Download Report- Critical Observations on the Implementation FRA #Mustshare


The very enactment of the historic Forest Rights Act, 2006 by the Indian Parliament in the country
after the 60 years of India’s independence is a landmark constitutional reform. Campaign for
Survival and Dignity (CSD) played a vital role in mobilizing the tribals, forest dwellers and people’s
representatives at different levels in whole country and successfully got this Act passed by the Indian
Parliament which admitted for the first time in the history of India to have done historical injustice to
the tribals and forest dwellers before and after India’s independence. We believe that FRA aims at
reddressal of a numbers of problems arose due to the draconian Acts like Indian Forest Act, 1927 and
Land Acquisition Land, 1894 which were used to evict the tribals and the forest dwellers from their
homes and shelters like goats and cattle. The Forest Rights Act, 2006 not only revived the tribal self
governance regime in scheduled 5th area enforced by the Central PESA Act, 1996 but also it extended
the provisions of the PESA even to the non scheduled area(whole State) empowering the Village
Council, the Gram Sabha to decide over their fate and fate of their resources which has been upheld
by the Supreme Court, the highest Court of the nation in the Niyamgiri case on 18th April 2013.
All the State’s Apparatus has now to accept that “Gram Sabha” is the lowest unit or form of
“Government” having its own exclusive legislative, executive and judicial power and authority over
its stipulated areas like any other forms of Government at Block, District, State and Central level.
The FRA has also raised fundamental questions over the on-going Panchyatitaj systems;
representative system runs in different State and aims at implementation of direct democracy
sidelining the over empowered bureaucracy. Forest Rights Act, 2006 has also challenged the age-old
State hegemony over forest protection and conservation in the name of “scientific forest
management” and has strengthen the conservation regime handing it to the community people who
live and die in the forest.
As per the India State of Forest Report, 2011, the recorded forest area of the country is
769,538 km2, accounting for 23.41 % of the Country’s geographical area. The State of Odisha
constituting only 4.73 of India’s geographical area have around 7% of the total forest area of the
country. While the reserved forest is spread over 26329 km2 constituting 45.28%, Protected forest
spread over 15525 km2 constituting 26.70% and the Un-classed forest is found in 16282 km2
constituting 28% of the total forest area which is 37% of the total geographical area of the State.
However, as per the Odisha Government Report there is 15022058.35 acres constituting 39.16 % of
forest land in the State to its total geographical areas. It is reported that out of this 39.16 % of forest
land, the State Forest Department have 43.32 % of forest land including the reserved forest in the
State while around 52.26 % are Revenue forest land including the protected forest and rest 4.40 %
District Level Committee (DLC) forest land, the revenue land mentioned as DLC land in 1997 as per
the direction of the Supreme Court in connection with WP(c) No. 202/1995.
There is in total 8.21% of tribal population in India. Likewise the tribal population in Odisha
constitutes 22.13 % as per the 2001 census report mostly residing in the rural area. Also Govt. of
Odisha while targeting the implementation of the historic Forest Rights Act, 2006 in the State
referred the State of Forest Report, 1999 which stated that out of 46,989 villages in the State, there
are 29,302 villages located in close vicinity of forest which are to be covered under FRA. The GoO
also has estimated that out of 6420514 rural households, there are 1762342 ST households
constituting 27.44 % in the State. Besides, there is large number of Other Traditional Forest Dwellers
in the State depending on the forest for their subsistence needs to be covered under FRA. Besides,
Odisha has been the hub for the experiment of all the sensational issues in the country and always
been in the limelight of media may be for its ample deposit of mineral and natural resources or for
displacement, poverty, protest etc.

We believe that the effective implementation of this historic Act in its true letter and spirit would
definitely change the scenario of Odisha and resolve most of the socio-economic problems being
faced by the State including the problems of Outlawed Naxal. There has been much progress of
settlement of Individual forest rights of tribals and convergence of developmental progrmmes in the
State from last 2008 in comparison to the Other States of the country. However, still the State has
miles to go before reaching to the destination. After the enactment and implementation of the forest
rights act in the State, Campaign for Survival and Dignity (CSD), Odisha is engaged in making forest
dwellers aware on FRA and actively watching the development and progress of FRA implementation
in the state. And whenever found loopholes in FRA implementation, we have appraised the GoO
through discussion and even through Protest Rally and Dharana. Besides, in many districts, the
different community based and civil society organizations affiliated to the CSD, Odisha have played
a vital role in facilitating forest dwellers in filing forest rights claim. Whenever and wherever we
found rights violations of FRA, we have rush the place, met with our aggrieved people and have tried
to resolve them discussing with the concerned SDLCs/DLCs. We also documented the violations
stories and have shared them with the SLMC and also with the media. We have had special Interface
and discussion with the SLMC on the various FRA implementation issues on 28th Feb 2009, 9th Jan,
2010 and 13th Jan, 2011 etc.
We appreciate Government of Odisha, especially the SCST Department for sincerely
bringing monthly FRA Progress and Status Report which is again unique in comparison to other
State of the country. We also sincerely appreciate the Department for bringing a number of positive
circulars, clarification, guidelines to facilitate the FRA implementation process in the State. Thanks
are also due to the Ministry of Tribal Affairs, Govt. of India for looking after the implementation of
the FRA in the State and guiding the State Government for its better implementation.
This “Critical Observations Report” is based on our involvement and experience in last 10
years of struggle and engagement in the grounds FRA implementation. We have been analyzing the
monthly FRA implantation Progress report, identified a number of issues and have appraised the
government of Odisha time and again to resolve them. Even the GoO has considered some of them
and have brought changes too i.e issuance of ST certificate by the Gram Sabha, segregation of CFR
titles distributed under Section 3(1) and 3(2) etc. Of course a lot more has to be done. This time, our
“Critical Observations and Comments” are made against the monthly “FRA Progress Report Table”
produced by the SLMC from last 2009. Basically the comments are based against the data shown in
different Columns of the latest “FRA Progress Report Table up to 30th April, 2013” and issues
involved therein with the information that we have from the grounds. Besides, we have requested and
sought more information and clarification on the status of other important forest rights recognized
under the forest rights act. We expect the GoO, especially the FRA Nodal SCST Department would
appreciate our efforts and act upon the issues being raised.
We are very much thankful to all of the individual members of the CSD, Odisha, and other
civil society organizations working on FRA in different districts of the State for sharing with us all
necessary information to complete this observation report. Hope, friends interested to know and
understand the various FRA implementation issues in the State of Odisha would find this “CSD,
Odisha’s Observation Report” useful one.
20th May 2013 CSD, Odisha
csdorissa@gmail.com

