The rejection of forest clearance for mining Niyamgiri is indeed a historic decision. It has vindicated the historical injustice done, in this case to Dongaria and Kutia Kondh tribal communities, due to the non-recognition of their forest rights on ancestral lands and their habitat in the consolidation of state forests stated in the preamble of the Forest Rights Act (FRA), 2006. Millions of the Kondhs’ forest dwelling compatriots, displaced and dispossessed without any rehabilitation or compensation for decades due to non-recognition of rights on their own lands prior to enactment of the FRA, have not been so fortunate. This is the same Act which was attacked by foresters, wildlife conservationists and the Ministry of Environment and Forests (MoEF) itself as the biggest threat to forests. The irony of the situation must not be missed – it is the FRA which saved Niyamgiri from MoEF’s own, till now unilateral, powers for permitting destruction of forests under the much exalted Forest Conservation Act (FCA), 1980.
Technically, Vedanta has been hauled up for violating 3 laws – the FRA, the FCA and the Environment Protection Act (EPA). The company’s violations under the FCA and the EPA have been known since 2004. The Central Empowered Committee (CEC) set up by the Supreme Court itself had reported these violations for fraudulently obtaining environmental clearance for the alumina refinery in 2004. Instead of revoking the refinery’s environmental clearance and stopping it’s construction till an alternative source of bauxite had been found, as recommended by the CEC, the Supreme Court chose to look the other way. Once the refinery had been built, Vedanta started demanding permission to mine Niyamgiri due to the substantial investment already made in the refinery. This led to the Supreme Court granting the controversial forest clearance for mining Niyamgiri to Sterlite instead of Vedanta whose violations of environmental norms and indigenous people’s rights had already hit international headlines. This must have been the first time that the highest court of the land invited a company different from the party to the dispute to accept its conditions for mining a particular area, and that too when it was well known that the majority ownership of both companies was in the same hands. Another remarkable dimension of the Supreme Court judgement was that it justified granting forest clearance for the benefit of supposedly starving tribals. But it did not consider soliciting the Dongaria Kondhs’ views on the matter by making them a party to the case. It also scornfully brushed aside a writ petition filed on their behalf pleading that their sacred Niyamgiri be saved from destructive mining.
So which provisions of the FRA finally compelled MoEF to reject mining in Niyamgiri? These need to be understood for their game changing implications for curtailing MoEF’s unilateral powers for diverting forest land under the FCA. These should also impact the Supreme Court’s self-appointed role of taking over the country’s ‘forest’ management through the forest bench (recently increased to two) dealing with the Godavarman PIL. The aspect common to both proceedings has been the total absence of the primary stakeholders in forest lands, their longstanding inhabitants and users, whose rights have been totally ignored despite the majority of them enjoying special protection under Schedules V and VI of the constitution. In fact, the struggle for the Forest Rights Act originated to counter the devastating impacts of several orders of the forest bench combined with the undemocratic decision making mandated by the FCA on the country’s forest dependent communities.
The FRA essentially challenges the legal (rather illegal) processes by which large areas of diverse categories of customary lands have been (mis) classified as ‘forests’ bringing them under the purview of the FCA. The principal law under which the government may notify any land as forest remains the colonial Indian Forest Act (IFA), 1927. Even the IFA, however, protects the pre-existing rights of local communities on that land till these have been enquired into. Chapter II to V of IFA clearly provide that no forest or land should be so notified unless the existing rights of individuals and communities have been fully enquired into and taken into account. Sections 3 and 29 allow only lands that are government property or where government has some proprietary rights to be declared PF or RF. Sections 7 and 29 require an inquiry into pre-existing rights of villagers before such declaration. Sections 6, 21 and 31 specify that a vernacular notification of intent is essential. All these sections have been violated in the creation of new reserve and protected forests in most tribal areas particularly after independence.
Let us look at the national picture. 774,740 km2 representing 23.57% of the country’s area is ‘recorded’ as forest to which the Supreme Court has extended application of the FCA. To this are being added lands conforming to the dictionary definition of forests, irrespective of ownership, also under Supreme Court orders. Only 51.6% of this land, however, consists of reserve forests and another 30.8% of protected forests. Even in large areas of these reserve and protected forests, no final notifications have been issued after the required settlement of rights under the IFA. Although people enjoy extensive rights in protected forests, these are totally ignored during the granting of forest clearance under the FCA. As much as 17.6% of the total recorded forest area consists of ‘unclassed’ forests which have never been legally notified and got ‘recorded’ as forest under different historical circumstances. The largest area of ‘unclassed’ forests consists of community lands under diverse customary tenures and multiple uses protected by Schedule VI, other constitutional provisions or other state laws in the north eastern states. Yet, the Supreme Court has extended the FCA to these lands with the MoEF or the Amicus to the court failing to bring to the court’s notice that these lands are neither under forest department jurisdiction nor does the department have any legal authority to regulate their use. This has created an absurd legal contradiction which is getting murkier by the day.
