Sunday, November 2, 2014

Modi government undermines tribal rights; environmental regulations

Nitin Sethi : Tribal consent regulations to be diluted
The central government is set to dilute the rights of tribals and other forest-dwelling communities, doing away with the present legal need for their consent while handing over their forest land to industry in large parts of the country. Business Standard has reviewed documents that detail how the government is to re-interpret the laws to allow this in all except Schedule V areas. The government plans to soon notify the changes, in effect leaving the power in many parts of the country to give away forest land with government officials and politicians in power at the Centre or states. The government plans to go ahead despite strong opposition from the affairs ministry, the nodal central government office in charge of protecting these rights of tribals and others under the (FRA).

Under the Constitution, the government notifies selected tribal-dominated districts, villages or blocks as Schedule V areas. The lands under the Schedule do not cover the entire tribal population, such as any of Northeast India, and cover only a part of the country's forested belt. At present, under the Forest Rights Act of 2006, the veto power of tribals and other jungle dwelling communities to protect their against destruction, including use by industry, extends to forests all over the country where their traditional rights have been claimed or settled and not only in Schedule V areas. 
On September 9, Business Standard had reported the initiation of this process under the supervision of the Prime Minister's Office. (

PMO, push
Several ministries, including those of environment & forests (MoEF), tribal affairs and law, have been meeting under instructions from the Prime Minister's Office (PMO) to change these provisions to remove the tribals' veto. The reviewed documents show a decision was taken by MoEF in early October that, "For the projects located outside the scheduled areas, consent of gram sabha (village council) is not a statutory requirement." The ministry also decided that in cases where plantation lands were classified as forests in government records less than 75 years ago and are located in areas where the Census records no tribal communities, the government need not seek the consent of people to use the forests. MoEF has recently given effect to this second dilution through a formal order. It is based on the premise that under the FRA, only those tribals and other communities have legal rights that can prove they've been living in a forest patch for more than 75 years.
Dumping green checks
The dilution ignores the fact that the law extends not only to Scheduled Tribes but also other forest dwelling communities. It also ignores the fact that government revenue records do not match those of the forest department over what areas should be classified as forests. In fact, the Supreme Court (SC) had passed an order that all lands on which forests grow, regardless of official classification, should be treated as forest lands under the environmental laws. The dilution takes away the rights of village councils to determine the claims and hands it over to district administrators, based on the above criteria. The second dilution, to do away with tribal rights in lands outside the Schedule V areas, which would have a more far-reaching impact, is on the anvil and should be ordered soon, sources in the government said.

Only opposer
One reason holding up the formal notification is the continuing opposition from the tribal affairs ministry. The ministry had earlier written to the PMO, as well as others, that the provided no room for exceptions on the issue of veto power of forest dwelling communities over their lands. It had cited the SC orders in the Vedanta mining case and provisions of the law to say any dilution through executive fiat would be a violation of the Constitution. Such changes could be contemplated only through an amendment to the law. The tribal affairs ministry has again, on October 21, reiterated: "No agency of the government has been vested with powers to exempt application of the act in portion or in full." And, "It is further advised that any action or process inconsistent with the due process laid under the Act would not be legally tenable and is likely to be struck down by the courts of law. Orissa Mining Corporation vs Ministry of Environment and Forests in 2013 (the Vedanta Niyamgiri episode) is a case in point."

In this case, the SC had asked the affected tribal communities to decide whether Orissa Mining Corporation should be permitted to mine bauxite in their traditional forests for Vedanta's aluminium refinery. All the 10-odd tribal village councils in the impacted area had rejected the mining project. The order came as the first judicial stamp of approval on the reading of the law. The tribal ministry has also warned that as the nodal department, it holds the power to inquire into any complaints against violation of FRA and infringement of the rights of people under the law. These emphatic views were put on record specifically in response to MoEF's decision to go ahead and effect the dilutions in tribal rights, documents reviewed by Business Standard show.

Suresh Ediga:
Recent changes to facilitate the clearance of hundreds of industrial projects.
  • The National Green Tribunal, the only body below Supreme court, which has the expertise and knowledge to fight the environment/forest cases, will be reduced to an administrative body from a Judicial body.
  • The National Board of wildlife has been made toothless violating the wildlife protection act
  • The tribals and/or gram sabhas who were a critical part of the projects impacting them, are no longer part of the consultation process
  • Public hearings in some cases are being done away with
  • The already polluted places/cities of the country are being opened up again in the name of development without addressing the underlying issues
  • Transparency is not being maintained on how and why the industrial projects are being cleared?
A few relevant details
I: the National Green Tribunal:
  • National Green Tribunal (NGT) is the only judicial body below the Supreme Court before which cases related to environment and forests can be filed.
  • NGT is also the first recourse anybody except the
  • project proponent has to be heard on any  environmental and forest clearances.
  • The clearance processes, handled by the ministry’s statutory advisory bodies, do not have a fixed process of engaging with other stakeholders directly.
  • The NGT hears all first challenges to environmental and forest clearances. Its orders can be appealed against in the Supreme Court.
Members of National Green Tribunal:
  • Chairperson: Retired Supreme Court justice or a high court chief justice.
  • 10 – 20 Judicial Members
  • 10 – 20 Expert members from across the country
Judicial tribunal to be reduce to an administrative one under the ministry itself
II: The National Board of wildlife
  • Needs to have 10 non official members but only has 2 instead
  • Needs to have 5 independent NGO’s instead has only one quasi – government
  • Gujarat Ecological Education and Research (GEER) Foundation, Gandhinagar, Gujarat” which is a Gujarat Government organization and not an NGO
  • The meeting minutes were always made available on the public domain but not the last meeting that happened in August where more than 100 projects were approved
  • The ministry of environment and forests (MoEF) has made seeking environment clearance for development projects within 10km from national parks and wildlife sanctuaries easier by approaching the National Board for Wildlife directly instead of the state wildlife boards.
  • The proposals will now be directly dealt by the NBWL standing committee headed by union environment minister
III: Forests
  • Delinking the forest and environmental acts to allow the projects such as highways, on non-forest land without waiting for
  • approvals for the stretch involving the forests
  • Increasing the economic activity in the Naxal affected areas by giving clearance to minor projects needing up to 40 hectares
  • Gram sabhas in forest areas have been stripped of their power to approve or reject proposals for the diversion of their forest lands for building roads, transmission lines, canals or other linear projects
IV: Environment
  • Environment Ministry has allowed coalmines with a capacity of less than 16 million tons per annum to expand without conducting a public hearing. The cut-off for this exemption used to be 8 mtpa.
  • Cleared the one-time expansion of mines with capacity greater than 20 mtpa if the expansion is restricted to 6 mtpa.
  • Exempted irrigation projects affecting less than 2,000 hectares from environmental clearances
  • Irrigation projects below 10,000 hectares can be cleared by the state governments.
  • lifted a moratorium on eight critically polluted clusters across the country
The relevant circulars pertaining to all the above changes can be found here:
Whether this is development in harmony with the environment or development to ruin the environment is a question that we the people must try to answer. The current government is very keen on fast tracking the clearance of the industrial projects, the environmental projects, the mining projects, the hydro electric power projects, the thermal power projects. Fast tracking the project clearance is all fine but it must not be done at the cost of endangering the wildlife, the forests, the environment and the people. With the media playing very little to zero role in highlighting these issues or debating about them, the onus is really on us to intervene, to understand, to question and to safeguard. After all development is not about addressing just our immediate future it’s about doing so without jeopardizing our future generations.

Reference links: