Indian Forest Act, 1927

An Act to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce

Relevant provision/s focusing on CCAs

• This Act provides for the conversion of Reserved Forests into Village Forests if the local communities ask for the same and fulfil certain requirements as per the Act. The concerned communities are then vested with the powers of the forest department for the management of VFs.

How does it impact the CCAs?

Source:

https://communityconservedareas.org/document/show/5093

 

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https://communityconservedareas.org/document/show/3896

Wildlife Protection Act, 1972 

An Act to provide for the conservation, protection and management of wildlife and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country.

Relevant provision/s focusing on CCAs

• Two new categories of PAs, namely, Community Reserves and Conservation Reserves, were added.   

• Community Reserves can be declared on privately owned or community lands (the definition of which is not clear). 

• Conservation Reserves can be declared by the government on government owned lands in consultation with the local people.

There is no scope for ICCAs within the WLPA. In fact, Community Reserves (36C (1)), which have only limited potential for recognizing ICCAs on privately or community owned lands are also not allowed to be created within national parks and sanctuaries. Section 38 (V) 4 (ii) of the Amended WLPA (2006), explains a buffer zone as an areas where the spill- over population of tigers can survive, which require lesser degree of protection and “which aim at promoting coexistence between wildlife and human activity, with due recognition of the livelihood, developmental, social and cultural rights of the local people ...”. In practice, however, this has not been implemented as yet in any of the tiger reserves, except where eco- development programmes were already ongoing under previous schemes such as Periyar Tiger Reserve mentioned above. On the contrary there is serious discontent among the people living in Critical Tiger Habitats, who are being relocated without their rights recognized under the FRA or giving them an option of continuing to stay inside the CTH. This is mainly for creation of core zone for the CTH.

How does it impact the CCAs?

Source:

https://communityconservedareas.org/document/show/5093

 

https://communityconservedareas.org/document/show/3826

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Environment Protection Act, 1986 

An Act to provide for the protection and improvement of the environment and for matters connected therewith.

A brief on the Act:

This Act provides for the protection and improvement of the environment and related matters, and awards the central government broad powers in this regard (section 3). These include the power to restrict industrial and other operations and processes in certain areas (section 3(2)(v)).

Factors the central government may consider in restricting such activities are spelled out in the Environment (Protection) Rules 1986 (section 5). Besides a number of environment and pollution-related concerns, these factors include: biological diversity of the area which needs to be preserved (section 5(1)(v)); proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act 1958, or a protected area under the Wild Life (Protection) Act 1972, or places protected under any treaty, agreement or convention (section 5(1)(viii)); “environmentally compatible land use” (section 5(1)(vi)); and “any other factors” the government considers to be relevant (section 5(1)(x)).

Together, these provisions have been used since 1989 to prevent industrial and development operations from taking place in specific sites across the country. Such areas have come to be known as ‘ecologically sensitive areas’. Apart from restricting commercial and industrial development, the Act of 1986 and its Rules do not specify any other restrictions on community access or use in such areas. The notification and rules for each ecologically sensitive area are site-specific and based on the local context.

Relevant provision/s focusing on CCAs

Ecosystems and landscapes can be notified as Ecologically Sensitive Areas (ESA). This would enable control or restriction of certain identified commercial, industrial and development activities. 

How does it impact the CCAs?

Source:

https://communityconservedareas.org/document/show/5093

 

https://communityconservedareas.org/document/show/3872

https://communityconservedareas.org/document/show/3878

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Panchayati Raj (Extension to Scheduled Areas) Act, 1996

An Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.

A brief on the Act

This Act provides for the extension of the panchayat local governance system to ‘scheduled’ areas referred to in Article 244(1) of the Indian Constitution, which are areas with predominantly tribal populations. It requires state laws to be made “in consonance with the customary law, social and religious practices and traditional management practices of community resources” (section 4(a)). A gram sabha (village assembly) is to be established in every village (section 4(c)), and is “competent to” protect community resources (section 4(d)).

