17 May 2023
To
The Joint Committee
Lok Sabha Secretariat
Parliament House Annex
New Delhi 110001
SUBJECT: OBJECTIONS TO THE FOREST (CONSERVATION) AMENDMENT BILL 2023
This is a submission from the Himalayan region of Himachal Pradesh to the Joint Committee of Parliament on the Forest Conservation Amendment (FCA) Bill 2023. Representatives of diverse community, social and environmental organisations have been extremely concerned about the import and implications of the proposed provisions in the Bill for mountain states. In this regard a submission was made (Annexure 1) to the Ministry of Environment and Forests in October 2021 when the Ministry came out with the draft of the amendments. However, these objections (Annexure 1) were not taken on board. Below we yet again cite the serious cause for the concerns raised:
a) The mountain states of the Himalaya in the country together have almost 2.5 lakh sq. kms of recorded forests. On an average almost 2/3rd of the geographical area of the Himalayan region maybe classified as ‘forest land’. Thus, all legislations and policies related to ‘forest land’ are of concern to the region – with each of the states facing specific ecological and socio-economic concerns around the governance of these lands
b) With a large rural population, the Himalayan region in the country is home to about 80 million people dependent on mountain agriculture, pastoralism and varied forest and nature –based livelihoods in diverse ecosystems, including species-rich forests and grasslands (mostly classified as forests). Majority of the communities fall under the categories of Scheduled Tribes or Other Traditional Forest Dwellers under the purview of the Forest Rights Act 2006. For centuries indigenous communities of this region have survived and flourished on these commons and have evolved diverse knowledge systems and practices on usage and conservation of the forest resources. Yet the implementation of FRA in the mountain states has either been slow or has not even taken off.
c) The ecological geographic region with rich floral and faunal biodiversity, is also geologically complex and tectonically active. The region is under the grave impact of climatic events like erratic sudden rainfall, landslides, flashfloods, cloud bursts which has converted the region into a multi-hazard prone disaster zone.
d) Contributing to the erosion and slope destabilisation especially in the high Himalaya are land use changes, especially forest diversion for uncontrolled mega infrastructure proliferation – construction of dams, four lane highways, mines and other commercial projects leading to loss of livelihoods, lives and public property, year after year.
Given the above four reasons we are concerned that:
I. Contravention with the FRA: The FCA Bill aims to redefine the application of the FC Act by excluding certain forest types, including deemed and revenue forests, private forest land, and plantations to expedite forest diversion for various projects. This directly contradicts the Forest Rights Act (FRA), as the FRA applies to all categories of forest land, including unclassified forests, undermarked forests, existing or deemed forests, protected forests, wildlife sanctuaries, and national parks. The FRA recognizes and grants rights to Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) over all these forest land categories, empowering Gram Sabhas (village councils) as the authorized bodies to govern and manage forest land (Sections 4 (1), 3, and 5 of the FRA). The proposed amendment exempts certain forest categories from the forest clearance procedures prescribed by the FC Act of 1980. This allows for changes in land use for non-forestry activities without requiring forest clearance. However, the amendment does not propose any procedures for the role of the Gram Sabhas, even though they are legally empowered to protect, conserve, and regulate forest use. Consequently, there is a lack of alignment and harmony between the FCA and FRA, creating a legal vacuum that are resulting in confusion and intense conflicts between state authorities and Gram Sabhas. The Ministry of Tribal Affairs (MoTA) has issued guidelines clarifying that Community Forest Resources (CFRs) constitute a new category of forests to be recognized as CFRs under the authority of Gram Sabhas. The Gram Sabhas are responsible for governing and managing CFRs and integrating their conservation and management plans into the overall forest working plan. Thus be it for forestry activities, silvicultural operations or any matters concerning forest and wildlife conservation – the village forest resource committees and the Gram Sabhas will have to be part of the decision making and this has to be reflected in the Forest Conservation laws. The Supreme Court, in its judgment in the Niyamgiri case (Orissa Mining Corporation vs Union of India, (2013) 6 SCC 476), has also emphasized the legal requirement for compliance with the FRA and obtaining consent from Gram Sabhas before forest land diversion. Therefore, the proposed exemptions not only violate the FRA but also go against the Supreme Court’s judgment. The amendment to Section 2 introduces a new sub-section 2, which states that certain surveys, including reconnaissance, prospecting, investigation, or exploration (including seismic surveys), should not be considered as non-forest purposes and are exempt from the FCA. Yet again this is problematic given that many of the investigative and prospective studies involve mining, quarrying and other excavation work that may threaten the ecology and hamper livelihoods – forest rights under FRA. This warrants technical scrutiny as well as gram sabha consent.
II. Exclusion of forest lands situated within a distance of one hundred kilometres along international borders or Line of Control or Line of Actual Control, as the case may be, proposed to be used for construction of strategic linear project of national importance and concerning national security
The international borders that lie in the Himalayan region are strategically critical and are also located in the seismically active and high altitudinal topography. The cold desert trans Himalayan and greater Himalayan region – nfact 100 kms would bring under it the mid Himalayan belt as well are in the throes of a climatic crisis – with decreasing snow cover, glacial lakes (that can burst), springs drying up and rainfall uncertainties. (See figure –online source details NA – indicating the North Eastern Region and the areas that would be impacted).
