Comments on the Consultation Paper on the Proposed Amendments to the Forest (Conservation) Act,1980

Submitted By Dr. Arpitha Kodiveri to the Ministry of Environment, Forests and Climate Change

Date: October 28, 2021

  1. Enabling Deforestation through Deregulation  

On October 2nd,2021 the Ministry of Environment, Forest, and Climate Change issued a consultation paper highlighting the directions in which the Forest Conservation Act,1980 will be amended. The Forest Conservation Act, 1980 is a key forest law that regulates decisions to deforest or alienate forest land for a non-forest purpose very often for a large development project. The tone and tenor of these proposed amendments are in the direction of deregulation- deregulating by reducing the scope for scrutiny of anti-environmental decisions. As the climate crisis looms large, we need to locate these proposed amendments in understanding how they will limit the ability of environmental law to protect us from climate harm. The developments in attribution science have alerted us to how the recent spate of natural disasters is attributable to human-induced climate change. Despite these developments, laws, and policies globally fail to curtail destructive development projects that make us more vulnerable to the impacts of climate change. A legislative impact assessment by independent climate scientists is required to understand how these amendments will shape our collective climate future.

The proposed amendments acknowledge the importance of forests as potential carbon sinks, yet they fail to strengthen the law to curtail deforestation. The FCA which centralized decision-making in 2016 through an amendment to its rules decentralized it to include the requirement of gram sabha consent. The present set of amendments which seeks to create exceptions to the applicability of the law- does away with this progressive legal requirement too.

Many amendments to India’s environmental laws are made with the assumption that significant processes like the forest clearance process add to the compliance burden of industries. In an era where every decision on how forests are removed can have a generational impact and impact the future of species on this planet- perhaps the compliance burden should be rigorous and thoughtful. In our efforts to ease regulations for business we are doing away with important sites in our enviro-legal framework that offer the ministry an opportunity to investigate and scrutinize decisions that result in deforestation. The approach should move away from deregulation but rather revisit environmental laws and discuss how they can better respond to the reality of the climate crisis. We need a legislative impact assessment to understand how these proposed amendments will impact our climate.

Comments on the process of public consultation

Forests and their future are an important matter of concern for citizens. In particular forest-dwelling communities who live and depend on these ecosystems. The consultation paper was initially published in English and was later translated into eleven other languages after demands were made by citizens from around the country. Further, comments can only be received over email- how does one provide comments then if one does not have access to the internet. There is a need to standardize the process of public participation in environmental lawmaking. The following are a set of suggested guidelines that can engender equitable participation across India.

  1. Mandatory translation of proposed amendments in as many languages as possible so the document is accessible to citizens across India.
  2. Provide a minimum of three months to receive comments on the proposed draft and be open to receiving comments in different languages and through snail mail.
  3. To provide details of the proposed amendments as opposed to a mere set of issues so citizens are aware of which provisions are being changed and how.
  4. Holding public hearings with citizens who will be most impacted by the law like forest-dwelling citizens.
  5. Conducting legislative impact assessments particularly by climate scientists to better understand the impact of these changes and make the same available to citizens to gauge the impact that it will have.
  6. Reviewing the comments received and addressing the concerns of citizens through detailed responses by the Ministry.
  7. Revisiting the proposed amendments considering the comments received and changing them in light of the concerns raised.

Detailed comments on the issues proposed

Issue 1  This seeks to limit the definition of forests and thus reducing the scope and applicability of the FCA. While the definition of forests has been an issue of contention- there is a need to define it in ways that enhance the legal shield and scrutiny and not reduce it.
Issue 2This will create confusion on the ground and increase deforestation. If all pre-1980 acquisitions are allowed without forest clearance, how does one assess the impact it will have on the rights of forest-dwellers and biodiversity loss? How will the amendments ensure that there is no room for misuse of this exemption? It is pertinent to note that these exemptions will be applied in a legal context where the Forest Rights Act,2006 (FRA) is applicable. How will these exemptions ensure compliance with the FRA?
Issue 3To incentivize private plantations, this issue fails to address how deforestation of these plantations will be regulated? If plantations do not qualify as forests, then how do we make sure that they remain carbon sinks? Further, it is important to have scientific criteria of what gets planted and where based on the specificities of the local ecosystem.
Issue 4This issue speaks to the confusion of the legal categorization of land. In its attempt to clarify the legal categorization it serves a similar function as the earlier issues of reducing the definition of forests. Curtailing the definition of forests to promote plantations brings back the question of how this will be regulated and monitored to prevent deforestation.
Issue 5Another exemption for which detailed scientific studies are needed to understand the impact it will have by reducing the application of the act and the need for forest clearance.
Issue 6An interesting approach to protecting certain patches of forests but there is a need to clarify how these forest areas will be identified and how forest rights of communities will be safeguarded as well as their voices included in the selection of these areas.
Issue 7This is a problematic amendment as it exposes pristine forest areas across Arunachal Pradesh, Kashmir, Bengal, and Gujarat to deforestation. This exemption again limits the ability of this law to scrutinize decisions of deforestation, especially in these fragile ecosystems. Such deforestation can also have a transboundary impact which has to be accounted for. Further, this amendment will dilute the forest rights act as the consent of the gram sabhas in these forested stretches will not be required.
Issue 9Like issue 7 this seeks to create an exception to the application of the law. In doing so it assumes that there is no adverse impact on the ecosystem from Extended Reach Drilling (ERD). There is a need to conduct a scientific assessment of ERD on the aquifers and the ecosystem at large before such an exception to the law is allowed.
Issue 11Another exception that assumes zoos, safaris, and the construction of infrastructure will not harm the ecosystem. Some studies show that safaris impact the wildlife adversely as well as infrastructure constructed in fragile ecosystems can gravely impact the forest. The creation of safari routes also increase access to those patches of dense forest which can be used by poachers too.There is a need to scrutinize the decisions taken by the forest department and the wildlife bureaucracy on the establishment of zoos, safari routes, and infrastructure.
Issue 14This issue too requires scientific assessment and clarification on what kinds of survey and investigation activities are being included. Survey for minerals and other resources does involve extraction and damage to the ecosystem and should not be an exception to the application of the Act.
Advertisement

