The Forest Rights Act

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Timeline of Attempts to Sabotage Forest Rights for Large Projects

Both the UPA and the BJP governments have done their damnedest to make it possible to seize forest land for corporate and government projects – even where people have rights. A timeline of developments.

December 31, 2007: Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (henceforth FRA) notified into force. Diversion of forest land for projects continues as if rights and Act do not exist. Those with rights are driven out like animals.

July 30, 2009: After protests, letters from MPs, Parliamentary Standing Committee reports etc. MoEF issues circular that states that all proposals must be accompanied by various proofs of implementation of the FRA, including inter alia the following: 1) certificates from all affected gram sabhas that the implementation process of the FRA is complete; and 2) certificates from all affected gram sabhas that they give their informed consent for the proposed diversion of forest land. The quorum for both resolutions is to be 50%. This order is largely ignored and diversion continues.

August 16, 2010: Four member committee recommends rejection of stage 2 clearance for Vedanta’s Niyamgiri mine on grounds inter alia of the violation of the FRA and the 2009 order. Vedanta’s application for clearance is rejected, Minister’s order refers to quotes from report endorsing 2009 order.

October 18, 2010: Three of four members of the POSCO Enquiry Committee recommend cancellation of stage 2 clearance for the POSCO project in Odisha on grounds of violation of the FRA and the 2009 order. Fourth member dissents but agrees that re-implementation of the FRA is necessary and that clearance be put on hold while this is completed. On May 2, 2011, forest clearance is upheld by ignoring report of committee. No resolutions of the gram sabhas of the area certifying recognition of rights or consenting to diversion; but clearance given anyway, in violation of law. On September 9th Orissa HC finds that FRA has been prima facie violated.

April 2, 2012: Forest Advisory Committee (body constituted to advise on grant of forest clearances under s. 3 FCA) formally holds that “No project proposal will be considered complete until these documents [those required by the 2009 order] are submitted as required… under the terms of the aforesaid enactment of 2006 [the Forest Rights Act]. These documents are to be given in full and complete form at Stage I of the process of consideration and clearance and need to be in accordance with the said [2009] circular in all respects.”

July 7, 2012: Ministry of Tribal Affairs issues guidelines for implementation of the FRA (which are binding as per s. 12 of the Act); among many other issues these state that the 2009 circular must be complied with in all cases of forest diversion.

November 14, 2012: PMO Additional Secretary Pulok Chatterjee calls a meeting with the Secretary of the Tribal Ministry and the Secretary of the Environment Ministry. The meeting concludes that no gram sabha consent should be required for “construction of roads, canals, laying of pipelines, optical fibres and transmission lines etc.”; or for projects where “any other mandatory consultation” has been carried out, including public hearings for environmental clearance; etc. Further, rather than the gram sabha certifying that FRA implementation is complete, the State government can do so (note that it was State officials who were caught lying in this regard in POSCO, Vedanta and other cases). This decision is not made public.

November 21, 2012: Minister of Tribal Affairs writes to Minister of Environment and Forests, stating that the FAC is “misleading project proponents and the public that these projects are in compliance with the law when often they are not.” He cites several cases of violations of the FRA and the 2009 order and then calls for action to ensure that the FAC does not give illegal recommendations and that the FRA is complied with. He also points out that the 2009 order must be complied with prior to Stage 1 or in principle clearance.

December 7, 2012: Minister of Tribal Affairs again writes to Minister of Environment and Forests, this time focusing on the 2009 circular and stating that the circular must be complied with. He presents a detailed legal argument that the circular only states what the FRA in any case requires, and that the law is not only about recognising rights but about empowering people to manage forests.

December 12, 2012: PMO sends an office memorandum asking both Ministries to revise their circulars in accordance with November 14th decision – i.e. as to remove all requirements for gram sabha consent and certification.

end of December 2012 (exact date not known): Minister for E&F Jayanthi Natarajan declines to act on Nov 14th decision without explicit agreement from Tribal Ministry, refers file to Tribal Minister.

January 20, 2013 and subsequent days: Both Ministers are quoted in several press reports stating that they stand for ensuring full compliance with the FRA and the 2009 circular.