Download full report here

 

#India- Tribal affairs ministry against MoEF move to dilute forest rights Act #CSR


 

MoEF notification on 5 February says linear projects such as roads, canals wouldn’t require gram sabha consent
Liz Mathew   |  Neha Sethi  ,           First Published: Fri, Mar 29 2013. 10 28 PM IST, livemint.com
 
The clearance of such developmental projects shall be subject to the condition that the same is recommended by the gram sabhas, according to the text of the forest rights Act. 
  
New Delhi: A move by the ministry of environment and forests (MoEF) to exempt promoters of so-called linear projects such as roads, pipelines and canals from seeking the consent of village councils in forest areas will likely be a non-starter unless the government moves to amend the forest rights Act (FRA).
MoEF issued a notification on 5 February that such projects, including power transmission lines, wouldn’t require the consent of gram sabhas, or village councils. It acted in the face of criticism over the delay of many infrastructure projects for want of environmental approvals.
But the measure won’t have any constitutional validity until FRA is amended, an official in the tribal affairs ministry said, indicating a possible face-off between MoEF and his ministry.
The person did not want to be identified given the sensitive nature of the ongoing debate within the government.
The tribal affairs ministry has raised its concerns in a letter to MoEF asking it to revise the 5 February notification.
“The concern of this ministry is that it be made amply clear that the rights of FDSTs (forest-dwelling scheduled tribes) and OTFDs (other traditional forest dwellers) on forest land proposed to be diverted must get recognized and vested under the FRA (without any exception) before forest clearance is granted to any such proposal,” said the letter, a copy of which was reviewed by Mint.
The 5 February notification, posted on the MoEF website, states that the decision was taken after consultations with an inter-ministerial committee. However, the tribal affairs ministry contends that it hadn’t been consulted.
The matter was raised at the last meeting of the cabinet committee on investment, but no decision has been taken. “The matter is still unresolved,” said the official cited above. The cabinet committee on investment has been set up to speed up the clearance of big infrastructure projects and is headed by the Prime Minister.
A top environment ministry official said he wasn’t aware of the reservations of the tribal affairs ministry. “The notification that we issued was done after consultation with the tribal affairs ministry, then why will they have a problem?” said the official, who requested anonymity.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, stipulates that projects such as schools, hospitals, anganwadis (child and mother care centres), fair price shops, electric and telecommunication lines, tanks and water bodies, water pipelines, rainwater harvesting structures, minor irrigation canals, vocational training centres, roads and community centres require the permission of village councils.
“The clearance of such developmental projects shall be subject to the condition that the same is recommended by the gram sabhas,” according to the text of the Act.
While clearance for projects is given by MoEF, and the tribal affairs ministry doesn’t play a role in that, it comes into the picture if there is a dispute over gram sabha approval or if “someone contests the clearance given”, said the tribal affairs ministry official cited in the first instance.
In such cases, the tribal affairs ministry will have to go by FRA, the official said.
Clause (11) of FRA states that the tribal affairs ministry is the nodal agency for the implementation of its provisions, the same person said. That’s why the Act will have to be amended for the notification to come into effect, he said.
“How can a memorandum or a notification from a ministry repeal an Act passed by Parliament?” the official said.
The MoEF official cited above said nothing was done by the environment ministry on its own. “It was only after a meeting that the Prime Minister had with both the environment minister, Jayanthi Natarajan, and the tribal affairs minister, V. Kishore Chandra Deo, that it was decided to issue the notification,” the official added.
To be sure, it was unlikely gram sabhas would oppose development projects such as roads, electric transmission lines or drinking water pipelines. FRA, one of the United Progressive Alliance government’s landmark items of legislation in its first term, was passed by Parliament in 2006, said the second official.
Only the nodal ministry, in this case the tribal affairs ministry, can issue fresh guidelines or notifications amending the rules.
“However the tribal affairs ministry has not yet issued any such notification that calls for changing the provisions in the Act,” the same official said.
Tushar Dash, a researcher with Vasundhara, an Orissa-based not-for-profit organization that’s working on forest rights and conservation, said a group of states and non-governmental organizations had raised the issue of the dilution of tribal rights with the tribal affairs ministry earlier this month.
“We had told them to intervene in this matter and make sure that the forest rights Act does not get diluted,” Dash said, adding that if the tribal affairs ministry had written to the environment ministry, then it was definitely “a good move on their part”.

 

 

Violation of law in land allotted to tribal people, claims study on Forest Rights Act


MEENA MENON, The Hindu,  mUMBAI mARCH 25,2013

 Sloppy implementation of the Forest Rights Act (FRA) has resulted in large tracts of forests being cut down and claimed as cultivated land in Maharashtra, according to a study. Data shows that in Jalgaon district alone, more than 79 per cent claims over cultivated forest land were apparently on ineligible lands and about 25 per cent had forest cover. In Thane, adjacent to Mumbai with a high land value, about 12 per cent of the land allotted to tribal people was ineligible according to the eligibility criteria under FRA.

Maharashtra government had, a few years ago, relaxed the measurement for land claimed by tribal people and this has caused discrepancies in settling claims under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA). A study done by a private company in 2012, at the behest of the State Forest Department, used a database from the Tribal Research and Training Institute (TRTI), Pune, and the National Remote Sensing Centre (NRSC), Hyderabad. Satellite maps and GPS data were collated to examine changes after 2005 in tree cover, vegetation and land-use in forest land under forest rights (FR) claims and those which have recognized rights of cultivation.

TRTI has the data of 1,89,400 forest plots under Forest Rights (FR) claims, which are measured using GPS and uploaded on its website. Each land under claim has a unique 13 digit code comprising alpha numerical identification for district, tehsil, village and initials of the claimant.

