GAPS IN THE IMPLEMENTATION OF FOREST RIGHTS ACT, Dr.KUNA.SURYANARAYANA, IFS (1997)

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1 GAPS IN THE IMPLEMENTATION OF FOREST RIGHTS ACT, 2006 Dr.KUNA.SURYANARAYANA, IFS (1997) Conservator of Forests, Social Forestry Circle, Visakhapatnam, Andhrapradesh Abstract: The government of India enacted THE SCHEDULED TRIBES AND OTHER TRADIDITIONAL FOREST DWELLERS (Recognition of Forest Rights) ACT, This act has won the forest dwellers their long overdue rights over forests. In the above context, the Tribals have rights over a) Individual lands being cultivated in forest areas up to ten acres, b) Community rights and c) Right to protect, regenerate and conserve. Though the legitimate recognition of these rights is done we have been facing many gaps in extending them practically in the last five years as it came into force on The focus of the implementing agencies was more on the processing of Individual rights but not on community rights and Rights to protect and regenerate. Further, even in case of lands on which individual rights are recognized also need to be demarcated on the ground as further extensions are not uncommon in these places. The central government even brought Amendment Rules, 2012 also to this Act without change of the land acquired date up to but still the gaps are many. Although, there is no sign of improvement in the Livelihood of the Tribal people on account of giving them forest lands but it has done irreparable loss to the forests as it triggered more encroachments. Key Words: Forest dwelling scheduled Tribes, Forest Rights, Critical wildlife habitat, Bona fide livelihood needs, Minor forest produce etc; Introduction: The enactment of ROFR Act, 2006 mostly politically motivated, has given rise to a renewed wave to forest encroachments and sometimes with the connivance of the local political leaders with the hope that it will be regularized in a future date. So far the Government of Andhra Pradesh distributed title deeds to 1,65,691 scheduled tribal families covering an extent of 4,72,016 acres and 2106 community claims covering an extent of 9,79,207 acres. It is unfortunate that a second round of survey is being done duly including

2 the recent encroachments. The condition of the forest is reflected in the State of forest Report,2011, which is based on the Satellite data of INDIA STATE OF FOREST REPORT 2011: State Forest Report, 2011 of Forest Survey of India provides the fallowing information: Total geographical area (GA) of the state of Andhra Pradesh is: 2,75,070 Sq.km Forest land recorded in Andhra pradesh: 63,814 Sq.km (23.20%) Total Forest Cover (FC) in Ap : 46,389 Sq.km (72.70%of Forest land) Dense forest in AP: 850 Sq.km (1.83% of total forest cover) Moderately dense forest in AP: 26,242sq.km (56.57%of Forest Cover) Open forest in Ap : 19,297 Sq. km (41.60% of Forest Cover) The above figures show that an area of 17,425sq.km or 27.30% of reported forest land has no forest. The State of Forest Report, 2011 has given the comparative forest cover loss between 2009 and2011. It shows a gross decline of 367 sq.km forest cover for the entire country and Andhra Pradesh shows a decline of 281sq.km which is % of the gross decline for the whole country. In Andhra Pradesh Khammam district tops with a decline of 182sq.km which shows the magnitude of further encroachments happened in this district. The reasons for such large scale encroachments are shown below a) Gaps in the process of implementation of ROFR Act, 2006 vs Issue of Individual Rights b) Gaps in implementation of ROFR Act, 2006 Vrs critical wildlife habitats. c) Gaps in implementation of ROFR Act, 2006 Vrs JFM areas. d) Gaps in implementation of ROFR Act, 2006 Vrs Forest conservation Act,1980. d) Gaps in implementation of ROFR Act, 2006 Vrs Forest conservation Act,1980. e) Gaps in implementation of ROFR Act, 2006 Vrs Community Forest Resources.