The Struggle to Keep at it- The Balance between reactive and reflective lawyering and trying to avoid climate fatigue

Introduction

I was meeting a dear friend and fellow environmental lawyer for coffee after six years; we had continued to work with each other remotely on many things, but we were meeting in person after much had changed. We had visibly aged, but we maintained the same degree of enthusiasm and excitement about all things environmental law. Our conversation began with the politics of practicing environmental law in authoritarian settings like India but most of our conversation ended up being about toxic work cultures in the organizations we worked with and the pressure to be constantly on when working on an issue like climate change and environmental justice.

This blog post I dedicate to the environmental lawyers who feel they are fighting a lonely battle but many times the battle being fought is the one within of overworking, burning out and constantly dealing with climate fatigue. I am no guru of environmental lawyering but an approach that I think may work is finding a balance of reflective and reactive lawyering. Lawyering that is sort of a stepping into being active lawyers and stepping out to becoming passive observers. We need to build teams that enable such flexibility. Without teams the act of solo lawyering in these contexts is a dangerous and almost impossible proposition.

The Stepping in and Stepping Out

It was 2014 and I had found myself leading a small group of young environmental lawyers in India and we were working across four states along side forest-dwelling communities with very different legal struggles. The team though young we often struggled with keeping at it and carrying on- an approach that worked for us since we were based in a design school was taking a step back and reflecting on our lawyering. It might seem like a luxury that as practicing environmental lawyers we were able to take that step back but since our work was niche and focused on engagement with administrative procedures it offered us space for reflection. This space became vital to all of us, a magical pool where we could cool off and rejuvenate. Being located in a design school also pushed us to think outside the box which was another way of stepping back too.

The stepping out became key as we started to critically engage with our stepping in back into the role of lawyers for the communities. We found ways to reimagine how we could practice the law and at least tried to find ways to work with the law in ways that was empowering to the local communities. The dynamism of stepping in and stepping out gave us a unique vantage point but more so than anything it shielded us to an extent from fatigue with these losing battles that environmental lawyers find themselves in.

Shielding from Climate Fatigue: Reimagining Success and the Big Win

The battle for environmental lawyers in the climate context is an uphill one. Despite many recent successes of climate litigation, the problem of enforcement remains. Climate fatigue and fatigue in general is a very real possibility and this is where perhaps redefining what success means becomes important. Success need not be the big court win; it can be a dialogue with the local bureaucracy about climate change or communities finding the energy to keep at it.

The urgency to see legal outcomes and results in terms of climate action may pressurize us for the big wins. These big wins are key but perhaps the way to keep at it and countering climate fatigue is to celebrate those small wins as we pave the path towards that big win. As my dear friend and environmental lawyer shared it is a marathon and not a short sprint, so we need to find ways to recharge, rejuvenate and more importantly get creative!

Songs, drawings and stories- Legal evidence as a rooted process.

Introduction

I was in rural Rajasthan with a team of environmental lawyers from Natural Justice in May 2014. The sun was beating down on us and the summer heat could not be escaped. The objective of the meeting was to redraw the official map of the Sariska Tiger Reserve to include the customary understanding of the landscape by the Gujjar community that lived in the area. The community members who had gathered there were enjoying the process of drawing what was their perception of the forest land, grazing route, where their home was and where they would encounter the forest department.

This map was a hand drawn sketch with multiple colours and routes chronicling the path taken by the livestock and the community. This was legal evidence that we were intending to submit to support the claim to forest rights being made by the community- the local bureaucracy though did not accept it as “legally valid evidence”. As a PhD student when I interviewed the local bureaucracy on what they made of this evidence they often said “ Ah! Those maps drawn like children would in kindergarten cannot be legal evidence. It must be surveyed, incorporated in government records and maps produced. This is hard evidence” (Interview,2019). It was this conversation that introduced me to the idea of hard and soft evidence. I disliked the distinction as an environmental lawyer as it meant that hard evidence was what the state produced and recognised and soft that which was not vetted by the state. I instead countered this idea with the notion of rooted evidence, evidence of the ground and lives of communities in these forests- something that I think as environmental lawyers we need to pay close attention to.

What is rooted evidence?

“ This drawing is the map that makes sense to me. The one drawn by the state is too complex” said a local Gujjar in Sariska (Fieldnotes,2014). The self-drawn  map became then an artefact of assertion of their rights over the territory. Legal evidence then needs to move from the abstraction of rigid rules to include songs, stories, and drawings. The human experience of climate change cannot be reduced to mere scientific studies but must move beyond that to see other ways in which this experience is being articulated.

During my fieldwork in Sundergarh, Odisha the forest-dwelling community often spoke of how the quality of the grass and the rain had changed. They captured this through conversations, stories, and ways of sharing this change with the younger generation. This experience of change needs to be valued and understood through the instruments of stories and narratives that local communities and others use to articulate. Environmental law is presently relying heavily on science and that is important, but we need to diversify our sources of legal evidence to include literature, song and art that captures the Anthropocene.  

Lawyering for climate change cannot only rely on climate science but must include these alternative sources of evidence of change which are equally significant. If we create an artificial hierarchy of legal evidence like hard and soft, we risk creating a situation where legal evidence becomes a barrier to avoid climate action. It becomes important then to critique and challenge what legal evidence means in the context of the climate emergency. Evidence needs to be rooted in our lived realities of climate change and we need to include voices of the vulnerable who may not have access to climate scientists or science.

