Indian Wildlife Club Forum

TIME LIMIT:-

Absence of a time frame for the determination of rights is a lacuna which could result in prolonging the status qou particularly by those individuals/Gram Sabhas who may be loosing out or may not be benefiting by the provisions of the Act. Hence, it is important that a time limit for completing the exercise be imposed in Rules 19, 26 to 29 and 34.

SURRENDER OF LAND/FUTURE ENCROACHMENT

The rules are completely silent on the mode and manner for the surrender of land/rights, which are declared to be beyond the permissible parameters or by those whose claims are rejected.  The rules are also silent on the issue of prevention of future encroachment/ occupation of forestland by the present beneficiaries or by the existing/future members of their families or by others. This pregnant silence carries within it a signal to hold on to illegally occupied forest land and to further encroach on forest lands, keeping in mind the pace of regularizations during the last four decades, that the government at some point of time in the immediate future, for reasons not very difficult to guess, would buckle under and regularize such encroachments. Absence of these twin checks would prove to be disastrous for the forests and wildlife and the ecology of the country.  

Drafted By:

Raj Panjwani,

Advocate.

RULE 16:-

This rule confers rights over ‘disputed lands’ i.e. those forests, sanctuaries, national park lands where the final notification has yet not been issued. Rule 16 (2) shifts the onus of proof on the State by declaring that “the  presumption of rights over such disputed lands shall be in favour of the claimant unless otherwise decided.”. This presumption places the persons in illegal possession of the alleged disputed lands at an advantageous position in comparison to those who are in possession of other forestlands. In the case of persons who are in possession of non-disputed forestlands the onus is on them to prove their possession by producing evidence as enumerated in Rule 31. This classification in favour of disputed land occupiers is arbitrary. Secondly, the term ‘disputed land’ is vague and has not been defined under the Act nor explained under the Rules. Thirdly, the power conferred on the Gram Sabha and other executive bodies to decide on the “non-adherence to due process of laws” in Rule 16 (1) is   contrary to all prevailing jurisprudence. The issue whether an action or order is in violation of the due process clause can only be decided by a judicial authority. It is a judicial function and cannot be conferred on any of the executive authorities created or referred to under the said Act or Rules.

RULE 17:-

The incorporation of the clause “who may have been evicted without due process of law; pattas in forest villages and pattas issued but cancelled or extinguished without following the due process of law” in Rule 17 is illegal for the reasons stated above under Rule 16.

RULE 24:-

Duties and functions conferred under the said Rule are in violation and disregard of the provisions of Part IX of the Constitution and the Panchayats (Extension to the Scheduled Areas) Act, 1996.

RULE 31 (4) (a):-

Admitting the claims of ‘other traditional forest dwellers’ on the basis of physical attributes/traditional structures/pictures would be travesty of justice particularly due to the exclusion of the Evidence Act. It’s a loophole which would lead to wide abuse as there would hardly be any one alive who could possibly vouch on the existence of an un-recorded structure to the effect that it has been in existence for the last over 75 years. A person vouching on the existence of 75 years old structure need to be atleast (75+12 =87) years old. Secondly, pictures by themselves would not establish the 75 plus years antiquity of such physical attributes/traditional structures.

RULE 31 (4) (b):-

The clause “recognized as having been legitimate resident of the village at an earlier period of time” as applicable to ‘other traditional forest dwellers’ is again vague and subject to interpretation which could be either way. It is suggested that proof for recognition of residence should be recorded in a public document and not a private document or oral statements.

(Continued in next post)

Drafted By:

Raj Panjwani,

Advocate.

OBJECTIONS:

RULE 2:-

Parliament by section 14 (1) of the RFR Act delegated the  authority to the Central Government to “make rules for carrying out the provisions of the Act”. Section 14 (2)  of the said Act lists the parameters and purposes for which the rules can be made by the Central Government. The Central Government in the exercise of such delegated  power can not enlarge the scope of the provisions of the main legislation i.e. the Act. The Central Government by defining terms like “bonafide personal needs”, “other traditional right”, “primarily reside in”, “sustainable use” etc. has gone beyond the delegated authority.

