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Position Paper prepared by All India Forum of Forest Movements

Deforestation and compensatory afforestation: communities victimized twice

India’s forests continue to be diverted for non-forest purposes to provide land for development projects routinely cleared by the concerned regulatory authorities: despite a number of legislative safeguards (as provided by acts like Forest Rights Act and PESA), such diversions usually happen without the consent, and often, knowledge, of communities whose sustenance depends on the forests being diverted. The forests being destroyed not only signify loss of precious natural landscapes and biodiversity rich habitats but also displacement of people who have been traditionally part of those. This displacement is seldom recognized and recorded during official rehabilitation and resettlement processes that sometimes form part of the big projects—the compensation is measured and quantified only in terms of monetary value, that too in a very narrow and limited scale: people’s livelihood links and cultural associations with forests have seldom been taken into account while identifying project-affected communities eligible for compensation. These provides the context for the first layer of displacement in cases of forest diversion: destruction of natural habitats and landscapes and, inseparable from that, destruction as well as extreme disruption of community economy and ecology. This displacement is visible and palpable—forest landscapes change to mines, industries, reservoirs and housing complexes, physically displaced people are found to migrate elsewhere while those remaining are left to deal with loss of livelihood resources as well as a badly altered environment on their own.

The second layer of displacement associated with any case of forest diversion, however, goes largely unnoticed. This stems from the concept of compensatory afforestation (CA), which means raising of plantations largely in land not officially recorded as forest, in lieu of forests being diverted. Not much can be or is normally known of such lands where such plantations come up—sometimes lands quite distant from a project site are used. Neither statutory Environmental Impact Assessments (EIAs) usually undertaken prior to forest diversions for large projects nor forest and environment clearances issued by state regulatory authorities and the central MoEF provide detailed information about the legal status, existing users and physical characteristics of lands selected for CA. Questions related to social and environmental impacts resulting from allocation of such land are usually ignored.

The term ‘compensatory afforestation’ itself is objectionable and paradoxical: it first signifies a loss of forest, and then implies that an afforestation to compensate that loss will take place. Therefore the issue is primarily of negation, deforestation and displacement and not really creation and afforestation—the afforestation comes later, only when the forest is lost.

What is Compensatory Afforestation (CA)?

The mechanism known as compensatory afforestation derives from the Forest (Conservation) Act, 1980 (hereafter “FCA”), which stipulates that any diversion of forest land because of development projects or for other reasons will be subject to approval of Government of India. This approval is known generally as  ‘forest clearance’ (hereafter FC): conditionally issued by the Ministry of Environment and Forests (hereafter MoEF), Government of India. A FC usually lays down certain ‘conditions’ which have to be complied with: if a ‘user agency’(the agency which applies for FC) fails to prove compliance, the clearance can be suspended, or if necessary, revoked. One important obligatory condition is that of compensatory afforestation—the applicant agency has to ‘compensate’ the loss of forests either by raising and maintaining plantations on its own, or paying someone(usually the forest department) to do so.

Though initially FCA was conceived as a deterrent to rampant and rising events of organized and largely government-sponsored deforestation in various Indian states, and did not provide for CA, its subsequent Rules and executive ‘Guidelines’ framed and issued by MoEF from time to time kept on coming out with elaborate and constantly changing prescriptions about compensatory afforestation. Interestingly, the act itself(including the rules) does not define it at all–or provide for it in so many words: the FCA Rules as amended in 1988 and 2003 started to include applications forms in which user agencies would apply for using forest land. One item in the form was compensatory afforestation; which meant that the applicant agency had to furnish details of proposed compensatory afforestation.

From the mid-1990s, the Supreme Court of India started taking an interest in the matter, and one could say that its interventions are responsible for the present mechanism of CA, which has gone way beyond raising plantations, and incorporated the forest/biodiversity valuation mathematics central to all offset systems: it is no longer enough to raise plantations—the user agency has to pay full ‘value’ of the biodiversity content and environmental services of a forest it seeks to divert to compensate for forest loss, in addition to raising plantations.