Conclusion

In conclusion, I would like to end with one of my favourite quotes from my fieldwork in Odisha by a senior Adivasi activist when I asked him about climate change and the law, he said

“ Climate is changing we know it! You know it! Yet we will have to go to court to prove it imagine the lunacy of it all and in that process of proving it we will delay whatever action  we need to take!” (Interview, 2018)

Fieldnotes for the Future: What can environmental justice lawyering contribute towards lawyering for the climate?

Introduction

I began my career as an environmental lawyer with Natural Justice (NJ) a collective of environmental lawyers based in South Africa. Natural Justice lawyered within the narrow crevice of working with local communities and the environment. Through NJ I was able to work with forest-dwellers in the eastern state of Odisha and the northern state of Rajasthan. I vividly remember one incident that shaped my understanding of environmental law and lawyering- I was documenting the legal violations by the local bureaucracy as forest land was being acquired in Sonbhadra, Uttar Pradesh which is home to many thermal power plants. I met with Shobha there who had been illegally arrested, subject to sexual assault as she struggled to protect her home which was at the fringe of a thermal power plant. I asked her what she expects from environmental law and lawyers, and she remarked “ Environmental law is much more than protecting the trees it is about ensuring that the rights of people like me are secured too, I am protecting my land and hence the forest so environmental law and lawyers should be protecting me too?” This observation went on to define my approach to environmental lawyering- how can we protect the planet in ways that secure the rights of marginalized communities dependent on these ecosystems and do not further marginalize them? a difficult ask but one that got me to explore the complexities of environmental lawyering.

Environmental justice was a term I encountered early in my career as an environmental lawyer, I do not want to get academic about its definition, but I began to categorize environmental justice lawyering as that which aimed to address the question I posed above. In the first part of this blog series, I want to document some of the learnings from the field that I learned from my attempts to practice environmental justice lawyering. I am hoping these lessons may inform the future of environmental lawyering in the context of the climate crisis. I want to begin with exploring the question of who the client in such complex conflicts is and whether lawyering from the vantage point of a client makes sense. I restrict my use of the term client here only to local communities and the environment. I will then explore the challenges of building inclusive legal strategies from the ground up.

Who is the client?

In the monsoon of August 2018, I was in Sundergarh, Odisha trying to understand what the right to self-determination meant to forest-dwelling communities. During the meeting of the village assembly, a village elder stated that rights are one way to assert a predicament but, what is needed is conflicting rights to be reconciled. That got me thinking that in a context where conflicting rights must be worked out does lawyering for one client alone achieve this?  As a practicing environmental lawyer, I was a lawyer representing forest-dwelling communities as my clients- an entire community that was often fragmented and fractured by different interests. It would be more honest to share that I was a lawyer representing a particular section of the local community where environmental considerations were intertwined. For example, in a situation where the community was impacted by a mine, I found myself working with the section of the community that was opposing the mine, and seldom did I engage with those who wanted the mine in their area. That I later realized was not necessarily lawyering for the community but lawyering with the section of the community that conveniently fit my idea of justice.

Lawyering from a particular normative framework and subsequently identifying a client limits the scope of environmental lawyering significantly. I am now going to propose a rather radical idea for environmental justice lawyering and future climate lawyering can we begin to lawyer from the vantage point of the interconnectedness of actors particularly local communities and the environment embedded in an environmental conflict as opposed to one client? I understand that lawyers must choose clients and clients must approach lawyers but what I am proposing is before lawyers enter into a conflict can, they view the legal issue from a holistic perspective such that aspects of just transition, rights of nature, rights of local communities and their interests are seen as part of one web of legal asks as opposed to lawyering that marginalizes one set of interests for the other. This approach can also assist in building more robust legal strategies that take a multiplicity of interests on board and accordingly attract a coalition of clients which is what we need in the context of climate lawyering.

Co-creating legal strategies for environmental justice

Following from my radical suggestion of lawyering from the interconnectedness of actors in a conflict I suggest a different approach to building legal strategies. Legal strategies are often built from the perspective of a single client and how to make their interests heard and recognized. The legal strategies further are seen as the exclusive domain of the environmental lawyer rummaging through the legal documents, statutes, and case laws. What if legal strategies were co-created through a consensus-building process with multiple interests in an environmental conflict?

The reason I propose this is that only when divisions within local communities are healed while also recognizing the agency of the ecosystem can legal strategies be robust and equitable. The risk that environmental justice lawyering runs is prioritizing one set of interests to marginalize the others. The local communities need to identify and prioritize these interests and environmental lawyers should seek to devise legal strategies that support this. This detailed process of consensus-building may seem tedious and long-drawn but perhaps that is the preparatory work needed to be able to build legal strategies that do not further marginalize those who are already vulnerable.

Conclusion

In conclusion in this blog post, I briefly explored what would it mean for environmental lawyering to move beyond the relationship of only one client and radically alter the meaning of legal representation. I then proposed a possible way of co-creating legal strategies through a consensus process. Environmental justice lawyering is a tough job that requires lawyers to move away from traditional lawyering to embracing the quirky and challenging aspects of the law. In the next blog post, I will examine what can integrative legal strategies look like and address the tough question of how do environmental lawyers struggle to represent the environment.

CAN THE MODI GOVERNMENT OPERATE WITH THE POLITICS OF CARE AS OPPOSED TO ITS POLITICS OF HATE?

 

Introduction                                                                                                         

The local community had been protesting outside the district collectors office for four hours, they camped there with their demand which was the recognition of their rights to land. This was a familiar scene in many rural areas and I witnessed this one during my fieldwork in Sonbadra, UP in 2015. The bureaucracy and the state in India are faced with a massive challenge of delivering welfare schemes, implementing rights-based legislations while being pro-business in its approach to development[1].

How is this important now and why should we be concerned about this? The pandemic has forced us to revisit this fundamental question as citizens of what do we expect from our state? The Modi government with its flair for making sweeping decisions quickly enforced a nationwide lockdown. This is seen as one way to combat the pandemic or to flatten the curve. The decision, however, has left migrant laborers, the homeless and the poor in the margins as many are unable to travel back home or get jobs.

