Government, Industries Nationwide Dodge Law, Take Over Forest Land Without Consent Of Tribal Communities

New Delhi: In early 2017, Mangal Kunjam, a 25-year-old journalist, heard a commotion outside his house in Ghumiyapal village in the southern corner of the heavily forested state of Chhattisgarh. His neighbours had gathered together and were anxiously discussing a car that had just passed their neighbourhood.

“This is a tribal area and people here keep to their water, forest and land,” said Kunjam. “When they saw a car with a group of outsiders, they were curious and worried at the same time.”

Kunjam and a few other villagers followed the car headed towards a local hill. There, they met a few people who said they were there to conduct a survey on how many and what kind of trees could be felled to mine iron ore in the area. The forestland, which falls in Alnar village in Bastar district, was being “diverted” for mining by Raipur-based Aarti Sponge and Power Ltd, the villagers were told.

The website of the union ministry of environment, forests and climate change (MoEFCC) showed that the Chhattisgarh government had sent the company’s proposal to mine 31.55 ha of forestland to the ministry in August 2016. Under existing laws, non-forestry activity cannot be started in an area like this without the ministry’s permission.

One of the proposal papers signed by Saurabh Kumar, the district collector of south Bastar and dated September 26, 2016, certified that the traditional rights of the tribals and forest dwellers on the land had been “settled”. Villagers through their gram (village) panchayat had consented to the mining proposal, the document stated.

This document is crucial. Without the consent of tribals and forest dwellers and without recognising their traditional rights, forestland cannot be diverted to non-forest use as per the Forest Rights Act (FRA), 2006. But the real picture is different, we found in our investigations.

The tribals and forest dwellers of Alnar were never consulted on this acquisition proposal nor was their consent sought for the mining project, said Kunjam. Documents accessed by IndiaSpend show that the panchayat had passed a resolution against the mining proposal in May 2017. But based on the letter issued by Kumar, the regional MoEFCC office has already approved the project, the documents showed.

Alnar is not the only Indian village where the legal requirement of consent of tribals and other forest-dwelling communities is being violated to make way for big projects. Land Conflict Watch or LCW, a network of researchers tracking land conflicts across the country, has so far documented 38 cases where tribals and forest dwellers are protesting the diversion of forestland.

These cases are spread across Chhattisgarh, Odisha, Maharashtra, Andhra Pradesh, Himachal Pradesh, Telangana, Uttar Pradesh and Karnataka. Together, these conflicts affect close to 1 million people and are spread over 1,734 sq km.

Of the 38 cases, forest clearance documents for 23 projects are uploaded on the MoEFCC website. When LCW reviewed these applications, it found that in 13 of those cases, the consent was not mentioned in the documents. In 10 cases, local authorities claimed that there were no tribals in the project-affected area or issued certificates that their forest rights had been settled and that they did not oppose the projects.

Source: Land Conflict Watch

Consent, one of the most commonly violated conditions for takeover

A little less than a quarter of India’s land is covered by forests. Industries and governments can use forest land to set up development projects through a process defined in the Forest Conservation Act of 1980.

But these forests are also home to millions of tribals and forest dwellers who have depended on them for centuries for their livelihood. Their traditional rights over this forestland were not recognised in the past and they were seen as encroachers. This means that project developers could simply kick them out of their homes because they had no document that established their land rights.

As many as 40.9% of all 21.3 million people displaced in India between 1951 and 1990 by development activities were tribals and forest dwellers, according to a 2014 report of the ministry of tribal affairs (MoTA). This is considered the root cause of Maoist insurgency in forest areas.

To correct this “historical injustice”, the FRA was passed in 2006. The law mandates that forest dwellers cannot be evicted from the forests unless their traditional land rights are recognised and permission granted by the village assembly or gram sabha.

This provision, for the first time, handed negotiating power to tribal communities. They could, if they want, now part with their land on their own terms or veto projects. The Dongria Kondh tribe in Odisha’s Niyamgiri Hills used this law to win the famous legal battle in 2013, in which they rejected the mining project of multinational bauxite giant Vedanta.

“Consent is, by far, the most important provision [of FRA],” said Arpitha Kodiveri, a research scholar at the European University Institution. “If one is to look at not just forest diversion but also at the nature of development that should take place.” Kodiveri is researching the implementation of the consent provision.

It is also one of the most commonly violated provisions of the law, showed the official records and testimonies of communities.

Villages get left out of decision making

In 2009, the environment ministry issued a circular stating that project developers need to submit consent letters from the village assemblies (with a quorum of at least 50% of all adult members present) to divert their forestland. Their certificates need to show that the process of recognition of rights under the FRA is complete. This requirement was ignored in the case of Alnar, we found.