Of the 3, 44,330 claims received in Maharashtra, 2, 34,242 claims were rejected, according to latest data from the Union Ministry of Tribal Affairs website. Only 1, 05,930 claims have been approved, of which 99,368 titles were distributed for about 2, 50,000 hectares . Activists and tribal people have been contesting the delay in allotting rights and the high rejection of claims.

However, Thane district, with one of the highest number of claims in the State, did not provide details of the 13 digit-code for all claimants, and in fact, cleared cases without GPS measurement, the study says. The government blames the high rate of false claimants for the rejections. Gadchiroli, Chandrapur, Nasik, Raigad, Gondia and Bhandara districts also provided little data. Overall, data only for 40,428 approved cases was made available for the study from 19 districts covering 1705 villages.

In 2,433 cases, out of a total of 36,640 cases analysed, there was a road/ river/nallah within the plot. The highest number of such cases is in Dhule and Nandurbar districts. As seen on 2005-06 satellite images, about 15 per cent approved cases are on lands having forest or no agriculture. Data using Cartosat-1 satellite images of 2005-06 and 2007-08, shows that in 789 cases out of 35, 044 approved FR cases, land-use changed between the years 2005-06 to 2007-08. Large numbers of such cases with land-use change are in Jalgaon, Nandurbar, and Dhule. Out of 539 FR cases from Jalgaon district, 321 cases are from three villages of Chopda Taluka — Umarti (118), Satrasen (113) and Melane (90).

The data reveals that there was a huge trend of putting barren forest land to agriculture between 2005 and 2008 to stake claims. About 37 per cent of barren area was converted into agriculture and 33 per cent was converted from forest cover to agriculture. Jalgaon has the highest area so far of forested areas and barren forest land converted to agriculture. An analysis of 5,373 FR cases on satellite images of 2007-08 shows that in these 789 approved FR cases, land-use change occurred after 2005. The study says this implies that people first claimed rights of cultivation, irrespective of the fact whether it was under cultivation on December 13, 2005 (as mandated by FRA) or not and later that forest land was cleared for cultivation. Though the percentage of land-use change detected is less than one per cent in terms of total area, about 641 hectares forest land appears to have been converted from barren land to agriculture and about 580 hectares of forests to agriculture.

In a separate set of data, since satellite images of 2011-12 were available for six districts, only 26,807 finalized FR cases were analyzed, covering 45,034 hectares in Jalgaon, Dhule, Nandurbar, Nashik, Thane, and Gadchiroli districts. It was found that 39,996 (89 per cent) hectares is under cultivation within the approved plots in 2011-12 which is a four per cent increase from 2007-08, Forest/tree cover and barren land has reduced from 910 to 433 hectares and 5476 to 4605 hectares respectively between 2007-08 and 2011-12. This means that people have cleared forest cover and started cultivation after FRs have been recognized on these lands, the study points out.

In these six districts, at least 5037.88 hectares of ineligible forest land on which Forest Rights have been recognized is still not converted into cultivation as per 2011-12 satellite images. In FR cases’ analysis on Cartosat-1 satellite images of 2007-08 and 2011-12, it has been observed that in 827 cases out of 26, 807 finally recognized FR cases, land-use changed between 2007-08 to 2011-12.

The percentage of land-use changes in finally recognised FR cases shows an increase in 2011-12 (3.1 per cent) compared to 2007-08 (2.3 per cent). In an analysis of claims applied for but not recognised, it increased from 12.4 per cent to 18.3 per cent. Land use changes violate the Forest Conservation Act, 1980 and data from all districts needs to be revisited for verification of claims and ensuring forests are not cut down, said a forest official.

 

Inside report from the Supreme Court Niyamgiri case against #Vedanta #mustread #mustshare


Dongria demonstrate at Lanjigarh, 6th Dec 2012

This report comes from Foil Vedanta’s friend in the court room as the Niyamgiri case continues…

19th February 2013, foilvedanta.com

Last week, the Union Ministry of Environment and Forests (MoEF) filed an affidavit in the Supreme Court in the ongoing Vedanta case, saying the government and not the tribals and forest dwellers will have the final say in diversion of forestland for mining projects. FRA states that forest dwellers cannot be resettled from forestland unless their traditional rights over such land are recognised, and a 2009 order of MoEF had made it mandatory for all the projects which require forestland diversion to obtain consent of the affected gram sabhas (village councils). In December last year, the ministry stated in the court that the forest dwellers protected by FRA cannot be displaced except for protection of wildlife. However, in a change of stance on February 15, the ministry said in the court that consent of the people will be required only in cases where displacement of large number of people is involved and which affect the quality of life of the people. While the ministry did not even mention its 2009 order in the affidavit, it said the mining proposal should not be allowed because Dongria Kondh tribals have been protecting and worshipping Niyamgiri hills for centuries as their sacred deity. Mining on that land will undermine the customary rights of Dongria Kondhs to manage their own affairs in the matter of religion and fundamental right to conserve their culture. This stance provided the Orissa Mining Corporation (OMCL) and Sterlite Industries (the Indian arm of Vedanta) fodder and weakened the case against Vedanta. Clearly, the ministry has backtracked when asked to take a stand on the issue by the court.