Can the Modi government known for its ability to bring economic growth (which it has not succeeded in doing either) rise to this welfare challenge? The coming weeks and the present treatment of migrant workers exposes us to the reality of the Indian state where it has lost its ability to provide welfare services in the eagerness to become pro-business.

The Politics of Care Vs the Politics of Hate

The Modi regime since its inception in 2014 has been a sampling of many initiatives to further the politics of hate and exclusion. Be it lynching for the supposed consumption of beef or trading of cattle or the brazen hate speeches we have seen from many leaders. The tipping point was the passing of the Citizenship Amendment Act,2020 where it deliberately excluded Muslims from the list of religions that can claim citizenship.

The recent communal riots in Delhi was an unfortunate and sad expression of this politics of hate. The politics of hate grounded in Hindutva is based on a myopic idea of India being a ‘Hindu Rashtra’ much has been said about this idea but what I want to take some time to discuss is how it might be influencing statecraft.

In Kandhamal, Odisha, where communal riots took place in August 2008, has left the community divided with a strong presence of the Hindu right-wing. I was there to study the implementation of rights-based legislation- the Forest Rights Act,2006. What I witnessed was the politics of hate translating into the exclusion of Dalit Christian communities in their claim for forest rights.

This, of course, is quite specific to the context but what I can draw from that experience is the ability of the politics of hate to influence the practice of the state and the bureaucracy. In the present pandemic where we are all equally impacted can the Modi government respond with the politics of care without discrimination?

The politics of care would be one shaped by the inclusion of all with a particular emphasis on care for the vulnerable. The politics of hate needs to take a back seat if we are to appropriately govern in a pandemic. Federalism has come to our rescue with the expression of the politics of care by regional governments like the Kejriwal government in New Delhi.

Should we renegotiate the social contract with the Indian state?

As we witness the unjust manner in which the lockdown is being managed with migrant workers being forced to walk home. This pandemic has exposed us to the hollowing out of our institutions in addressing the welfare of all citizens. Our health care systems are not ready to take on such a big challenge. As citizens, this is perhaps a moment to revisit our expectations of the Indian state.

The relationship between the citizen and the Indian state has been a contested one but perhaps not contested enough. Should we be renegotiating the very basis on which this relationship was established? The need of the state to provide welfare, practice the politics of care and to secure our livelihood has come to the fore in this period.

While the pro-business character of the Indian state has been one of the many reasons that its need to provide welfare has taken a back seat. The pandemic shows us that a renaissance of the welfare state is imperative to get us through this. Access to healthcare, water, sanitation among other socio-economic rights needs to be an integral part of our relationship with the state and our ability as citizens to hold it accountable on these grounds.

Conclusion

As leaders tweet on us joining an online anthakshari or to watch the Ramayana, as concerned citizens of a democracy we should go back to the fundamental question, what is our relationship with the state? How do we push the Modi government to operate from the vantage point of the politics of care and not hate?

[1] To know more read Atul Kohli’s work on the politics of economic growth in India.

Submission made to the Ministry of Corporate Affairs on the Draft NAP on business and human rights

SUBMISSION OF COMMENTS ON THE ZERO DRAFT OF THE NATIONAL ACTION PLAN (NAP) ON BUSINESS AND HUMAN RIGHTS

Arpitha Kodiveri[1]

Introduction

The zero draft of the National Action Plan marks a decisive step towards the recognition of principles in the United Nations Guiding Principles on Business and Human Rights. The plan in its current form takes into account a myriad of aspects that the guiding principles have but misses out on some of the fundamental aspects of state protection towards human rights, corporate compliance and access to remedy. The comments being provided here are being done in the spirit to strengthen these guidelines and build on the existing work being done by the Ministry of Corporate Affairs.

I have restricted my comments to the area of environmental protection, forest rights and land acquisition in the extractive sector based on my experience as a Doctoral Researcher working on this. I will begin with comments on the overarching approach where I will layout the missing aspects of state protection, corporate compliance and access to remedy. In the next section, I will provide detailed comments on the different sections based on the thematic areas. This plan is an important step in fostering a legal environment where businesses and the state are held accountable for human rights violations while paving the way for a market and economy that is inclusive and sustainable.

  1. Comments on the Overarching Approach and Principles

In the table below I am outlining comments on the overarching approach and principles drawing from the UNGPs, International Human Rights Law and the ongoing discourse on business and human rights globally.

Pillar I: State duty to protect human rights a.       In this section, the NAP merely lays out the existing legal framework in support of the different aspects. It does not use the opportunity that soft law provides for norm incubation. Soft law is a legal terrain on which higher legal standards can be experimented with, instead, the hard law continues to form the core of this section without any push towards more stringent legal standards.

b.       It fails to draw from the rich rights-based jurisprudence India beyond environmental law and restricts its exploration to statutory law.

c.       It fails to address the larger question of the role of the state which in the Indian context is trapped between the role of a regulator and an enabler for business. The state has to make a decisive choice on how it will balance these competing modes of operation.

d.       There is a lack of critical engagement with the status of implementation of these different legislations and the political economy of India. The state’s duty to protect human rights is contradicted by the demands placed on it to create an enabling environment for businesses. There is a need to underpin this NAP with a realistic assessment of the role of the state, the status of the laws being referred to and the existing political economy.

Pillar II: Corporate Responsibility to Respect Human Rights a.       In this entire section, there is an emphasis on the role of soft law in ensuring corporate responsibility but little attention is paid to the role of hard law in this. The question of enforceability is largely unaddressed.

b.       The challenge of corporate accountability and responsibility needs to be located in the complex structure of corporations. As the Bhopal Gas Tragedy case has shown there exists a difficulty in attributing liability when parent and subsidiary companies are involved.

c.       An additional section on the responsibility of multinational and transnational companies should be included and how India intends to deal with the question of jurisdiction in such cases.

d.       It does not mention the tools that companies can adopt like human rights due diligence. Strides are being made in the European Union to develop a due diligence framework which the NAP can draw from.

