From Superficial Tinkering to Unpacking State forests
in IndiaPresentation for the conference on
Taking stock of smallholders and community forestryMontpellier FranceMarch 24-26, 2010
ByMadhu Sarin
Chandigarh, India
Indian context – Forests & wildlife conservation
• 23% area ‘recorded’ as forests• Progressive stringency of conservation
laws• Centralised management by territorial
bureaucracy• Continuation of colonial law for
enclosures
Forest Survey of India 2003
Indian context – Democratic Federal Republic
• Constitutional protection for equal rights
• Constitutional mandate for decentralization of governance
• Special constitutional protection for tribal cultures & resource rights
• Community resource management as per customs & traditions in tribal areas
Origins of ‘Participatory’ (Joint) Forest Management
• State forest protection in crisis• Increasing alienation & conflicts with
forest dependent people• General shift towards ‘participatory’
approaches• Donor – NGO driven
Basic framework
• No rights – only conditional entitlements
• No devolution of authority – only responsibilities
• Unilateral, non-enforceable MOUs between FDs & Village institutions
• Only on degraded forests
Research focus in early years
• Unequal partnerships – imbalance in power
• Gender & equity concerns• Livelihoods focused silviculture• Institutional autonomy & diversity• Lack of legal status
First major shift – centralised standardization
• Massive donor funding• FD back in command – NGOs
sidelined• Standardised undemocratic
framework extended even to lands under customary tenures
• Loss of creativity & diversity
Judicial Interventions didn’t help
• A forest PIL case since 1995• Supreme court issued sweeping orders,
most with drastic impacts on forest dwellers & forest based livelihoods
• Little attention to governance issues – further centralization of power in forest bureaucracy
Deconcentration instead of devolution
• Extension of FD control inside villages• Evictions of poor with help of elites• Further enclosure of tribal & common
lands as state ‘forests’• Little sharing despite promises
Cultural & ecological impacts of standardisation
• Further loss of institutional diversity• Delegitimization of indigenous land and
forest use practices• Loss of biodiversity due to focus on
trees & plantations• Destruction, rather than improvement
of livelihoods
Massive evictions as turning point - new questions, new
perspective MoEF’s May 3, 2002 order - Evict all
‘encroachers’ by September 30 Cited Supreme Court’s concerns Bet May 02 & Aug 04, evictions from
152,000 ha At 1 ha/hshld, 152,000 families or 750,000
impoverished people brutally evicted.
Outrage brought new issues into limelight
• Protests brought together people from diverse backgrounds - Issue reached Parliament
• Deconstruction of historical forest land assemblage
• MoEF admitted ‘historical injustice’ & that all forest dwellers without titles are not ‘encroachers’
• Ancestral tribal lands declared state forests without recognition of rights
Roots of the Problem: Unsound Land Classification as ‘Forests’
• Most forestry interventions a-historical • Unquestioning acceptance of official
‘forest’ land (mis)classification • Plantations on lands under other uses
destroy livelihoods, rights, & biodiversity
Legal Construction of Indian Forests
• Appropriation of commercially valuable forests & non-privatized commons during colonial rule
• Post independence, poorly surveyed tribal areas declared ‘state forests’ without ecological surveys or recognition of rights.
• Between 1951- 88, ‘national’ forest estate enlarged by 26 million ha (from 41 to 67 mha) through sweeping notifications
Poffenberger & McGean 1997
Disenfranchisement of Tribal Communities by conservation
laws• Major violation of constitutional provisions
for safeguarding tribal cultures, livelihoods and resource rights
• widespread negation of communal tenures, institutions & holistic land use systems without rigid forest-non-forest boundaries.
• labeled ‘encroachers’ on their ancestral lands.
Tribal impoverishment through large scale displacement
• By 1990 about 8.5 million tribals (about 12.6% of all tribals) had been displaced by mega projects and Protected Areas.
• Tribals only 8% of the population but upto 55% of those displaced.
• 6.4 million displaced adivasis left to fend for themselves without any rehabilitation.
• No state accountability to those without recognised rights.
