India’s new compensatory afforestation rules dilute rights of forest dwellers

By Mayank Aggarwal

  • India’s environment ministry has notified the Compensatory Afforestation Fund (CAF) Rules 2018 to ensure proper utilisation of Rs 660 billion for plantation of trees across India.
  • Environmentalists and civil society groups are against the rules as they point out that the rules ignore the rights of forest dwellers and tribals. They also said that the new CAF rules are against existing laws ensuring forest rights and self governance for communities living in Scheduled Areas.
  • India’s former environment minister too has criticised the new rules stating that they are in violation of some assurances given in parliament in 2016 by the then environment minister Anil Madhav Dave.

In 2006, India passed a law, the Forest Rights Act (FRA) recognising “historical injustice” meted out to the country’s forest dwellers and recognised the primacy of a Gram Sabha (village council) while deciding the fate of the forests.

Cut to August 2018, the government of India has now notified the Compensatory Afforestation Fund (CAF) Rules, 2018 in which the Gram Sabha no longer plays a key role and control of over Rs. 660 billion, to be spent on afforestation, is given in the hands of the forest bureaucracy.

Under the provisions of the Forest (Conservation) Act 1980, the government collects money for diverting forest land for non-forest purposes such as industrial projects like mining or dams. The fund has accumulated to be over Rs. 660 billion (Rs. 66,000 crore) over the past four decades and has to be used for carrying out compensatory afforestation across the country.

The Supreme Court of India was also hearing a case wherein a proper procedure to spend the money was sought. Subsequently, in 2016, the central government got the Compensatory Afforestation Fund (CAF) Act 2016 passed in parliament which gave detailed rules for spending the money.

However, the CAF Act was passed only after the then union environment minister Anil Madhav Dave assured the parliament that CAF rules will ensure the primacy of Gram Sabhas so that the fund is used only in consultation with them.

But the final rules weaken the power of Gram Sabhas and despite serious objections to the draft CAF rules notified in February 2018, the National Democratic Alliance (NDA) government notified the final CAF Rules 2018 earlier this month. The move is certainly expected to result in a showdown between government and opposition, forest rights groups, tribal groups.

“They [the government] are in violation of not only the Forest Rights Act but also of the assurance that was given to the parliament. They are empowering the bureaucrats at the expense of both forest dwellers and transparency. A huge amount of money is going to be dumped in the hands of an agency that has a track record of violating people’s rights. It looks like that the BJP government wants that to continue,” said Shankar Gopalakrishnan, who is the secretary of the Campaign for Survival and Dignity, a national platform of forest dwellers groups.

India has a target of having 33 percent of its geographical area under the forest cover and according to the India State of Forest Report (ISFR) 2015 the total forest and tree cover is 79.42 million hectare, which is 24.16 percent of the total geographical area of the country.

Why are the rules being opposed?

According to the activists, civil society groups and forest rights groups, the FRA Act 2006 had recognised the “historical injustice” meted out to the scheduled tribes and other traditional forest dwellers and tried to ensure traditional rights over forest land and community forest resources. It had also established the primacy of a Gram Sabhain protecting, managing and conserving their forests.

Over Rs. 660 billion is available for compensatory afforestation across India. Photo by Dibendu Nandi/Wikimedia Commons.

Tushar Dash of the Community Forest Rights-Learning and Advocacy group explained that the new rules undermine the authority of the Gram Sabha.

“In the draft rules, the Gram Sabha was defined at the panchayat level which we had objected to saying that Gram Sabha needs to be defined as per FRA and PESA Acts. But in the final rules, there is no definition of Gram Sabha. It has been removed. Our demand was that consent of Gram Sabha should be included in the rules. The final rules don’t have provision for getting the consent of Gram Sabha,” said Dash, who is working with tribals and forest dwellers in Odisha.

He stated that in the CAF rules the Gram Sabha has been equated with the joint forest management committee (JFMC) which is a major problem because Gram Sabha is a statutory authority established under the Forest Rights Act (FRA) and Provisions of the Panchayats [Extension to the Scheduled Areas] (PESA) and thus cannot be equated with JFMC which has got no legal status.

“Moreover, the compliance to the FRA Act has been diluted. Both the draft rule and final rule mentions that CA activities shall be carried out in consonance with the FRA Act where applicable – It would mean that implementation of CA projects will only consider titled land,” he added.

Dash pointed out that formal recognition of rights (titles) is limited to only two-three percent of the minimum potential in the last ten years and that the “CAF rules limit compliance of FRA only to the 2-3 percent of area where rights have been formally recognised-thus allowing illegal plantations in all community land where tribals and other marginalised communities have got potential rights”.

“Our study estimate potential right holders to be about 200 million forest dwellers whose rights and livelihoods can be adversely affected due to CA projects. The proposal for the creation of land banks for CA from revenue forests and degraded forests (on which communities have got traditional rights) further allows for illegal takeover of community land at a large scale,” he added.

The activists also argue that fund collected by the diversion of forest land, which should have been given back to Gram Sabha, has been now transferred to the forest bureaucracy even as reports by the CAG and others have clearly shown large scale irregularities in CAMPA fund management and utilisation by the forest department.