Pillar III: Access to Remedy a.       In this section, the NAP restricts its understanding to courts and other legal avenues established by the state. There is a need to expand this to include internal grievance redressal mechanisms that companies can establish keeping in mind the communities they impact.

 

 

 

 

 

 

  1. Detailed Comments on environmental protection, forest rights and land acquisition in the extractive sector

 

In the table below I provide comments thematically on three aspects, namely, environmental protection, forest rights and due process in land acquisition in the extractive sector. Though thematically provided the comments cut across the points made under the three pillars.

 

Environmental Protection a.       There is a need to recognize the role of local communities in environmental protection and monitoring. The laws mentioned here do not list the Forest Rights Act,2006 or Panchayat Extension of Scheduled Areas Act,1996 or the Biodiversity Act,2002 which ensures the equitable role of local communities in environmental decision making.

b.       There is a need to take into account the responsibility of not just corporations but also investors on aspects of environmental protection. Responsible investment practices are being adopted globally and something the NAP can draw on.

c.       The NAP does not tackle the question of climate change. There is a need to attribute accountability to the state, corporations, and investors on their contribution towards climate change.

d.       The National Green Tribunal which is an important avenue to hear cases of violations of environmental law has been rendered defunct. It is pertinent that the NAP takes into account the weakness of existing institutions to act as a viable avenue to obtain a remedy.

Forest Rights a.       The Forest Rights Act,2006 (FRA) is a significant piece of legislation that aimed to address the historical injustice meted out to forest-dwelling communities. As large swathes of forest land are being diverted for development activities this act should shape most of the decisions made. The NAP needs to include the responsibility of the state and the corporations to comply with the provisions of this act beyond the gram sabha consent requirement.

b.       Community Forest Rights recognize the rights of the forest-dwelling communities to manage and conserve their customary forest lands. There have been instances where these rights have been done away with to make way for mining companies. There is a need to earnestly adhere to these rights. The NAP should include modalities to encourage such compliance.

Due Process in Land Acquisition in the Extractive Sector a.       The NAP misleads as the section is titled ‘community consultation’ while the legal requirement is one of consent. The challenge with the implementation of the consent requirement under the Land Acquisition Act,2013 or the gram sabha consent requirement under the FRA has been false resolutions being used or inability of the community to access information among others. While the rules to these Acts hint towards a process of how consent should be obtained, the NAP can be an opportunity to fine-tune how this process should be and what the guiding principles should be to ensure that the participatory potential of these provisions can be realized.

b.       The NAP does mention the recently passed Mines and Minerals Act,2020. In it, the Coal Sector has been opened up to private companies and foreign investment. This would translate to more coal mining operations, there is a need to specifically address how this will impact the due process standards placed under the LARR and FRA.

 

[1] Arpitha Kodiveri is a doctoral researcher in the department of law at the European University Institute where her work focuses on business, human rights and the environment in India.

ACCESS TO JUSTICE AND THE CHALLENGE TO THE QUESTION OF JURISDICTION- A BRIEF NOTE ON Vedanta Resources PLC v Lungowe

Introduction

In April 2019 the UK Supreme Court passed its judgment on a case brought by 1,826 Zambian villagers requesting to bring a case before the English courts against Vedanta Resources Pvt. Ltd. The facts of the case are all too familiar, Vedanta Resources Pvt Ltd a giant mining conglomerate based in the United Kingdom had set up a subsidiary in Zambia to mine copper. The pollution that the victims were subjected to, went unaddressed and in an effort to hold the company accountable a case was filed to try them in the English courts. In the Bhopal Gas case, a similar attempt was made to hold Union Carbide accountable in the U.S courts, which after multiple appeals were rejected based on the Union Carbide settlement in India in 1989.

The decision by the United Kingdom Supreme Court to try the case in the English courts was based on the issue of access to justice. The complainants had argued that they would not be able to afford to bring the case before the Zambian courts as Zambian law does not permit conditional fee agreements and that law firms are not equipped to handle such complex litigation. These barriers to access to justice formed the basis for the decision to try the cases in English courts. In this blog post, I would like to explore the challenges to access to justice based on an analysis of the issues in India and the potential that this judgment poses in expanding jurisdictional boundaries on the grounds of access to justice claims.

Access to Justice and Remedy

Access to justice is a layered concept, it includes access to the judicial and non-judicial grievance redressal avenues. Scholarship on environmental law has paid detailed attention to the issue of access to justice. Many victims of pollution often fail to bring cases before domestic courts due to lack of funding or pro-bono lawyers. I would like to contextualize the challenges to access to justice by referring to the Indian context. In India, the access to justice problem was addressed by the expansion of locus standi and the introduction of Public Interest Litigation (PILs). This has become the dominant route for bringing cases before the high courts and the Supreme Court on environmental matters. While PILs have opened the courts to local communities impacted by these cases, mounting a case is expensive and resources remain scarce. Further, PILs filed by powerful actors like conservationists for instance in India undermine claims for justice and rights by local communities. In India, a recent PIL by conservation groups has resulted in an interim order calling for the eviction of forest-dwelling communities. Access to resources shapes the kind of cases that eventually make their way into the courts. In India, similar to Zambia conditional fee agreements are not part of the practice of environmental law. Reliance is thus placed on pro-bono lawyers who are often starved for time and other resources. Not to suggest that pro-bono lawyering has not been active in India but to rather suggest that the pressure on these lawyers is severe given the number of cases that need to be fought.