RULE 3:-

Gram Sabha cannot be a judge its own cause and decide civil disputes between its own members in as much as all the adult members of the village constitute the Gram Sabha as per Section 2 (g) of the Act. Secondly, the Gram Sabha would be deciding the extent of customary boundary of the village. The term “Customary boundary” in itself is vague and which would lead not only to strife inter se Gram Sabhas but would also devastate the forest areas in issue. Reason possibly could be, each village Gram Sabha in order to out do the other, trying to take the maximum of forest produce from such unchartered imaginary boundaries.

RULE 11:-

Rule 11 (1): Inclusion of “any person wholly or substantially dependent on the family” within the term family is inconsistent with provisions of the Act. It could lead to abuse  for claiming extra benefits under the scheme of the Act.

RULE 13 & 14:-

Minor forest produce, its use and utility is just not limited or exclusive for the   residents of forest areas. The minor forest produce is an integral and a crucial component for the preservation and conservation of the flora and fauna of the area, particularly for areas which are ecologically important e.g. Sanctuaries, National Parks etc. Similarly, is the role and importance of water bodies, the use and control of which has been handed over to the Gram Sabha. There is absence of effective mechanism to monitor the “Sustainable” exploitation of such minor forest produce and water bodies. Keeping in view the provisions of Rule 24 in particular those of Rule 24 (3) which declares that in case of conflict between a decision of a the Gram Sabha and other usergroup e.g. forest or wildlife department, the decision of Gram Sabha shall prevail.

( Contd in the next post)

Drafted By:

Raj Panjwani,

Advocate.

Comments, objections and suggestions on the draft Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, are being invited by the Ministry of Tribal Affairs, New Delhi to reach by the 6th of August 2007.

Comments can be sent by email too.

 A copy of the Act as well as the draft rules can be viewed in the website

http://www.tribal.gov.in

Reactions from ASSAM

.....The tribal bodies are doubtful about the efficacy of the new Act in protecting fully the interests of the tribal people as successive governments in Dispur have failed in the past to protect the tribal belt and blocks, leading to the alienation of the tribal people from their ancestral land. Secondly, they fear that non-traditional forest dwellers, such as immigrant settlers, might take advantage of the ambiguity in the nomenclature "other forest dwellers" in the new Act to claim occupancy rights. Thirdly, they say that the new Act has not taken into account tribal customary laws, which are essential to protect both forest and tribal rights. ........

........Environment protection groups, on the other hand, fear that if the rights enshrined in the new Act are granted without responsibility, they will prove to be detrimental to the existence of the forest cover and result in increasing human pressure on the remaining forest land. They point out that encroachment of forest land in many areas of the State received political patronage, and express the apprehension that some politicians may now take advantage of the provisions of the new Act to encourage more organised encroachment. "The tribal organisations should come forward to shoulder the responsibility to ensure that the rights provided in the new Act are not misused to degrade forest land," said Dr. Bibhab Kumar Talukdar, secretary-general of Aranyak, a leading organisation in the field of biodiversity conservation in northeastern India. ..................

Source: http://tinyurl.com/3br2ol

"It is absolutely true that in biodiversity rich areas, the poorest people are living. But can we say that since these people are poor (in the connotation of the modern societies), they have developed the knowledge of harnessing their sustenance from their surroundings and thereby made these areas biodiversity rich? The so called modern civilization is continuously trying to change nature and is in turn destroying the biodiversity (including agricultural biodiversity) for a so called globalized modern living. Now in India most of these biodiversity rich areas are exploited by modern man for other resources like minerals in Central India and timber in North East.

