The Individual Versus the Common in the Recognition of Forest Rights Act, 2006

December 16, 2009

By Sirisha Naidu, Sanhati

On December 29th 2006, the Indian parliament promulgated a legislation to “recognise and vest the forest rights and occupation in forest land in forest dwelling” [1] to adivasis and other traditional forest dwellers, “who have been residing in forests for generations but whose rights could not be recorded”. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, not only recognises individual land rights, which in principle must be jointly registered in the names of the spouses in case of married persons, it also recognizes community rights to use, manage, and protect forest resources. Further, this Act stipulates the conditions for relocation and rehabilitation in “critical wildlife habitations” with the requirement of “free informed consent” from the displaced and the offer of alternative land. The Act, moreover, holds precedence over all other forest and wildlife related laws.

In contrast to the history of centralized control of forests by the colonial and post-colonial state, intended to maximize profits, encourage conservation and discourage use by forest dwellers, the FRA embodies a marked improvement in the consideration of the rights of the people. Its broad contours seem to recognize that a healthy ecosystem is compatible with social justice. Some may go further to argue that a healthy ecosystem and social justice are inseparable: not only do many adivasis and forest dwellers depend on forests for their livelihoods, but forests constitute an integral part of their social, cultural and spiritual existence. Notwithstanding the intentions of the FRA, the realities of its implementation and the corresponding outcomes, however, are contrary to the aims of the Act.

The FRA is not intended to be a mere land distribution programme; it supports the nistar [2] rights of communities as well as the rights of communities to protect, manage and conserve their natural commons. However, there is an inordinate emphasis upon individual rights of use and occupation of forestland. It is alleged that, except in cases where people’s movements have been spreading information and aiding in the application and approval process, beneficiaries are unaware of the full provisions of the Act, especially those pertaining to the community. In addition, the Forest Department and Ministry of Environment and Forests (MoEF) have erected administrative barriers against implementation; set arbitrary deadlines for the completion of the recognition of these rights; continue to divert land without the approval of those affected against the provisions of the Act; and relocate people and communities to notify critical wildlife habitats in a manner contrary to the Act (Campaign for Survival and Dignity). Not only does the FRA represent a loss of territorial control of land, which is resisted by the state, but also there are economic compulsions driving the disregard for its implementation.

To understand the political economy of implementation, consider the historical trajectory of forest policies in India. The central aims of the Indian Forest Act, 1865 and its subsequent amendment in 1878 were to secure a steady increase in timber production and silvicultural improvement. Such production was a requirement for the construction of the railways amongst other considerations. Thus, these colonial origins constitute “the starting point of state intrusion into the complex customary rights and resource-use patterns then existing in India” (Springate-Baginski and Blaikie, 2007).

Post-colonial forest policy was modified to impose an even more rigorous management to meet the rapidly-expanding needs for pulp and timber in a newly independent country eager to modernise and industrialise. In addition, the forest policy took on the objectives of increasing forest revenue, protecting forests, and increasing forest cover to 33% of the total area of the country. Forest policies, accordingly, excluded local populations from decision-making and management and thereby ignored all forms of customary management of forests. In many cases, this prevented local population from using forests for their subsistence and livelihood needs. In point of fact, the Forest Policy (1952) explicity considered people’s needs as secondary to the needs of industry and commercial interests and noted that “[t]he accident of a village being situated close to the forest doesn’t prejudice the right of the country as a whole to receive the benefits of a national asset” (GoI, 1952 cited in Springate-Baginski and Blaikie, 2007).

The hardships engendered by such exclusionary policies led to intense resistance, forcing the Indian state to introduce social forestry (Fifth Five Year Plan 1974-79) on village commons, government wastelands, and farmlands. The hegemonic rhetoric maintained that social forestry would enable people to meet their needs for fodder, firewood, and timber whilst reducing their dependence on forestland. This programme was carried out through the intervention of international aid agencies such as the World Bank, Swedish International Development Cooperation Agency (SIDA), Overseas Development Administration (now known as Department for International Development or DFID) and others (Hobley, 1992). After spending USD 400 million in 15 years, this program was judged to be unsuccessful (Poffenberger, 1990) for failing to fulfill basic needs such as the provision of fodder and fuel, and for promoting monocultures such as eucalyptus that are considered environmentally and socially undesirable (Saxena and Ballabh, 1995).

