Can Tribals Continue to Depend on Forests ? International Conference on ‘Poverty Reduction and Forests – Tenure, Market and Policy Reforms, 3-7 September Sanjoy Patnaik Regional Centre for Development Cooperation, INDIA

Focus of Discussion Conservation and commercial – industrial approach to forestry both during British India and there after has substantially curtailed rights and privileges of forest dwelling tribals and in the process has alienated them from forests. The ability of progressive legislations in dealing with such alienation. Consultative processes in law making and the final outcome. Varied and convenient interpretations of law, classification and definition of forests to suit commercial interests enhancing state control vis-à-vis Forest Dwellers, esp Tribals.

Structure of Presentation Tribals, forests and extent of dependence. Growth and evolution of forest legislations – Forest Rights in British India and Independent India, and impact on forest dwelling tribals. PESA and Forest Rights Act Definition and classification of forests to suit commercial needs. Departmental control and influences on forest dependence Concluding thoughts

Tribals, forests and extent of dependence About 65% of the forest cover is in 187 tribal dominated districts, out of 50 districts which have dense forest cover, 49 are tribal districts. (MoEF). About 260 million people live below poverty line, out of which 100 million are partially or wholly dependent on forests, out of which 70 million are tribals. (FSI). Out of the total number of forest fringe villages of the country, 60 percent belongs to the Central Indian states. Similarly more than half of the forest area of the forest fringe villages of the country is in these states, so are the forest dwelling and dependent populace.

Tribals, forests and extent of dependence More than half of the population of Orissa are dependent on forests who constitute about 60 per cent of the total villages of the state (FSI). These central Indian states apart from having good area under forest cover also have major portion of the Schedule V areas of the country. Forest produces supports tribals for more than 6-8 months a year - from Nov to June - both in terms of subsistence and cash benefit. Studies have established that forest produces supplement upto 40% of their income.

Growth and evolution of forest legislations Forest Rights in British India Ownership of forests with local chiefs in medieval India with access rights to local communities. Teak a rich substitute to Oak – Shipbuilding, Railways and other colonial infrastructure requirements. Royalty rights on teak to East India Company in 1807 Unauthorized teak felling was prohibited Conservator became the sanctioning authority for teak felling and selling. By 1846 such sanctioning power got extended to all forests. By 1860, the Company’s sovereignty extended from teak to the total forestland. Rights and privileges to fuel, fodder and other local uses were prohibited.

Growth and evolution of forest legislations Imperial Forest Department brought into being in 1864 to consolidate state control on public forests and forestry was made a scientific operation. Legal framework through1865,1878 and1927 Forest Acts. Forest Administration for national development to be used by the whole body of taxpayers. Prioritized conservation over livelihoods through classification of forests and prohibition of customary use rights over forests. No settlement of rights, no space for meeting local needs, reservation of valuable trees, set of punitive sanctions, Thus started a purposive state intervention in forests. The 1927 Forest Act with minor modifications is still operational.

Growth and evolution of forest legislations Forest Rights in Independent India Post-colonial forest management in India can be classified under three broad phases; I Phase: 1947 to early 70s Forest for achieving national objectives - commerce, industry and agriculture - no space for locals. II Phase: 1970s to mid 80s Conservation pitted against livelihoods, powerful instruments for conservation developed. III Phase: 1988 till date Forest a local resource, partnership, complimentarity of conservation and livelihoods.

Growth and evolution of forest legislations Developments of legal instruments in the second phase was a response to forest and wildlife depletion in the first phase. As a continuity of the colonial forest policies, the legal instruments made in India were extremely conservationist in nature, did not differentiate between local and external use, stressed on excessive state control, restricted and did not recognize existing local use rights. The assumption was, forest has been destroyed by the forest dwellers/tribals and it needs to be protected/conserved from them.

Growth and evolution of forest legislations Diversion of forestland was not possible for the tribals when it came to settlement of rights but the rich and the influential could always use forests for non forest purposes with MoEF permission and with a high conversion rate. The Protected Area Network was enhanced but existing rights were not settled. The State reserved the right to evict local forest dwellers without settling their bonafide rights to residence. Gradually the Wildlife Protection Act becoming more and more stringent. Earlier it allowed continuance of rights within a PA, now it has been withdrawn. Conservation legislations like WLPA and FCA more powerful than rights providing legislations like the PESA, though the later is an amendment to the Constitution.

Growth and evolution of forest legislations Developments before PESA 73 rd Amendment to the Constitution Bhuria Committee to extend the provisions of the amendment to the schedule areas Major focus of Bhuria Committee; Community Resource, Traditional/customary rights, Gram Sabha. Panchayats Extension to Schedule Areas Act PESA was to the basis of future law making. States were supposed to make/change their laws as per PESA. Relevant rules to be framed to carry PESA forward.

