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On March 6, 2018, the Ministry of Tribal Affairs (MoTA) wrote a letter to the Principal Chief Secretaries of all states to represent the ministry in the Expert Committee for determination of Critical Wildlife Habitats (CWH). MoTA’s letter came in response to the guidelines prepared by the Ministry of Environment, Forest & Climate Change (MoEF&CC) for determination and notification of CWH within national parks and wildlife sanctuaries. Through this letter, MoTA made it clear that it has accepted the guidelines and does not desire any changes in them. This raised heckles with the forest rights activists, who are criticising this decision to accept MoEF&CC’s guidelines without making any revisions or inviting comments from public.

The guidelines on CWH were prepared by MoEF&CC under Section 2 (b) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). While MoTA is the nodal authority for FRA, the law identifies MoEF&CC as the agency to notify the guidelines.

In a joint meeting of MoTA and MoEF&CC held on January 12, 2018, the latter informed MoTA that it had circulated guidelines on CWH to all states on January 4, 2018 for comments. The minutes of the meeting note that the guidelines would also be shared with MoTA, and reworded as per its requirements. However, its letter dated March 6, eliminated that scope for discussions with public.

History of CWH Guidelines

FRA defines CWHs as ‘areas of national parks and sanctuaries where it has been specifically and clearly established, case by case, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of wildlife conservation’. In order to notify a CWH, the Act requires state governments to establish that the presence of right-holders is causing irreversible damage to wildlife and their habitats, and that co-existence between rights holders and wildlife was not a reasonable option.

In 2007 and 2011, two versions of the guidelines for notifying CWHs were drafted by the MoEF&CC (then MoEF), but withdrawn amidst lack of consensus between foresters and forest rights groups. The result was that after more than a decade of FRA’s existence, not a single CWH had been notified, creating uproar from wildlife conservation groups.
In 2014, Mumbai-based non-profit, Vanashakti filed a public interest litigation in the Bombay High Court (PIL No 131 of 2014) against the Maharashtra forest department for failing to demarcate a single Protected Area in the state as a CWH.
In March 2017, the National Tiger Conservation Authority (NTCA) issued an order to deny forest rights in critical tiger habitats (core areas of tiger reserves) in the absence of CWH guidelines.

MoEF&CC finally issued CWH guidelines in January 2018. However, unlike in 2007 and 2011, it sent the guidelines to states ‘for action’ without soliciting public comments. “If MoTA wants to send its comments, we will consider them,” informed an official from MoEF&CC in the first week of March 2018. MoTA, on the other hand, seems to be content with the guidelines as evident from its letter. Forest rights activists, on the other hand, see the guidelines as a dilution of FRA.
How do the guidelines dilute FRA?

“The guidelines have supplanted free, prior and informed consent of the gram sabha (required under Rule 4(1)(e) of FRA) with a public hearing of all stakeholders,” says Soumitra Ghosh from the All India Forum of Forest Movements (AIFFM). “MoEF&CC is free to have public consultation of the stakeholders but this has to be followed up with free, prior and informed consent from the Gram Sabhas in writing, which includes ‘no’ if they do not accept the package,” adds Souparna Lahiri from AIFFM.

The guidelines require the constitution of an expert committee, of which a MoTA representative would be a member, to carry out extensive and open consultation with all the stakeholders, after issuing a public notice. The proceedings of the open consultation need to be documented, with special emphasis on recording objections and the basis, thereof. “There is no mechanism in the guidelines to address the objections raised during consultations,” says Neema Pathak from Pune-based non-profit, Kalpavriksh. “It is also not clear whether there would be one single consultation for an entire Protected Area or multiple consultations. To ensure maximum participation, such consultations should happen at the level of gram sabha that would be affected directly or indirectly by the CWH,” she adds.

Pathak adds that the creation of inviolate spaces within national parks and sanctuaries is the stated objective of the guidelines. ‘Inviolate’ is a general term used to indicate no human settlement and usage. “CWH should not become co-terminus with relocation. In fact, developing co-existence strategies should be an important and integral part of identification and governance of CWH. The definition of inviolate areas should be suitably modified to allow for minimal human activity that is not a threat to species or ecological communities,” she adds.

Notifying CWHs: Key features of guidelines

The Chief Wildlife Warden of a state will notify an Expert Committee for the purpose of identification of critical wildlife habitats (CWH) in a national park or sanctuary. The Expert Committee will identify areas within national parks and sanctuaries, based on scientific and objective criteria relevant to the protected area, required to be kept inviolate for the purpose of wildlife conservation.

