The recently published IPCC Sixth Assessment Report is a scathing reminder of the extent to which climate change has altered the ecological as well as the socio-economic balance of the earth. The report’s publication was followed by renewed demands by civil society groups, environmental activists and concerned world citizens for serious action towards mitigating climate change effects. In light of these events, it is pertinent to assess the role played by science in informing public policy decisions and whether good intentioned science-based conservation policies may actually end up violating human rights.
Environmental conservation is a complex issue confined not just to the natural environment. Questions pertaining to livelihoods, land & tenure rights, economic opportunities and the corresponding trade-offs to be made, assume significance in deciding and mapping out conservation policies.
The growing human rights movement, coupled with an assertion by indigenous groups, forest dwellers and local communities, has led to a re-assessment of modern day environmentalism. Can States and bureaucracies manage the environment better with an extended set of rules? Will tenure and resource rights for local communities help improve environmental health? The answers to these questions determine the course which environmental conservation takes. The right to a clean and safe environment has been recognised as a fundamental right within many Constitutions in the world. While exercising its obligation under the Constitutional mandate, the States’ role of enforcing and protecting this right depends on institutions through which it exercises this role of a protector.
There are two ways through which States can choose to act : 1) Assuming the role of protection through legislations which substantially limit or altogether extinguish existing rights of local communities/individuals. 2) Facilitating an approach where the rights of local communities and resource user groups do not hinder but complement conservation efforts. In the former case, bureaucracies manage the health of the natural environment and in the latter case, it’s the people.
Conservation With Justice
The United States Environmental Protection Agency defines environmental justice as “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies. Fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.” The idea of environmental justice started as a social movement decrying the disproportionate impact of environmental hazards on marginalised groups. For example, a waste dumping ground or waste management site located in a marginalised neighbourhood exposes the community to immediate harm, and is an example of unequal access to the right to a clean environment. However, environmental justice is not confined merely to the issue of equitable distribution of burden. Environmental justice is also about a just and humane approach towards those impacted by governmental legislations/diktats intended to mitigate environmental degradation. Fishing bans to conserve marine habitat or banning agriculture/grazing in protected forest areas, often leads to loss of livelihoods and violates user rights of (often marginalised) local communities. An approach that seeks to protect these fundamental rights and at the same time encourage conservation is not just humane but also makes economic sense.
The IUCN since the 1990s has routinely emphasised the importance of frameworks and institutions which link human rights protection to conservation. The rights-based approach is an approach to conservation that respects, and seeks to protect and promote, recognized human rights standards. The IUCN Environmental Law Centre links rights-based approaches to IUCN’s mission, highlighting that a rights-based approach enables and promotes “conservation with justice.” They note that: “Conservation with justice means that all State and non-State actors planning or engaged in policies, projects, programmes, and activities with potential impact on nature conservation shall secure to all potentially affected persons the substantive and procedural rights that are guaranteed by national and international law. Substantive rights include, among many, the right to land and natural resources, right of indigenous peoples, the right to development and equitable benefit sharing etc. Among the procedural rights are the rights to full participation and consultation, the right to free, prior and informed consent (FPIC), the right to an effective and fair grievance system etc. Procedural rights augment and support the realisation of substantive rights. The IUCN’s endorsement of rights-based approaches clarifies two things: 1) environmental conservation policies are unsuccessful without respect and enforcement of human rights 2) Securing tenure/access rights of local communities and indigenous people enables good stewardship of natural resources. While it is understandable that different environmental contexts will require different policy frameworks, it is nevertheless important that some broader principles have to be considered to make conservation a just and humane exercise, respecting the rights of all stakeholders.
Are India’s Forest Laws Rights-based ?
The primary legislation governing India’s forests is the colonial era Indian Forest Act, 1927 enacted by the Imperial Legislative Assembly. The objective of the Act states that it is “an Act to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce.” The Act bestows upon the State Governments the power to reserve forests on “any forest-land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled.” The aforementioned provision is violative of the right to land and natural resources as a governing principle of the rights-based approach. Land and tenure rights, including those derived from custom have to be recognised and protected. The power to reserve forests must also be seen from a broader historical lens. The extension of colonial Government sovereignty over forest lands and the erasure of customary rights of forest communities is a historical reality relevant to this discourse. A good chunk of ‘forest land’, over which the Government presumes proprietary rights, are those areas where the claims by forest dwelling communities have continued to exist and remained unsettled. To reserve a forest where ownership transfer happened through legislative coercion violates both the substantive and procedural rights of forest communities. A just approach has to first involve a due process of settling claims of tenure and land rights.
The Indian Forest Act provides for the appointment of a Forest Settlement Officer (FSO) to ‘settle claims’ over areas to be notified as reserve forests under Section 4 of the Act. This led to what I call the section 4 tyranny – the creation of forest areas called the ‘section 4 forests.’ It is pertinent to note that ‘section 4 forests’ are not a category of forest area recognised under the Indian Forest Act, 1927 but they are a creation of procedural lacunas present within the Act. There is no fixed time within which the Forest Settlement Officer ( FSO) has to settle claims pertaining to forest areas to be notified as ‘reserved forests.’ As long as the claims are not settled in a just and equitable manner, the claimants i.e. forest dwellers continue to remain ‘encroachers’ over Government property. Settlement claims have remained unattended for as long as 53 years or more, leading to generations of forest dwelling communities to live as ‘encroachers’ on forest lands. Many other similar provisions of the Indian Forest Act, 1927 violate rights-based principles in letter and in spirit.
The Forest Rights Act, 2006 sought to overturn many of the ills of the Indian Forest Act, 1927 and is in many ways a rights-based legislation. The FRA, 2006 continues to be plagued by an administrative overlap between Central and State Governments as well as between the MoEFCC and the Ministry of Tribal affairs. Moreover, many of the provisions of the Indian Forest Act, 1927 are in direct violation and in contravention of the rights guaranteed under the Forest Rights Act, 2006. Despite such discrepancies, both these Acts continue to exist together, leading to a legislative conundrum. The only way forward is an overhaul of the Indian Forest Act, 1927 to bring it in line with the principles of the rights-based approach and to the provisions of the Forest Rights Act, 2006.
The opinions expressed in this essay are those of the authors. They do not purport to reflect the opinions or views of CCS.