Valuing forests: emergence of twin concepts of NPV and CA

The notion of compensation for loss of forests and destruction of biodiversity, which is at the heart of compensatory afforestation, came to be expanded with the adoption of Net Present Value (NPV) for forests being diverted; from 2006 onwards, the MoEF adopted this mechanism on an all India basis. It is unclear however, which concept came first—in a way compensatory afforestation too entailed a primitive kind of value exchange—land for land, and trees for trees. The Supreme Court’s rationale in accepting the NPV mathematics of forests was that compensatory afforestation was an inadequate means and a poor substitute for natural forests.[2]

Adoption of NPV meant that for each approved instance of forest diversion, the concerned state government and MoEF started getting paid: the more such forest diversions, the more money deposited with the governments. It was the issue of management of funds collected by state for CA that eventually determined the future  mechanism and resulted in the setting up of an apex body that would centrally manage and control funds collected towards compensatory afforestation and Net Present Value.

CAMPA: structure, mandate and functions

The Central Empowered Committee(CEC) which was asked by the Supreme Court to submit a report and recommendations in the compensatory afforestation IA No. 566 pointed out[3] that the pace and quality of compensatory afforestation was linked to method of release of funds existing at the time. “It is therefore desirable”, it said, “to create a separate Fund for compensatory afforestation, where the monies received from the user agencies are deposited and subsequently released directly to the implementing agencies as and when required”. It noted that states unanimously held that this new system “would help undertake compensatory afforestation in a planned manner and on a continuous basis”. (italics added)

Compensatory afforestation fund, made of payments deposited by user agencies for NPV, CA, CAT(obligatory Catchment Area Treatment that user agencies have to carry out in cases of land-based projects like mining and dams) and other purposes, is currently managed under the ad-hoc CAMPA(Compensatory Afforestation Management and Planning Authority), a body that was constituted by the Supreme Court in July 2006.[4]  Before this, the MoEF framed guidelines in February 2004[5]. According to the 2 July 2009 Guidelines on State Compensatory Afforestation Fund Management and Planning Authority (State CAMPA) issued by the Ministry of Environment and Forests, the money

“…received on account of Net Present Value (NPV) is to be used for natural assisted regeneration, forest management, protection, infrastructure development, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.”[6] (italics added).

In other words, payment received as NPV will help recreate forests, and strengthen existing conservation; it is envisaged as a multi-pronged miracle machine that will destroy forests and yet churn out whole forests complete with wild life.

Ironically, NPV was thought to be an improvement over CA; it was based on the reasoning that because compensatory afforestation had not compensated for the loss of natural forests, something  more was needed. The Supreme Court, in its order of 26 September 2005 noted,

“….the plantations raised under the compensatory afforestation scheme could never adequately compensate for the loss of natural forests as the plantations require more time to mature and even then they are a poor substitute to natural forests. States/Union Territories as well as MoEF are of the view that in addition to the funds realised for compensatory afforestation, the NPV of the forest land being directed for non-forestry purposes should also be recovered from the user agencies.”[7]  (italics added)

What follows such valuation of forests? One way to consider this question is to ask how funds earmarked specifically for NPV, CA and CAT, are spent. The second is to ask whether there should be limits to valuation exercises and whether nature can be explained in terms of specific monetary values at all.

The dangerous illusion of compensated forest diversion: communities under attack

Instead of halting deforestation and strengthening conversion of forest habitats and forest biodiversity, CA is legitimizing destruction of forests and hurting community stake in those. A study[8] carried out by independent researchers and civil society organisatons in 2013-14 came up with enough evidence to prove that both the concept of ‘no net loss’/’compensatory forests’ and the money it produces are being used against forest communities. The attack against communities is happening in broadly four ways: 1. community-held forest lands, agricultural areas and pasture are being acquired by state and user agencies in the process of obtaining land for CA plantations. 2. The money in CAMPA fund is being used in extending the territorial limits of existing wild life conservation areas like wild life sanctuaries, national parks and critical tiger habitats, often directly encroaching upon community lands and facilitating displacement of forest communities. 3. Both these processes are leading to completely illegal denial of a range of old and new community rights, tenural as well as others, and severely curtailing community access to forests. 4. Most important of all, by creating and sustaining the illusion that destruction of natural forest habitats can be compensated in monetary terms and by raising plantations, all ecologically and socially impermissible deforestation events are being green-washed and legitimized. In reality, much of the money is probably being misappropriated, and plantations as claimed are seldom if at all are coming up: there is not even the required amount of land to raise such plantations.  Below, we use key findings from the study–and also additional material–to show how CA is prolonging the same historic injustice against Indian forest communities that Forest Rights Act(hereafter FRA) and PESA( Panchayat Extension to Scheduled Areas) had sought to atone for.