Gram sabhas approve development plans and projects at the village level (section 4(e)(i)). They also have the power to control “local plans and resources for such plans including tribal sub- plans” (section 4(m)(vii)). This Act was, however, much diluted in state adaptations and limited rights were eventually granted to the communities concerned, thus resulting into much less devolution and benefits to the local communities as compared to the expectations of the concerned communities. After the enactment of Forests Rights Act in 2006, however, a number of communities are using the provision of FRA and PESA together to be able to claim holistic rights over their traditional territories and resources therein.

Relevant provision/s focusing on CCAs

• Mandates decentralisation of governance to rural bodies, like panchayats (village councils) and gram sabhas (village assemblies) in predominantly tribal (“scheduled” under constitution) areas.

• Confers the ownership and decision-making rights over non-timber forest products (NTFP) to local institutions. 

• Mandates consultation with local communities regarding many developmental and other issues relevant for a site.

How does it impact CCAs?

https://communityconservedareas.org/document/show/3891

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Biological Diversity Act, 2002

An Act to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.

A brief on the Act:

This law regulates access to biological diversity for commercial use and other specified purposes. It provides for the protection of intellectual property rights with respect to biological resources and associated knowledge, the sharing of benefits arising from their use, the conservation of biological diversity, and related matters.

The central government is responsible, inter alia, for developing “measures for identification and monitoring of areas rich in biological resources, promotion of in situ, and ex situ, conservation of biological resources” (section 36(1)). Where it has reason to believe that an area “rich in biological diversity, biological resources and their habitats is being threatened by overuse, abuse or neglect”, it has the power to direct the state government concerned to “take immediate ameliorative measures” (section 36(2)). The central government must also “endeavour to respect and protect the knowledge of local people relating to biological diversity” (section 36(5)).

The law allows state governments to declare “biodiversity heritage sites” in areas of “biodiversity importance” (section 37(1)). This is done “in consultation with the local bodies”. Rules for the management and conservation of such areas are framed by state governments in consultation with the central government (section 37(2)). State government may “frame schemes” to compensate individuals or communities “economically affected” by the designation of biodiversity heritage sites (section 37(3)).

The central government has the power to declare, in consultation with the concerned state government, “any species which is on the verge of extinction or likely to become extinct in the near future” as a threatened species, to prohibit or regulate its collection for any purpose, and to take “appropriate steps to rehabilitate and preserve those species” (section 38). The central government may also exempt from the provisions of this Act certain biological resources, “including biological resources normally traded as commodities” (section 40).

Most of these provisions either directly or indirectly exclude CCAs and local communities. All powers lie with the central or state government. Moreover, the provision for schemes to compensate those who are “economically affected” by the declaration of biodiversity heritage sites (section 37(3)) is a strong indication that use rights in such areas could be restricted, and implies that local communities could be excluded. It also implies that communities can be moved out of areas that are so declared. Yet there are communities, which intend to take advantage of this provision, which face problems due to the final decision about declaration being of the government (see the case below of Medak, Andhra Pradesh).

The law does contain certain provisions that may be of relevance to CCAs. First, every local governance body is required to constitute a biodiversity management committee to promote “conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity” (section 41(1)). In taking decisions related to the use of biological resources and associated knowledge, national and state-level authorities established under this Act must consult these committees (section 41(2)). Within their areas of jurisdiction, biodiversity management committees are allowed to charge a fee for access to or collection of any biological resource for commercial purposes (section 41(3)).

Second, the Act provides for the creation of local biodiversity funds in areas where “any institution of self-government” is functioning (section 43(1)). Grants and loans from national and state-level authorities, fees collected by local biodiversity committees and monies received through other sources, as may be decided by state governments, are paid into the fund (section 43(1)). The fund is to be used for the “conservation and promotion of biodiversity” and for the “benefit of the community in so far such use is consistent with conservation of biodiversity” (section 44(2)).

Third, the National Biodiversity Authority established under this Act must ensure that benefits arising from the commercial exploitation of biological resources are shared equitably, according to “mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers” (section 21(1)). ‘Benefit claimers’ are “conservers of biological resources, their byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application” (section 2(a)).