The day started with Mr.Sundaram laying arguments for Orissa Mining Corporation (OMCL) and Sterlite Industries, and making a desperate case for why mining should be allowed in the Niyamgiri hills. He stated that the question of ecology and environment had already been tackled in previous judgements in November, 2007 and August, 2008 which had considered all the alleged violations under the EPA and FCA. Hence, this need not be discussed further and the only thing that the counsel needs to counter is the accusation of violation of FRA. Mr.Sundaram stated that there are no individual claims under FRA remaining and all claims had been settled — except 185 pending cases, which however, are not under the ambit of the proposed mining area. At this point, Justice Aftab Alam interjected to say, “Mr.Sundaram, this statement of yours that there is no claim remaining in the mining area is rather suspicious”. To this, Mr.Sundaram went on to rapidly quote a whole string of data about claims which have been settled and about land allocated. Then he said that 6 community claims were made to the Gram Sabha. Out of the 6 cases, 3 cases were claims on “pinpointed” areas and those claims had been settled and 16055 acres were allotted. However, the remaining three claims are for the whole mountain as a sacred hill, which Mr.Sundaram tried to say is not valid, and he went on to make a whole host of ridiculous arguments to prove it. The fact that FRA mandates that forest dwellers cannot be evicted from the land under their occupation till the recognition and vesting of rights under the Act is complete applies to the land under occupation only and not to the undefined territories used by the communities, he said.“Recognition of community rights can be a continuous process”, screamed Mr.Sundaram, “besides, the project is not evicting the tribals from the land under their occupation; the vesting of individual rights is already complete”. He went on to explain how the meaning of “habitat” under the FRA should be read only as occupational right, and not as usage rights to a whole area, in this case, the whole mountain. Territorial right under the FRA, Sundaram claimed, has to be with “holding the land of occupation”, and community right as the “right to specific identified areas”, as in the case of the 3 community claims that have been settled. He further argued that only in the case of occupation, forest rights need to be recognised at the advent. Hence, according to the counsel, the 3 community claims to the whole mountain, “have no merit”. To this, Justice Aftab Alam said that this decision had to be made by the concerned gram sabha. Sundaram vehemently replied, “one gram sabha cannot hold state to ransom” —– “I am the State government, it is my mine and my minerals, my usage cannot be prevented by one gram sabha!” he asserted.

Even more ridiculous than the above arguments was when Mr.Sundaram sought to put forward the case for why the community claim to the mountain as a place of worship is not valid. Mr. Sundaram claimed that the FRA nowhere talks about religion, and hence sacred rights cannot be interpreted into the Act. He said that the FRA is not where scared rights come from, but from Article 25 and other provisions of the Constitution. At this, Justice Aftab Alam asked, “Why are you trying to split up rights? Sacred rights are as much part of identity as any right, which makes it a question of survival. You cannot tell the tribals take your God to another place.” Mr.Sundaram went on trying to desperately prove his point with statements such as this, “Religious right is different. Does your right to believe in all pervasive lord be taken to imply that even the building that we are arguing at this moment is an intrusion into God’s space?”; “Religious right gives you the right to worship, but not the right to property”; “there needs to be atleast a shrine or something, when one’s belief is so intangible and nebulous as in the case of the Dongria Kond, one cannot take it to the extreme in the forms of rights”; “there is anomaly, when you say this mountain is my God and then also graze cattle there”; “these community claims to the whole mountain were instigated by NGOs, it never came from the people”; “the question is how far we can stretch religious rights? Does FRA prevent development?”. This line of argument was also made possible by the weakened stand taken my MoEF in its affidavit in the court, which basically reduced the whole issue of compliance with FRA to the violation of sacred rights of Primitive Tribal Groups (PTGs).

After arguing that religious rights do not include rights to property and that there needs to be tangible limitations to what right to worship encompasses, Mr.Sundaram very cunningly tried to make the case for how the “wrong hilltop” was being talked about. Presenting a map to the judges, he showed to the them how the highest peak of the mountain is not Niyamgiri, but Nimagiri, which is not under the proposed mining area —- “Nimagiri is the abode of their god and there is also some sort of concrete structure of worship at that peak”, he claimed. He talked about how the Saxena committee report had got it all wrong because it says that the Dongria Kond worship the highest peak, which in their report is Niyamgiri, which is factually incorrect. Mr.Sundaram thus, made the submission that the mining site is not the abode of God for the Dongria Kond, as it is not the highest peak. At this point, the bench asked, “So since Nimagiri is the highest point, are you trying to infer that it is the sacred peak and abode?” Mr.Sundaram also gave the judges copies of a 1986 publication by the Socio-cultural Research Institute in Bhuwaneshwar. He read out various passages from this book by ‘experts’, to show that “Niyam Raja is obsolete”, and since there are small structures dedicated to Niyamraja outside every village hut of the tribals, “it is in their houses that the gods are”. Here, Justice Aftab Alam made a very pertinent point, when he said, “Mr.Sundaram, it has happened so many times in history that some learned persons have told people – this is your religion, this is what your belief should be. We have to clarify what the tribals see as their belief.”. It is important to mention here, an exchange that took place in court during this conversation. Mr. Sundaram proclaimed, “Belief is not sacrosanct”. At this Justice Aftab Alam asked, “Bauxite is sacrosanct then, is it?”, to which Mr.Sundaram replied, “No, but Economic Development is sacrosanct. We are talking about one of the most backward districts in the country here.”

During this hearing, Mr.Sundaram also again reiterated the Orissa state government’s grievances on the Saxena Committee report. He mentioned how one hour after the state government had met with Jairam Ramesh raising objections to the report, Mr. Ramesh had gone on to announce the cancellation of mining based on the report. Mr.Sundaram complained that the report was biased, “I only had one meeting with NC Saxena, where he appreciated the implementation of FRA in Orissa as the minutes show”. The counsel also challenged the CEC’s calculation that with expansion of the refinery, bauxite from the mountain will run out in 4years — instead, they argued that it would last for the next 25years. The counsel also brought up the issue of the Mines and Minerals Act, and said how the FRA cannot neutralise the provisions of this Act, as the FRA itself states that it is in addition to, and not in derogation of other Acts. They also argued that the issue of expansion of the refinery is not relevant, as it is a separate matter from mining. The case was also made for rehabilitation and compensation, and about how the mining process will and has already generated employment in the area, while bringing in development and infrastructure in the form of schools, hospitals, roads etc.

20th February

The hearing started with the Solicitor General Mohan Parasaran laying down his case. He stressed how the compliance with FRA needs to be “independently” acknowledged, and final clearance cannot be considered only after community rights have been secured. He also stated that Vedanta was guilty of not only non-compliance, but also of violation of numerous conditions. On being asked by the bench, the Solicitor General Mohan Parasaran listed in a detailed manner a series of 13 violations by Vedanta. Mr. Parasaran said that the court by its Aug 8, 2008, order had granted the clearance only for stage one of the project and the automatic clearance for stage two did not flow from that and it could not be reduced to a mere formality. Mr. Parasaran said the court by its order had itself said that the Ministry of Environment and Forest would decide clearing the stage two of the project in “accordance with law.”