In environmental cases, I argue that the legal architecture of access to justice forms only a part of the problem. In developing countries like India and Zambia, the challenge is also for local communities to assert rights in a political economy dependent on extraction and deregulation of the environmental standards. In India, when Vedanta Resources Pvt. Ltd was stated to acquire land in Niyamgiri, Odisha. The Dongria Kondh community had refused to consent to such acquisition on the grounds that it is sacred to this Indigenous community. While the Indian Supreme Court recognized the right of the village assembly to decide on the acquisition of forest land, it must be remembered that the decision was likely to be challenged by the state-owned Odisha Mining Corporation. Where the economic priorities that transform the state into a facilitator of industries as opposed to a regulator. It becomes difficult to realize justice in such circumstances. Access to justice thus needs to be situated within the frame of the political economy of development of the region. This judgment opens up an avenue for local community members to challenge violations of domestic law in another jurisdiction based on differing legal standards which offer an additional layer of scrutiny. By acknowledging access to justice as a jurisdictional hook, it offers an alternative argument to bring a case before the home country of the Multinational company.

The Question of Jurisdiction

Scholars have long argued about the governance gap between the home state legal obligations and the host state in which the MNC is operating. The question of jurisdiction tilts this argument by holding the MNC accountable in their home state resolves the governance gap. Implicit in this assumption is that the legal standards of the home state will be higher than the host state. The opening up of the jurisdictional straightjacket offers communities an avenue to hold the MNC accountable in their home terrain. This is unprecedented and allows communities to move beyond struggles located within the governance gap.

Vedanta Resources Pvt.Ltd has been active in India and is responsible for ongoing pollution near their aluminum plant in Lanjgarh Odisha. The local communities have not had respite and complain of water and air pollution. Similarly, In Toothukoodi where Vedanta runs a copper smelter plant, pollution has been a severe problem. In protests against pollution in December 2018, thirteen people were gunned down. Local communities in India and elsewhere challenge companies in difficult and violent circumstances. The ability to shift the conflict onto another jurisdiction might offer an additional lever in their quest for justice.

In environmental claims concerning multinational companies, jurisdiction is often a challenge. The choice of forum determines the potential for justice for local communities. This ties in deeply with the question of access to justice. As communities have limited resources and operate from contexts where the state-corporate nexus is strong, the choice of jurisdiction is key in their quest for justice. This case brings many interesting questions to the fore. An important take away I think is the intersection of the issue of access to justice and expanding the jurisdictional boundaries.

 

 

 

THE MATHEMATICS OF ILLEGALITY: RIGHTS, CLAIMS AND THE INJUSTICE OF EVICTION

On February 13th,2019, The Supreme Court passed an order which called for the eviction of claims for forest rights that were rejected. The order quite strongly worded, repeatedly states the following on forest rights claims across seventeen states:

“in the cases where claims have been rejected and have attained finality, whether eviction has been ordered and possession has been taken or not.  Let full status be disclosed in the affidavit.  It is further directed that the cases in which the orders have attained finality, let eviction be made forthwith.  In case of non-compliance of this order, the same shall be viewed seriously.”

The logic seems quite straight-forward, claims once rejected are grounds for eviction. Yet, there is a lot more that needs to be unpacked here and this is where the data plays a key role in understanding the mathematics of illegality or the data that supports the unjust narrative of eviction. Numbers can tell different stories and the data used by the petitioners seems to exaggerate the extent of forest land supposedly “lost” to Individual Forest Rights[1] (IFR). Let me take a moment here to provide a few alternative narratives that numbers can support.

The Abysmal Recognition of Community Forest Rights (CFR)

The FRA, at its core is about reconfiguring the forest governance paradigm which has been the source of injustice to forest-dwelling communities. The Indian Forest Act,1927 (IFA) continues to subsist along with the Forest Rights Act,2006. This matters as the IFA provides wide discretionary powers to the forest department to demarcate boundaries, settle rights and even arrest forest-dwelling communities for the use of resources. CFR rights within the law provide an alternative imagination of forest governance, where local communities have the right to govern, conserve and manage these forests based on their knowledge of the landscape. The law as the petitioner’s claim is not a land distribution law but rather a law that decentralizes decision making on the questions of conservation and management of our forests. The potential of this right has not been realized, in a report on the tenth anniversary of this progressive law, the Community Forest Rights-Learning and Advocacy (CFR-LA) group released a report titled ‘Promise and Performance’. In this the estimate was that a mere 3% of the CFR potential was realized. This data, shows us that the ethos of the law in democratizing forest governance seems a distant dream. While it is easy for conservation organizations like the petitioners to claim the extent of forest land lost to IFR rights, they have not made sincere efforts to engage with the opportunity the law offers to work with local communities in conserving our forests. The barrier for the recognition of CFR rights as the report identifies is the local forest bureaucracy which is afraid to lose control over vast tracts of forests. The hierarchy remains and the potential for reconfiguring our forest governance structure remains a distant dream.

Forest Offences and Criminalization of Rights

As an environmental lawyer supporting the Gujjar community in the Sariska Tiger Reserve, I encountered many stories from the local community where they were arrested by the forest department for accessing forest resources or grazing their cattle. These were rights recognized under the Forest Rights Act,2006 but the Indian Forest Act,1927 enabled the forest department to continue to arrest local communities. While it is quite easy to argue that communities living within these areas are the problem, the everyday violence that communities face at the hands of the forest department is a lived experience that needs to be accounted for. The data on forest offences tells us a very different narrative of this everyday violence. The recent data on environmental crimes by the National Crime Records Bureau shows us that of the 4732 environmental crimes as of 2016, forest and wildlife offences form a whopping 96% of the cases. This is skewed as pollution related crimes form a mere 3% of the data. The scale of everyday violence in the assertion of legitimate rights can be seen that despite ten years of the FRA being in existence, there has been no reduction in the crimes being recorded. This is evidence of the lack of recognition of community forest resource rights, or the set of rights that recognize the rights of these communities to forest resources like fuelwood.