Finally, state biodiversity boards established under this Act may, in consultation with local bodies, prohibit any commercial activities concerning access to or use of biological resources if such activities are deemed “detrimental or contrary to the objectives of conservation and sustainable use of biodiversity or equitable sharing of benefits arising out of such activity” (section 24(2)).

Biodiversity management committees can be authorised to deal with intellectual property rights, and can claim benefits from use of local resources and knowledge. The Act provides for village communities to carry out detailed resource mapping and biodiversity inventories, which would be crucial for establishing management strategies. But the mechanical process of documenting local knowledge on biodiversity could also be prone to misuse and biopiracy, in the absence of clear legal protection of such knowledge.

The Act does not address the rights of biodiversity management committees or their access to the resources they manage. Biodiversity management committees have the potential to be robust local institutions for conservation but their potential has been curtailed in the rules framed under the Act, limiting their role to the preparation of biodiversity registers and advising the state 

authorities on matters related to granting approvals. The Act does not specify whether biodiversity management committees have the power to deny access to resources that higher bodies have permitted.

Relevant provision/s focusing on CCAs

• Mandates creation of Biodiversity Management Committees (BMC) at the village level. BMCs are expected to manage, protect and record local biological diversity. 

• Provides for the declaration of areas being conserved for agricultural or wildlife biodiversity as Biodiversity Heritage Sites (BHS). 

• This Act includes all elements of biological diversity, domestic and wild and provides for protection of all kinds of ecosystems. 

• The National Biodiversity Authority and the State Biodiversity Boards established under the Act are required to consult the local BMCs while taking decisions related to the use of biological resources and knowledge associated with such resources.  

How does it impact the CCAs?

Source:

https://communityconservedareas.org/document/show/5093

 

https://communityconservedareas.org/document/show/3855

https://communityconservedareas.org/document/show/3863

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Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006

An Act to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.

A brief on the Act:

The passage of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (hereafter called Forest Rights Act or FRA) is a watershed event in the prolonged struggle for recognition of rights of the tribal and non-tribal forest dependent communities in the country. For the first time in the history of Indian forest administration, the state admits that rights have been denied to forest dwelling people and the law attempts not only to right that 'historic injustice' but also give them a central role in forest management. 

Since independence, the legal policies of the state overlooked local initiatives, displacing and dismantling the systems by imposing rigid norms and policies and systemically taking over the local decision-making powers. This led to an erosion of customary practices, and traditional institutions, causing an overall decline in the locally governed and managed ecosystems and resources. Most of the policies have largely bypassed local community governance institutions and have vested more powers in the state-controlled administration. Even where local governance structures were recognised, they were straitjacketed into uniform approaches that did not support diverse local initiatives.

The FRA attempts to address the rights of scheduled tribes and other forest dependent communities for habitation or cultivation, right of access, use and sale of non-timber forest produce (NTFP), and right to protect, regenerate, conserve or manage any community forest resource, among other rights (these rights can be claimed both as individuals and as a community). 

The Act recognises in section 3:

• The right of traditional forest dwellers to claim forest land occupied by them before December 13, 2005. These could be lands which have been the traditional territories, or occupied by the claimants any time before the specified date;

• The right of the government to divert forest land for 13 kinds of village development activities, including building of schools, hospitals, nursery/play schools and village roads, which may have been held in the past because of procedures required for forest clearance under the Forest Conservation Act of India;

• The rights of individuals and a community as a whole over minor forest produce, grazing land (including by the mobile pastoralist communities) and water resources, and so on; and

• The right of communities to protect, conserve, regenerate or manage any forest or community forest resource that has been traditionally protected (section 3(1)i).

These rights can be claimed in any area which can be described as forest land, including protected areas. This includes those areas where the settlements of rights have been carried out in the past under any previous Acts. In most cases in the country the earlier settlements, particularly those carried out under the Wildlife Protection Act have been extremely dissatisfactory and based on official records which often did not exist. 