Mr.Parasaran argued that since the meaning of habitat is ambiguous under the FRA, “it should be given the widest possible meaning, so as not to restrict the scope of the right, especially when it is a remedial right. He then elaborated on the ‘integrated’ way of life of the Dongria Kond, and the forms of their livelihood which included grazing, horticulture etc. — making the case for why access and usage rights to the mountain range is important to the tribals in numerous ways. Territorial rights under the FRA thereby, needs to be interpreted “beyond just village boundaries”. During this argument, Justice Aftab Alam asked, “But will tribals continue to be tribals all life? If offered the benefits of the modern age, will they not accept it? Will they live for ages and ages on grazing for their livelihood?”. Here, the Solicitor General, pointed out how the FRA provides for infrastructure and amenities such as schools, hospitals, roads, aaganwadis, drinking water, minor irrigation facilities, tanks, fair-price shops etc. Justice Alam was not convinced, and commented, “These amenities are beneficiary in nature to be provided by the state, what about generation of employment?”. There were other statements such as there from the bench “What if the tribals don’t want to continue how they are living and they want modern facilities?; If 5000 of the 7000 Dongria Kond say that they want development, you cannot tell them that – no you cannot have these modern amenities, as that is not what the FRA expects you to do.; What is it that the tribals really want?”. The bench also commented that it will have to be ascertained how much of the infrastructure and development espoused by Vedanta is actually there on the ground. They acknowledged the possibility that the tribals may want these developmental benefits, but still not want the company Vedanta to be there. To this, Mr.Sundaram from the company’s side interjected saying, “There is NO objection from tribals, my Lord”.

The Solicitor General also read out various sections from the NC Saxena Committee report, which included testimonials from individuals of the Dongria Kond who would be affected by the mining. When one of the testimonial was being read out, Justice Alam expressed confusion saying, “Why are people saying ‘we cannot leave our land’? Why this apprehension that they are going to be displaced, when the company says that there would be no displacement for mining? If the consequence of mining operation is that it will displace the tribals, that is a very serious matter and it demolishes Mr.Sundaram’s arguments from yesterday”. Mr.Parasan responded that even if mining might not be directly displacing the people, it has a severe impact on their lives. To this, Justice Radhakrishnan remarked, “By that logic, we would have to stop all mining in the country”. The Solicitor General argued that it does not always have to be the case, but sought to explain how with respect to Vedanta the consequences of mining would be disastrous on the Dongria Kond. He further read out the section on “Impact of Mining” from the NC Saxena Committee Report to support his argument.

Mohan Parasaran then went on to make the case for how religious and sacred rights come under the ambit of the FRA. He pointed out to clause 3.1.(j) which states “rights….which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State” and to clause 3.1.(l) which states “any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers……….”. He reasoned that religious right in the form of right to their sacred mountain for the Dongria Kond has to be read as a customary and traditional right, which falls under the jurisdiction of the FRA. To this, Justice Radhakrishan enquired, “But the clauses you mention are under the heading of Forest Rights, why include religious right in an Act such as this?”. The Solicitor General responded saying that, “The FRA should not exclude any right for a forest-dweller.” He also referred to a previous court judgement with regard to a case involving Shias and Shunnis, that mentions “customary right to perform religious practice”.

The afternoon session of the hearing started with the Mr.Parasaran reading out the summary of the NC Saxena report, on request by the bench. When he was reading out the paragraph in the report that talks about how no consultations where conducted with the gram sabhas about this project, Justice Alam remarked how it was “a completely opposite picture” to what Mr.Sundaram had presented the day before. When the question about the the fact that the process of determination of rights under FRA had not been completed at the level of the gram sabha, the bench enquired if “the union can vest gram sabhas with such powers that the powers of the State government is nullified”. To this, the Solicitor General pointed to specific articles in the Constitution that empowered gram sabhas in this manner. He also mentioned that given that the mining area is notified as a Scheduled area, gram sabhas here especially have a strong mandate. Vedanta was hence, also guilty of non-implementation of PESA. Also he clarified that MoEF cannot grant clearance unless FRA procedure is fully complete, irrespective of the fact if people have filed claims or not.

The next submission of the day was by Advocate Sanjay Parekh who is representing the tribals in the case. He first expressed his grievance that he had not yet been allowed to present his case, given that the tribals ought to be the main affected party in this case. Mr.Parekh began his submission by quoting a paragraph from the book “Out of This Earth” by Felix Padel and Samarendra Das, where to the question of “What is your religion?”, the Dongria Kond tribal replies, “Mountains”. In fact, the OMC lawyer objected to the reference from this book, saying that it was written by academics and activists who are politically motivated and have led a campaign against Vedanta. Mr.Parekh used this instance to illustrate how we have to understand and be sensitive to the culture and beliefs of the Dongria Kond, as it is very different from the mainstream perceptions of our society. He argued that the determination of the rights vested in this context has to be done by the gram sabha. Just a few minutes after Mr.Parekh had started his submission, the bench bombadred him with a whole host of questions that were steeped in a very poor understanding of tribal issues and values, and also displayed a highly patronising narrative. Some of those questions were – “Have the tribals been made aware of the material benefits that will come to them under the orders of this court? Only once they are aware of this, can they give conscious and informed consent!; Can you read out any section in the NC Saxena Committee report where they have specifically rejected the modern benefits?; The tribals have been living this way of life for hundreds of years, you want them to do that for hundred more years? They cannot remain primitive forever; Are you Mr.Parekh, of all people, trying to say that they are destined to live in poverty for the next hundred years also?; They are being told all negative impacts of mining, the FRA does not ban them from choosing modernity, if they see it as better for them”; As long as this court is there, how can their land be taken away? By an order of this court guaranteeing the benefits of modernity, wouldn’t we undo some of the historical injustice you refer to Mr. Parekh?”. Justice Aftab Alam emphasised that “this court will take utmost cognisance of the wish of tribals, but the wish must be conscious after being made aware of the good and bad impacts of mining”, although he said that “it will not be determinative”. To these various statements, Mr.Parekh tried to make the case for how the bench is using the wrong lens to look at the matter. “If we ask critically, development benefit has gone to whom, My Lord?”, asked Mr.Parekh. He argued how we cannot use the same parameters used for mainstream society to decide on what the tribals want – for instance, for most tribal communities, happiness is not derived from material wants, but from a sustainable way of life that lives in harmony with nature. “This integrated way of living should be protected”, said Mr.Parekh. Mr.Parekh also presented some individual tales of Dongria Kond tribals and their opinions about the adverse effect that the proposed mining will bring to their way of life. At this, the bench interjected to say, “I am sure the other side can present 15 affidavits from members of the Dongria Kond, along with photos, stating how the mining activity will change their lives for the better. One or two incidents cannot demonstrate the larger picture – which is what we are interested in”. Here, Mr.Parekh talked about the pollution of ground water caused by the refinery, and as well as how if the mining started, the source of the rivers at the top of the mountain, which allows for their livelihood and survival will be destroyed. These he claimed are gross and large scale violations of rights which has and will put the survival of the Dongria Kond at stake, and also provides us with a larger picture. Given the unethical practices of Vedanta so far, the Dongria Kond cannot trust the company at all. Mr. Parekh pointed out that “it is the responsibility of the state to provide and facilitate for development. The state has not been doing that, and how can we expect a private company to come in now and do this?”. He also mentioned that even in the case of the Jarava tribes of the Andamans, it was the same debate with regard to development through tourism. In this case, the court decided in favour of protection of the tribals.