Growth and evolution of forest legislations PESA in States States have diluted the provisions of PESA by changing the Central Act. Gram Sabha to manage community resources and resolve disputes as per the customs and traditions of the people.. ‘in consistent with relevant laws in force’. Majority of the powers entrusted with the Gram Sabha by the Central Act were subsequently transferred to the GP or Taluka Panchayat or Zilla Parishad, like Land acquisition, Grant of lease for minor minerals, minor water bodies, prevention of restoration of alienated tribal land,

Growth and evolution of forest legislations Most of the states have not defined community resource, therefore rights provided by PESA is non-existent. As per the Central Act, forests of all types to be regarded as community resource but the official interpretation is reserve forests are outside the purview of PESA for which PESA is not operative within a protected area. As per PESA that came in 1996, GPs in the schedule areas have ownership rights over MFPs. A year after, responding to a PIL, Hon’ble Supreme Court hold that no collection of dead, fallen, drift wood, grass etc can be made from the sanctuary area. In 1998, Government orders were passed for ban of MFP collection within the sanctuaries and in the 2002 amendment of WLP, it has been incorporated.

Growth and evolution of forest legislations This implies that even if in a schedule area, the WLP has overriding powers over PESA. In a plea to have a clear understanding of what does ownership over MFP actually meant, the MoEF came out with definition that had nothing to do with PESA prescriptions, 'ownership means revenue from sale of usufructory rights, i.e., right to net revenue after retaining the administrative expenses of the department, and not right to control'. States like Chattisgarh, Andhra did not give this ownership rights to GP. Whereas Gujurat devolved the ownership rights and restored it back to the FD on grounds of non performance by the GPs. Relevant Acts and rules were not changed.

Growth and evolution of forest legislations Developments before Forest Rights Act JPC Recommendations: Cut off date for settlement of rights be 13 th Dec 2005 Forest dweller – ‘in the forest’ or ‘in close proximity’. Critical wildlife habitat be decided by an independent and participatory process with definite role for Gram Sabha. Possibility for co-existence in a protected area. Shifting cultivators to have full powers over land use of any land falling within their traditional boundary.

Growth and evolution of forest legislations Developments before Forest Rights Act JPC Recommendations: Gram Sabha was the final authority in rights settlement and forest diversion. Minimum Support Price for MFP Community to have right, authority to use, regenerate, control or management community forest resources.

Growth and evolution of forest legislations Forest Rights Act Forest dwellers are the people residing ‘in the forest’ and not ‘in close proximity to forests’ and in recorded forests. Gram Sabha is neither the final authority in settlement of rights nor its consent is mandatory in forest diversion. The participatory process in deciding the critical wildlife habitat is lost by adopting a top down approach. Community will have no control rights over community forest resources. No minimum support price.

Increased Alienation Through Changing Nature of Definition and Classification Changing nature of definition of forests and the classifications obstructed determination and settlement of forest rights. Indian Forest Act 1865, defined forest as a ‘land covered with trees, brushwood and jungle’ – Supreme Court 1996 – Forest is an extensive area covered by trees and bushes with no agriculture. MoEF, Forest is “an area under Government control notified or recorded as forest under any Act, for conservation and management of ecological and biological resources”.

Increased Alienation Through Changing Nature of Definition and Classification Different laws, policies and orders defined and classified forests differently with definite and specific control regimes attached to it Underlying agenda was timber extraction Conservation at any cost – increased departmental control Changing definition would change restrictions in FCA and allow industrial presence in afforestation –

Increased Alienation Through Changing Nature of Definition and Classification Remove private forestslands from the purview of forest laws – In conflict with Supreme Court order of 1996 that brought all forestlands under provisions of forest laws. With this definition, diversion of a patch of land legally defined as forest can be possible – huge implication for plantation sector – Corporate. Implications on Forest Rights

Departmental Control Influencing Forest Dependence Commercial plantation by depleting large tracts of natural forests – for revenue and as part of plantation programmes. Limited local rights in carbon sinks since these plantation forests are grown strictly for conservation and being part of natural forests. National governments are attracting external donor support for creating such plantation forests. These plantation areas are earmarked for commercial and industrial use. Though no specific mention has been made about the exclusion of local use rights, apart from rights over NTFP, no specific right is expected to exist.

Departmental Control and Influencing Forest Dependence Most of the shifting cultivation and community protected areas are now getting converted into Compensatory Afforestation spots. Forest dwellers have no decision making role to play in the utilisation of the funds received under Net Present Value for diversion of forestland for non forest purposes. Increased role of mines/industries and corporates in forest policies.

Developments influencing Dependence Promotion of non forestry livelihood options and absence of forestry component in wage work. Extent of possession of homestead and cultivable land as well as availability of inputs mainly irrigation is influencing nature and extent of forest dependence. Visible decrease in forest dependence due to supplementary rural livelihoods programmes.

Concluding thoughts Need to recast FR Act as per PESA provisions. PESA be made the basis for tribal law making and to have overriding powers. Central committee to review PESA and the State laws be changed as per PESA. A paradigm shift in forest policy making that would balance conservation, development and livelihoods. Need for clear and common understanding on definition of forests, forestland and forest area. Major problems relating to forest rights have been caused due to lack of forest settlement. Therefore, claim settlement through proper procedure before declaration of Government forests.

Concluding thoughts Support systems for developing and promoting forest based livelihoods including minimum support system for MFP be strengthened. In all the forestry support programmes in a schedule area, Gram Sabha to play a decisive role. On priority basis, forest settlement process has to be initiated that would help define forest rights as well as enable the deserving to benefit from the FR Act.  Forest area outside reserve forests should be clearly delineated on ground to know the extent of forest rights.  Forest usage pattern to be assessed to develop written rights and concessions to establish forest rights in case of dereservation.