Getting Land for CA: land-grab and more new enclosures

That compensatory afforestation has not fared well was known even during the late 1990s when the Supreme Court became cognizant of the matter. Until August 2002, when the numbers were compiled by the MoEF and filed before the Court, as against the stipulated target area of 6,73,527 ha over which compensatory afforestation was to be done, it had supposedly been done over 4,26,965 ha, about 60.64 per cent of the target. Further, as against Rs. 859.29 crore which was to be recovered from user agencies, Rs. 793.86 crore had been recovered and Rs. 496.22 crore had been spent on compensatory afforestation.[9]

These figures are useful as broad indicators of the general nature of things, but they bypass the finer and often disguised layers in the story. An evaluation of compensatory afforestation would need to consider not only how the scheme is implemented but also the complex sequence of events in the licensing chain that culminates in issuance of a forest clearance. To begin with, it is important to understand how a forest is lost, before we look at the other end of the offset, i.e., CA and other protection and conservation measures carried out with  CAMPA funds.

No credible data in public domain

There is a near total absence of credible data on compensatory afforestation. Though the institutional regulatory framework for CA comprises only state actors, no government agency involved in the process has been found to maintain any systematic record. For instance, in response to queries under the Right to Information Act (hereafter RTI), the MoEF admitted in writing that it did not maintain any data on CA beyond what was posted on the e-green watch. A close study of various minutes of the meetings of the Forest Advisory Committee (hereafter FAC), a statutory body that assesses forest diversion proposals, yields little. Many RTI applications filed with the forest department in the states are pending.

Thus, it can be said that the data in e-green watch web portal maintained by Ministry of Environment, Forests and Climate Change remains the primary source of information on CA However, another set of data comes from the report by the Comptroller and Auditor General of India (CAG) on compensatory afforestation (hereafter CAG Compliance  Audit report) released in September 2013[10].

The land-grab in CA

Diversion of forest lands for CA means that equivalent (non-forest land) or double (‘degraded’ forest land) amount of lands have to be made available for plantations. According to e-green watch, between 2011 and 2013, the ministry had issued 1,039 forest clearances to as many number of projects, licensing denudation of 29,445.486 ha of forests. This means that for about 30,000 ha of forests diverted since 2011, compensatory forests have already come up on at least another 30,000 ha of land. This begs two questions. Where do these lands come from and what kind of land has been used? A third question concerns the physical process of carrying out compensatory afforestation.

Most of the projects, i.e., Durgapur open cast mines in Vidarbha, Maharashtra, Polavaram multipurpose project in Andhra and various HEPs(Hydro Electricity Projects) in Arunachal, lie in either Scheduled Area or predominantly tribal areas, meaning that specific laws and constitutional provisions as well as customs govern land-use patterns in those areas. All these projects including Teesta HEPs in Sikkim are situated in traditional tribal territories. In colonial days these were either part of various ‘excluded’ territories (denoting tribal areas kept out of the regular administrative jurisdiction of the colonial government), or specially designated tribal reserves. Additionally, the projects also affect, directly or indirectly, typical colonial tenures like permanently settled zaminderi estates (in Vidarbha in Maharashtra and Godavari area of Andhra Pradesh) and ryotwari lands (in Vidarbha, mainly). As to forests, both old and new jhum/podu lands (in Arunachal Pradesh and Andhra Pradesh), are being shown as lands for compensatory afforestation, along with traditionally community-held forest areas (Arunachal, Sikkim) and old zamindari forests now used for nistar (in Vidarbha and Andhra. Despite the evident divergence in tenural patterns and land and forest laws, the use of land for CA seems to have followed a certain pattern. Either CA lands encroached upon traditional village commons or nistar areas (Polavaram and Durgapur), irrespective of their present legal status and actual land-use, or as in case of Arunachal, were carved out of community-held areas. Because forests both in and outside of scheduled areas support various kinds of rights, and recognized under PESA and FRA, such CA lands in government-owned forests were ‘burdened with rights’—to borrow a phrase coined by colonial administrators and foresters.[11] Another common feature is the uncertain classification of lands; present and actual land uses often did not match the official status of a particular land. This emerges clearly both in Arunachal Pradesh and Andhra Pradesh, community held forest areas in both these states were shown as non-forest lands.

