The Ministry of Environment, Forests and Climate Change has drafted new rules that dilute the rights of Adivasis and other forest dwellers to independently decide how their traditional forestlands are used.

The new rules, formulated in February, give the forest bureaucracy across the country the power to grow plantations on the traditional lands of Adivasis and other forest dwellers without their prior consent or even consultation in most cases.

In only some instances would forest officials need to consult the community, and even then their views would not be binding.

The rules are meant to operationalise the Compensatory Afforestation Fund Act, 2016, which regulates how an existing fund of Rs 50,000 crore and future annual flows of Rs 6,000 crore would be used by forest officials to grow plantations. Some of the money is to be used for other forest and wildlife conservation activities.

The draft rules militate against an assurance the government had given to Parliament when the Act was passed. Anil Madhav Dave, then environment minister, had assured that the rules would ensure Adivasis and other forest dwellers are at least consulted before the forest department uses their lands. The assurance itself was a step down from what the law requires – explicit prior informed consent – but the opposition, led by the Congress, settled for the environment minister’s assurance after hectic backroom negotiations with the ruling Bharatiya Janata Party.

Now, even this assurance has been breached. The environment ministry did not respond to’s queries about the new rules.

Violating rights?

The Compensatory Afforestation Fund Act is meant to regulate the spending of a large fund collected annually from industries that chop down forests to set up their projects. The fund, collected since 2006, stands at around Rs 50,000 crore now. An average of Rs 6,000 crore is expected to accrue to it every year. Most of this money is to be spent on afforestation and plantations and some on other conservation-related works.

From past experience, though, tribal rights activists across the country were wary that the funds would be used in violation of the Forest Rights Act. Their apprehensions seem to have come true.

Since colonial times, most Adivasis and other forest dwellers in India had been denied rights to their traditional forestlands and some had even been classified as encroachers on their own land, which was controlled by state forest departments.

To correct this, Parliament passed the Forest Rights Act in 2006. The law gave back to traditional forest dwellers individual and community rights to access, manage and govern forestlands and resources. The law makes the gram sabha the statutory body for managing forestlands, and protecting them. It provides that no activity should be carried out in these forests until individual and community claims over them have been settled. It also requires that the consent of the gram sabha is taken before any activity is carried out on these lands, including by a government agency. This was reiterated by the Supreme Court in its landmark judgement on Vedanta’s mining project in Odisha’s Niyamgiri hills in 2013. The apex court directed gram sabhas in the region to decide whether the mining should go forward or not.

Not just industrial projects, even government plantations can lead to the displacement of Adivasis and other forest dwellers and curtailment of their rights. Over the past year, several such cases have been reported from Andhra Pradesh, Chhattisgarh and Odisha, where Adivasi communities have complained that the state forest departments were fencing off for plantations lands to which they have received titles, or to which their claims are pending.

Former Environment Minister Anil Madhav Dave's statement to Parliament on July 28, 2017.

Broken promise

In 2016, echoing the demands of tribal right activists, the Congress and other opposition parties asked that the Compensatory Afforestation Fund Bill be amended to explicitly state that consent must be taken from forest dwellers before their lands are used for plantations. The BJP government refused to amend the bill, but agreed to ensure that consultations are held with the gram sabhas of Adivasis and other forest dwellers. The Congress agreed and the law was passed, much to chagrin of tribal right activists who have been tracking the implementation of the Forest Rights Act.

The draft rules made public in February go against even this assurance of the government. In retrospect, though, this was bound to happen: a closer reading of the law would have made this clear. Its provisions are designed to ensure a large part of the fund is used for plantation on forestlands without tribal consent or consultation. But this fine print escaped notice. Rules drafted subsequently to implement the law cannot subvert the provisions of the legislation. In that sense, the draft rules are not surprising.

‘In bad faith’

Under the Compensatory Afforestation Fund Act, the levy on industries felling forests for their projects comprises of two parts – compensatory afforestation levy and net present value of the forest. As per the law, the compensatory afforestation levy is meant for planting trees on non-forestland equal to the forestland chopped for the project. India being a land scarce country, the law provides that as an alternative, project developers can fund plantations on existing degraded forestland. But this they must do for an area double the size of the forestland chopped for their project.

The net present value basically refers to the price of the forest lost to an industrial project. This money is spent mostly for tending to and protecting existing forests, but sometimes for growing plantations as well.

The law requires that the compensatory afforestation money is spent as per plans drawn up by state forest departments and that rules for spending the money collected against the net present value of the lost forest are formulated by the central government. Although Dave had not made a distinction between compensatory afforestation and plantations grown for the net present value in his assurance to Parliament, the draft rules follow the law’s prescription. They only mention consultations with tribals for using the net present value money. The catch is that plantations are largely funded by the compensatory afforestation levy.

As per the government’s records, the compensatory afforestation levy has paid for plantations on 8.13 lakh hectares of land since 1980. There is no similar data on plantations funded with the net present value money. Of the 8.13 lakh hectare compensatory afforestation, 60% is on degraded forestland and the rest on non-forestland.

The plantations are grown as per the “working plans” of forest departments, and the working plans do not require taking consent from or consulting forest dwellers even when the plantation areas overlap their traditional territories.

Now, under the new rules, when compensatory afforestation levy is used for planting trees on degraded forestlands – the kind of forests most Adivasis and other forest dwellers live on – forest officials will not be required to consult the local communities.

“The government’s bad faith is apparent from the fact they gave an assurance for dealing with the rights of tribals and forest dwellers in the rules, only to ensure a big chunk of the funds will never be covered by the rules at all,” said Shankar Gopalakrishnan, of the Campaign for Survival and Dignity, an alliance of organisations and individuals working for tribal rights.

Small print

Even when the net present value levy used for plantations, the draft rules do not require always consulting tribals or taking their consent. The rules state that the gram sabhas would be consulted only for plantations on forestlands that are not under forest departments’ administrative control.

This, in effect, excludes most forest areas that forest dwellers claim under the Forest Rights Act since the government has not decided to keep such areas out of forest departments’ administrative control yet.

This is a dilution of an earlier version of the draft rules that was leaked to the media last August. That draft required the forest department to take approval from the gram sabha for plantations funded with the net present value money at least in areas where titles of rights have been issued to local communities.

The new draft rules also prescribe that gram sabhas would be constituted at the panchayat level. This violates the Forest Rights Act, which mandates that each tribal hamlet should have a gram sabha to take independent decisions. Constituting gram sabhas at the panchayat level would likely deprive smaller hamlets of a say in the decision-making.

The rules also do not explain how the consultations would take place and what would happen if a gram sabha says no to the plantation. The environment ministry has published the rules for public comments for 30 days before it finalises them.