The session ended with a short submission by the representative of CEC, Mr. Raj Pajwani, who argued that once mining starts, there might not be physical displacement, but the habitat of the Dongria Kond will be destroyed – “once you cut off the source, then what happens to rivers and agriculture?”, he said. The CEC’s submission also reiterated the various violations of procedure committed by Vedanta.

21st February

I was not present in Court this day. The day started with Mr.Parekh finishing his case on behalf of the tribals from the day before. The CEC also made another submission. It ended with OMC and Vedanta side presenting a response. The final arguments for the case have been laid down now. The bench has reserved judgement on the matter.

 

#Chhattisgarh, a primitive tribe in trouble #indigenous


KAWARDAH (CHHATTISGARH), February 28, 2013

Suvojit Bagchi

Hut of Primitive Tribes crushed by administration, hundreds homeless. Photo : Special Arrangement
Hut of Primitive Tribes crushed by administration, hundreds homeless. Photo : Special Arrangement

Administration argues pulling down their huts will ensure ‘safety of wildlife’

A day after the Union government announced a Rs.100-crore grant for Chukutiya Bhunjia of Orissa, a primitive tribe which lives on the eastern border of Chhattisgarh, 30 huts of the Baigas, another primitive tribe, were razed to the ground by government officials in the western part of the State.

The incident took place on February 18, adjacent to the Bhoramdeo Reserve Forest in Kawardah district. While officials reasoned that it was done to ensure the ‘safety of the wildlife,’ the eviction is in violation of the Forest Rights Act (FRA) of 2006.

The two overlapping villages, Rajanacha and Baijadhap, in the district wore the same look as that of villages ravaged by members of the Salwa Judum in south Chhattisgarh between 2005 and 2009. A team of 20 forest guards and the police raided the villages with “clubs, axes and pistols,” said Bijadhap residents, an allegation not denied by officials.

While no villager was beaten or detained, the officials axed all stocky twigs that held the interwoven mats of dry leaves. A similar operation was carried out in the same villages two weeks earlier. “Officials have threatened to… arrest us, if we resettle here,” said Budhni Bai, an old woman who was unsure about her age.

As 30 houses of sun-dried leaves, grass and twigs were crushed, roughly 60 Baiga families of 200 members became homeless. The families stuffed a few household items in large cement bags and were sleeping in the open on plastic sheets spread over their destroyed home. Around 100 Baiga men and women are busy building their houses before Chhattisgarh’s cruel summer sets in. “The other day when a hailstorm started, I freaked out; he ought not to have been born now,” said Amrita Baiga, 25, feeding her three-month-old son Gopal.

The Baigas are not sure when they built their first house in Kawardah. But going by the map produced by Jawaharlal Nehru’s tribal affairs adviser, Verrier Elwin, in his book The Baiga, the “extraordinarily shy” community is in Kawardha and adjoining hill areas for centuries. Yet, the community does not know why they are asked to “vanish.” Bijadhap residents said they were “asked to leave Bhoramdeo and settle in Bijadhap around 2006 by Forest Department officials.”

The FRA says forest-dwellers have complete right to forestland and they cannot be evicted. In case of their displacement for development, gram sabhas will have to approve the government’s offer in writing. Moreover, ‘a resettlement or alternatives package’ has to be prepared to secure livelihood for the affected individuals and communities, and “no resettlement shall take place until facilities and land allocation at the resettlement location are complete.” These norms are violated in the eviction of the Baigas. Let alone the consent of the gram sabha, even Assistant Commissioner of Tribal Affairs Department M.L. Deshlahre was not aware of the eviction; he came to know about it from this correspondent.

Divisional Forest Officer Vishwesh Kumar told The Hindu that the Baigas came “on their own” to the plains from Bhomradeo in 2006 as they faced “water and other agricultural problems” in the forest. “How can we give settlement according to the FRA since it is meant for only those who are resettled before 2006?”

Chhattisgarh’s tribal affairs experts differ. Speaking on condition of anonymity, one of them said it was not correct to say the displaced Baigas came from the forest “on their own” before 2006. “The Forest Department evicted the Baigas before the FRA came into force. Hence, the tribals should be adequately compensated as per the FRA and the rehabilitation policy of the Central government, which is in place for a longer time.”

On the other hand, Mr. Kumar said the administration was “trying hard” to find a solution, and the issue had been referred to the higher authorities.

An activist, who is trying to organise the Baigas, said the archaic wildlife laws and the highhandedness of Forest Department officials helped Maoists carve out a base in south Chhattisgarh. “The government is making the same mistake in the rest of the State.”