It is worth reiterating that in order to be used for CA, any recorded non-forest land has to be notified as forest. In case of government lands as in Polavaram, the hills/Kondas adjoining the villages were shown as revenue/non-forest lands, (meaning that these were government lands not recorded as forest), and therefore not required to be mutated in favour of new user (usually the state forest department). On the other hand, unrecorded custom governed community and privately held lands, as in Arunachal Pradesh, have to be first acquired by the government, mutated in favour of forest department and then notified as forest, under relevant central/state forest laws.

Disregarding the divergence in land tenures and land revenue systems, and ignoring the question of rights of tenure-holders and other forest dwelling people altogether, official discussion on forest diversion under FCA however assumes that first, any land will either be forest or non-forest and second, that both degraded forest land and non-forest lands are in constant supply. Merely the exercises of identifying and notifying them as forests will turn them into CA areas. Such assumptions lead to yet another assumption that each project that applies for FC will carry out compensatory afforestation as stipulated. As the CAG report on compensatory afforestation indicates, seldom is a project revoked on the grounds that the conditions in Stage I, including that of compensatory afforestation was not complied with. The CAG report notes,

“During test check of records of MoEF it was observed that 1,022 proposals involving forest land measuring to 2.54 lakh hectare which had not complied with the first stage conditions for more than five years and were not rejected/ revoked.”[12]

This leads to a situation where the extent of lands actually available for compensatory afforestation falls far short of the legal requirement. The CAG report observes,

“As per information furnished by the ROs, total forest land diverted during the period 2006-12 was 1,14,877.26 hectare. Non-forest land measuring to 1,03,381.91 hectare was receivable after excluding exempted categories but against this only 28,085.90 hectare was received. In four 6 states non-availability certificates of non-forest land  measuring to 1,426.10 hectare were available. Hence non-forest land measuring to 75,905.47 hectare was not received which was 73 per cent of receivable non-forest land.”[13] (italics added)

Land banks

Paucity of  lands for compensatory afforestation has led to the idea of “land banks”, which means that state government will identify non-forest lands as available, and keep those in the bank for future use. The concept of creating land banks for CA borrows directly from other such banks in existence mainly in USA(for instance, species bank, wetland bank)[14]. The very notion of these CA land banks pre-assumes that because licence for forest diversion would be issued anyway, projects should not face delay on environmental compliance issues, hence there should be a ready land pool with government which can be used for CA as and when required.

Several questions follow. If non forest revenue lands are not available, what lands are being acquired for the purposes of afforestation and what lands (judging by land-use, land-possession and land-ownership patterns) are being brought under land banks? Even if one goes by the logic of forest lost equals forest created, how can the loss of natural forests and its biodiversity be compensated with CA on patches of land taken from land banks, which are likely to be ecologically and spatially far removed from the lost forest? Lastly, what is the purpose of the elaborate certification/licensing mechanism if one starts with a given that a forest clearance is a fait accompli, something already decided?

Successive guidelines and circulars that propose identification and carving of “banks” out of common lands such as zudpi jungle (degraded forests used as pasture and for various other purposes— mostly village nistar lands)[15] illustrate that lands may not be readily available for compensatory afforestation, without encroaching upon the commons. These lands serve livelihood functions; people are known to depend on zudpi jungle for minor forest produce, grazing, cultivation, among others.[16] The MoEF guidelines on forest land diversion of 2003 allowed the use of,

“…revenue lands/zudpi jungle/chote/bade jhar ka jungle/jungle-jhari land/civil-soyam lands and all other category of lands, on which provisions of Forest (Conservation) Act, 1980 are applicable for compensatory afforestation…provided that such lands on which compensatory afforestation is proposed, shall be notified as RF under the Indian Forest Act, 1927.”[17]

In Maharashtra, by way of a “special relaxation” of the rule of identifying non forest lands, compensatory afforestation is allowed on “Zudpi jungle, twice in extent to the forest area disforested”  in the six districts of Nagpur, Gadchiroli, Chandrapur, Wardha, Bhandara and Gondia in Vidarbha, without the obligatory requirement of producing a certificate from the state chief secretary that non forest lands are not available. A news report published in 2013 describes zudpi jungles as “virtually uncared-for, no-man’s lands just because they are described as forest in some government record or other” and indicates that a part of these forests which initially were to be used for compensatory afforestation purposes will now be diverted for projects. Thus, out of the 1.80 lakh ha in these six districts, 54,000 ha will be made available for development projects and around  94,000 ha “can be notified as reserved forest and made available for afforestation against any projects to be undertaken on the 32,000 hectares currently lying unused”.[18] Compensatory afforestation has also been allowed in Maharashtra on Mangrove lands or Khar lands.[19]