3 f) Gaps in implementation of The ROFR Act, 2006 Vrs Right to protect, Regenerate and Conserve. Materials and Methods: Based on the experiences, the Ministry of Tribal Affairs issued detailed guide lines to the states in July, 2012 and notified amendment to the ROFR Rules in September 2012 in order to develop further clarity on the interpretation of the Act and to streamline it s implementation. The Ministry in collaboration with UNDP organized Five Regional consultations covering 22 states across India to share the recent amendments to the Rules. There is no systemic methodology is adopted to know the present status of INDIVIDUAL RIGHTS are issued in honey comb manner. Results and Discussions: a) Gaps in the process of implementation of ROFR Act, 2006 Vrs issue of Individual Rights. > Gram Sabhas shall authorize the Forest rights committee to accept the claims within a period of three months from the date of such calling of claims and if it consider necessary, extend such period of three months after recording the reasons thereof in writing. Whereas at many places such Gram Sabhas were not held in Andhra Pradesh and the time limit for extended period is not mentioned in the ROFR Act,2006 itself which is creating a hope for fresh encroachers to file acclaim at later date. > Gram Sabha should not be called at Gram panchayat level for the purpose of ROFR Act, 2006 and it should be held at Village level but it is not in practice. >The required quorum of one-half of all members of the Gram Sabha are not attending for the meetings as per Rule 4(2) of the Act. > Such Scheduled Tribes and other Traditional Forest Dwellers who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs are also covered under the definition. It attracted the persons who were cultivating PODU(shifting cultivation) long back to file claims and after receipt of Titles they subleased such areas to big farmers for cultivating Bananas with drip irrigation because most

4 of them settled in Towns with good jobs and they are not depending on the forests for their livelihood needs. > During re-verification by the Forest Rights Committee where objection has been raised and if the representatives again fail to attend the verification process, the gram sabha s decision on the field verification shall be final. The above provision is causing the FRC members to delay communication of the date of field verification and to take the decision of their own. >In view of the provisions of Section 4(4) of the Act, the rights recognized and vested on the forest land cannot be pledged with a bank for receiving a loan for agricultural operations but already many of the title holders in Khammam district pledged the same and received loans. >As per sub-rule (4) of the Amendment rules, 2012, the Forest Rights Committee shall not reopen the forest rights recognized or the process of verification of verification of the claims already initiated before the Amended rules came into force but in field the FRC members are reopening the claims which were rejected already. b) Gaps in implementation of ROFR Act, 2006 Vrs critical wildlife habitats. >ROFR Act, 2006 envisages the recognition and vesting of forest rights for Forest dwelling Scheduled Tribes and other traditional forest dwellers over all forest lands, including National parks and Sanctuaries. But as per section 2(b) of the Act, the Ministry of Environment and Forests has not notified as on today a single Critical Wildlife Habitat in the National parks and Sanctuaries for the purpose of creating inviolate areas for Wild life conservation as per the procedure laid down. >In Andhra Pradesh without waiting of notification of Critical Wildlife Habitats in these areas, the rights are recognized and titles are issued in National Parks and Sanctuaries. >The Title holders from such areas should not be evicted without the settlement of their Rights and completion of all other actions required under section 4(2) of the Act.

5 >In the ROFR Act, 2006, it is envisaged that only pre-existing rights which are already being exercised by the eligible persons in these areas will be recognized. >Whereas these Title holders are causing irreversible damage to Wildlife, even though ROFR Act, 2006, provides for creation of inviolate areas for Wildlife Protection, which is not done. >The forest villages in such areas are also, required to be converted into Revenue villages under section 3(1)(h) of the Act but it is not a pre- condition for recognition of Forest Rights. c) Gaps in implementation of ROFR Act, 2006 Vrs JFM areas. >Joint Forest Management s losses amounted to ROFR Act, 2006 gains. Because, the JFM members are given collective rights with forest department interventions. The persons who are not a member of the JFM and who used to practice PODU(shifting cultivation) got Titles on the forest land but the JFMs members could not get it in view of their collective responsibility hence they also resorted to fresh encroachments inside and outside the areas allotted to them. >Automatic conversion of JFMCs into the Gram Sabha committee under Rule 4(1)(e) is neither mandated nor desirable under the ROFR Act, 2006 as the objectives, structure and mandate of JFM is different from that of committee under Rule 4(1)(e). >Whenever JFM areas are co-terminus with community forest resource boundaries, Gram Sabha may apply and get the Title to such community forest resource, subject to final approval by District Level Committee. >The efforts of improving status of Forest Protection through JFM since 1990s have thus been by and large negated by implementation of ROFR Act, >The Andhra Pradesh government gave clarification that VSS may claim community rights with necessary evidence for conservation and management of forest lands allotted to them for joint/community forest management by the forest department. If any individual member of VSS had at any time occupied or was in possession of forest land which has subsequently been brought under common use, he may claim such rights which shall have to be examined in the