January 21, 2013: Tribal Minister sends a letter to the Minister for E&F and the Minister for Power, stating that he is in “broad agreement” with the recommendations of the November 14th committee (that headed by Pulok Chatterjee), but that the Fifth Schedule must be respected.

February 5, 2013: Ministry of Environment and Forests issues new circular stating that “linear projects” (the phrase is not defined) are exempted from the requirement of gram sabha consent under the July 2009 order (except in the case of projects affecting PTGs or “pre agricultural communities”, in which case consent would be required). All other requirements of the 2009 order – for rights recognition to be completed prior to diversion; for gram sabhas to certify recognition of rights; for consent for all non-‘linear’ projects; etc. – are not modified. In practice orders and FRA continue to be ignored in most cases.

April 18, 2013: Supreme Court rules in Orissa Mining Corporation vs. Union of India* that the gram sabha has both a duty and a power over forest management (it has a duty which it is “empowered to carry out”) under section 5 of the Act, which includes “the preservation of habitat from any form of destructive practices affecting their cultural and natural heritage.” (para 46). This is reinforced by the powers of the gram sabha under PESA (paras 56 and 58). Moreover, these powers are to be exercised in accordance with the guidelines issued by MoTA on 12.7.2012. The Court held that the primary problem in the Vedanta case was that the question of religious and cultural rights was not placed before “the gram sabha for their active consideration.”

August – September 2013: Palli sabhas (gram sabhas) in Niyamgiri area reject proposed Vedanta mine.

January 11, 2014: Environment Ministry rejects proposal for stage 2 clearance to Niyamgiri mine, citing Supreme Court orders and palli sabha decisions.

March 7, 2014: Ministry of Tribal Affairs writes to all State governments, stating that the Supreme Court’s decision in the Orissa Mining Corporation case clearly holds that the FRA applies to all projects and that gram sabha consent is required. Further, it states that the Ministry of Tribal Affairs is the nodal agency for forest rights and hence orders from other ministries should not be accepted. On this basis, it instructs state governments that gram sabha consent is required for all proposed diversions of forest land, including linear projects, and hence the Environment Ministry’s circular of 5.2.2013 (and two subsequent ones concerned with procedural details) are not in accordance with law and should not be followed.

May 2014: Environment Ministry complains to Prime Minister’s Office, gets Tribal Ministry letter referred to Law Ministry. In reference, recycles recommendations of Pulok Chatterjee committee.

July 31, 2014: New NDA government holds cabinet meeting on question of gram sabha consent. Most Ministers push for Pulok Chatterjee committee recommendations to be followed and gram sabha consent dispensed with (notwithstanding what the law and the Supreme Court judgment say). Law Ministry directed to reply as soon as possible. Not known if and when they did so.

August 27, 2014: Tribal Ministry writes to Environment Ministry stating that the Act does not permit any exemptions and asking the Environment Ministry to ensure that any order by it contains a clear warning that it should not be construed as relaxing FRA provisions. Tribal Ministry also objects to implicit proposal to combine gram sabha consent with public hearings under the EIA notification, stating that the former is a statutory requirement.

October 21, 2014: Tribal Ministry reiterates in letter to MoEF that exemptions from the FRA are not permitted, that no department can grant them and that failure to comply with the FRA is likely to result in court intervention.

October 28, 2014: Ignoring everything the Tribal Ministry has said, MoEF issues a new order stating that Collectors can give certificates bypassing FRA compliance in villages where only “plantations notified after 1930” exist and where there are no tribals. Order is illegal in multiple respects.

November 12, 2014: Tribal Affairs Secretary writes strong letter to MoEF Secretary, stating that an “impression is being created that this government is not serious about implementing the Forest Rights Act.” He also states that the October 28th order is illegal and should be withdrawn.

January 12, 2015: The Prime Minister’s Office holds a meeting at which, reportedly, the PMO fully supports MoEF’s position.

Late February, 2015: MoEF starts trying again with a new draft circular, now to remove the need for gram sabha involvement entirely – in both Scheduled and non-Scheduled Areas.