Arunachal Pradesh, with more than 80 per cent of its geographical area under forests has no land for compensatory afforestation, a fact admitted by a former Chief Minister of the state.[20] In order to ensure that clearances under the FCA are not held up or refused, the state government is setting up land banks, and forest officials have been directed to ensure that community lands are notified as Reserved Forests, Protected Forests, Anchal Reserve Forests or Village Reserve Forests.[21]

In a recent example from Gujarat, “lands” allocated for compensatory afforestation, among other irregularities, turned out to be areas under water. The Adani Chemicals Limited which was granted permission to divert 2008.41 hectares of reserve forest land for their Solar Salt Project & Salt Washery Plant in Mundra and Dhrub villages in the Kutch east forest division reportedly failed to acquire the land for compensatory afforestation at its cost; the “lands” for compensatory afforestation were instead acquired by the state government, handed over to Adani, which in turn transferred the same to the state forest department. These lands falling near the coast  of villages Kaner and Sinapar of Lakhpata Taluka, Kutch turned out to be part of the sea.[22] These examples prove that even if community-owned and private lands are included in “land banks”, the supply of lands may still fall far short of the demand.

The issue perhaps is not really availability of land for CA, but the nature of land, and how communities perceive and use them. The top-down, bureaucratic and essentially coercive approach that has dominated the history of forest governance in this country for last more than 150 years, continues to govern compensatory afforestation. As in other offset regimes across the globe, questions of tenure, rights and access have been bypassed while setting up the CA mechanism. The process has bypassed both customary and formal legal systems.  The only concern that seems to have kept both the certifiers in the states (forest department) and license givers at the centre (FAC and MoEF) occupied is how fast clearances can be issued.

The New FC Rules: more imminent attacks on Community lands

The government of India is mulling a change in the FCA rules. Other than a string of new clauses providing for speedy forest clearances, the substituted rule 7 (section 4.clause 3.a in the new draft rules put up at the MoEF site on December 2013) provides for the regional offices of MoEF will have powers to clear proposals for clear felling any amount of forests with crown density of 40 percent or less, if such forests are re-used for ‘reforestation’ purposes. According to State of Forests Report 2011 by FSI(Forest Survey of India), Arunachal has 2859 and 46542 sq.km of forests respectively under moderately dense (canopy density between 40 to 70 percent) and open forests (canopy density between 10 to 40 percent) class. The proposed new rules mean that, irrespective of legal category, tenural status and ecological importance, a fairly large portion of these forests stands to be cleared at the stroke of the pen so that land for CA plantations becomes available.

In the real world of mountainous North-East India where many communities still practice shifting cultivation on the hill slopes and use forests as shared ecological, social and cultural spaces, this can spell plain slaughter. Because most jhum fallows as well as current jhum lands have crown density of 40 percent and below, all such land in the area will be technically open to acquisition as potential CA land. Because clearing of forests in such lands will not need the consent of the FAC and MoEF central, proposals for reforesting forested terrains can be locally cleared. Forests officially under government control will be yet easier to obtain, because in most such cases, government can include the clear felling operations in the regular working plans.

The forest valuation game 

Both the Supreme Court and NPV committee avoided, either deliberately or unknowingly, two issues which lie at the centre of any exercise of valuation of forests. Firstly, though the Court noted that the valuation exercise should be flexible enough to include biological and spatial variations (‘different bio-geographical zones of India’), and each category/type of forest has to be valued separately (‘actual numerical values for different forest types’) according to site/region specific ‘scientific, biometric and social’ parameters, it was not taken into account that the moment forests (or any other natural system) are assigned ‘numerical’ monetary values, all biological, spatial and social distinctions latent in them automatically disappear.

