India: Implications of the Forest Rights Act of 2006 in the Northeast
[Note prepared by Campaign For Survival and Dignity]
The Campaign for Survival and Dignity - a coalition
consisting of Bharat Jan Andolan,
National Front for Tribal Self Rule, Shoshit Jan Andolan (Maharashtra), Adivasi Mahasabha (Gujarat), Adivasi Jangal Janjeevan Andolan (Dadra &Nagar Haveli), Jangal Jameen Jan Andolan (Rajasthan), Madhya Pradesh Van Adhikar Abhiyan (Madhya Pradesh),
Jan Shakti Sanghatan (Chattisgarh), Peoples Alliance for Livelihood Rights, Chattisgarh Mukti Morcha, Orissa Jan Sangharsh Morcha, Campaign for
Survival & Dignity (Orissa), Orissa Adivasi Manch, Orissa Jan Adhikar Morcha, Adivasi Aikya Vedike (Andhra
Pradesh), Andhra Pradesh Vyavasaya Vrithidharula Union, Campaign for Survival and Dignity – Tamilnadu, Bharat Jan Andolan (Jharkhand) in its policy
paper clarified a number of concerns that have been raised regarding the impact
of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 in the Northeastern States of India.
This note discusses some of these issues and the
role of the Supreme Court in these and related matters.
The impacts
of this Act in the Northeast India
There are three broad categories of legal status in
the Northeast India, on which the effects of the Act will be different.
Nagaland and Mizoram:
No effect unless State Assembly passes resolution
The States of Nagaland and Mizoram are protected under Articles 371(A) and
371(G) of the Constitution respectively. Article 371 (A) provides that “(1)
Notwithstanding anything in this Constitution,—(a) no Act of Parliament in
respect of—(ii) Naga customary law and procedure,(iv)
ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a
resolution so decides.” Also, Article 371 (G) provides that “Notwithstanding
anything in this Constitution,—(a) no Act of Parliament in respect of—(ii) Mizo customary law and procedure, (iv) ownership and
transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides”.
Areas under
the Sixth Schedule
The areas of Assam, Tripura, Mizoram and Meghalaya that fall
under the Sixth Schedule have a different type of protection. The Sixth Schedule clearly provides that the
Autonomous District Councils (ADCs) of these areas have the power to make laws
with respect to forests (excepting reserved forests) and with respect to land.
Since these laws are backed by the Constitutional powers of the ADCs, they
would automatically override the Central Act, and could be used to ensure that
rights are granted and regulated as per decisions of the ADCs.
Reserved
forests
In the case of ‘reserved forests’ in the
Northeastern states, the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 becomes applicable. In most instances,
these ‘reserved forests’ (RFs) have been notified
without proper settlement of rights required by law and therefore the Forest
Rights Act will enable Scheduled Tribes and traditional communities to claim
rights in them.
In the case
of migrants and outside populations in RFs
The migrants who are not Scheduled Tribes (STs) in the area in which rights are being claimed
(migrants who are ST’s elsewhere will still be
considered non-STs in the Northeast) will be
considered as ‘Other Traditional Forest Dwellers’ for the purpose of the Act
provided they fulfil the criteria. Section 2(o) of the Act specifies that:
“‘other traditional forest dweller’ means any member or community who has for
at least three generations prior to the 13th day of December, 2005 primarily
resided in and who depend on the forest or forests land for bona fide
livelihood needs. Explanation- For the purpose of this clause, ‘generation’
means a period comprising of twenty-five years.”
Regarding
fears of restrictions on existing rights in VIth Schedule areas
The Supreme
Court’s track record in removing people’s control over forests and resources
Since 1995, when a case was filed in the Supreme
Court called T.N. Godavarman Thirumalpad vs. Union of India and Ors., the Court has demanded stringent forest protection
leading to the State governments evicting ‘encroachers’ from the forest lands.
But in the context of the non-settlement or improper settlement of forest
rights, the result was forcible illegal eviction of some 300,000 forest
dwellers resulting in clashes leading to death of scores of people across the
country. The Court has been passing a series of orders that directly attack the
communities’ right to manage their own resources. The Court has consistently taken the attitude
that no use of any forest anywhere in the country should take place except as
per the Forest Departments’ working plans/schemes – even where those forests
are actually owned by the community – and any diversion of government or
community forests to other uses needs to have the sanction of the Supreme Court/Ministry
of Environment and Forests (MoEF). After initially
banning all fellings in 1996, in 1998 the Supreme
Court passed a sweeping order with respect to all Northeastern States, where it
held that no more felling of any trees in any forest (including community or
private forests) could occur until the already felled timber had been sold.
Further, it held that all forests, including those under the ADC’s, had to be
managed in accordance with Forest Department working plans or schemes.
These orders, which run totally against any
community control or management, indicate the attitude of the Court towards
forest dwellers, the Vth Schedule Areas, as well as
the ADCs and community institutions in the Northeast enjoying protection of
customary rights. This situation
necessitated the launch of the movement of Adivasis across the sub-continent to struggle for the rectification of the historic
injustice through a legislative process to finally recognize the traditional
and existing rights of Scheduled Tribes and Other Traditional Forest Dwellers
resulting in the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006. We see this Act as both a victory as
well as subversion on account of inclusions of provisions that weaken community
decision making and rights, requiring the continued struggle for amendments in
the Act. Indeed, it is the court, advised by a Committee of ultra wildlife
conservationists, and not the Forest Rights Act, that is the most immediate
threat to the rights and powers of the traditional institutions or Autonomous/
Regional District Councils in the Northeast.
Finally, this Act is crucial to the rights of
millions of tribals and other forest dwellers in
other parts of India due to their ancestral lands being declared state
‘forests’ without recognising their customary
rights. The Act itself came up in the
context of the Ministry of Environment and Forests ordering large scale
eviction of ‘encroachers’ based on Supreme Court’s judgements,
including millions of Scheduled Tribes whose rights have in the first place
remained unrecognized till date in violation of forest laws. The Forest Rights
Act 2006 merely seeks to recognize the existing rights to undo a historic
injustice against the indigenous and tribal peoples.