Forest Diversion

The petitioners claim that 72000 Sq. km of forest land has been “lost” to individual forest rights. The source of this figure is yet to be traced, the Ministry of Tribal Affairs (MoTA) data as of November,2018 states that 42,82,379.27 acres has been distributed through IFRs. While this is considerably less as opposed to what the press statement indicates. It is important to note, that this is not diversion or loss of forest land but rather land which communities have been using for subsistence agriculture and habitation, this land is inalienable. The nature of forest land does not change, except that communities now have the right to subsist on tiny parcels of forest land. Forest-dwelling communities have historically been subject to legal regimes that have never recognized the security of tenure. This is a key distinction that one needs to keep in mind, FRA recognizes their security of tenure and does not recognize their right to ownership. Thus, it is not a land distribution law but a law that seeks to correct the historic injustice of insecurity of tenure.

The real statistic that we need to be collectively worried about is, forest diversion for industrial activities. As far as the data from 2016 shows, of 15000 sq. km of forest land diverted, 14000 sq. km was for industrial projects. The NDA government has given wildlife clearance for 65% of the projects. These massive tracts of forest land being diverted for industrial purposes is the crux of the forest diversion question. The Gram Sabha or village assembly consent requirement under the Forest Rights Act,2006 is a shield against forest diversion, yet this provision is seldom implemented and is instead further diluted. In 2018, the Ministry of Environment, Forest and Climate Change in an effort to fast-track the forest clearance process, has stated that the requirement of Gram Sabha consent will be done away with at the initial stage of forest diversion. This move will increase the pace at which our forests are being diverted and it is this form of forest diversion on which our mathematical or statistical gaze should fall.

Rejection of Forest Rights Claims

The data on the rejection of forest rights claims by the Ministry of Tribal Affairs is schematic. Its records claim which have been rejected at any stage of the appeal process. Raza Kazmi in his note clearly articulates that the perception of rejection derived from MoTA data can result in large scale collateral damage, he estimates 30 lakh and that is no small number. If claims are still going through the appeal process, they might be reflected as rejected. The mathematics of illegality continue to be fuzzy. A study by the Rights and Resources Initiative found that only 5% of land is legally held by forest-dwelling communities. A more relevant statistic that this report shows, is that between May 2015 to April,2016 79% of the claims for IFR are rejected. The statistics show us that the scale of forest land under IFR is quite small and the rate of rejection extremely high. If the SC follows through with this order, these numbers show us the scale of injustice. Lastly, forest rights claim in many instances are rejected due to a mere technicality or lack of evidence. The statistics do not reveal how many claims have been wrongfully rejected or stuck in the appeals process. The mathematics of illegality gloss over these details and frame the narrative to fit the paradigm of gross injustice and exclusion.

Displacement

The last statistic I would like to focus on is displacement because of large scale development projects. A report by MoTA in 2014 revealed that 40.9% of the 21.3 million people who have been displaced between 1951 to 1990 have been forest dwelling communities. They have borne the brunt of the neoliberal development model and exclusionary conservation. Add to this figure, 1.8 million families who are likely to be evicted because of this order accompanied with those who will be displaced by infrastructure, mining and other activities. This is the scale of historic and ongoing injustice.

Conclusion

Numbers can tell different stories, the mathematics of illegality the original petitioners seek to focus on is a narrow one. In this blog I articulate the mathematics and statistics of injustice and not illegality. It depends on which narrative one seeks to string with numbers, the numbers I think we need to focus on are:

  1. Only 3% of CFR potential has been realized;
  2. 96% of environmental crimes are forest offences, the scale of criminalizing rights;
  3. 93% of forest land diverted is for industrial projects;
  4. 79% of IFR claims were rejected between 2015-2016; and
  5. 40.9% of communities displaced by development are forest dwelling communities.

As the Supreme Court hears this case tomorrow let’s hope that the mathematics of injustice define the deliberations and not the fuzzy mathematics of illegality.

 

 

[1] Sec 3 (1) (a) of the Forest Rights Act,2006.

THE DRAFT NATIONAL MINERAL POLICY: DIFFICULT CHOICES MADE SIMPLE?

 

Introduction

 

The draft national mineral policy was published for public comment early last month. This draft would replace the existing National Mineral Policy of 2008 which was in urgent need for revision given the problems of illegal mining and land related conflicts. This draft was an opportunity to revise the parallel legal regime that governs mining operations and harmonize it with the requirements under the Land Acquisition, Resettlement and Rehabilitation Act,2013 and the Forest Rights Act,2006 (FRA). This opportunity was however missed.

 

The vision for the policy reads as follows

 

Minerals are nature’s endowment which we need to leverage in a fair and transparent manner to sub-serve the common good. Mining needs to be carried out in an environmental sustainable manner keeping stakeholders interest in mind. It shall also be ensured that the regulatory environment is conducive to ease of doing business with simpler, time-bound procedures or obtaining clearances.”

 

As we read this vision Adivasi and other local communities across India struggle to assert their right over land and resources. Without obsessing over semantics, one cannot help but notice that stakeholder’s interests will be kept in mind while it shall be ensured that the regulatory environment is conducive to the ease of doing business. This vision begs the question-  will Adivasi communities continue to sub-serve the common good? Do simpler and time-bound procedures mean no due-process?

 

RIGHTS OF ADIVASI COMMUNITIES- A LIMITED INTERPRETATION OF THE FOREST RIGHTS ACT,2006

 

In point 6.12 (c) where it deals with questions of the welfare of tribal communities, the policy states that its decision in granting mineral concessions in scheduled areas will be merely guides by laws like the Panchayat Extension of Scheduled Areas Act,1996 (PESA) and FRA. It reduces the applicability of the FRA to scheduled areas. This limited understanding of the applicability of the FRA creates an artificial prioritization in the demand for compliance, where it restricts the requirement of compliance to Scheduled Areas only.