In such high altitude regions of the mountains forests exist in small patches and play a critical role in maintaining the ecological balance of the areas. In mountain regions such areas are Glaciofluvial landforms from where many of the major rivers of India have origin. The forests in these are already under with the diversion of forests for ongoing development activities. Linear Projects typically include – railway projects, transmission lines and highways. All three kind of projects are tree guzzlers. In Himachal Pradesh transmission lines and roads together constitute over 50% of the diversion carried out so far – causing not just immense deforestation but also excavation leading to slope destabilisation triggering landslides and flash floods. There is a need to evolve regulations related to diversion of forests to protect the ecological and geographical integrity of such areas in the wake of the climate crisis. Most importantly from Ladakh to Arunachal, these areas also happen to be tribal districts where indigenous communities have their rights under the Forest Rights Act 2006, which are still in the process of being settled. Any change in land use change and forest diversion will have to be carried out with the gram sabha consent in place. This provision cannot be over-ridden.
III. Change in scope of the application of the Act on ‘private forests’ in Section 2 b
In Himachal and in many other states as well some forest areas have been arbitrarily entered in the name of individuals given the power exercised by members of landed and influential castes within the bureaucracy, in the colonial period. This was continued in post-independence era also. This is particularly the case for some types of land like for instance, ‘shaamlaat’ lands in Himachal Pradesh which were in the control of ‘Panchayats’ or individual co-sharers of the landed castes. Many of these lands had natural forests and these lands were taken over by the state government as part of the land reforms in 1974 under the Village Common lands vesting act. Close to 4.25 lakh hectares of such land was taken over by the State government.
While 50% of these lands were handed over to the forest department under the ‘reserved’ category, the other 50% were to be allotted to Scheduled Caste families many of whom were landless and also had occupations on these lands which were to be regularised. However, this process remained incomplete. In 2001 through a state level amendment these lands were handed over back to the individual co-sharers. The result of this has been the large scale privatisation of lands, which have forests. This is a matter of serious conflict in districts like Sirmaur and Solan. Many of these forests are contiguously spread over an area of several square kilometres. In few cases they are in the vicinity of protected and reserved forests and play a critical role in maintaining ecological balance of that region apart from being used for livelihood purposes.
Before changing application of the Act on private forests there needs to be an assessment of the socio-economic and ecological services these private forests offer in different contexts and the probable conflicts which will be heightened if the private ‘owners’ of these forests are given a free hand to erect structures and commercial plantations or such within such lands. Similarly, the exemption of lands acquired before 25.10.1980 from the purview of the FC Act cannot be done without the active involvement of all forest dependent communities as well as the MoEF&CC and other state departments who will have to first identify such lands with the current status of plantations/forests on such lands and the present use of such land.
IV. Threat of Mindless Plantations and other ‘greenwashed’ commercial activities
Afforestation has been perpetuated through forest policies and other government initiatives, however, there is growing evidence globally that “plantations” are not really a universal solution for environmental conservation or a climate mitigation practice. The non-availability of degraded lands, the plantation of species that are invasive and fast growing and unsuitable to certain terrains example existing natural forests or grasslands are being planted with trees, affecting the composition and uses of these forests. Additionally, there is a tendency to establish commercial monocultures, which can be detrimental to forests and the communities dependent on them for activities like livestock rearing. This authority should lie with the gram sabhas (village councils) and align with working plans, rather than being left to the discretion of individuals.
The FC Amendment Bill, in the amendment of Section 2, exempts certain activities related to the conservation, development, and management of forests and wildlife from the Forest Conservation Act (FCA). These activities include silvicultural operations, establishment of check-posts and infrastructure for forest staff, fire line maintenance, wireless communications, construction of various structures, establishment of zoos and safaris in non-protected forest areas, eco-tourism facilities, and other similar purposes specified by the Central Government. Just as afforestation many of these activities are likely to hamper traditional usufruct rights and are entirely commercial in nature and therefore need to undergo scrutiny – both technical and at the gram sabha level.
V. Executive fiats that compromise the spirit of the FCA
Furthermore, even before these proposed exemptions, the Ministry of Environment, Forest and Climate Change (MoEFCC) allowed forest diversions for certain categories of land use through executive fiat, disregarding the explicit objections of the Ministry of Tribal Affairs (MoTA) and in violation of the FRA. It was argued that the MoEFCC is not authorized by law to issue such directions and that these actions violate the FRA and constitute contempt of the Supreme Court’s judgment in the Niyamgiri case. For example, the MoEFCC exempted compliance with the FRA for forest diversions related to linear projects, mineral prospecting, forest diversion in areas without tribal populations, grant of mining leases, creation of land banks, granting “in principle” Stage I clearance, temporary use of the forest, and many others. All these exemptions undermine the FRA and the rights of Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs). The proposed amendment adds to these violations, compounding the issue further. (See Annexure 2: Regarding recent amendments to FCA Rules, 2017)
The committee must consider that there are other activities – like basic rehabilitation of disaster (landslide and floods) impacted communities that are pending due to the non-availability of non-forest land in mountain regions. The forest departments site hurdles in ‘forest diversion’ as a reason for not allotting lands for rehabilitation. This is becoming an issues across the mountain states and remains unaddressed. The MoEF &CC has not used its executive fiats for these ‘urgent’ and ‘emergency’ purposes while it continues to dilute two very critical and linked legislations – the FCA and FRA – for the twin intertwined goals of protecting natural ecosystems and dependent communities.
Further, it is imperative that a democratic and participatory consultative process be followed in this matter and we appreciate that the Joint Parliamentary Committee will ensure that no compromise and oversights occur in the same.
Thank you
Himdhara Environment Research and Action Collective
