 "Tribal affairs ministry changes stance on tribals' forest rights")
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.
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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.