From our experience with tribal communities in Jharkhand, West Bengal and Tripura, we found that many villages are changing their livelihoods at a fast rate to catch up with the rest of modern India and in the process are forgetting their traditional knowledge of sustainable use of natural resources. The best example of this is that the social life of the tribal residing near mining areas is now entirely different from that of their relatives residing in the forest areas in far away places. Now within the tribal society, they think that persons working as a labourer for all 365 days is better off since he has more money than a person with food security (of a different kind in a biodiversity rich zone). Slowly these changes are percolating and people are forgetting their traditional knowledge with the advent of more and more infrastructure, mining and other projects.

On the other hand, in the mining areas of Birbhum, West Bengal, we found (ironically) that now after 30 years of the start of mining, they are regretting having adopted and accepted changes which made them dependent on the whims of mine owners. Most of these mines are illegal and these tribals are still poverty stricken and are also having diseases. But the damage has already been done.

I feel that without addressing livelihood issues, it is a difficult proposition to expect the community to protect traditional knowledge, as other external economic forces are forcing them to do otherwise. A continuous campaign is required to propagate the intrinsic value of these biodiversity rich areas and addressing their needs through a consultative mechanism. Detailed scientific mapping of traditional knowledge is necessary to protect biodiversity in areas where such distortions are taking place."

-Sujit Choudhury, PAN Network, Kolkata

Tribal rights Bill Passed

The law which gives tribals rights to forest land is expected to cover nearly ten lakh tribals and traditional forest-dwellers living in 87 districts of the country. Only those who have been residing in forests for three generations or 75 years will be eligible to claim land. Each such family would be entitled to four hectares of forest land. The total land that dwellers are estimated to get is two percent of the forest land.

But the government has retained the power to acquire forest land with tribals for the construction of schools, hospitals and to provide other basic facilities.

 Rights over land and minor produce

 The gram sabha will determine the nature and extent of individual or community forest rights. The gram sabha will then pass a resolution for conferring the rights and it will be forwarded to a Sub-Divisional level committee. The rights will be conferred by a District Level Committee to be apointed by the state government.

Source: The Hindustan Times and The Indian Express

A national Tiger Conservation Authority (TCA) has finally been set up with constitutional power, though heavily diluted with 13 radical clauses to placate the tribal lobby.

The most crucial of these additions says that no direction of the TCA "shall interfere or affect the rights of local people particularly the Scheduled Tribes".

As the pending tribal Bill seeks to redefine these rights,the TCA's authority is likely to depend on the final shape of the tribal Bill.

Consider these:

• The core areas are to be "kept as inviolate without affecting the rights of the Scheduled Tribes and such other forest dwellers".

• "Save for voluntary relocation","no Scheduled Tribes or other forest dwellers shall be resettled or have their rights adversely affected for the purpose of creating inviolate areas for tiger conservation".

• There are certain provisions for relocation from areas where human habitation causes "irreversible damage" or where "options of co-existence are not available". But the power to determine such cases is with the Gram Sabhas and designated local expert panels and not with the TCA.

• The right to redraw the core-buffer boundary is also with the Gram Sabhas and designated local expert panels.

( Indian Express 25th August 2006)

Excerpt from an article by Gaurav Gupta in Indian Express dated 28 July 2006

The Australian experience stands as a dire warning not only to the conservationists who are up in arms against this legislation, but most importantly to the Indian adivasis themselves. Experience shows that transfer of land by itself leads to neither a reattainment of lost culture nor economic gains. In fact quite the opposite has occured- previously productive land has been left desolate once placed in aboriginal hands. The problem has been a lack of education, training and support for aboriginal people to conduct sustainable deveoplment on the land coupled with a lack of proper incentives. Aboriginal leaders point out that what aborigines really want as first priorities are education and jobs. Transfer of land plays no role in this..... ....

The Australian experience would suggest that we allow adivasis an inalienable right of access to forest for cultural practices (which does not require actual ownership) but look elsewhere for a solution to their economic livelihood. In short, ownership of land is no longer part of the real concern facing Adivasis and giving it back is certainly not part of the solution...

( Gaurav Gupta can be contacted at Gupta.Gaurav@bcg.com)