Implemenation Concerns of Forest related Legislations

1. Implemenation Concerns of Forest related Legislations Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm June 2013

2. CONTEXT-Forest Land and Competing Uses • Forest Land – Dependence of over 300 million people • 23% of Geographical area • Forest Map- Mineral Map- Tribal Map- Poverty Map congruity

3. Legal Frame within which one operates- Little understood • Use & Conservation oriented? • IFA as well as state forest Acts- largely use oriented legislations and now termed as conservation oriented which has been attempted to be amended atleast four times • 1980; 1994; 2003; 2012..... • Forest Conservation Act, 1980- Regulatory and not prohibitory • Acquisition and Use based. • legislations such as mining laws; coal bearings act • Rights Based- recent trend nationally but well known locally • Forest Rights Act • PESA and MFP rights • Nistar; Wazib ul Urz; Category 6, Khatian Part II

4. Choices and the Challenges on Forest Land • Go –No Go and Mining ( e.g. Saranda) • Creating Exclusive Zones • RFs • PAS especially N.Ps and Sanctuaries • SEZs • Tiger Reserves especially Core i.e. Critical Tiger Habitat and Buffer • Critical Wildlife Habitat • Community Forest Resource • Through multiplicity of policy and legal measures! • Do communities understand the intent and the sanctity? Can we afford this ignorance?

5. Judicial Interventions and their implications • Definition of forest • Recorded and Notified forests • Dictionary meaning of forest? • The jointly verified forests???

6. Implmentation Concerns • Traditional Boundary disputes despite a technological revolution • Classical blunders • Forest villages • Correcting the past- Orange Areas; private forests as RF in Maharashtra • Unclassed forests • 1952 , 54, 56 Notifications forests • Encroachment? What is? Legally? Never seen it defined…. • Settlement of rights???? When?

7. Implementation Concerns • Monitoring the present • FC clearance conditions • Multiple Authorities • Appellate courts • CEC • NGT • Shouldn’t we work on a strong executive institutional arrangements? • The FAC at the Centre and the Institutions at the state level • Why should CECs and NGTs or even the Supreme Court be the last word?

8. New Challenges • Forest Rights • ESAs- Environment versus Forest • Special Forests- Mangroves; • New Categories of forests • Conservation reserves • Community reserves • Critical Wildlife Habitats • Critical Tiger Habitats- Cores- Buffer • Are we over doing it…? • Add to it USF; Lyndoh; Sarna; Bade Jhad , Chote Jhad; Jungle Khurd, jhudupi jungle…. Categories galore…but who understands them?

9. The Tiger Tribal Debate: Is there a disconnect? • The romantic notions of tribal life and on tiger needs a fresh approach! • Inviolate zones of vast lands may not be an affordable luxury and at the same time there are numerous realities and distinctions within tribal communities • Tribals of north cannot be compared with tribals of central India • Tribals of north east India are very different from tribals of south India • tribal youth is shifting towards the so called mainstream! • Similarly policing for conservation with the traditional forest guard model has not worked either.

10. Way forward • Its time to identify the real threats! • Diversion of forest land and fragmentation of habitat is a reality which is a consequence of the rush for the current growth rate. • The unholy nexus have to be identified and exposed. • New criteria for diversion of various categories of forest land and their livelihood impacts on dependent communities especially in the light of new instruments such as FRA have to be developed.

11. Way Forward • Strict monitoring of diverted land and whether they conform to the general and special conditions based on which they were granted diversion permissions. • Reversal of land transfer processes especially when it has not been used for the purposes for which it was diverted or acquired; • No right is absolute and it needs to commensurate with duties and responsibilities. But how?

12. Some other key issues need to be resolved • Right to protect, regenerate, or conserve or manage any community forest resource must be facilitated by the line departments • New Concepts of Critical Tiger Habitat and Critical Wildlife Habitat have to be understood correctly in their perspectives despite the different source of instruments namely the WLPA and the FRA • Due process of creating them needs to be followed • Emerging concepts such as Community intellectual property and right to access to BD needs to be explored to ensure benefits to local communities

13. Some other key issues need to be resolved • The link between Critical Wildlife Habitat and Community Forest Resource-sphere of influence is still not clear in practice • The link between Critical Tiger Habitat and Conservation Reserves- including land use regulation. Link to Buffer areas. • The FRA has mandated that FCA exempted on certain diversions especially for basic amenities! • The seventy five trees and one hectare relief! • Needs to be strictly followed!

14. CAMPA AND NPV- Some Points For Consideration • What I hear • How much money is coming? • How it is being spent? • Flexibility of the funds! • State Innovations! • Use of Technology! • Societies Act to ensure smooth fund flow! • What I don’t hear!! • Is CAMPA the accepted model for diversion of forest land and compensation for perpetuity ? Based on the Supreme Court’s view, a few lawyers and a few retired and voluntarily retired officers? One Expert Report by IEG and contested by CEC? • What have we diverted? Any assessment? • Can Natural forests and their diversion be really compensated esp. from the livelihood perspective? ( A few lacs per hectare…through out the country? )

15. CAMPA and NPV- Some Points For Consideration • Should Value of forest land and value of forest be treated separately? ( Orissa example) • Are parameters of CAMPA ( including Penal compensation, compensation for PAs and NPV adequate especially in the context of global initiatives such as TEEB-IUCN? • Monitoring of CAMPA? Can MOEF really monitor CAMPA? Do they have the capacity? • Is there a role for community? • Who is deciding state priorities? How do we elicit forest dependent communities’ views in utilisation of CAMPA funds? • Should it be left to a sensitive CEO or should there be a transparent , accountable ( perhaps legally accountable) system. • Do we still need the CAMPA Law? Why has the debate stopped?

16. THANK YOU +91-9810298530 sanjay@eldfindia.com www.eldfindia.org