Streamlining Towards Ambiguity: Defining Forests to Facilitate Industry

– Manasi Karthik and Arpitha Kodiveri*

March 03, 2017 | 11:37 P.M.

In June 2016, the Union Environment Ministry of India formally issued a draft notification defining what constitutes a forest for as per the Forest Conservation Act 1980 (FCA). This seemingly insignificant move has since been largely overlooked by policy analysts. However, the new definition has far-reaching consequences for the future of forest management in the country. This definition not only fails to achieve the clarity it purports but also works within a gamut of forest legislations in the country that are increasingly geared towards facilitating industry with disregard for the rights of forest-dwelling communities. This move circumvents provisions of the Forest Rights Act (FRA) of 2006 and leaves rights in community forests and protected areas uncertain while also framing forests in terms that lend themselves to increasing commodification through carbon offsets.

A Potted History

The Forest Conservation Act was the statute that made definitional issues regarding forests pertinent. It deals with converting forest land for ‘non-forest’ purposes. This includes any type of non-forest use (industry, infrastructure, agriculture etc.) in both the public and private sectors. However, despite stipulating rules for the conversion of forests, the FCA failed to actually define forests themselves.

The first centralised definition of forests was only attempted in 1996 when the Supreme Court issued an order in the Godavarman case.[1]

The Court ruled that:

  1. any land referred to as a forest under any records and
  2. any land that conforms to the ‘dictionary definition’ of forests

would be deemed a forest for the purposes of the FCA and other forest laws.

This was not only a grave instance of judicial overreach, but it also expanded the scope of what can be deemed as forest lands beyond any measure that had been previously adopted. The major issue with such a broad definition is that it creates immense scope for confusion inherent in its ambiguity. What precisely is meant by the ‘dictionary definition’ is not specified in the court order. This potentially brings any land that is conceivably ‘forested’ under the purview of the FCA, regardless of already existing classification and/or established land-use practices.

This new (2016) definition of forests purports to streamline and clarify — as has been the veritable mantra of the present government– the earlier ambiguous definition. However, rather than achieving said streamlining in the interest of efficiency, the definition creates ever further ambiguity while also contravening the Forest Rights Act.

Defining Forests

In summary, the new definition makes the settlement of rights under the FCA a foundational condition for the definition of forests. It delineates areas where the settlement of rights has been completed prior to 1980. In these areas, the preceding categorizations of the Godavarman judgment continue to prevail. That is, in addition to the ‘dictionary definition’ any and all other statutory references to forests including the use of vernacular terminologies for forests are legally deemed as forests. However, the definition then goes on to provide for areas where rights have not been settled. In these areas, regardless of the settlement being as yet incomplete, areas with specified amounts of forest cover will be treated as forests.

The terms of this definition opens three fundamental issues:

  1. It makes the FCA foundational to the definition of forests while disregarding the FRA.
  2. Rather than offering greater clarity, this definition not only accepts the ambiguous terms of the Godavarman order but extends this to suggest that areas with specified degrees’ forest cover will be treated as forests.
  3. No clear rationale is offered for the use of quantitative determinants in deciding what forests are.

Sidelining the FRA

The workings of this definition are premised on settlement of rights under the FCA. However, the most recent –and therefore defining­– central legislation pertaining to settlement of rights is the FRA, and not the FCA. The notification offers no rationale for the pivotal role given to the FCA, which was a law drafted for the purpose of facilitating conversion of forest lands for non-forest purposes, rather than the FRA.

The FCA has been criticized as a draconian legislation hailing from the colonial era to aggressively entrench the principle of eminent domain. That is, vesting control of land in the country with the state. The FRA deemed this as a ‘historical injustice’, which it corrected by recognizing the rights of forest-dwelling communities.

The FRA works off a fundamentally different premise with regards to the ‘settlement’ of rights.  While the FCA frames settlement of rights as a static process that is presumed to have been completed in 1980, the FRA specifies that settlement of rights is to be an ongoing process with no cut off date. It creates a paradigm shift by framing itself not as an attempt at granting rights, but rather, one of recognising already existing rights. In doing so, it acknowledges that establishing rights is a dynamic process. This involves a continual negotiation of rights along with their concomitant obligations and responsibilities. The current definition undermines this in one fell swoop by making settlement of rights under the FCA and not the FRA, central to the way forests are defined in India.

Streamlining towards ambiguity

This new definition, most notably, brings increasing areas of land under the scope of forests. Lands are classified as forests based on a variety of quantitative indicators ­­–crown density, nativity, and contiguity– of the vegetation present. However, there is no consideration within this classification of how to account for already existing land classifications or established land-use practices of communities who traditionally occupy these lands. Therefore, in a similar vein as the Godavarman order, the notification creates greater scope for ambiguity and conflict rather than efficiency.