The social forestry fiasco, the push by international treaties and aid agencies toward participatory approaches and community management, eventually led to the formal sanction of the joint forest management (JFM) programme as part of the national forest policy. This program envisaged the involvement of state governments, NGOs, and village communities in forest protection and conservation with a key objective being the provision of timber and non-timber forest product requirements of rural populations.

However, JFM has proved not to be a resounding success. Though there has been some success with respect to increasing forest cover, it is fraught with problems of “elite capture”, elusive and unequal participation, limited livelihood impacts, unequal access to forests, and more importantly for present purposes, the state through the forest departments continues to maintain and extend their hegemony by increasing the amount of land under their control, and undermining customary and informal institutions [3] (Blaikie and Springate-Baginski, 2007; Sarin et al., 2003). Notwithstanding the purpose of wildlife conservation, the forest department has held control over approximately 22 % of the total geographical area of India that is termed as forests along with all timber and non-timber forest products for commercial reasons. Despite appeals to participation and “joint” management, the official forestry machinery continues to be an extremely hierarchical and exclusionary structure wherein the state decides and the people participate as wage labour and provide free monitoring. Thus, JFM has been likened to a ‘company union’ by Hobley (1996).

In addition to the territorial logic, however, there are a slew of economic incentives to maintain the hold over forests. After the suspension of leasing of land to private concerns in 1980, the climate of liberalisation has again opened up forests to private industry. Not surprisingly, then, timber and pulp (traditionally the industries concerned with sourcing raw materials from forests) and bio-fuels industries have been at the forefront of these endeavours. The Confederation of Indian Industry (CII) in 2006 proposed a multi-stakeholder partnership for captive plantations on “wasteland” [4] to help the country achieve its target of 33% forest cover. Referring to forest dependent people who would be affected by these plantation in the same vein as the 1952 Forest Policy, the CII report noted, “[i]t is time to realize that the access, if any, enjoyed by these millions to forest products is simply by default…” (The Perspectives Team, 2007). Some have referred to this as a proposal for “Forest SEZs” [5].

The World Bank has been quick to jump onto this bandwagon. Through its bio-carbon fund it plans to develop 3,500 hectares of tree plantations in Orissa and Andhra Pradesh on private agricultural land held by medium, small and marginal farmers who would be under a buy-back contract with JK Paper Mills Ltd (JKPL) [6]. While JKPL is expected to “help arrange short term credit to farmers for up-front investment costs and provide subsidized planting material, as well as committing to purchase the timber at market prices”, the World Bank will help in arranging long-term credit. Approximately 50% of the land will be planted with eucalyptus trees that produces good raw material for the paper industry but is known to be environmentally undesirable for its adverse impacts on groundwater (though the project details claim that there will be no negative effects), biodiversity and local vegetation. Along with providing raw materials to the paper industry, the project is expected to sequester at least 0.27 Mt of CO2e by 2017. This is part of a larger strategy to use forests as carbon sinks and promote markets in forest services through PES (payments for environmental services) mechanism. These notions are embodied in REDD Plus [7], a scheme under negotiation at the Copenhagen talks.

Further, evidence on the compliance of industrial needs by forest policies comes in the form of mining and large hydroelectric projects. Of the total claimed hydropower potential in the country, 77% remains to be developed in the Indian Himalayan region and only 36 percent in the rest of the country (Dharmadhikary, 2008). Of the total 1.15 million hectares of forestland diverted for non-forest purposes, 41% constituted hydel plants, mining and irrigation (Ministry of Rural Development, 2009).

Hydropower Projects in the Indian Himalayas

 Number of Projects Capacity (mw)

Source: Dharmadhikary (2008)

Forestland and what lies beneath it thus is “a cash crop” expected to fuel economic growth and capital accumulation in India. In taking advantage of the bounties of forests and forest products, however, the state acts as a mediating agent between capital and the local people in either assuaging or suppressing conflicts, and preparing suitable conditions by setting up markets and perpetuating a capitalist logic. This role of the state is extremely crucial if the project of neoliberal environmentalism or free-market environmentalism is to succeed. It is also crucial that the state maintain its control over these resources to regulate access and grant monopoly powers to capital [8].