Thus, for instance,  a tropical wet evergreen forest in Arunachal becomes the same as a thorn scrub forest in Andhra, a Zudpi jungle in Maharashtra, or even a monoculture plantation of Eucalyptus or Teak. The only difference that remains is merely numerical and of quantity, which means that X amount of wet evergreen forest will be equal to Y amount of scrub forest or Z amount of monoculture plantation. What was missed was that in assigning monetary values to natural systems, each one of which is unique in its own way, nature as nature is allowed to disappear, leaving only various sets of numerical values. Secondly, the range of so-called environmental services that any natural forest system produces disappears as soon as the forest disappears, and however scientifically and justly valued, these services cannot be recreated/reproduced in the form of money. Further, as we will see below, community involvement (by ‘community’ here we mean those within the community whose cultural ecology and subsistence economy are moored in the forest) in such valuation exercises is usually nil. Also, the valuation itself turns into an arbitrary and undemocratic affair, and all the separate monies collected for separate ecosystem goods/services become one big fund, outside community’s control and knowledge.

Wild life conservation and denial of rights

The ad hoc CAMPA currently manages around Rs. 38,000 crore[23], a sum collected since 2009 under the broad categories of compensatory afforestation and Net Present Value.

‘Relocation’ of villages with CAMPA funds 

CAMPA money is largely being spent in keeping alive and strengthening Indian forest bureaucracy’s hold over forests, and at the same time, to deprive forest communities of their customary and legal rights. Funds from CAMPA are being released for relocating villages as in the case of Taroba-Andhari Tiger Reserve(TATR) in Vidarbha, Maharashtra. It is important to note that independent of CAMPA guidelines, relocation of villages from forest areas violate FRA. Rights of forest dwellers, which the act recognizes and vests in them can in no way be curtailed, restricted or denied unless the rights holders and their institutions agree in writing. FRA stipulates that any relocation of forest dwellers’ settlements must be preceded by an independent scientific study, which conclusively says that co-habitation of humans and wild animals including tiger is not ecologically permissible in the forest area from where the village is to shifted. Most importantly, the gram sabhas (village assemblies formed under FRA, various state panchayat acts and PESA—a gram sabha is the main authority to implement the Forest Rights Act) have to give informed consent in writing about their forest rights being recognized, and also their agreement to the proposed curtailment to those rights. All ongoing and completed relocation operations have been in areas that have been deliberately and illegally kept out of the ambit of FRA, for instance, in Taroba-Andheri Tiger Reserve and Navegaon National Park in Vidarbha, Maharashtra. In all these areas, the so-called voluntary relocation process leaves behind a long hurtful trail of coercion, persecution and denial of rights by forest officials.

In and around TATR, the land people have traditionally used as nistar or forest commons and pasture are being simultaneously used as CA areas and extended buffer zone of the tiger reserve: both have resulted in more land-grab and fresh denial of rights.

It is interesting to note that the use of CAMPA funds for purposes of relocation of villages (as a measure of forest conservation) contradict with another goal of CAMPA, which is to:

“promote….environmental services”, especially, “(i) provision of goods such as wood, non-timber forest products, fuel, fodder and water, and provision of services such as grazing, tourism, wildlife protection and life support.”[24]

If the communities are recognized to have access to these services, would not relocating them amount to its denial?

Virtual Plantations: Legitimizing and Greenwashing Corporate Plunder of Forests 

FCA: The neo-liberal overwhelming the environmental

FCA was enacted to check rampant conversion of forest land to non-forest land, in other words deforestation on a grand scale. The Act did not include any reference to compensatory afforestation at the time of its passage in 1980, and as we have seen, the only mention of CA was in the FCA Rules which were notified in 1981. The history of FCA in subsequent years shows clearly how the legislation, instead of regulating/reducing deforestation, has been used for greenwashing it. Environmental compliance has become coterminous with monetary payments for environmental services, and the real forest situated in a particular geo-ecological region has been replaced with a only a notional numerical value, which transcends both ecological and space-time barriers.

The mediation of capital ensures that one forest ecology and one forest ecosystem situated at a particular space-time becomes the same as another ecology and ecosystem in another space-time grid. Thus CA plantations in the future and the mere notion of future conservation of wild life habitats are taken to have ‘offset’ the very real loss of forests in the present. However, beyond facilitating deforestation and socio-ecological displacement, these virtual and cleverly crafted constructs of future environmental values and services can pose a direct and additional threat to real forest communities who need certain natural resources like land, water and forest biodiversity, to survive.

Deforestation continues unimpeded

Ironically, in comparison with the pre-FCA period, the licensing regime under FCA has been made stronger on paper, and on the face of it, series of checks have been put in place, including even a system of payment for environmental services. But did FCA do what it was mandated to in the first place? Did it halt deforestation?