Consider this letter from Kumar uploaded on the MoEF website: “Each of the concerned Gram Panchayat(s) has certified that all formalities/processes under the FRA have been carried out and that they have given their consent to the proposed diversion (of forestland) and the compensation.”

To support the claim, the collector annexed a resolution passed by 10 members of the Ghumiyapal panchayat on September 23, 2016, in which they resolved that “no forest rights title has been prepared in the name of any farmer in the Ghumiyapal Panchayat and its dependent villages--Alnar, Tongpal and Badepalli--because the village residents have said ‘no’ to the title”. The resolution did not specify why the villagers did not want titles.

The law requires the village assembly and not the panchayat to decide on matters of forest rights. The tribal ministry has reiterated this legal requirement in the past. While every adult member of a hamlet forms a village assembly, panchayats generally consist of elected representatives of more than one village. Asking panchayats to decide on forest rights will likely deprive smaller hamlets the right to participate in decision-making and leave them vulnerable to manipulation by a few elected panchayat members.

“From what we got to know, they (the company) held a meeting with a handful of people from another panchayat and took their signatures,” Kunjam said.

Sunil Bhaskar, secretary of the Ghumiyapal panchayat, under whose jurisdiction Alnar falls, agreed with Kunjam. “A man from Raipur came to meet me sometime in 2013-14. He told me to conduct a gram sabha (assembly) and to get some papers signed,” he said. “When I refused, he told me that they would still get their work done, even without the signatures.”

Rajiv Mundra, director of Aarti Sponge and Power Ltd., did not respond to questions on the alleged violation of the FRA, neither did the environment ministry despite repeated attempts by IndiaSpend.

In an emailed response, Kumar maintained that he had “verified the recommendations received from the SDLC (sub-divisional level committee) constituted under the FRA (to process the land rights claims forwarded by the Village Assembly) after due process”.

The government documents show that even the SDLC’s recommendation to the collector was based on the flawed panchayat resolution.

No quorum, no consultation: Same story across forest-based projects

Getting panchayat members to pass a resolution that favours a project on behalf of a dissenting village assembly is just one of the ways authorities subvert the consent requirement for forest clearance, we found.

In many of the 23 cases that the LCW reviewed, district collectors claimed that the assemblies had given their consent without submitting any evidence. In some cases, the authorities claimed that a particular project would not displace people and so their consent was not required. In all these cases, villagers were protesting against the cited projects.

Take, for example, the proposal for a 1,038-hectare coal mine of Neyveli Lignite Corporation of India Ltd in the Mahanadi Coalfields in north-west Odisha, which will displace close to 1,900 families. The environment ministry gave the “in-principle” or stage-one approval to mine the forestland to this project in July 2018.

The project’s application, available on the ministry’s website, claims that the district collectors of Jharsuguda and Sambalpur had submitted “certificates of complete compliance of FRA…” to it in 2014, along with resolutions (in favour of the project) by the affected village assemblies. But the copies of the resolutions have not been uploaded on the website.

LCW, however, accessed a letter sent by 200 families living in Patrapalli, one of the project-affected villages, to the union tribal affairs secretary in 2015, informing him that their village assembly had rejected the mining proposal. “We have protected and depended on the Sal forests located along our village for many generations. We have already lost acres of forestland to industries in the past. We… are not ready to give up our forestland to any industry… Attached herewith is the resolution of our Pallisabha (Village Assembly),” the letter read.

Similar stories echo in other forests. In what could be the first-of-its-kind case in the country, the environment ministry not only gave clearance to a coal mine in Chhattisgarh’s dense Hasdeo Arand forest despite opposition from villagers but the state government also revoked their forest rights titles to make way for mining.

The Rajasthan Rajya Vidyut Utpadan Nigam Limited (RVUNL), a Rajasthan state-owned electricity utility company, obtained permission to mine the forest in 2012. Adani Mining Private Limited, a subsidiary of Adani Enterprises Limited, one of India’s largest conglomerates, now runs the mining operations of RVUNL through a contract arrangement.

At the time when the environment ministry gave the forest clearance, the forest rights of the tribals were not even recognised. In fact, their claims were settled in 2013, five years after they had applied for them. And then two years later, in 2015, the state government revoked their titles for forest rights, arguing that the tribals were misusing the rights to obstruct mining work in the area.