However, clause 3(1)(i) of the FRA poses a direct threat to many “development” projects undertaken by private or public concerns, or through public-private partnerships and hence is not in the interest of the ruling classes. It notes the “right to protect, regenerate or conserve or manage any community forest resource which they [the community] have been traditionally protecting and conserving for sustainable use”. It is perhaps for this reason that the Forest Department and the MoEF have instituted their own set of rules and procedures in blatant regard for the FRA, and continue to promote “dangerous sham participatory schemes” (Campaign for Survival and Dignity) [9].

Since the institution of a separate forest policy, its administrative body has sought to extend and consolidate control over its territories. The process of settlements of rights held in these territories has led to a continuous marginalisation of already marginalised communities. Vast tracts of land remained un-surveyed, the rights of millions were unrecorded; in areas where rights were recognised, they were often either infringed upon due to insufficient information, or converted into “privileges” that could be withdrawn without serious thought to its consequent effects on people’s livelihoods. Moreover, customary and informal regulation were unrecognised and considered illegal. After more than a century of resistance against the non-recognition of local communities to use, manage and protect their forests, the FRA, at least theoretically, provides space for undoing past injustices (even if only to a limited degree). However, unless the adivasis, other forest dwellers and their allies rise up to the challenge, like in the nineteenth century, the economic and political situation in the country is geared toward another round of enclosures to fuel capital accumulation.

(I would like to thank Taki Manolakos for helpful comments.)

Notes:

[1] The text of the FRA is available from the website of the Ministry of Tribal Affairs, Government of India (http://www.forestrights.nic.in/)

[2] Nistar refers to forest rights for bonafide livelihood purposes.

[3] Note that despite the lack of legal claims, many communities across the country continue to regulate their use of forest resources often expending time, labour and money in their efforts, sometimes in direct conflict with the management plans of forest departments.

[4] Even though wastelands are characterized as “waste”, they still tend to be of much significance to local people’s livelihoods and wildlife.

[5] Sethi, N. (2007). Centre Plans to Free Forest Land for SEZ. Times of India. 21 May, 2007. http://tinyurl.com/y8fen2j

[6] The World Bank website notes that JKPL has “100 years of experience and expertise in agroforestry techniques and cloning technologies.” http://wbcarbonfinance.org/Router.cfm?Page=About&ItemID=24668

[7] REDD denotes Reducing Emissions from Deforestation and Forest Degradation.

[8] This author recognises that not all these developments can be attributed to the Forest Department of the MoEF, and the Indian state itself is not a monolithic entity. The discussion, however, is on the dominant aspects of the state that are driving a neoliberal agenda.

[9] The points of struggle with respect to the FRA are given in the website maintained by the Campaign for Survival and Dignity. http://www.forestrightsact.com/component/content/46?task=view

References:

Dharmadhikary, S. (2008). Mountains of concrete: Dam Building in the Himalayas. Berkeley, California: International Rivers.

Hobley, M. (1992). Policy, rights and local forest management: The case of Himachal Pradesh, India. London: Overseas Development Institute.

Hobley, M. (1996). Participatory Forestry: The Process of Change in India and Nepal. London: Overseas Development Institute, Rural Development Forestry Guide No. 3.

Ministry of Rural Development (2009). Committee on State Agrarian Relations and The Unfinished Task of Land Reforms. Volume I. Draft Report. Government of India.

The Perspectives Team (2007). Abandoned: Development and Displacement. Delhi: The Perspectives Team.

Poffenberger, M., & McGean, B. (1996). Village voices, forest choices: Joint forest management in India. Delhi: Oxford University Press.

Sarin, M. with Singh, N.M., Sundar, N., & Bhogal, R.K. (2003). Devolution as a threat to democratic decision-making in forestry? Findings from Three States in India. London: ODI Working Paper 197.

Saxena, N.C., & Ballabh V. (eds) (1995). Farm Forestry in South Asia. New Delhi: Sage Publications.

Springate-Baginski, O. & Blaikie, P. (2007). Annexation, struggle and response: forest, people and power in India and Nepal. In O. Springate-Baginski & P. Blaikie (eds). Forests, People and Power: The Political Ecology of Reform in South Asia. London: Earthscan.

No Comments »

Leave a comment