Forest Rights Act (FRA), 2006

Transcription

1 Forest Rights Act (FRA), 2006 Dr J V Sharma 5 h May, 2014

2 National Forest Policy Ecological security of Nation is prime objective (Ecosystem Services) People s involvement in the management, conservation and protection of forests Sustenance needs and livelihood of the people living in and around forests have the first charge on forests Economic derivatives and other objectives are subordinate to prime objective.

3 Spirit of FRA Recognition of Forest dwelling STs and OTFD whose rights could not be recognized during consolidation of state forests Those who are residing primarily in forests and have dependence on forests for their bona-fide livelihood Along with responsibility of conservation of biological resource Rights (Occupation and Habitation)

4 MANDATE Forest Right Act,2006 provides: Tenurial Security to cultivate and live Tenurial Security to have access on Forest Produce Tenurial Security to Community based Forest Governance

5 Uniqueness of FRA Democratization of quasi-judicial function brought down at village level No role of government at village level FRC to verify the nature and extent of FRs Gram Sabha to pass resolution - after giving reasonable opportunity to interested persons/ authorities concerned The Government functionaries at SDLC,DLC and SLC

6 Eligibility ST and OTFD had occupied forest land before the 13th day of December, 2005 They were also in occupation of such land on the date of commencement of the Act, i.e., Three generation for OTFD before

7 Status of FRA Implementation As on claims filed claims disposed(86.96%) claims recognized ha Community Rights Progress only in AP, Assam, Gujarat, MP, Chattisgarh, JHK, Karnataka, Kerala, Tripura Rajasthan, WB, Odisha and UP. Little progress in Bihar,HP. In Tamilnadu 3723 titles are ready for distribution. As the High Court of Madras has not yet vacated the stay, distribution of titles deeds could not be executed.

8 On the Ground People largely claiming individual cultivation rights (regularization) Limited communities claiming forest use and management rights No Clarity on sustainable harvest No Mechanism on Management of Community Forest Resources No legal tool to the community for exercising right to protect, regenerate and conserve CFR No Institutional Mechanism available to community based forest governance

9 On the Ground Require more clarity for conversion of Forest village into revenue village: Clarification and guideline issued by MOTA vide letter is not sufficient Lack of Process how revenue village will be notified after approval of DLC Amendment in the Land Revenue Act is needed to keep such type of land for the notification of revenue village

10 Diversion of forest land under Section 3(2) NO NPV and CA for the diversion of forest land Only for activities specified under Section 3(2) DFO has been delegated authority to sanction Nodal Officer shall monitor the progress

11 ABUSE OF THE ACT 8104 ha. Forest land wrongly recognized under FRA in Maharsatra MP and AP treated FRA as land distributing Act

12 Issues Raised by MOTA Convening meeting at Panchayat Level Smaller habitation,not formally part of village non-recognition of un-hindered absolute rights over the minor forest produce (MFP) to forest dwellers; Imposition of several restrictions, like, transit permit for transportation of MFPs, levy of fees, charges, royalties on sale of MFPs; exclusion of certain types of MFPs, in contravention of the definition of MFP given in the Act;

13 Issues Raised by MOTA Continuance of monopoly in the trade of MFP, especially in the case of high value MFP, such as, tendu patta by the Forest Corporations in many States; Non-recognition of other community rights, such as, nistar rights, conversion of all forest villages, old habitations, un-surveyed villages and other villages in forests, whether recorded, notified or not into revenue villages; non-recognition of community forest resource Rights relating to protection, regeneration or conservation, or management of any community forest resources under Section 3(1)(i) of the Act; etc. Guideline issues on 12th July,2012 addresses above mentioned issues

14 Issues of Regulation under FRA FRA does not have answer the following question: Who defines sustainable use in operational terms and who ensures that sustainable use and conservation mandates of Gram Sabha are met? No accountability of Gram Sabha for the failure of management. FRA is not being implemented in isolation. What would happen to IFA,WLPA and many other related regulations

15 Issues of Regulation under FRA Status and structure of FDAs Status of nationalized and non nationalized NTFPs Status of MFP cooperatives Status of Timber sharing arrangement made under JFM What Changes are needed in the forest and wildlife governance mechanism at state level How does one reconcile the FRA with IFA,BDA,WLPA and FCA.

16 Issues of Regulation under FRA What would be the linkage of New CFMC with PRI in Non-PESA area. Will villagers alone be able to prevent all offences without getting empowerment under IFA and WLPA How to distribute benefits between protecting and non protecting families, tribals and non tribals, and locals and nomads How to resolve inter-village conflict What is the balance of power between FD and communities? Who will take action against those who break village consensus.

17 Issues of Regulation under FRA What would be the status of JFMCs and EDCs set up earlier? What would be the legal category of forest land managed by Gram Sabha? How to select Management Committees and who would be authorized to write to the Government on behalf of GS? What rules should govern the constitution, term,composition and functioning of new community forest management committee

18 Key Questions in Forest Governance Which (whose) interests should prevail? Who should be permitted to use? Who should manage on a day-to-day basis? How should multiple stakes be reconciled? How much should be allowed to be converted, where, by whom, and who should regulate this and how?

