below : -

 FRA has largely been portrayed as a legislation to provide individual land rights, especially during its promulgation and in its first phase of implementation. At several sites the Committee was told that the SDLCs or DLCs were first dealing with IFRs and would only then get into processing CFRt. Many officials stated lack of staff as one reason for this, though it is not clear why they cannot deal with CFRs which are always going to be much less in number than IFRs.

 MoTA (Ministry of Tribal Affairs) has not collected information on cases and area for which community rights under section 3(1)(b) to (m) have been granted by the states, and thus has not been able to build any pressure on the states for ignoring to recognize these rights. It is simply not known how many claims have been made/accepted/rejected at various levels, of each subsection of section 3 that provides for community rights.

 The data are further complicated by the confusion prevailing in the field between Section 3(1) and Section 3(2); several states appear to be reporting the latter for the former; many of the claims currently being classified as CFRt claims in the State or MoTA databases, are actually claims for development facilities under Section 3(2). Even MoTA is unable to provide figures separately for the two sub-sections.

 There is a lack of baseline information on the existence of rights (recorded or unrecorded), and existence of customary practices relating to management, use, and protection, in most places. This makes difficult any robust comparative assessment of the situation prior to and after the FRA’s promulgation.

 The number of applications received for CFRt is very low, and acceptance abysmally lower, compared to the potential if judged by the number of villages that are living within or adjacent to forests.

 Where CFRt claims have been made or accepted, the extent is often much less than actually used or managed by the community.

 There is little thinking on the status, management, and conservation of areas with CFRt, and specifically CFRe (community forest resource), including issues of relationship of the Gram Sabha with existing agencies managing these areas, and of the complementarities and contradictions with other laws operating in such areas.

 Even where there is knowledge about the fact that CFRt can be claimed, at many sites communities or relevant officials are not clear on how to determine and verify such rights, and so have not started the process. There is also confusion on how to determine the boundaries of CFRt (especially in the case of the claim to CFRe); or on whether CFRt can be claimed over more than 4 hectares, even though the FRA is clear that this limit is only for rights claimed under Section 3(1(a). The process has also got stuck in places where more than one village has a claim on the same forest area, and no process has been put in place to reconcile such overlapping claims (though the FRA has provided for such a procedure).

 Amongst the various kinds of CFRt, the right to manage/protect CFR given in Section 3(1)(i) is one of those with the least awareness. One reason for this is that this sub-section is not specifically mentioned in Claim Form B that is attached with the Rules; this inexplicable and unexplained omission has caused many communities to not claim this right even when they have claimed other CFRt.

 At many sites, misleading information on CFRt has been provided by officials or civil society organizations, to communities (not necessarily deliberately, since in many cases such officials or NGOs have themselves misunderstood the FRA’s provisions). Amongst the most common of these is that CFRt relate only to development facilities listed under Section 3(2). Also widespread in some states is the belief that CFRt need not be applied for, since people are already benefiting from existing arrangements such as nistar rights, JFM/CFM agreements, Van Panchayat agreements, etc.

 At many places where communities have attempted to make CFRt claims, they have encountered various kinds of obstructions, such as refusal to give relevant records, such as maps, refusal to accept claims because the land being claimed is located in ‚Joint Forest Management‛ areas, etc.

There are a number of issues where there is lack of clarity, on the relationship between the GS and the Forest Department, and the relationship between the FRA, IFA and WLPA, in relation to CFRt. These are yet to manifest themselves across most of India, simply because CFRs have hardly become operational as yet.

Overall, given the serious inadequacies in implementation of CFRt at all levels, there is a need for a 2nd phase of FRA implementation in all states, in which primary focus is on CFRt. The 20 July 2010 letter of MoTA to all states also indicates such a course of action. While this belated letter is appreciated, it is important for MoTA and all state nodal agencies to go beyond this by issuing clarifications and instructions.

Progress with CFRt implementation needs to be monitored as a special exercise, as part of the overall monitoring process by the National Forest Rights Council. A simple, ‘how-to’ guide on CFRt needs to be produced by MoTA which can be adapted by state nodal agencies as appropriate, and issued in large numbers to communities and relevant officials.

NEXT : Poor regulatory oversight and institutional coordination :-

To be continued ..

JAIHIND
VANDE MATARAM

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