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