Govt may do away with tribal consent for cutting forests

Govt may do away with tribal consent for cutting forests

Forest Rights Act being reinterpreted to avoid amendment

Nitin Sethi |  New Delhi Sep 09, 2014

Led by Prime Minister Narendra Modi's office, the National Democratic Alliance (NDA) government is discussing possible ways to do away with the mandatory requirement of securing consent from tribal gram sabhas (village councils) before cutting down their forests for industrial purposes. The deliberations, on among various ministries, are for zeroing in on such a way that the requirement is removed without going through the politically difficult route of getting the Forest Rights Act amended in Parliament.

If the proposed move goes through, cutting down of forests for industrial and development projects would again be cleared solely at political-bureaucratic discretion of the Union government, like it used to be until the Forest Rights Act was passed in 2006 (implemented in 2008).

The first meeting on the issue, which took place on July 31, within days of the NDA government taking charge at the Centre, was led by the principal secretary to the prime minister. Others have followed up more recently. Some documents, which have been reviewed by Business Standard, show that the government is evaluating options to do away with the requirement for tribal gram sabhas' consent, without having to amend the Forest Rights Act.

The proposed move was triggered by the environment ministry and has since been monitored regularly by PMO, reveal correspondence between the two offices. Other ministries that sought to jettison the need for tribal bodies' consent - the coal and road transport ministries - are also involved in the deliberations, besides the tribal affairs and law ministries.

One option being discussed is turning the consent requirement under the Forest Rights Act into a less-onerous process of general public hearing for environmental clearances. Unlike the 'prior informed consent' provision, public hearings do not allow veto power over projects. These only require the government to consult all affected people for all kinds of environmental impacts. These hearings - done through district administrations, and not gram sabhas - are conducted under the Environment Protection Act, 1986.

Simultaneously, the NDA government has also started removing the requirement for public hearings in some kinds of projects. It recently did away with such processes for expansion of coal mining projects.

The other option being considered is seeking a favourable advice from the law ministry. The environment ministry, keen to get the consent clause removed from its forest clearance process, has sent a query to the law ministry, heavily tilting the questions and backgrounder in favour of removing the requirement. It has tried to lay stress on adhering to some earlier-promulgated laws that are weaker on this count. Those require gram sabhas' approval only for removing minor minerals in the Schedule-V areas where density of tribal population is high.. PMO has asked the law ministry to expedite its reply.

The law ministry's favourable advice, along these lines, could be used to contradict the long-standing legal view of the tribal affairs ministry. In charge of the Forest Rights Act, the tribal affairs ministry, has said that even an exception for specific kind of projects - leave alone entirely doing away with tribal gram sabhas' consent for all projects - will be illegal, unless the Forest Rights Act is amended.

The unanimous order of a three-member Supreme Court Bench in the Vedanta mining case had also given its stamp of approval to the requirement of taking tribal village councils' consent. The tribal affairs ministry has noted that the court orders in the famous case make the process binding under Article 141 of the Constitution. But the environment ministry has deflected from this in its reference to the law ministry.

For decades, the rights of tribal people on forest land were taken over by the governments of the day, without legal settlement processes. The Forest Rights Act, which came into effect in 2008, is meant to hand back traditional rights over forest land to these people. It appoints tribal gram sabhas, the primary level of democratically elected bodies, as the statutory authority to process settlement claims and take decisions to protect forests in these traditional lands, rights over which have been handed back to the people.

The environment ministry, meanwhile, has been giving forest clearances to all projects requiring forest land (regardless of who owns the land) since the Forest Conservation Act came into being in 1980. The law gave the forest bureaucracy and the Union government the powers to give away forests for industrial purposes. Since 1980, the environment ministry has approved almost 95 per cent of the projects that sought to cut down forests. To ensure the clearance process complied with the new Forest Rights Act, the erstwhile United Progressive Alliance (UPA) government in 2009 made it mandatory for the environment ministry to seek evidence from states that tribal people had agreed to give away their lands. This was to be done in the form of consent letters from the gram sabhas concerned.

However, on several occasions, environment ministry officials and the PMO during the UPA regime, along with miners, project developers and infrastructure ministries, tried to get these orders withdrawn in 2012 and 2013. The then principal secretary to the prime minister even set up a committee that tried to bypass the need for consent.

The move was repeatedly objected to by the then environment ministers, Jairam Ramesh and Jayanthi Natarajan, and the tribal affairs ministry. But under pressure from the then PMO, the environment ministry relented and did away with the need for the Centre to seek consent orders as evidence for linear projects like pipelines, irrigation canals, roads and power lines. Also, quietly, it sidelined the process of ensuring gram sabhas' consent forms were in place for all other projects. This led to flashpoints like Posco and Mahan, where villagers protested to defend their rights, and forgery of documents.

Vedanta became a prominent case where the ministry stuck to its regulations and went to the Supreme Court to defend the gram sabhas' powers.

The tribal affairs ministry initially relented on this count but took a clearer legal stand in March this year, noting that such exceptions were illegal. It wrote to state governments that even if the environment ministry did not seek the proof of consent from gram sabhas during the clearance process, the Forest Rights Act required such approvals.

Some documents, reviewed by Business Standard, show that in May this year, when the general elections were on and UPA government had become weak, the environment ministry mandarins again pushed for consent of tribal gram sabhas to be done away with. They wrote to the PMO - still under UPA - noting that the tribal affairs ministry had termed clearances to linear projects without tribal consent illegal. The environment ministry, then under M Veerappa Moily, took a leap and sought complete removal of the need for tribal councils' consent.

In the last days of the UPA government, the PMO did not agree with the views of the nodal tribal affairs ministry and asked the environment ministry to seek an opinion from the law department.

Under the new government, when the principal secretary to the PM held a meeting on the issue on July 31, the tribal affairs ministry reiterated that the move was "absurd" and "incongruous" and would make the Forest Rights Act "meaningless, if forests could be diverted without consent (of the gram sabha)". But the meetings at the PMO continued to discuss how the consent provision for clearances could be dropped quickly. The law ministry has been tasked with providing an answer soon, even as other ministries look at separate routes of achieving the same goal.

The aim of the array of meetings was to finalise the government's position on the issue by the end of August. Business Standard could not ascertain if that had been done so far.

INDUSTRY ON MIND

Moves within the government

• Working to do away with the need to get tribal gram sabhas' consent before their forests are cut down for industrial projects
   
• Meetings held at PMO; initiated by the environment ministry; backed by the coal and road transport ministries
   
• Law being reinterpreted to avoid amendment to the Forest Rights Act
   
• Tribal affairs ministry has labelled the move illegal and absurd
   
• The move undermines SC order on mining by Vedanta in Odisha's Niyamgiri Hills, says tribal affairs ministry

The Forest Rights Act of 2006, and clearances

• For decades, forests were taken over by govts and tribal people were turned into encroachers of own lands
   
• The FRA has handed back to tribals the control and rights over traditional forest land
   
• The Act makes gram sabhas the statutory body to protect the forest land over which rights are given back
   
• Forest clearances by the environment ministry require consent from gram sabhas
   
• Earlier, forest bureaucracy and the ministry had sole powers to give forests away. Nearly 95% of all projects seeking forests were approved