They also state that the CAF rules are illegal as they violate the assurances given in parliament by the then environment minister Anil Madhav Dave that the rules will ensure compliance with FRA Act 2006 and the authority of Gram Sabha.

The much-debated new rules

The CAF rules 2018 notified by the NDA government on August 10 state that at least 80 percent of the fund shall be used for activities like “assisted natural regeneration, artificial regeneration, silvicultural operations in forests, protection of plantations and forests, pest and disease control in forest, forest fire prevention and control operations, soil and moisture conservation works in the forest, voluntary relocation of villages from protected areas and improvement of wildlife habitat as provided in the approved wildlife management plan.”

The compensatory afforestation fund will also be used giving facilities to frontline forest department staff. Photo by Simon Williams (Ekta Parishad)/Wikimedia Commons.

It will also be used in planting and rejuvenation of forest cover on non-forest land falling in wildlife corridors, establishment, operation and maintenance of animal rescue centre and veterinary treatment facilities for wild animals, supply of wood-saving cooking appliances and other forest produce saving devices in forest fringe villages and management of biological diversity and biological resource.

The remaining 20 percent will be used for strengthening of the forest and wildlife-related infrastructure and capacity building of the personnel. It will include activities like the establishment, upgradation and maintenance of modern nurseries and other planting stock, promoting conservation, conservation of land and folk varieties and cultivars, chronicling of knowledge relating to biological diversity, purchase and maintenance of equipment or devices used for communication and information technology for the purpose of protection of forest and wildlife.

Additionally, activities like construction, upgradation and maintenance of inspection paths, forest roads in forest area, fire lines, watchtowers, check posts and timber depots, construction of residential and official buildings in forests for frontline staffs deployed for protection of forest and wildlife and casual engagement of local people or labours to assist regular forest staff for forest protection work will be part of 20 percent expenses of the fund.

The rules also said that these activities will be taken up in consultation with the Gram Sabha or the Village Forest Management Committee (VFMC), as the case may be, and shall be in consonance with the FRA 2006.

The rules also specify that the money will not be used for payment of salary, travelling allowances, medical expenses to forest department employees, undertaking foreign visits, purchase of vehicles, construction of residential and official buildings for officers above the forest range officer, leasing, hiring and purchase of land for afforestation purposes, purchase of furniture, office equipment, air conditioners and generator sets, for establishment, expansion and upgradation of zoo and wildlife safari and for providing financial support, either by way of grant or equity to existing or for setting up new forest corporations and boards.

After notifying the rules, the Union Ministry of Environment, Forest and Climate Change (MoEFCC) has also notified that the provisions of the CAF Act 2016 will come into force from September 30.

Rules opposed from outside and within the government

In addition to voices from activists and environmentalists, there is opposition from former political leaders and agencies within the government itself.

Activists allege that the central government has gone back on assurance given in parliament about protecting primacy of Gram Sabhas. Photo by Tridibchoudhury/Wikimedia Commons.

Congress leader and Member of Parliament Jairam Ramesh too voiced his concerns in a letter to the present environment minister Harsh Vardhan and demanded a withdrawal of these rules.

In a letter on August 15, Ramesh said the rules should be put on hold stating that they are a “blatant breach of assurances given by the late Anil Madhav Dave then-Minister of Environment, Forest and Climate Change in the Rajya Sabha (in July 2016) to ensure compliance with FRA 2006 and the authority of the Gram Sabhas.”

“The least I expect is that the solemn assurances given by your distinguished predecessor on the floor of the Rajya Sabha after a consensus arrived at in the chamber of Arun Jaitley, Finance Minister and leader of the Rajya Sabha (in July 2016) are honoured both in letter and spirit. As things stand, they have not been honoured even in spirit. I am taking up the matter with the Chairman of the Rajya Sabha as well. With respect, I think this is a fit case for moving a privilege motion against you as well,” said Ramesh in his letter.

Ramesh, who was the union environment minister during the previous central government’s tenure, stressed that the CAF rules have been passed by undermining the FRA 2006 and PESA [Provisions of the Panchayats (Extension to the Scheduled Areas)] 1996.

“The draft CAF rules released by the MoEFCC in February 2018 received wide objections from the member of parliament, tribal organisations and Gram Sabhasraising serious objections to the draft rules for failing to make clear provisions to incorporate FRA and the role of Gram Sabhas in managing the CA funds,” he said.

Not only the opposition, the Indian National Congress, but the rules are also under fire from the Union Ministry of Tribal Affairs (MoTA). In a letter to the MoEFCC in March 2018, the MoTA had argued that the draft CAF rules dilute the provisions of the FRA Act.

MoTA had recommended that the final CAF rules reinforces the role and authority of Gram Sabhas in administration and management of CAF funds.

“Without looking at all concerns raised by people, MPs and even by the ministry of tribal affairs the government has gone ahead and notified the rules. This is completely illegal and will increase the violations on the ground,” warned Dash of the Community Forest Rights-Learning and Advocacy group.

An official of the MoEFCC, however, defended the new rules stating that “they have been prepared after extensive consultation with all stakeholders. “All concerns have been taken care of,” he said.

The severe opposition to the new rules is bound to end up in a bitter fight as activists are now pondering over the next course of action including legal remedies.

Source: Mongabay-India

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