 

#India-Union Tribal Affairs & Panchayati Raj minister, May your tribe increase #tribalrights


From a soft-spoken, easygoing politician, KCS Deo has emerged as a combative, ‘activist’ minister for tribal affairs.
Bhavdeep Kang

January 17, 2013, Issue 4 Volume 10

Photo: Shailendra Pandey

VYRICHERLA KISHORE Chandra Suryanarayana Deo — Kishore to his friends — has upset many during his tenure as Union Tribal Affairs & Panchayati Raj minister. For those who dismissed the soft-spoken, easygoing political middleweight as a “sweet nothing”, the “activist” minister’s relentless crusade for tribal rights and trenchant (albeit politely worded) criticism of party and Cabinet colleagues comes as a surprise.

On tribal rights, Kishore has taken on his own government, countering repeated attempts to dilute the Forest Rights Act (FRA) with a volley of letters to Cabinet colleagues, chief ministers and governors. His role has been crucial at a time when various government agencies have been seeking to set aside the provisions of the Act, which demand consent of the tribal dwellers before diverting forestland for infrastructure or industry.

Given his seniority — he is 65 and a sixterm MP — he might have expected highprofile portfolios. Panchayati Raj is regarded as second string and Tribal Affairs is a relatively new ministry; earlier clubbed with Home, then Welfare, then Social Justice, it was given independent status in 1999. Kishore is the fourth minister to hold the portfolio and the first to give it teeth.

Kishore implicitly believes mining in tribal areas is the biggest challenge faced by forest dwellers and the root cause of Naxal insurgency. “All of us are talking about left-wing extremism. The PM has described it as a threat to national security. People must wake up and realise that this is due to the neglect and extreme exploitation of forest dwellers,” he says.

Forest Activism
7 April 2012
Writes to AP governor on ‘illegal’ mining leases
24 May
Writes to CMs on FRA, also to governors on special powers
28 June
Writes to Naveen Patnaik on Kalahandi
August
Amends rules to give FRA teeth
29 September
Cancels AP mining leases, writes to AP CM
Octobe
States objection to NIB overruling FRA/PESA
19 November & 7 December
Writes to Jayanthi Natarajan on FRA
January 2013
Sets up board to fix fair price for forest produce

Kishore is not opposed to mining, per se, but firmly believes that forest dwellers ought to have a share in the proceeds of mining, a decisive say in the pace and manner of mining and a right to forest produce. What he does not say on record (but conveys in his letters to the Minister of Environment and Forests) is that the Forest Department is the biggest hurdle in securing justice for tribals.

He fired his first salvo on behalf of forest dwellers last April, in a letter to Andhra Pradesh Governor ESL Narasimhan, demanding that leases granted to the AP Mining Development Corporation (APMDC) in violation of the FRA be cancelled. When he did not receive a response, he shot off a letter to CM Kiran Kumar Reddy cancelling the leases in exercise of his constitutional powers as Tribal Affairs minister — a first.

In his letter to Narasimhan, he points out that Vishakapatnam district, where APMDC has been granted mining leases, has become a hotbed of Maoist activity. The killings by extremists, he adds, have to do with the bauxite mining lobbies.

Kishore did his homework before taking on the AP government. First, he secured the Attorney General’s opinion on whether the governor had the power to cancel the leases granted by the state government. The AG concluded he did. Despite the legal go-ahead, Narasimhan chose not to take on the government. Kishore waited five months, then sent off a letter cancelling the leases: “By virtue of the powers vested in GoI vide Clause 3 of Vth Schedule of the Constitution… hereby directs the AP government to cancel the mining leases to APMDC immediately and report compliance.”

At the time of writing, compliance has yet to be received. The PM may well have to arbitrate between the minister and the CM and the results of that exercise would have immense significance. The PM is said to have reservations about Kishore’s leftof- centre leanings.

Meanwhile, Kishore busied himself with drawing Environment Minister Jayanthi Natarajan’s attention to the fact that her ministry made it a “practice of ignoring the FRA when diverting forestland for large projects”. He wrote: “I’m anguished to find that even five years after its enactment, the Forest Advisory Committee (FAC) continues to ignore this law’s existence.” The prior, informed consent of the gram sabhas is a mandatory requirement for diversion of forestland under the FRA and this provision is being blatantly flouted by governments.

He referred in particular to the clearance given by the MOEF to the Lara Thermal Power Project in Raigarh of Chhattisgarh, even while acknowledging that the mandatory gram sabha certificates had not been obtained! “Why is it (FAC) misleading the public into believing that these projects are in compliance with the law when they often are not?” he asks.

In a follow-up letter to Natarajan last month, he referred to the Niyamgiri case: “Proceedings are pending in the SC in regard to the proposed mine by Vedanta in Niyamgiri where people are seeking to argue that they can bypass, ignore or undermine the FRA in the name of advancing a project.” It behoves the government to take a clear stand that upholds the law and the rights of the people, he maintains.

Kishore has been urging state governments to take the FRA seriously. In a letter to all the CMs, he pointed out that community rights to pastures, water bodies and minor forest produce were not being given recognition; that tribals who sought to claim land rights were being given a fraction of the area to which they were entitled and claims were being rejected without assigning a reason. “As a result, forest dwellers are facing eviction or harassment by the authorities,” he wrote.

No issue is too small for Kishore to take up. Earlier in 2012, he wrote to Odisha CM Naveen Patnaik on Jamguda, a small tribal village in Kalahandi. The gram sabha had decided to harvest flowering bamboo, which (having flowered) would otherwise be destroyed. They proposed to sell it at 30 a pole and so earn about 1 lakh but the forest authorities refused to allow them to transport the bamboo. This random abuse of power, he said, “goes against our professed adherence to rule of law”.

Far more than his activism on tribal rights, his alleged description of AP Pradesh Congress Committee chief Botsa Satyanarayana as a “land, liquor and mining don”, in a letter to Sonia Gandhi, made a big stir. Kishore denied having written a letter. Correct, but only technically, sources say. It was an 11-page report, not a letter. And it severely criticised the functioning of the state government in general and the CM (and Botsa) in particular.