 

The policy emphasizes on issues of relief and rehabilitation of communities impacted but does not address compliance with the procedural requirements of free, prior and informed consent. The policy alludes to the Sustainable Development Framework (SDF) which is a framework prepared by the International Council on Mining and Metals. It is interesting to note, that the Federation of Indian Mineral Industries is a member of the Council. This framework was tailored to the Indian context by Environmental Resources Management (ERM) who were the appointed consultants. After the final report was submitted by ERM in 2011 not much has happened over the SDF. The deeper questions of democratizing decision making and actively addressing conflict are left to the SDF to dealt with. The SDF in turn shifts the responsibility back to the Ministry of Mines (MoM) to draft guidelines on meaningful consultation and obtaining the consent of the communities impacted by mining operations which is yet to done.

 

 

AN INTER-MINISTERIAL MECHANISM FOR SUSTAINABLE DEVELOPMENT WITHOUT THE MINISTRY OF TRIBAL AFFAIRS AND MINISTRY OF PANCHAYATI RAJ

 

In point 11 the policy aims to set up an inter-ministerial mechanism for sustainable development which would include the Ministry of Mines (MoM), Ministry of Earth Sciences and the MoEFCC. It excludes the involvement of the Ministry of Tribal Affairs and the Ministry of Panchayat Raj which are the nodal ministries mandated with the implementation of the Forest Rights Act,2006 and PESA. The exclusion of these ministries from a mechanism on sustainable development emphasizes the perspective that these laws are not seen as an essential in a policy concerning mining. As conflicts continue to dot the Indian subcontinent due to existing and new mines these difficult aspects cannot be cast aside.

 

The involvement of the two nodal ministries will ensure that these conflicts become a part of the conversations about sustainable development. The infusion of these two laws in decision making around sustainable development in mining can provide an avenue to proactively deal with conflicts on the ground.

 

THE RISK OF DIFFICULT CHOICES BEING MADE SIMPLE

 

The draft policy urges for a regulatory environment where ease of doing business is prioritized. The urge for speedy clearances will only reinforce the perception that processes of public participation in environmental decision making are seen as hurdles. The difficult choices of dispossessing a community of their land and resources, rehabilitating them to another area and polluting the surrounding environment are now being pushed to be made simple. The danger of making these difficult choices into simple processes is that claims by impacted communities will continue to be delegitimized while business interests are seen as the panacea of legitimacy. These difficult choices need to be dealt with in a manner that is reflective of the stakes involved and simplicity a desired regulatory goal will compromise the constitutional and democratic principles of due process.

 

 

 

ON READING PAPER TIGER: LAW,BUREAUCRACY AND THE DEVELOPMENTAL STATE IN HIMALAYAN INDIA AND ITS IMPACT ON THE STUDY OF THE BUREAUCRATIC LIFE OF ENVIRONMENTAL LAW

51+63uYdk7L._SX326_BO1,204,203,200_.jpg

Nayanika Mathur in this seminal book writes in great detail about the life of paper and its importance in Indian bureaucracy. Locating herself in the lower rungs of the bureaucratic structure assigned with the implementation of the National Rural Employment Guarantee Act (NREGA),she highlights the use of letters as a method of balancing relationships with other departments and citizens. Though she states there is a difference between the study of paper and the asli or the real work on the ground it is in this gap that we can gain a deeper glimpse into the operations of the developmental Indian state. I was prompted to write this post to unpack the potential this book and its research method holds for the study of the implementation of environmental law in India. Her research method of locating herself within the bureacratic structure can offer unique insights to how decisions are made around questions of the environment. An under researched aspect of environmental law in India remains the study of the functioning of its many regulatory authorities and bureaucratic arms. The paper state as Nayanika Mathur indicates is one rife with the materiality of paper as evidence of implementation of law. As environmental laws particularly The Forest Rights Act,2006 are charged with speedy implementation it becomes pertinent to fathom the modalities of decision-making of the different bureaucratic actors.

A large part of understanding the implementation of environmental law is the study of how broad administrative discretion is exercised. It is characteristic of environmental law that administrative agencies enjoy wide discretionary power. The forest department for instance has discretionary powers ranging from the power to arrest without a warrant for a forest offence to decisions on compensatory afforestation. The paper trail of these decisions can act as a window into comprehending how discretionary power is deployed. Though this is not a novel area of research given that civil society groups on the ground access the paper trail if lucky through the right to information act and hold these agencies accountable. What can potentially provide novel insight is to undertake similar research as the author has which is to immerse in the everyday workings of the bureaucratic body and to see how different levels of the bureaucracy operate in relation to the law.

As a legal researcher reading this book it made me think of the layers within which law exists. The statutory text is merely one source of what the law is but in its implementation sources on what the law is are hidden in the paper trail of these authorities. Rules though lay down the procedure to be followed by the administrative authorities they are often morphed into forms that have contextual relevance or ease of implementation. During my research on the implementation of the Forest Rights Act,2006 in Karnataka last year what came to the fore were the varied procedural norms that were laid out in circulars and notices between departments which at times were in violation of Rules. Yet, these circulars and notices were seen as the primary source of law by the administrative authorities in shaping implementation. Thus studying law in all its layers paints an interesting narrative of the gap between the law as envisioned in the statute and the form it takes in the executive or administrative bodies.

The book showcases the multiple interpretations that statutory and procedural law as Rules are subject to in administrative bodies. The act of legal interpretation takes place in the everyday practices of the bureaucracy from holding meetings to drafting letters. Analysing this can help us gain a richer understanding of the bureaucratic life of environmental law. This book provides a unique approach to the study of law and its implementation and is a must for lawyers seeking to map the journey from the statute to the context of operation. Continue reading “ON READING PAPER TIGER: LAW,BUREAUCRACY AND THE DEVELOPMENTAL STATE IN HIMALAYAN INDIA AND ITS IMPACT ON THE STUDY OF THE BUREAUCRATIC LIFE OF ENVIRONMENTAL LAW”