Draft amendments to the Forest Conservation Act rules, however, do not make gram sabha consent mandatory for all projects
Women
from faraway Dongria Kondh villages watch the proceedings of Serkapadi
palli sabha (gram sabha) from outside the meeting venue to decide on
Vedanta's bauxite mining project in Niyamgiri. The gram sabhas of all 12
villages consulted under a Supreme Court order rejected the project
unequivocally (Photo: Sayantan Bera)
The Union Ministry of Environment and Forests (MoEF) is planning to
make it legally binding for the states to settle tribal rights over
forestland before they send to it proposals for diverting such land for
industrial use. It, however, seems to be leaving a window open for
itself to decide whether the gram sabha consent will be required for a
particular project or not. It may be recalled that Vedanta’s proposal to
mine bauxite from Niyamgiri hills could be stalled only after the
Supreme Court ordered that the fate of the project should be decided by the gram sabhas of the Dongria Kondhs.
The ministry is planning to amend the rules of the Forest
Conservation Act (FCA), 1980 that govern the diversion of forestland for
non forest purposes. One of the major changes that the ministry is
planning in the new rules is to align the process of forest diversion
with the provisions of the Forest Rights Act (FRA) of 2006 that
recognise traditional rights of forest dwellers over forestland.
FCA to be aligned with FRA
FRA mandates that forest dwellers cannot be shifted from forestland
unless their traditional rights over such land are recognised. For long,
large tracts of forests have been diverted in the country for mining
and industrial projects, without caring much for the rights of tribals
and other forest dwellers who depend on forests. In 2009, MoEF issued an
executive order making it mandatory for all the projects which require
forestland diversion to obtain consent of the affected gram sabhas,
including certificates from them that FRA has been implemented in the
region.
The order has, however, been repeatedly flouted by the states and at
times by MoEF itself. Big-ticket projects like Vedanta and Posco in
Odisha have got into legal hurdles for disrespecting the rights of the
forest dwellers. While MoEF's order was considered to be an executive
decision which did not have the backing of a law, there was no
prescribed procedure for state governments to ensure time-bound
implementation of FRA in the forest areas proposed to be diverted.
The new FCA rules, still at a draft stage, are expected to fill this
gap. The draft rules circulated among the ministry officials earlier
this year proposes that after the forest diversion proposal is forwarded
by the divisional forest officer to the conservator of forest within
the state government, the district collector will complete the process
for settlement of rights under FRA and obtain consent of the gram sabhas
“wherever required” and forward his findings to the conservator of
forests within two months. Only after this requirement is met, the
proposal will be processed at the state and Central level.
Discretionary clause
One tricky point, however, still seems to be unresolved. The draft
rules mandate the consent of gram sabhas “wherever required”. While the
2009 order of the MoEF mandated the consent of the gram sabhas in all
the cases; the ministry later tried to dilute it several times.
In February this year, forest
diversion for linear projects, such as roads, electricity lines were
exempted from the requirement of obtaining gram sabha consent. In an
affidavit filed in the Supreme Court in the Niyamgiri mining case on
February 15, the ministry said such consent will be required only in
cases where “displacement of large number of people” is involved and
which “affect the quality of life of the people”. This stand of the
ministry was criticised by forest rights activists who feared that
ministry may use these exceptions to dictate where the forest dwellers will have the say in vetoing the project and where they will not. The draft rules do not specify which projects will require gram sabha consent and which of them will not.
A senior official in the ministry confirmed that the provisions of
the new rules deal with FRA but refused to comment on the matter of gram
sabha consent. The ministry is soon going to send the draft rules to
the ministry of law and justice for its inputs after which it will place
them in the public domain for public comments.
New timeframes for decisions
The draft rules also aim to provide time lines to give more time to
both states and the Centre to process forest clearance projects. The
Forest Conservation Rules 2003, that are currently in force, mandate
that states examine and recommend fresh forest clearance proposals to
MoEF within three months of the receipt of the proposal from the
proponents and for the MoEF to dispose it within 60 days. These
deadlines are hardly met and the ministry has often faced flak from
industry and some politicians for delaying key infrastructure projects.
The draft rules propose varying and tiered time lines for projects
depending on the requirement of forestland. For instance, for the
project requiring up to five ha of forestland, the proposed time limit
to dispose it is 120 days while for projects involving forestland
diversion of over 100 ha, the current 150 days time limit is being
extended to a maximum of 300 days. The deadlines are fixed at each
official level and penalties are also prescribed in case of delays.