Kishore’s view on Kiran Reddy and Botsa are well-known, so the leak did not come as a surprise. It did, however, leave many wondering how this blunt, outspoken man had managed to fly below the radar for most of his four-decade-long political career. Given his distaste for lobbying, it was perhaps not surprising that he made it to the Cabinet only in 2011.

Last June, he took on the then home minister P Chidambaram over the massacre of 17 civilians in Chhattisgarh, saying his acceptance of the state government’s version that they were Maoists was “illinformed”. “By killing 17 innocent tribals, you are creating 1,700 Maoists,” he warned.

He was to take on Chidambaram as finance minister as well, when he opposed the National Investment Board’s reported attempt to bypass the FRA. While he didn’t do so directly, he said he would insist on the implementation of the FRA and the Panchayat (Extension to Scheduled Areas) Act. The UPA stood for inclusive growth and so, no development project could be more important than the livelihood of millions. If the two laws that offer protection to tribals were an obstacle to development, then the Tribal Affairs ministry could well be wound up.

One of his first initiatives after taking over was to amend the FRA rules, because some of them, he says “were against the spirit of the Act”. Manoeuvring the amendments through the bureaucracy took him a year. Currently, his big project is setting a minimum procurement price for minor or non-timber forest produce, so that tribals don’t get shortchanged on their bamboo, herbs, etc.

Like his Cabinet colleague from AP, S Jaipal Reddy, he enjoys a reputation for probity. Both come from privileged backgrounds; Kishore is from the royal family of Kurupam. Apart from that, they are at polar ends of state politics, coming from different regions. Neither has ever openly expressed an opinion, but it is widely accepted that while Reddy, who hails from Telangana, sees little alternative to bifurcation of AP, Kishore is opposed to it.

Nor does he have a soft corner for Jaganmohan Reddy. In fact, in his letter to the governor, he even took on the late YS Rajasekhara Reddy, duly deified by the state Congress (even as the Centre claps his son in jail), for having betrayed “our commitment to the cause of the STs” in granting the mining leases, which was “a flagrant violation of our Constitution”. When it comes to tribal rights, Kishore doesn’t believe in holding back.

letters@tehelka.com

 

Land and the people: ‘Injustice still being perpetuated by govts’


Picea smithiana forest. Around Vashist, Himach...

Picea smithiana forest. Around Vashist, Himachal Pradesh, India. (Photo credit: Wikipedia)

Published: Tuesday, May 1, 2012, 11:03 IST
By Subir Ghosh & Maitreyi Joshi | Place: Bangalore | Agency: DNA

State governments across the country have been both callous and tardy in implementing the Forest Rights Act. Claims are being rejected on flimsy grounds, with the rejection rate in as many as 11 states being over 50%. Karnataka stands fourth in the rejection rate with 95.66%, according to a compilation released on Monday by the Delhi-based Asian Indigenous and Tribal Peoples Network (AITPN).

As of January 31 this year, 31,68,478 claims have been received and 27,24,162 (85.98%) disposed of. In terms of rejection, Uttarakhand is on the top with 100% followed by Himachal Pradesh (99.62%), Bihar (98.12%), Karnataka (95.66%) and Uttar Pradesh (80.48%), The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is popularly referred to as the Forest Rights Act.

There are numerous reasons for this.
Paritosh Chakma, director of AITPN, explained, “Forest Rights Committees have not been constituted at the gram sabha level in several states while the forest officials have been obstructing the process of verification and decision making at various levels. The claimants are denied proper hearing of their cases and opportunity to file appeal against the rejections.”

The nodal ministry i.e. Ministry of Tribal Affairs (MoTA)has washed its hands off by maintaining that its role is limited to “facilitating and monitoring the implementation”. On the other hand, the nodal departments at the state level do not understand the provisions of the FRA and have been reduced to performing a ‘post office’ job of collecting statistical information and forwarding it to the higher levels.

The reason for Karnataka being high on the list was explained by Srikanth, the state convener of the Tribal Joint Action. He said, “Officials in the state government have not had a proper orientation about FRA. They do not even understand what the law implies and they have just been rejecting all the applications, stating reasons like ‘they do not live in forests’ and ‘they are not doing agriculture on the land’. They have missed out on the what the Act exactly means. It is because of the lethargy and negligence of all these people in power – forest and revenue officers – that several people are suffering.”

The problem has been complicated by the fact that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 (better known as the Forest Rights Rules, 2007) notified on January 1, 2008 actually overrules the Forest Rights Act to deny rights to the beneficiaries.

VS Roy David, national convenor of the National Adivasi Alliance, said “The central government had allotted lots of funds to organise training programmes to create awareness about the Act among forest and district officials, but very few training programmes have been held (which were poorly attended). Most higher officials who are supposed to implement the law are not even clear about what the law means.”

The AITPN report ‘The State of the Forest Rights Act: Undoing of historical injustice withered’ categorically says that there has been little willingness to implement the FRA in letter and spirit. The MoTA especially had been shirking its responsibilities. In 2010, the MoTA had claimed that “Though the Act was passed by the central government, the primary responsibility of implementing this Act lies with the state governments” and that its role is limited to only “facilitating and monitoring the implementation” of the Forest Rights Act.

Roy David said, “There is no political will to implement the law. Forest officials look at forests as commercial sites from which they extract resources. If the law is implemented, the people in power worry that they will not be able to enjoy the same powers anymore. Moreover, there is a lot of political interference; many areas are being declared as ‘tiger sensitive’, ‘heritage sites’ and ‘elephant corridors’ even before the Forest Rights Act is implemented. This clearly is the violation of law.”

There are other issues too. Contended Chakma, “The community forest rights (CFRs) are not being recognised and in many states even the forms are not supplied. The claims under the FRA are not being recognised in the protected areas such as national parks and wildlife sanctuaries. The ‘Other Traditional Forest Dwellers’ are being denied rights under the FRA.”

The president of the Karnataka Adivasi Forum, JP Raju, said, “The forest and district officials are supposed to conduct community surveys to understand the status of the forest dwellers, but they are not doing that. Most applications are being rejected stating that there are not enough evidence(s) and documents supporting the application.”

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