Sanjay UpadhyayAdvocate Supreme Court of India

Managing PartnerEnviro Legal Defence Firm

June 2013

Forest Land – Dependence of over 300 million people

23% of Geographical area

Forest Map- Mineral Map- Tribal Map- Poverty Map congruity

Use & Conservation oriented?◦ IFA as well as state forest Acts- largely use oriented

legislations and now termed as conservation oriented which has been attempted to be amended atleast four times

◦ 1980; 1994; 2003; 2012.....◦ Forest Conservation Act, 1980- Regulatory and not

prohibitory Acquisition and Use based.

◦ legislations such as mining laws; coal bearings act Rights Based- recent trend nationally but well

known locally◦ Forest Rights Act◦ PESA and MFP rights◦ Nistar; Wazib ul Urz; Category 6, Khatian Part II

Go –No Go and Mining ( e.g. Saranda) Creating Exclusive Zones

◦ RFs◦ PAS especially N.Ps and Sanctuaries◦ SEZs◦ Tiger Reserves especially Core i.e. Critical Tiger

Habitat and Buffer◦ Critical Wildlife Habitat◦ Community Forest Resource ◦ Through multiplicity of policy and legal

measures!◦ Do communities understand the intent and the

sanctity? Can we afford this ignorance?

Definition of forest◦Recorded and Notified forests◦Dictionary meaning of forest?◦The jointly verified forests???

Traditional Boundary disputes despite a technological revolution

Classical blunders◦ Forest villages

Correcting the past- Orange Areas; private forests as RF in Maharashtra

Unclassed forests 1952 , 54, 56 Notifications forests Encroachment? What is? Legally? Never seen it

defined…. Settlement of rights???? When?

Monitoring the present◦ FC clearance conditions

Multiple Authorities ◦ Appellate courts◦ CEC◦ NGT

Shouldn’t we work on a strong executive institutional arrangements?◦ The FAC at the Centre and the Institutions at the state

level◦ Why should CECs and NGTs or even the Supreme Court

be the last word?

Forest Rights ESAs- Environment versus Forest Special Forests- Mangroves; New Categories of forests

◦ Conservation reserves◦ Community reserves◦ Critical Wildlife Habitats◦ Critical Tiger Habitats- Cores- Buffer

Are we over doing it…? Add to it USF; Lyndoh; Sarna; Bade Jhad , Chote

Jhad; Jungle Khurd, jhudupi jungle…. Categories galore…but who understands them?

The romantic notions of tribal life and on tiger needs a fresh approach!

Inviolate zones of vast lands may not be an affordable luxury and at the same time there are numerous realities and distinctions within tribal communities ◦ Tribals of north cannot be compared with tribals of

central India◦ Tribals of north east India are very different from

tribals of south India◦ tribal youth is shifting towards the so called

mainstream! Similarly policing for conservation with the

traditional forest guard model has not worked either.

Its time to identify the real threats! Diversion of forest land and fragmentation of

habitat is a reality which is a consequence of the rush for the current growth rate.

The unholy nexus have to be identified and exposed.

New criteria for diversion of various categories of forest land and their livelihood impacts on dependent communities especially in the light of new instruments such as FRA have to be developed.

Strict monitoring of diverted land and whether they conform to the general and special conditions based on which they were granted diversion permissions.

Reversal of land transfer processes especially when it has not been used for the purposes for which it was diverted or acquired;

No right is absolute and it needs to commensurate with duties and responsibilities. But how?

Right to protect, regenerate, or conserve or manage any community forest resource must be facilitated by the line departments

New Concepts of Critical Tiger Habitat and Critical Wildlife Habitat have to be understood correctly in their perspectives despite the different source of instruments namely the WLPA and the FRA◦ Due process of creating them needs to be followed

Emerging concepts such as Community intellectual property and right to access to BD needs to be explored to ensure benefits to local communities

The link between Critical Wildlife Habitat and Community Forest Resource-sphere of influence is still not clear in practice

The link between Critical Tiger Habitat and Conservation Reserves- including land use regulation. Link to Buffer areas.

The FRA has mandated that FCA exempted on certain diversions especially for basic amenities!◦ The seventy five trees and one hectare relief!◦ Needs to be strictly followed!

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What I hear◦ How much money is coming? ◦ How it is being spent?◦ Flexibility of the funds!◦ State Innovations!◦ Use of Technology!◦ Societies Act to ensure smooth fund flow!

What I don’t hear!!◦ Is CAMPA the accepted model for diversion of forest land and

compensation for perpetuity ? Based on the Supreme Court’s view, a few lawyers and a few retired and voluntarily retired officers? One Expert Report by IEG and contested by CEC?

◦ What have we diverted? Any assessment?

◦ Can Natural forests and their diversion be really compensated esp. from the livelihood perspective? ( A few lacs per hectare…through out the country? )

Should Value of forest land and value of forest be treated separately? ( Orissa example)

Are parameters of CAMPA ( including Penal compensation, compensation for PAs and NPV adequate especially in the context of global initiatives such as TEEB-IUCN?

Monitoring of CAMPA? Can MOEF really monitor CAMPA? Do they have the capacity?

Is there a role for community? Who is deciding state priorities? How do we elicit forest

dependent communities’ views in utilisation of CAMPA funds? Should it be left to a sensitive CEO or should there be a

transparent , accountable ( perhaps legally accountable) system.

Do we still need the CAMPA Law? Why has the debate stopped?

THANK YOU+91-9810298530

sanjay@eldfindia.com www.eldfindia.org