The provisions of this Act apply only to "forest dwelling Scheduled Tribes", defined in section

2(c) as “members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities”). It also applies to "other traditional forest dwellers" defined in \ section 2(o) as “any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs”

There are two broad aspects of FRA that have great positive potential for forest based CCAs. First, the package of rights over forests to individuals and communities as mentioned above, and second, the decentralised self-governance model that it mandates, particularly in the areas where communities would choose to claim community rights including the right to protect, conserve and regenerate or manage. Although the Act does not specifically mention CCAs, these provisions, while providing security of tenure to various members of the community, create an opportunity for CCAs by recognising their right to protect and manage the area (under section 3(1)(i).

The Act has also been revolutionary in envisaging the gram sabha (village assembly) to play an important role in a number of areas, from initiating proceedings for the recognition of forest rights (section 6(1)) to providing consent to resettlement plans (section 4(2)(e)). This breaks from the past, where authorised government officials only played this role.

The process involved in granting forest rights as outlined in section 6, including the procedure for appeals, involves various stages of approval and clearance starting with the gram sabha (section 6(1)) and including a number of divisional, sub-divisional and district-level committees. These divisional and sub-divisional authorities consist of representatives of the tribal welfare department, and the land and revenue department, as well as people’s representatives from local panchayats and a forest department official. This ensures that decision-making powers are not held exclusively by the forest department with jurisdiction over the forests in question. 

Forest rights holders cannot be resettled, nor can their rights be “in any manner affected for the purposes of creating inviolate areas for wildlife conservation”, unless a number of specific conditions are satisfied (section 4(2)). It must be “established” by the state agencies exercising  powers under the Wildlife Act that the activities of rights holders or the impact of their presence on “wild animals is sufficient to cause irreversible damage and threaten the existence of said species and their habitat” (section 4(2)(b)), and the state government must have “concluded that other reasonable options, such as, co-existence are not available” (section 4(2)(c)).

In addition, a resettlement or “alternatives package” must be prepared and communicated, providing a secure livelihood for the affected individuals and communities (section 4(2)(d)). The “free informed consent” of the gram sabhas in the area must be obtained in writing, with respect to the proposed resettlement and the package offered (section 4(2)(e)). Facilities and land allocation at the resettlement location must be complete before resettlement takes place (section 4(2)(f)). The Act also states that the “critical wildlife habitats” from which rights holders are relocated for the purposes of conservation cannot be subsequently diverted for any other use (section 4(2)).

The law recognizes the existence of “community forest resources”, which are defined as “customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities”, and may include “reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access” (section 2(a)). Among the rights that can be granted under this Act is the right to “protect, regenerate or conserve or manage any community forest resource” that communities have been “traditionally protecting and conserving for sustainable use” (section 3(1)(i)).

As such, communities to whom this law applies may be able to seek rights to protect forest lands that have traditionally been in their care, including forest lands situated within designated protected areas, but to do so they must follow the same procedure, outlined in section 6, that applies to the grant of all rights under this Act. In areas where rights have been granted under this Act, gram sabhas and other village-level institutions have the power to protect forests, wildlife and biodiversity (section 5(a)); ensure the protection of catchment areas, water sources and other “ecological sensitive areas” (section 5(b)); ensure that the habitat of forest dwelling communities is “preserved from any form of destructive practices affecting their cultural and natural heritage” (section 5(c)); and ensure compliance with decisions taken in the gram sabha concerning access to community forest resources and preventing activities that adversely affect forests, wildlife and biodiversity (section 5(d)).

Where such rights are acquired in a designated protected area, such as a sanctuary or national park, it is not clear how the interface is to be managed between the rights of forest dwelling communities to protect and conserve an area, and the powers of wildlife officials and statutory authorities created under the Wildlife Act.

Relevant provision/s focusing on CCAs

• Provides the establishment of several rights to tribal and forest dependent communities, including to forest lands and resources. The Act also stresses co-existence in PAs. 

• Empowers communities to declare any forest that they have been conserving and protecting as Community Forests

How does it impact the CCAs?

Source:

https://communityconservedareas.org/document/show/5093

 

https://communityconservedareas.org/document/show/3835