The Expert Committee shall issue a public notice on the intention to notify CWH. The public notice shall include details of areas required to be kept inviolate, criteria adopted for CWH identification, implication of the notification on existing rights, and all options of resettlement and rehabilitation schemes, if applicable.

The Expert Committee shall carry out open consultations with all stakeholders, and the proceedings of the consultations, especially the objections, will be documented appropriately.The committee will submit the CWH proposal to the Chief Wildlife Warden. The decision on the proposal will taken by the Standing Committee of the National Board for Wildlife. A MoTA representative would be invited during the deliberation of the proposal by the standing committee. Following the committee’s recommendation, the notification of CWH will be published in the official gazette.

The Minister of State for Environment and Forests clarified the issues regarding Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act in tiger reserves and in the critical wildlife habitats. The Minister states that:

1.  “Section 38V of the Wildlife (Protection) Act, 1972 (as amended in 2006) explains the core or critical tiger habitat as well as the buffer or peripheral area of a tiger reserve.

2. A tiger reserve includes two parts:

A. Core or critical tiger habitat (National Park or Sanctuary status).

B. Buffer or peripheral area.

3. The phrase ‘core or critical tiger habitat’ is mentioned only in the Wildlife (Protection) Act, 1972, as a sequel to amendment made to the said Act in 2006.  It is NOT defined in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

4. The phrase ‘critical wildlife habitat’ is defined only in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and NOT in the Wildlife (Protection) Act, 1972.

5. ‘Core or critical tiger habitat’ is different from the ‘critical wildlife habitat’.  Since tigers are territorial big cats, hence considering their social land tenure dynamics, the ‘core / critical tiger habitat’ has been viewed separately from the ‘critical wildlife habitat’, which is applicable to other wild animal species. 

6. Based on deliberations with experts and simulation results from scientific data, it has been found that a minimum inviolate area of 800-1200 sq.km. is required to sustain a viable population of tigers (20 breeding females).

7. Establishing the core / critical tiger habitat as ‘inviolate’ involves two steps as per the Wildlife (Protection) Act, 1972:

A. Identifying the core / critical tiger habitat by establishing on the basis of scientific and objective area that such areas are required to be kept as inviolate for the purpose of tiger conservation, without affecting the rights of the Scheduled Tribes or such other forest dwellers, and notified as such by the State Government in consultation with an expert committee constituted for the purpose (out of 17 tiger States, 16 have notified the core / critical tiger habitat following this process, and action is pending only from Bihar).

B. Establishing the identified core / critical tiger habitat as inviolate through voluntary relocation on mutually agreed terms and conditions, provided that such terms and conditions satisfy the requirements laid down in the Wildlife (Protection) Act, 1972.  No Scheduled Tribes or other forest dwellers shall be resettled or have their rights adversely affected for creating inviolate areas for tiger unless:

(i) The process of recognition / determination of rights and acquisition of land or forest rights of the ST and such other forest dwelling persons is complete.

(ii) The concerned agencies of the State Government need to establish with the consent of the ST and such other forest dwellers in the area, besides also consulting an ecological and social scientist familiar with the area, that the activities of the ST and other forest dwellers or the impact of their presence upon wild animals is sufficient to cause irreversible damage and shall threaten the existence of tigers and their habitat. 

(iii) The State Government has to obtain the consent of the ST and other forest dwellers and come to a conclusion (besides consulting an independent ecological / social scientist) that no coexistence options are available.

(iv) Resettlement package needs to be prepared providing for livelihood of affected individuals, while fulfilling the requirements of the National Rehabilitation and Resettlement Policy. 

(v) The informed consent of Gram Sabhas and affected persons has to be obtained for resettlement.

(vi)  The facilities and land allocation at resettlement area are to be provided, otherwise the existing rights of people shall not be interfered with.

8. The above provisions laid down in the Wildlife (Protection) Act, 1972 (section 38V), subsequent to the 2006 amendment are specific to tiger conservation, and are not only compatible but more stringent than the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

9. Under the revised Centrally Sponsored Scheme of Project Tiger (2008), two options have been given to people:

Option-I:               Payment of Rs. 10 lakhs per family in case the family opts so, without any rehabilitation / relocation process by the Forest Department.

Option-II:              Carrying out relocation / rehabilitation by the Forest Department with the following per family norms out of Rs. 10 lakhs:

(a)

Agricultural land procurement (2 ha.) and development

35% of the total package

(b)

Settlement of rights

30% of the total package

(c)

Homestead land and house construction

20% of the total package

(d)

Incentive

5% of the total package

(e)

Community facilities (access road, irrigation, drinking water,

 sanitation, electricity, telecommunication, community centre,

places of worship, cremation ground)

10% of the total package

The cash option has been provided for catering to people who are not interested in a resettlement and are prepared to establish themselves elsewhere under ‘mutually agreed terms and conditions’, as indicated in the Wildlife (Protection) Act, 1972. 

