On the 3rd of December 2018, while replying to the Government of Maharashtra’s query on whether the processes under FRA need to be completed before a proposal is sent for prior approval (Stage I clearance) for diversion of forest land, the Ministry of Environment, Forests and Climate Change (MoEFCC), in a reply, has suggested the rules that the compliance with Forest Rights Act (FRA) can happen after the Stage I clearance.
Terming the reply absurd, Kalpavriksh activists Meenal Tatpati and Neema Pathak Broome have drafted a letter of objection asking MoEFCC to withdraw the letter, even as seeking endorsement of the draft from forest rights activists and organizations across India.
Text of the Kalpavriksh draft:
We are writing to express deep concern about your letter F.No. 11-43/2013-FC dated 3rd December 2018, to the Principle Secretary (Forests) of Maharashtra with the subject heading, ‘Compliance of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.’
We are surprised at the selective and incorrect inference that this letter draws out of the Forest (Conservation) Amendment Rules, 2017 with regards to the FRA. The letter states that “…for the purpose of the MoEFCC, as per the provision under the Forest (Conservation) Amendment Rules 2016, the compliance under FRA is not required for consideration of in-principle approval. This has to be furnished by the state Govt. for consideration of the proposal by the ministry for final approval.”The 2017 Amendment Rules, which are incidentally wrongly mentioned as the 2016 Amendment Rules in the said circular, are quite clear regarding the process of compliance of the FRA to be followed for any forest land to be diverted for developmental activities.
The Forest (Conservation) Amendment Rules, 2017 clearly state that:
- The user agency should forward its proposal along with supporting documents to the Nodal Officer of the State or Union Territory.
- The Nodal Office shall forward the proposal to the District Collector (DC) and the District Forest Officer (DFO), where the District Collector needs to,
“(a) complete the process of recognition and vesting of forest rights in accordance with the provisions of the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 for the entire forest land indicated in the proposal
(b) obtain consent of each gram sabha having jurisdiction over the whole or part of the forest land indicated in the proposal for diversion of such forest land and compensatory and ameliorative measures, if any, having understood the purposes and details of diversion, wherever required”
(c) forward his findings along with the documents supporting the above processes to the Conservator of Forests (CF)
- The CF is to then forward the report of the DC as well as the DFO to the Nodal Officer who will then forward the proposals to either the Regional Offices of the MoEFCC or the Central Ministry for grant of approval according to the project. In fact, the 2017 Amendment Rules are clearer than the 2014 Rules on this matter. The latter sought for the District Collector to only,
- “Complete the process of settlement of rights in accordance with the provisions of the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, and obtain consent of the gram sabha wherever required.”
Thus, the Amendment Rules 2017, have more explicitly detailed the process and clearly stated when and what should be submitted towards compliance with the FRA with proposals seeking approval of the Central Government under Sec 2 of the Forest Conservation Act. Clearly, the process of recognition and vesting of rights under the FRA, and the consent of the gram sabhas to be affected need to be taken before and the relevant documents are to be attached with the proposal when it is sent for prior-approval or Stage I forest clearance under the FCA to the MoEFCC.
The State Government of Maharashtra has therefore, been carrying out the correct procedure to seek FRA compliance for stage 1 clearance, in accordance with the Forest (Conservation) Amendment Rules, 2017. It is shocking that the Central Ministry through its letter F.No. 11-43/2013-FC dated 3rd December 2018, is asking a state which is following the law to follow a legally incorrect process.
It is important to note that the preamble of the FRA mentions that, “…it has become necessary to address the long standing insecurity of tenurial access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions.” Developmental activity has often meant forceful relocation and loss of access to forest land for the Scheduled Tribes and Other Traditional Forest Dwellers.
Therefore, before any developmental activity is proposed on the forest land under their occupation, it is important to seek their consent and recognise and vest their forest rights. Therefore, in keeping with the spirit of the FRA the above mentioned letter needs to be immediately withdrawn and the Ministry must ask the state governments to seek FRA compliance before the proposals are be sent for Stage I clearance, in accordance with the Amendment Rules 2017.