Business Standard: New Delhi: Thursday,
June 30, 2016.
The secretary
of the Union tribal rights ministry, reversing the stand of his subordinates,
and going existing regulations, has said that forestlands can be diverted for
mining and other industrial purposes if no claims have so far been lodged for
community ownership by tribals and other forest-dwellers under the Forest
Rights Act.
The top
officials view could lead to large tracts of forestlands, which were till now
off limits, be opened for mining and other non-forest activities. A study
suggest that more than 98% of the potential community rights area by tribals
and other forest-dwellers across the country remained to be settled by
mid-2015.
At present,
to be in compliance of the Forest Rights Act, the environment ministry too has
regulations in place where it verifies that tribal rights have been settled one
way or the other on a green patch before industry or miners get clearance to
use the forest after taking consent of right holders. The Supreme Court order
in the Vedanta mining case too reinforced the need for such regulations.
Through
2014-15 the tribal affairs ministry repeatedly and strongly opposed any change
in these regulations and the dilution of tribal consent power when these were
proposed by other ministries. But the views of the secretary, who took over
charge recently in February 2016, could remove the opposition partially, if his
legal interpretation of the Forest Rights law and regulations is implemented in
all cases.
His opinion
comes in a case where the Chattisgargh government had cancelled the rights of a
tribal village to ensure mining by Rajasthan Vidyut Utpadan Nigam Limited
(RVUNL) with Adani Minerals Private Limited. The state government passed on
order on January 8, cancelling the community land rights of the tribals in the village,
given under the Forest Rights Act (FRA). The government, in the order, stated
that the villagers had been using their legal rights over the forest land to
stop work of mining in their village, which falls in the Parsa East and Kete
Besan coal block.
The state
government contended the village, Ghatbarra, had put its claim under the FRA
after the government already allocated the village’s forest land that falls in
the coal block. Documents show the village did write to the authorities
repeatedly against the mining and only after two years it finally got the
community rights, which were recently cancelled by the state government in
January 2016.
The ministry
of tribal affairs is in charge of implementing FRA. Documents accessed through
RTI show that the tribal affairs minister received letter from a member of the
Parliament, Husain Dalwai, ‘expressing anguish’ over the matter citing news
reports on the incident. Other organisations from the state too wrote to the
ministry giving documentary proof of the happenings.
The tribal
affairs ministry began an internal assessment of the rare case. The officers in
charge concluded that the Forest Rights Act did not allow anyone, including the
government, to take away or cancel the rights under the law once they had been
accorded. The officials also noted that under section 4(5) of the FRA
forest-dwellers cannot be evicted or removed from forest land under their
occupation till the recognition and verification process (of their rights) is
complete. The officials also noted that the guidelines issued under the law
“has very clearly laid down that diversion of forest land for non-forest
purpose cannot be undertaken without the completion of FRA process and
certification of gram sabha to that effect.”
They noted
that the Chhattisgarh government’s decision was illegal and the officials were
liable for punishment under the law. The officials said that ministry, using
its legally granted powers, should issue orders to Chhattisgarh government to
restore the community rights of the village.
This was agreed upon by joint secretary level officer in the ministry in
charge of the Forest Rights Act in the ministry as well. He wrote, “Both on
facts and matter of law the said cancellation of community forest right is
arbitrary and violation of letter and spirit of the law, i.e. Forest Rights
Act.” He noted that the land of the tribal village could only be acquired by
the government following the process laid down in the Land Acquisition Act once
the rights of the people had already been conferred under the Forest Rights
Act.
When the
matter came to the secretary, Shyam S Agarwal, in March 2016 he asked for more
information on the case. He then put on record a query, “Whether in
anticipation of possible CFR (common forest right) under FRA, no other
activity/diversion on forest land should be done or not?”
He answered
the query himself right below the question, stating, “To my mind, the answer is
no. That is if no claim as per FRA is lodged, then diversion for other purposes
as per existing other statutes.”
He
highlighted and underlined the word ‘no’ in his paragraph.
The file
noting show he then went against the advice from his subordinates to state, “In
any case, in my opinion, it is premature at this stage to issue a direction that
community forest right cancellation is bad in law.”
He said if in
an-going NGT case the tribunal favoured the green clearance given to the mine
then the Chhattisgarh government can continue with taking away the village’s
forest rights. In case the NGT cancels the permission for mining then it can
hand back the rights to the tribals.
He said, “We
may as above issue an office memorandum clarifying position as above. Ask the
state government not to cancel community forest rights on undisputed parts
(i.e, to the extent no mining rights are granted).
Or as an option
he said, “Just refrain from doing anything at this stage. This is more so
important as the matter is sub-judice.”
Subsequently,
the ministry did not order the state government to restore the tribal rights.
It instead sent a letter in April 2016 merely ‘requesting’ it to “ascertain the
factual position in this regard along with provision of law under which the
cancellation has been made and intimate this ministry at the earliest.”
The
secretary’s decision, could now have implications far beyond the Chhattisgarh
case. The Washington-based think tank Rights and Resources Initiative along
with Vasundhra and Natural Resources Management Consultants assessed in July
2015 that only 1.1% of the potential area for community forest rights adding up
to 32,198,305 hectares had been recognised by then by various state
governments.
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