19 FRA and Forest Governance Tenurial Security to manage, protect and conserve CFR FRA provides statutory procedure for recognizing CFR and Forest Rights FRA rules provides a statutory basis for protection of CFRs under FRA by a Gram Sabha Based Committee.

20 Rights, Responsibilities and Powers of Community based Forest Governance CFRMC office bearers are vested with powers to prevent forest offences and penalize violators. GS generate revenue and receive and spend grants for its forest related activities. GS should be encouraged to prepare Community Forest Management Plans with a technical support of State Forest Department. GS should have the option of merging CFRMC with Biodiversity Management Committee, or any other natural resource-related committee existing in the village.

21 Rights, Responsibilities and Powers of Community based Forest Governance GS should be responsible for ensuring fair access to right holders who have rights under the Community Forest Rights and provide reasonable access for meeting needs of other members of Gram Sabha as well as those of external right holders such as nomads. GS should be primarily responsible for ensuring sustainable use of forest produce including Minor Forest Produce. GS should be authorized to make rules regarding use, harvesting, protection and regeneration of CFR.

22 Role of Forest Department FD may be responsible for providing protection and technical support to the Gram Sabha FD may be empowered to carry out monitoring i.e the extent of compliance with sustainable use and conservation regulations in community based managed areas. It may also be responsible for taking action on any violation. FD will continue to exercise additional powers to implement regulatory provisions of Wild Life Protection Act, 1972 and other forest related State- level Acts.

23 Critical wildlife habitat Critical Tiger Habitat under WLPA can not replace the provision of CWH of FRA It is responsibility of MOEF to notify it No CWH has been notified so far

24 Validity and Applicability of MOEF Circular dated for Diversion of forest land FRA does not have any provision to get certificate from GS for the completion of forest rights recognition formalities before considering proposals under FC Act,1980. It is administrative arrangement of MOEF.

25 Clarifications Eligibility of right holders Consideration of revenue land Conversion of forest village into revenue village Relaxation of Quorum of 2/3 Processing of claims in Municipal area and Panchayat area Time limit for receiving the claims Claim rejected by DLC, can be considered again by DLC Forest land recognized can not be mortgaged Rubber plantation on forest land Time limit of completion of recognition of forest rights and proposals under FC Act,1980

26 Key Questions What would be the fate of IFA,WLPA,BDA,PESA after FRA in force? CLARIFICATION: Section 13 of the FRA clearly supports such an arrangement as the FRA is in addition to and not in derogation of any other law for the time being in force. If conflict, provision of FRA will prevail. Can the Gram Sabhas issue MFP transit permits and what will happen to the existing transit rules? CLARIFICATION: YES, the Gram Sabha has the authority to regulate transit permit for MFPs where rights have been recognized under FRA. The Forest Rights Amendment Rules, 2012, notified on provide that the transit permit for transportation of minor forest produce shall be issued by the Committee constituted by the Gram Sabha under Rule 4(1)(e) or the person authorized by the Gram Sabha. These Rules further provide that the Gram Sabha shall approve all decisions of this Committee pertaining to issue of transit permit.

27 Key Questions Can Gram Sabhas be called at the Gram Panchayat level for the purpose of FRA? Clarification: No, Gram Sabha should not be called at the Gram Panchayat level for the purpose of FRA. A Gram Panchayat normally consists of one or more revenue villages. As per the provision of the Act, Gram Sabhas are to be held at the village level and village has been defined under section 2(p) of the Act. Does Development right under section 3(2) which involve land use changes need to be referred under the Forest Conservation Act 1980? CLARIFICATION: No permission is needed under FCA, since the Forest Rights Act frees the rights of all encumbrances and procedural requirement of the Forest Conservation Act through Section 4(7).

28 Key Questions Should JFM Areas be directly converted to Community Forest Resource Titles CLARIFICATION: As per the provisions of Act and Rules, automatic conversion for JFM areas into CFR areas is neither mandated nor desirable as the objectives, structure and mandate of JFM is different from that of rights under community forest resource. However, wherever JFM areas are co-terminus with CFR boundaries, Gram Sabha may apply and get the title to such community forest resource, subject to the final approval by DLC. Is FRA applicable in Municipal Areas? Clarification: No, but on 29 th April,2013 MOTA clarified after HC order that Mohalla Sabha can be treated as GS and it is implemented

29 Conclusion It is beyond capacity of MOTA and state tribal/social welfare department to implement FRA in its spirit MOEF and MOTA jointly put efforts to implement it Forest department should be assigned major role in its implementation Need of additional rules and mechanism for community rights, sustainable use and forest governance Amendment in forest related legislations to empower community for confirming tenurial security to the community based forest governance, particularly the conservation,management and protection of CFR.

30 Thank you