1. This has checks and balances as the money is provided through the District Collector after the villager produces evidence of his procuring land etc. 

2. The relocation is voluntary, and is done only if people are willing to move. 

3. Monitoring committees at the District as well as State levels are required to be constituted and detailed guidelines have been issued for handholding the people after relocation, besides ensuring the centrality of PI institutions, while involving independent agencies.  

4. Advisories have been issued to States for complying with the Wildlife (Protection) Act, 1972 read with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

Critical Wildlife Habitats

FRA had come into force in January 2007 and the MoE&F had issued guidelines to the State/UT Governments for notification of the Critical Wildlife Habitats (CWLHs) in October 2007. During the last three years, not much headway could be made in notification of CWLHs. The State/UT Governments have been expressing difficulties in notifying CWLHs on the basis of the 2007 guidelines. Accordingly, MoE&F convened meetings with the Chief Wildlife Wardens and officers of the Wildlife Institute of India, discussed the guidelines and has now issued the revised guidelines, which are in consonance with the FRA.

CWLHs are such areas of the National Parks and Sanctuaries that are required to be kept as ‘inviolate’ for the purpose of wildlife conservation as determined and notified by the MoE&F, after an open process of consultation by an Expert Committee. Such areas are to be clearly identified on case-to-case basis following scientific and objective criteria and only after settling the rights of tribals and other traditional forest dwellers.

The identification and declaration of CWLHs are two distinct processes. While the identification of an area required for betterment of wildlife conservation is purely a scientific exercise to be carried out by the Forest Departments on a case-to-case basis in consultation with the scientific institutions (the criteria for identification of CWLHs have to be site-specific), its notification is to be done only after extensive consultations (means consent) with the Gram Sabha and the affected persons/stakeholders . 

The guidelines ensure that CWLHs are declared only with the voluntary consent of the affected people. It also gives ample scope to the State/UT Governments to explore the possibility of ‘co-existence’. If such a possibility is not practicable, the Expert Committee, which also includes the District Tribal Welfare Officer and an NGO working in the field of Tribal Welfare, will have consultations with the Gram Sabha /affected persons for their relocation, during which the available options (Option –I for payment of rupees ten lakhs per family and Option-II  for comprehensive rehabilitation by providing land, house with facilities, community rights, by the Forest Department) for voluntary relocation would also be explained. The relocation involves providing secure livelihoods to the persons to be relocated. In fact they may choose the option most suited to them.

The guidelines for notification of CWLHs apply only to the National Parks and Sanctuaries and not to other forest areas.

Baiga Tribes Get Habitat Rights for the first time in Independent India

In a bid to undo historical injustice meted out to primitive tribal communities living in central India, the government of Madhya Pradesh has for the first time recognised the habitat rights of seven villages in Dindori district, mostly inhabited by the Baigas. In a meeting held in village Rajni Sarai on January 13, the district administration told the villagers they are free to access all their ancestral rights over land and forests. The administration also assured them that the government will not be able to transfer any land for non-community uses without “consent”.

District Collector Chhavi Bhardwaj, who started the process of recognising habitat rights in 2014, told Down To Earth that around 9,308 hectares in the seven villages—Dhaba, Rajni Sarai, Dhurkutta, Limauta, Jilang, Silpidi and Ajgar—have been granted to about 900 families under Section 3 (1) d of Forest Rights Act, 2006. Ekta Parishad, a non-profit based in Tilda in Chhattisgarh, was instrumental in ensuring the recognition of these rights as they organised several rallies and initiated a dialogue with the district administration.

The administration used a gazette notification passed by the colonial British government which recognised these areas as Baiga Chak (meaning area of Baiga). Baigas are considered as a particularly vulnerable tribal group (PVTG) in the Indian Constitution and rely mostly on shifting cultivation, forest produce and fishing for sustenance. The tribe numbers only 150,000 people spread over forested areas of Madhya Pradesh and Chhattisgarh.

For several decades, the Baigas were discriminated against and often evicted from forest areas by government agencies. Ekta Parishad is now planning to take the movement to 64 other PVTGs across the country. According to convenor of Ekta Parishad, Ramesh Sharma, grant of habitat rights to Baigas is still at a nascent stage. "This is a good start but a lot needs to be accomplished as Baigas are not only in Baiga Chak but across all of Chhattisgarh and Madhya Pradesh,” he added.