While it can be argued that broadening the scope of forests facilitates the goals of conservation, what is often overlooked is that this entails a concomitant ease of access to business. Since it has come into power, there has been a concerted effort by the present government to alter forest governance in two significant ways. First, there has been an attempt to circumvent the democratizing provisions of the FRA by routing authority back to the forest departments of respective states. Secondly, policy decisions are aimed at facilitating hassle free environmental clearances for business at the cost of recognising rights. These include (but are not limited to) the recommendations of the T.S.R. Subramaniam Committee, amendments to the Mines and Minerals (Development and Regulation) Act, the Compensatory Afforestation Fund Act, the Chotanagpur and Santhal Paragana Tenancy Acts and the rules of the FRA itself.[2]

When seen in the light of these recent policy decisions, this definition does more to facilitate industry than to further forest conservation. If it weren’t for this definition (and the broad scope it offers for land to be classified as forests) industries would need to negotiate a battery of different legislations corresponding to the many different land classifications that exist in practice, forcing them to contend with providing for the diverse needs and rights that correspond with already existing land-use practices. However, with more land classified as forest and forest-legislations increasingly geared towards disavowing the rights of forest-dwelling communities, this definition mainly facilitates ease-of-access for industry. Moreover, until the FCA was passed, discretionary power over decisions on the conversion of forest-lands for non-forest purposes lay with the state. However, with this new definition and its reliance on the FCA, the clearance process is now much more centralized. This therefore, impacts not only forest-dwelling communities, but it undermines the sovereignty and federal nature of the decision-making process itself.

The FRA exists as the sole remaining outlier within a matrix of policies that are seemingly engineered to circumvent it. Despite the FRA requiring that community consent be taken before converting forest lands, it is becoming increasingly challenging to legally enforce this. As in the recent case in Ghattbera village in the central Indian state of Chhattisgarh, circulars were simply issued by the local bureaucracy to cancel already granted community rights to make way for coal mining. Evidently, the meagre mitigative means offered by the FRA are easily evaded.

In addition to the ambiguity created by this definition and the ease of access it offers to the industry, these new provisions sit uncomfortably with rights already granted under the FRA. For example, Community Forest Right areas under the FRA are completely ignored under this definition. In these community forests, forest-dwellers are vested with the rights to use and manage their resources as well as the responsibility to conserve biodiversity. This definition doesn’t specify whether CFR rights will expand into these newly recognised forest areas. And if so, what procedures exist to instate these rights.

Similarly, the definition fails to put forth a method to negotiate the overlaps between the existing protected area network and these new areas which will now come within the ambit of forests. There has been a thrust since the passing of the Wildlife Protection Act in 1972 to increase the number of protected areas in India. Most, if not all, of these have been declared without the consent of local communities. This expanding corpus of forest land will only increase the geographical basis on which yet more protected areas can be declared and will further threaten the rights of communities who reside and rely on these lands.

Perception of Forests

Finally, a closer look at the fine print of the definition reveals curious connections.

The definition determines forest cover based on three major factors: crown density, extent of natural vegetation and contiguity with already existing forests. While these specifications are considered in exacting detail, there is still a lack of clarity on the semantics. For example, by what measure is a patch of trees deemed to be ‘natural’? Are planted patches naturally exempt from this? Or is it the type of vegetation that is the determining factor i.e. are all endemic species considered natural for the purpose of this definition, regardless of whether they were planted or not?  More importantly, by whose discretion is a given amount of crown density adequate to determine a ‘forest’?

These specifications reveal very little by way of common sense when it comes to how they will be operationalized. Instead, they bear striking resemblance to the jargonised language of carbon offsets. The looming concerns of climate change have meant that forests themselves are increasingly commodified, assuming economic value insofar as their capacity to account for carbon consumption. The International Union for Consecration of Nature (IUCN) recently drafted frameworks for the economic valuation of forests specifying metrics by which forested areas can be economically assessed. If the draft national forest policy is anything to go by, this kind of valuation is going to be central to forest policy that seeks to ‘enhance ecosystem services’ and ‘integrate climate change’. Framing forests in terms of these technical criteria is about making them legible to markets, effectively disregarding the complex social reality of communities that subsist on these lands.

These terminologies weigh heavily on a scientific basis for defining a forested patch. In doing this, they ignore and invalidate traditional and cultural methods of understanding forests and their uses. In addition, leaving out the FRA in this definitional process has effectively blocked the sole legal avenue that could have defined forests in terms which are beyond ecology to include the social life of India’s forests.

Conclusion

Forest governance in India would certainly benefit greatly from a clear definition of forests that accounts for the complexities of already existing land classification. This definition however, serves largely to render classification increasingly ambiguous while also dealing a huge blow to the rights of forest dwelling communities. By simply ignoring the FRA, the definition relies on precisely the kind of outmoded method of settling rights the FRA sought to correct. In doing so, it also weakens the FRA which is one of the few legal avenues through which communities can contest their rights. This is a definition that prioritises a centralised bureaucratic notion of what can be legitimised as forests in law, leaving behind the other side of this important narrative- where local communities have an equal stake in what is determined as forests and how they are managed. Defining forests in this selective, market-oriented manner will only create more conflict on the ground especially when forest land in the country is now being diverted for industry at an alarming pace.

Manasi is a graduate student in Anthropology at SOAS, London. Arpitha is an environmental lawyer and legal researcher based out of Bangalore.

_______________________________________________________________________________

[1] T.N. Godavarman Thirumalpad v. Union of India & Ors, (1997) 2 SCC 267 [“Forest Case”].

[2] Brinda Karat, ‘Rights for the rightful owners,’ available at http://www.thehindu.com/opinion/lead/Rights-for-the-rightful-owners/article16806197.ece (Last accessed 11 February 2017); Meena Menon, ‘The Unmaking of the Forest Rights Act,’ (2016) 51 Economic & Political Weekly 44-45.