Environment Legislations

#1) Although mandated under different laws, would it be fair to assume that many a ""Protected forests"" demarcated under Wildlife Protection Act would be housing tribes under 5th Scheduled areas to which Panchayati Raj (Extension to Scheduled areas) PESA is applicable?

Context: In February 2013 exempted ""linear projects"" from getting the ""consent"" (presumably granted under PESA to the Tribal Gram Sabhas? Please correct) of affected gram sabhas. In this context comment on the following:

Question#2) Whether ""In Principle approval"" is only given to government projects (by NHAI, Railwaysm CPWD etc) and not to private developers?

Question#3) Whether striking out mandatory ""consent"" provision in the name of fast-track clearances is violative of the law which mandates 'consent' prior to diverting forests for non-forest purposes, by an executive order? (without legislative amendment)

1) Although mandated under different laws, would it be fair to assume that many a ""Protected forests"" demarcated under Wildlife Protection Act would be housing tribes under 5th Scheduled areas to which Panchayati Raj (Extension to Scheduled areas) PESA is applicable?

 There are 4 categories of the Protected Areas viz,

1.Sanctuaries,

2. National Parks,

3.Conservation Reserves and

4. Community Reserves.

1.Sanctuary is an area which is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance. The Sanctuary is declared for the purpose of protecting, propagating or developing wildlife or its environment. Certain rights of people living inside the Sanctuary could be permitted. Further, during the settlement of claims, before finally notifying the Sanctuary, the Collector may, in consultation with the Chief Wildlife Warden, allow the continuation of any right of any person in or over any land within the limits of the Sanctuary.

2. National Park is an area having adequate ecological, faunal, floral, geomorphological, natural or zoological significance. The National Park is declared for the purpose of protecting, propagating or developing wildlife or its environment, like that of a Sanctuary. The difference between a Sanctuary and a National Park mainly lies in the vesting of rights of people living inside. Unlike a Sanctuary, where certain rights can be allowed, in a National Park, no rights are allowed. No grazing of any livestock shall also be permitted inside a National Park while in a Sanctuary, the Chief Wildlife Warden may regulate, control or prohibit it. In addition, while any removal or exploitation of wildlife or forest produce from a Sanctuary requires the recommendation of the State, Board for Wildlife, removal etc., from a National Park requires recommendation of the National Board for Wildlife (However, as per orders of Hon’ble Supreme Court dated 9^th May 2002 in Writ Petition (Civil) No. 337 of 1995, such removal/ exploitation from a Sanctuary also requires recommendation of the Standing Committee of National Board for Wildlife).

3. Conservation Reserves can be declared by the State Governments in any area owned by the Government, particularly the areas adjacent to National Parks and Sanctuaries and those areas which link one Protected Area with another. Such declaration should be made after having consultations with the local communities. Conservation Reserves are declared for the purpose of protecting landscapes, seascapes, flora and fauna and their habitat. The rights of people living inside a Conservation Reserve are not affected.

4. Community Reserves can be declared by the State Government in any private or community land, not comprised within a National Park, Sanctuary or a Conservation Reserve, where an individual or a community has volunteered to conserve wildlife and its habitat. Community Reserves are declared for the purpose of protecting fauna, flora and traditional or cultural conservation values and practices. As in the case of a Conservation Reserve, the rights of people living inside a Community Reserve are not affected.

Under WLPA, only Protected Areas can b declared. Protected Forests declared under Indian Forest Act.

2) Whether ""In Principle approval"" is only given to government projects (by NHAI, Railways and  CPWD etc) and not to private developers?

Regarding exemption for linear projects, as a forest officer working in d field, it's very much essential. Bcz linear project covers so many villages. Even if one village says "no" to project, u can't execute d project. Raipur to Wardha 400 KV project affected just bcz of opposition from one village in Gadchiroli dist.

Consent of gram sabha from both tribal & non-tribal area is essential.

It is interesting that the two ministries— MoEF and tribal affairs— have taken contradictory stands: whereas MoEF waived requirement of obtaining Gram Sabha certificates for linear projects in February 2013, the ministry of tribal affairs, in March 2014, wrote to all state governments that the MoEF circular was against law and contravened Supreme Court’s directions.

February 5, 2013: Ministry of Environment and Forests issues new circular stating that "linear projects" (the phrase is not defined) are exempted from the requirement of gram sabha consent under the July 2009 order (except in the case of projects affecting PTGs or "pre agricultural communities", in which case consent would be required). All other requirements of the 2009 order - for rights recognition to be completed prior to diversion; for gram sabhas to certify recognition of rights; for consent for all non-'linear' projects; etc. - are not modified.

April 18, 2013: Supreme Court rules in Orissa Mining Corporation vs. Union of India* that the gram sabha has both a duty and a power over forest management (it has a duty which it is "empowered to carry out") under section 5 of the Act, which includes "the preservation of habitat from any form of destructive practices affecting their cultural and natural heritage." (para 46). This is reinforced by the powers of the gram sabha under PESA (paras 56 and 58). Moreover, these powers are to be exercised in accordance with the guidelines issued by MoTA on 12.7.2012. The Court held that the primary problem in the Vedanta case was that the question of religious and cultural rights was not placed before "the gram sabha for their active consideration."

August - September 2013: Palli sabhas (gram sabhas) in Niyamgiri area reject proposed Vedanta mine.

January 11, 2014: Environment Ministry rejects proposal for stage 2 clearance to Niyamgiri mine, citing Supreme Court orders and palli sabha decisions.

March 7, 2014: Ministry of Tribal Affairs writes to all State governments, stating that the Supreme Court's decision in the Orissa Mining Corporation case clearly holds that the FRA applies to all projects and that gram sabha consent is required. Further, it states that the Ministry of Tribal Affairs is the nodal agency for forest rights and hence orders from other ministries should not be accepted. On this basis, it instructs state governments that gram sabha consent is required for all proposed diversions of forest land, including linear projects, and hence the Environment Ministry's circular of 5.2.2013 (and two subsequent ones concerned with procedural details) are not in accordance with law and should not be followed.

May 2014: Environment Ministry complains to Prime Minister's Office, gets Tribal Ministry letter referred to Law Ministry. In reference, recycles recommendations of Pulok Chatterjee committee.

July 31, 2014: New NDA government holds cabinet meeting on question of gram sabha consent. Most Ministers push for Pulok Chatterjee committee recommendations to be followed and gram sabha consent dispensed with (notwithstanding what the law and the Supreme Court judgment say). Law Ministry directed to reply as soon as possible. Not known if and when they did so.

January 12, 2015: The Prime Minister's Office holds a meeting at which, reportedly, the PMO fully supports MoEF's position.

Late February, 2015: MoEF starts trying again with a new draft circular, now to remove the need for gram sabha involvement entirely - in both Scheduled and non-Scheduled Areas.

 

3) Whether striking out mandatory ""consent"" provision in the name of fast-track clearances is violative of the law which mandates 'consent' prior to diverting forests for non-forest purposes, by an executive order? (without legislative amendment)

But I feel there is no need for getting gram sabha consent for linear projects.