6 light of provisions under section 3(1)(m) read with section 4(6) of ROFR Avt, It resulted in claims inside the JFM areas as most of the areas were under occupation. d) Gaps in implementation of ROFR Act, 2006 Vrs Forest (conservation) Act, >A subsequent statute supersedes all preceding court judgements or orders of prior date hence the above rights were recognized notwithstanding anything contained in any other law for the time being in force. This non-obstante clause, therefore, recognizes and vests the forest rights under section 3(1) in accordance with the provisions of the ROFR Act, 2006, regardless of whether such forest rights might be contrary to other laws which includes statuary law as well as judicial precedent, if any. >section 4(7) of the Act provides that the forest rights under the said Act shall be conferred free of all encumbrances and procedural requirements, including clearance under the forest (conservation) Act, >Approval of the Ministry of Environment and Forests under section 2 of the Forest (conservation) Act, 1980 is not required for conversion of Forest villages and other such villages into Revenue villages and the DLC is the final authority for approving the record of Forest rights specified in section 3(1) of the Act, including the right relating to conversion of Forest villages and other such villages into Revenue villages under section 3(1)(h) of the Act. >For diversion of less than one hectare,cutting of more than seventy five trees, recommendation of the Gram sabha and limited to the thirteen items listed under section 3(2) of the Act as per the procedure is required. e) Gaps in implementation of ROFR Act, 2006 Vrs Community Forest Resources. >Section 2(i) of the Act defines the term Minor Forest Produce to include all nontimber produce of plant origin, including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like. Hence the state government should ensure that the forest rights relating of MFPs under section 3(1)(C0 of the Act are recognized.

7 >The state government should ensure that the forest rights under section 3(1)(i) of the ROFR Act,2006 relating to protection, regeneration or conservation or management of any community forest resources are recognized and Titles should be issued as per the provisions of the Act. >The Gram sabha should initially demarcate the boundaries of the community forest resource as defined in section 2(a) of the Act but it is not demarcated properly at the time of issue of community rights with areas on which the forest dwellers might have traditionally been protecting and conserving for sustainable use. >For recognition of community rights, official documents such as working plans, gazetteers, forest settlement reports and other types of evidences mentioned in Rule 13 may be considered including government records or earlier classification of nistari forests as well as earlier or current practice of traditional agriculture have been added as evidences. But at the time of issue of community rights these things are not at all considered. >In case of any dispute amongst the community rights so vested, the same will have to be settled in accordance with the prevailing state laws but there is danger of exploitation of community resource like in North Eastern states. f) Gaps in implementation of ROFR Act, 2006 Vrs Right to protect, Regenerate and Conserve. >The individual /community right holders are forgetting the right to protect, regenerate and conserve. There is no regulatory body with powers entrusted in the Act on the Title holders who are not protecting, regenerating and conserving the forest resources. >After recognition of forest rights to protect, regenerate or conserve or manage, there should be regulated access to community forest resource and any activity which adversely affects the wild animals, forests and bio-diversity should be stopped which is not at all happening in the field. Any such activity that prejudicially affects the wild life, forests and bio-diversity in forest area would be dealt with under the provisions of the relevant Acts. Conclusions: In addition to the above gaps the ROFR Act, 2006 does not prescribe any deadline or time limit for filing of claims which shows that it is on-going process. Hence

8 more and more encroachments are seen with a hope that they can file claim at a later date. The right to protect, regenerate and conserve is buried and priority is given to Individual and community rights. Bona fide livelihood needs are turning in such a shape to grab forest lands. Unless these gaps are rectified at an early date, there is threat to our forest habitat,wild life and Bio-diversity of this country.the title holders should survive on it, they have to protect the forests, both have to go hand in glove, otherwise we have to show photos of forests and wild life to our future generations. A measure of caution is also needed to prevent the possible misuse in order to save our natural resources. References: 1. Proceedings of the Andhra Pradesh forest officers conference held on and at Hyderabad.

No.158-C of 2005 THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) BILL, 2006 BILL

Bill AS PASSED BY LOK SABHA ON 15 TH DECEMBER 2006 No.158-C of 2005 THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) BILL, 2006 Short title and commencement. A