Compensatory Afforestation- An exercise in the discretionary power of the Forest Department

BY ARPITHA KODIVERI AND MANASI KARTHIK

The Rules, Laws and guidelines that govern Compensatory Afforestation (CA) are many. They regulate various aspects of the CA process. This fragmentation of the process causes a strange interplay of forest laws which increases the discretionary power of the Forest Department whilst reducing demands of accountability from them. The primary check and balance embedded within forest laws for curbing such discretionary power is the need to consult or obtain the consent of the Gram Sabha (GS). The box below defines the role of each law in governing the different aspects of the CA process.

 

LAW/RULE/GUIDELINE COMPENSATORY AFFORESTATION PROCESS
Forest Conservation Act,1980 Determines whether a user agency is required to provide monies for compensatory afforestation or not.
Guidelines under the Forest Conservation Act,1980 (http://moefrolko.org/rule3.htm) It lays down the process for identification of land for compensatory afforestation. It states that non-forest land to the extent of forest land diverted should be identified else double the amount of degraded forest land should be identified for CA. It makes no mention of the requirement of consent or consultation of the Gram Sabha in this process of identification of land.
Compensatory Afforestation Act,2016 and Draft Rules,2017. Provides the legal framework for the formation of the two authorities at the national and state level for the management of the monies received from user agencies for compensatory afforestation. The Rules provide for consultation of the Gram Sabha for the drafting of the annual plan of operation which will detail out the activities to be undertaken based on the compensatory afforestation funds obtained. Only in areas which come within the ambit of community forest areas this annual plan of operation will have to be approved by the Gram Sabha or other such committee.
Forest Rights Act,2006 The Forest Rights Act,2006 ensures that the rights of forest dwelling communities are recognized and secured in forest land. It requires the consent of the gram sabha to be obtained for the diversion of forest land for a non-forest purpose. Thus forming an essential part of the forest clearance process. It also provides that in community forest areas the gram sabha or community forest management committee will be the body in charge of governance of that area.

 

Include explanation of IFR vs CFR rights.
Only STs and OTFDs can be granted rights

Land Acquisition, Rehabilitation and Resettlement Act (2013) Provides for the acquisition of non-forest lands on the condition that acquisition is for public purpose.

Requires that companies pay an equivalent of the market value.

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INCREASE IN THE DISCRETIONARY POWER OF THE FOREST DEPARTMENT

 The parliamentary debate on the drafting of the Compensatory Afforestation Fund Act,2016 concentrated on the conflict that this law will have with the Forest Rights Act,2006. The bill was passed in the Rajya Sabha in 2016 where the opposition’s request for incorporating provisions that included the Gram Sabha in the decision making process were promised to be made part of the Rules. The Draft Rules that are presently available have failed to provide for adequate provisions for consent. The Draft Rules state that in the making of the Annual Plan of Operation mere consultation with the Gram Sabha is sufficient in non CFR areas and approval of the GS or other committee within CFR areas. Given that only 3% of CFR potential has been realised, most areas where CA activities will be undertaken would only require consultation with the Gram Sabha. Consultation being a weaker legal standard than consent would only require the forest department to notify the GS, whether meaningful consultation will take place is subject to the discretion of the local forest department. CA in many ways replaces the democratic forest governance model with one where complete administrative control of the Forest Department is established. Consent of the Gram Sabha should be made mandatory even in non-community forest areas to provide a more democratic process of decision making on these plantations.

 The debate over CAMPA in parliament and after has been restricted to the question of consent but did not move towards questions of forest management and allocation of funds for community forest management. The present Draft Rules clashes with the draft guidelines for CFR management issued in early 2016 and MoTA guidelines of 2015 in two ways, firstly how does the CFR management plan incorporate both land allotted for CA and carrying out CA operations. Secondly the budget allocation of CA monies towards CFR management is not mentioned in the CA rules. In CFR areas there is ambiguity of the role of the CFRMC on operationalization of CA which may create conflict between the Forest Department and the Community Forest Rights Management Committee.

ACQUIRING LAND WITHOUT CONSENT

The issue of consent gets murky as non-forest land is acquired by the forest department for compensatory afforestation which is not considered as land acquisition for ‘public purpose’. Thus, the legal provisions of the Land Acquisition Act,2013 would not apply. This creates a legal vacuum where land transfer is a mere administrative process where the revenue department will denotify the area and it will then be registered as forest land. This makes CAMPA a convenient process for acquiring land under the pretext of increasing forest cover. The LARR process and legal safeguards should be extended to the land being acquired by the forest department for compensatory afforestation to ensure that the CA process is socially just.

Communities dependent on this land will now suffer from the change in the categorization to forest land which comes with excessive restrictions. This will also disrupt the entire basis on which forest rights are decided. The FRA provides for forest rights only for STs and OTFDs. In these new forest lands what if the communities are not STs or OTFDs? Then they can’t clam any rights. The legitimate owners of land and those whose livelihood is dependent on this land will not be eligible to compensation or rehabilitation due to the inapplicability of the LARR which will increase conflict in relation to land and resources.

RISK OF COERCED CONSENT AND INCENTIVISING FOREST DIVERSION

 The CA process is meant to deter or compensate for the loss of forest land. The manner in which the mechanism is set up as seen above it acts as an avenue for the forest department to increase its resources and discretionary power. Thus, there is an in built incentive structure for diverting forest land where the forest department becomes a direct beneficiary from the collection of CAMPA funds. This will cause a didactic change in the organizational behavior of the forest department from conservators or regulators of the forest to pushing for its diversion. As seen earlier the Gram Sabha consent is mandatory for the diversion of forest land which will be subject to coercion given the benefits associated with diversion through CAMPA. In CFR areas where consent is withheld there will be increased pressure to provide consent from the forest bureaucracy that will directly benefit from such diversion. This may result in the coercion of communities in providing consent. The exercise of the right of consent is already subject to the increased pressures of industrialization and corporate-state nexus. The additional incentive of CA is going to further restrict the assertion of this right.

This is the first of our three-part series on Compensatory Afforestation. Check out Part 2 here and Part 3 here.

 

 

 

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