A Lot of legal ‘forest land’ is not legally notified
• All India ‘Recorded’ Forest Area (considered ‘legal forest’): 774,740 km2 (23.57% of country’s area)
• Reserve Forest = 51.6%; • Protected Forest = 30.8%;• ‘Unclassed’ forest (which not legally notified) =
17.6% (SFR 2003)• Rights not recognised even in many RFs &
PFs
“Unclassed state forest’ in Manipur or customary tribal land
Dismal condition of land records
• Forest and Revenue records don’t tally• Accdng to MoEF, RFA = 77 million ha• Accdng to MoAgri, RFA = 67.87 mha• 9.13 mha ‘disputed’ between them with
millions of cultivators caught in the middle. Revenue dept allocated the land to the poor but FD treats them as ‘encroachers’
Overall situation• Poor procedures & unsound premises for
defining forests and assembling the national forest estate
• Serious tenurial and land use conflicts, unclear boundaries, jurisdictional disputes between departments & communities
• Imposition of inappropriate management objectives on non-forest lands declared state ‘forests’ through sweeping notifications.
JFM priveleged over resolving tenurial conflicts
• 3 months after it’s June 1990 JFM circular, MoEF had issued circulars for:
• FP (1) Review of encroachments on forest land. • FP (2) Review of disputed claims over forest
land, arising out of (faulty) forest settlement.• FP (3) Disputes regarding pattas/leases/grants
involving forest land.• Tenurial issues known but ignored while JFM
attracted huge donor funding
JFM ignores rights & tenure
• Assumes FD hegemony on ‘forest’ lands• Converts disputed lands into state
property• Generates poverty thru de-legitimizing
existing land uses (agriculture, pasture, shifting cultivation)
• Provides no legal entitlements
FCA promotes structured Inequity
• All occupants with disputed claims on ‘forest’ land equated with ‘encroachers’ despite being there since generations
• Legal permission to destroy rich forests and tribal habitats for mining, industry and hydro projects granted liberally without even informing them.
Paradigm shift – challenging the macro framework
• Land classification – state forest or ancestral tribal lands?
• Governance institution – externally imposed or village assembly mandated by Constitution?
• Uni-functional versus multi-functional management?
• FD versus indigenous knowledge of biodiversity?
Premises of Campaign for new law
• Restoration of citizenship rights to survive with dignity
• Undoing historical injustice – not benevolent granting but recognition of pre-existing rights
• Reclassifying ‘national’ to ‘community’ forest resources
• Statutory community empowerment to protect, conserve and manage – dis-empower forest bureaucracy
Democratization of Forest Governance through FRA
• rights to include “responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance”
• To strengthen the conservation regime while ensuring livelihood and food security
• Making forest dwellers primary stakeholders in combining conservation with sustainable use.
Claimant Categories & types of Tenures
• Claimants can be individuals, families, groups & communities
• Granting of secure individual as well as community tenures
• Clear recognition of women’s rights• Rights to be heritable but inalienable
Categories of Rights to be Recognised
• rights to land for existing non-forest uses• to customary community lands for
usufructs and grazing including the right to protect, regenerate and /or conserve or manage ‘community forest resources’
• rights over NTFPs & habitat and habitation rights of PTGs & pre-agricultural communities.
• Other customary rights
Process
• Bottom up, demand driven law• Diluted hegemony of forest
bureaucracy- Ministry of Tribal Affairs responsible for implementation
• Transparent, village assembly based process for claiming rights
Shortcomings and obstacles
• Many eligible claimants likely to be excluded
• Ambiguous overlapping jurisdiction of other laws
• Sabotaging efforts of wildlife conservationists, foresters and MoEF
• Poor supportive capacity of Ministry of Tribal Affairs
Potential Outcomes
• Initiation of democratisation of forest governance 60 years after independence
• Poverty reduction thru massive redistribution of resources & livelihood & tenurial security
• Legal space for diverse community institutions managing their local resources
Challenges ahead
• Compelling entrenched forest bureaucracy & fortress conservationists to respect the law
• Ensuring complementary reform in conservation laws and programmes like JFM
• Ensuring right holders have voice in Climate change negotiations and agreements like REDD
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