The resolution of the village assembly to allow mining was passed without due consultation and in the absence of the quorum, according to a 2014 study published by the Hasdeo Arand Bachao Samiti (a community-driven movement to protect and conserve the local ecosystem). “Faulty Village Assemblies were organised in this case,” said Bipasha Paul, programme coordinator, Centre for Policy Research-Namati Environmental Justice Programme, a Delhi-based think tank. “The places where the meetings were held were nowhere close to the affected areas.”

Hasdeo Arand’s tribals are now fighting a case against the mining in the Chhattisgarh high court. Adani Group denied any wrongdoing on its part in an earlier story published by IndiaSpend about the forest rights violations in Hasdeo Arand.

“In our knowledge, there have been no cases of FRA violation,” said Ashis Dash, head of the Sustainable Mining Initiative arm of the Federation of Indian Mineral Industries, told IndiaSpend. The entire mining industry should not be blamed because of “a few instances”, he added.

‘Many state governments still do not recognise the provision of consent’

The environment ministry took three years after the Forest Rights Act was passed to come up with the 2009 circular that formalised the requirement of communities’ consent. But soon after several attempts were made by the ministry, under pressure from other government departments, to either dilute the order or to do away with it entirely, activists alleged.

In 2013, however, the Supreme Court judgement on Vedanta’s mining project gave a strong and final validation to the consent provision. The court cited the 2009 circular, that the village assembly has the power to reach a “decision” regarding the diversion of forestland.

The environment ministry has now adopted other methods to undercut the FRA, said Shankar Gopalakrishnan of Campaign for Survival and Dignity, a platform of adivasi and forest dwellers’ groups in India. “The provision of consent is circumvented in three ways,” said Gopalakrishnan “First, by simply not respecting the law. The second and the most convenient way is to get a certificate issued from the district collector that all the requirements under the FRA have been completed, and, third, by using other forest laws to give conditional rights to tribals and make the FRA look redundant.”

Environment lawyer Ritwick Dutta agreed. “Many state governments still do not recognise the provision of consent and deliberately confuse consent by village assemblies with some kind of NOCs (no-objection certificates) by village panchayats,” he said.

Progressive LARR Act yet to be put to good use

Consent, however, is only the second step. The first step is to recognise and settle land rights of tribals under the FRA. Now in its 11th year of implementation, the Act has benefitted only a few forest dwellers so far.

Till April 2018, 4.2 million land rights claims were filed, according to the latest status report of the tribal affairs ministry. Of these, only 1.9 million or about 45% titles have been distributed. An almost equal number of claims have been rejected; the rest are pending.

State governments are implementing the FRA in an “ad hoc” manner, said Tushar Dash, a member of the Community Forest Rights-Learning and Advocacy initiative, another forum of people working forest rights. “It (the Act) is facing three major bottlenecks,” he said. “One is the lack of commitment from the government; second, there is a strong resistance from the forest bureaucracy, which does not want to cede control over forestland. And third, there is deliberate mismanagement, which is not being addressed.”

There is yet another legal provision that is not getting the attention it deserves.

“Once the rights are recognised and settled, and if the communities have given consent to forest diversion, the third step should be compensation and rehabilitation,” said Shomona Khanna, a Supreme Court lawyer. That is where the LARR Act (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) should come in, she adds.

The LARR Act regulates the process of land acquisition and lays down a framework for compensation, rehabilitation and resettlement for those who have lost their land. It includes the Scheduled Tribes and other traditional forest dwellers.

However, no case has so far come to light where the government has gone through the extensive process of first recognising the rights of forest dwellers, securing their consent and offering a compensation and rehabilitation package as per the Act. In most of the conflict cases, the process has been bypassed.

“Corporates and big businesses have become accustomed to thinking that they can control forestland by dealing with a handful of officials and that they do not need to consult people who will be losing their rights,” said Gopalakrishnan.

Why the tussle is likely to continue

South Bastar is one of the worst insurgency-hit and one of the most militarised areas in India. The residents of Alnar village constantly find themselves caught between insurgents and security forces, which is why the villagers do not “like to attract attention” with loud protests against corporate or the government, said Kunjam. Despite the claim of Prime Minister Narendra Modi earlier this year of electrifying every village in the country, the residents of Ghumiyapal have never even seen an electric pole in their village.

In the absence of basic amenities, electricity and proper education, forests form the backbone of life for these communities. “Nature is the biggest resource for us tribals. Mining will snatch away that too,” said Kunjam.

Alnar villagers are determined to save their forestland because as Kunajm put it: “If someone is trying to enter my home, shouldn’t they be asking me first?”

(Manira Chaudhary is an independent journalist and a contributing writer with Land Conflict Watch. Mrinali, researcher and fact checker with Land Conflict Watch, contributed to the research.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.