India: Forest rights and wrongs

By: Bittu Sahgal

Date: November 15th 2016

Source: The Indian Express

Soon after daybreak, driving through the forests of Sonitpur district in Assam in late 2005 we made a quick U-turn when a herd of around 15-20 elephants, young ones in tow, emerged from the forest to forage right next to the road leading to the fishing camp at the Nameri Tiger Reserve. The night before, we watched as elephants raided paddy stocks in a village near Balipara, unafraid of the mashaals (fire torches), drums and yells of the distressed villagers. Even as we turned, the matriarch followed our vehicle for 20 metres or so, trumpeting protectively from around 30 metres to make sure we got her message loud and clear.

I know this part of India well and before my eyes, I have seen some of India’s most precious forests sacrificed to satiate political expediency using mistaken notions of tribal rights as a fig leaf to exchange land for votes. On a site visit to the same area 10 years later, I found myself speechless at the sheer destruction. In a decade, virtually the entire standing forest on the right bank of the Jiya Bharoli river had vanished. In its place were sparse mustard fields and scattered tree stumps that spoke of once-tall hardwoods whose trunk girth would have been three or four metres at the very least.

Similar stories unfold across vast areas of Sonitpur. We had predicted such disaster when the Forest Rights Bill was being debated way back in 2004-05. We asked, at the very least, a consensus be arrived at that individual rights not be included. A leading NGO, Kalpavriksh, amongst the most vociferous supporters of the flawed FRA, agreed with us in principle but went forward with other groups who threw such suggestions to the wind. Today, much too late, Kalpavriksh agrees that a site-specific amendment to Section 3 (1) of the Forest Rights Act (FRA), 2006, should have been made in Sonitpur to roll back the 2005 cut-off date to 1980, “in consonance with the Forest Conservation Act.” Subsequent to that admission, no further action was taken.

As we have seen happen time and again with urban slum rehabilitation and regularisation schemes, the horse had bolted. The barn door was never shut. What ails the FRA?

To begin with, the Act was intended only for tribal communities, but this was later extended to all forest “dwellers”. Second, individual rights trumped community rights which is evident from the statistics taken from the website of the ministry of tribal affairs from the report on FRA implementation. According to these statistics, people are predictably keen to claim individual rights as this enables them to encash real estate and other financial opportunities. Third, no time limit was definitively set. Had a cut-off date been effectively applied, we would not be in a position where even today “deforest, encroach and claim rights” continue unabated because gram sabhas would have finalised all rights within two years. And the date was 1980 in the first version of the bill.

Here is what the learned Supreme Court judges had to say in an order passed in response to Writ Petition(s)(Civil) No(s) 109/2008 and 50/2008.

“Mr Shyam Divan, learned senior counsel for the petitioner placed before us certain statistical data which indicates that as on September 30, 2015, approximately 44 lakh claims for recognition of the rights under the above-mentioned Act and grant of pattas came to be filed before the authorities competent to deal with those claims in various states out of which some of the claims were accepted and some were rejected. From the information placed before this court by the petitioners, it appears, approximately 20.5 lakh claims were rejected in the above-mentioned 44 lakh claims. Obviously, a claim in the context of the above-mentioned Act is based on an assertion that a claimant has been in possession of a certain parcel of land located in the forest areas. If the claim is found to be not tenable by the competent authority, the result would be that the claimant is not entitled for the grant of any patta or any other right under the Act but such a claimant is also either required to be evicted from that parcel of land or some other action is to be taken in accordance with law.”

Nevertheless, encroachers are not being evicted even after their claims have been rejected. What is more, most lands allotted are unfit for agriculture, condemning claimants to work as landless labour on the properties of richer landholders. The allotment of such lands means that the tribal families have to survive on sustenance farming without access to water, sanitation, health, education and medical facilities.

Even today, the cutting of trees continues. None of the cutting was or is legal. The tribals never had and still do not have title to the land. The elephant herds have vanished, but every once in a while, they return to raid crops. As many as 30 were poisoned in Sonitpur by angry farmers. Neither humans nor elephants are safe any longer. The Kameng-Sonitpur Elephant Reserve (KSER) offers refuge to elephants, in a small measure, but almost daily, as a direct result of human interventions, reports of “wild elephant herds creating havoc in Sonitpur,” appear in the media.

The situation is equally distressful in states such as Maharashtra, Jharkhand, Chhattisgarh, Madhya Pradesh, Bihar, Orissa and Andhra Pradesh. Here, too, in order to grow food on forestlands, locals were encouraged to deforest areas with political patronage. The objective is achieved by burning trees and ground vegetation, then planting food crops on the ash-fertilised remains. But, because the vast bulk of the forest nutrients are quickly washed or blown away, such farms are incapable of offering anything more than borderline livelihoods to farmers. This is precisely what gave rise to “marginal farming”, coined by economists to describe millions condemned to penury. Far from creating self-sufficiency, this has ended up eroding India’s food security, in part because downstream farms find themselves deprived of the flood, drought-control and nutrient-spread gifted by upstream forests.

As I write, the discussion seems Daliesque. The FRA provides a 90-day limit for filing claims. The Act was passed in 2005 (Rules in 2007). Can we seriously be discussing new claims even today? Surely we should collectively agree that no limits be allowed or extended under any circumstances? Remember, that our protected area network barely covers three per cent of our land and acts as an insurance against climate change, floods and droughts. Under no circumstances should such lands be open to the claim of any private rights whatsoever. In fact, it is vital that the long-pending rules to define Critical Wildlife Habitats be framed without further delay and that those deemed to be encroachers vacate such biodiverse lands.

Social activists and wildlife groups must both accept that no rights can be championed, nor wildlife saved, if the forests at the centre of the tussle vanish. Social activists talk of “harmonious co-existence”. But I ask — can 6,000 people live in harmony in 600 sq km with 60 tigers and over 600 elephants with the nearest market for forest produce being six km away? Given that the FRA is a reality and without going into the merits or demerits of the legislation itself, I wonder whether it might be possible for those living next to forests to form cooperatives with the singular purpose of restoring eco-systems back to health on their own lands. This may be easier said than done, but it is possible if a basket of benefits can be channelled to communities that opt for eco-system farming, instead of bajra, wheat or paddy. If this is achieved, the answer to the rhetorical question “Can the Forest Rights and Wildlife (Protection) Acts be friends?” might well be “Yes!”. But I am not holding my breath.

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