In Niyamgiri’s case, as noted by the Saxena committee, out of the 3 forest blocks in which the proposed mining area fell, one consisted of an unclassed and unsurveyed jungle block where all traditional and customary usage of forests continue as claimed by local forest dwelling communities. The other two blocks were notified as ‘proposed’ reserve forests 30 years ago with no subsequent settlement of local people’s rights. Consequently, their tribal and other inhabitants have the right to continue all their customary uses which they were prevalent at the time of their notification as ‘proposed’ reserve forests in 1980. Had it not been for the FRA, all these legal and constitutionally protected rights in a Schedule V area would have been illegally extinguished through permission for the diversion of forest land under the FCA without so much as informing, leave aside consulting the customary right holders. This situation prevails not only in Niyamgiri but in large parts of Orissa’s (and other states) forested tribal areas. 40% of Orissa’s supposedly ‘reserve forests’ have never been surveyed and a major problem being faced in the recognition of rights under the FRA is that the forest department does not have any maps for such areas. As much as 76 percent of the Schedule V area in the state has been declared state property (50% as forest and 26% as revenue land), making the state the biggest encroacher on tribal lands even as it is constitutionally bound to protect tribal resource rights.
The FRA aims to remove this fundamental defect in the current forestry legislation. The following objectives of the FRA were found relevant to the Niyamgiri case:
First, it recognizes that forest dwellers have got labeled as encroachers in their own ancestral lands; and this denial of their customary rights was an act of historical injustice. The Act therefore is a corrective measure that recognizes (NOT settles) pre-existing rights. As a result, it is applicable in retrospect.
Second, despite the massive misinformation campaign that the FRA would privatize tribal community lands through distribution to individuals, at least 8 out of the 13 listed rights are community rights. It is the non-recognition of the Dongaria and Kutia Kondhs’ habitat and community forest rights which saved Niyamgiri from destruction. As Jairam Ramesh’s order on Vedanta states, “Simply because they did not live on the hills does not mean they have no rights there. The Forest Rights Act specifically provides for such rights but these were not recognized and sought to be denied”. It is for the first time that the economic, religious and cultural rights of local communities have been used as a basis for rejecting forest clearance.
Third, the Act authorizes the transparent forum of the village assembly (Gram Sabha) to receive, verify and recommend claims for forest rights. Section 5 of the Act also empowers the holders of any forest rights and their gram sabhas to protect wildlife, forests and biodiversity and their habitat from any form of destructive practices affecting their cultural and natural heritage.
Fourth, the Act provides that no claimant shall be evicted or removed from forest land till the recognition and verification procedure is complete.
It is these provisions of the FRA which, for the first time, now bind MoEF and the Forest Advisory Committee to ensure the following before granting permission for diversion of forest land for non-forest activities:
1. The process of recognition of forest rights is complete in the area concerned
2. The concerned forest dwellers have given their consent to such diversion
3.The completion of the process and the grant of consent are certified by the gram sabhas concerned
Since 1980, more than a million hectares of forest lands have been unilaterally diverted by MoEF for dams, mines and industry without ever considering either the rights or the views of the local communities dependent on those lands. The FRA has finally changed that by granting local tribal and other forest dwellers a decisive say in such decisions.
The Forest Rights Act is the only legislation, other than the Panchayats (Extension to Scheduled Areas) Act, that provides statutory recognition to community resource rights. The violations of both laws are having a devastating effect on adivasis and other forest dwelling communities. The Niyamgiri decision implies that the MoEF must now apply the same criteria while diverting any forest land in the future and to review all forest diversions permitted since the FRA came into force on January 1, 2008. But will it do so? The shocking grant of FINAL forest clearance for the Polavaram dam being referred to as the next Narmada, involving the submergence of a much larger area and the displacement of close to 200,000 predominantly tribal people without ensuring the recognition of rights and seeking the gram sabhas’ consent, indicates an unwillingness to respect the law uniformly. Clearly, the forest dwellers struggle for democratizing forest governance is far from over.