Because credible data on pre-1980 forest conversion is hard to come by, it is not possible to compare forest diversion figures for pre-FCA and post-FCA periods. Centralization of the licensing regime and judicial pro-activism might have saved a few forests from destruction, but in absence of data, this is largely guesswork. On the other hand, one could see that conversion/destruction of forests continues unimpeded. A 2013 news report states that since mid 2004, an estimated 600000 ha (6000 sq. km.) of forests (of which more than 250000 went to mining) have been diverted.[25] Between May 2009 and July 2011, the environment Ministry had cleared 1,446 projects that required 31,501 hectares of forestland. Another 993 projects got ‘in-principle’ clearance to divert 35,391 hectares of land during the same period.[26] Instances of outright rejection were few and far between. The Prayas Energy Group, for instance, points out that between 2006 and July 2010, no application for Coal and gas based thermal power plant the EAC of the MoEF was rejected.[27] The EAC’s (Expert Appraisal Committee) rejection of river valley and hydro electric projects for the period between April 2007 and December 2012, when a new EAC was constituted, was also zero; in this period, all 262 river valley and hydro electric projects placed before it were either cleared or sent back for “reformulated proposals”.[28] This raises the question, how do these bodies function? What time is spent on each proposal and how does FAC ensure that stage I conditions are complied with? What follows in case of violation of terms or provision of the law?

In a letter written to the former Environment Minister, Jayanthi Natarajan in September 2011, three former FAC members(Mahesh Rangarajan, Ullas Karanth and Amita Baviskar) accused forest officers involved at various stages of the forest clearance process, of,

“fudging data, hiding facts, sidestepping laws, overlooking violations and finding ways of clearing even projects that are dangerous for forests.”

The letter also said:

“From the bottom up, state forest departments/governments are routinely approving even obviously damaging projects. They have abdicated their role of due diligence, mandatory under the Forest Conservation Act, and honest expression, possibly under political or other pressure.”.[29]

Plantations not done

There is also the possibility of large-scale and all-pervasive corruption. Plantations reportedly raised under both CA and CAT (catchment Area treatment) were found to dissolve into thin air on a closer look. False information and notoriously erroneous data on plantations has been posted on e-green watch, the centralized data portal maintained by MoEF (see all case studies). Evidences from Arunachal Pradesh and Sikkim also testify that many of the plantations shown on government records have no existence. The Sikkim Government claims on record to have done plantations but these are most likely only virtual. Similar claims have been made by both the government of Arunachal and NHPC (National Hydro-electric Power Corporation), the project developer in Lower Subansiri HEP, while all known facts point to the contrary.

A recent newspaper report from Maharashtra, citing a report compiled by the state forest department, shows that only 32% plantations done in 2010 were found successful, whereas 68% either failed or are on the verge of failure. In case of plantations under compensatory afforestation scheme, success rate is only 11% with 89% plantations either failed or on the verge of failure[30]. 

Misutilization and lack of accountability

In CAG’s analysis, until 2009, funds were not being released to the states due to a variety of factors.[31] When the funds were released in July 2009, the CAG audit found significant under-utilization in states like Arunachal Pradesh (91 percent). The CAG notes, “[u]nder utilisation of funds raises concerns about the absorptive capacity of the State/ UT Forest Departments.”  B. K Singh, the current Director and in charge of CAMPA in MoEF also made this point while explaining how money is disbursed from CAMPA. He explained that the ad-hoc CAMPA can give only so much money that the state can absorb, meaning that release of money in one go can lead to its misuse. In order to check the misuse, the states are asked to submit quarterly progress reports.

A staggered release of money does not appear to have produced the intended results; CAMPA has been viewed as a platform and source of funds for various other activities. In Maharashtra, Rs. 6.19 crore was spent on:

“Purchase of vehicles for officers, furniture, computers and eco-tourism, repair of forest rest houses and trainings (Rs. 0.40 crore) and construction & renovation of Van Bhawan building (Rs. 4.88 crore), purchase of solar energy equipment for Van Bhawan building (Rs. 0.91 crore).”

In Arunachal Pradesh the money was utilized towards,

“[p]urchase of vehicles (Rs. 0.79 crore), construction of residential buildings (Rs. 2.19 crore), office equipment, mobiles and furniture (Rs. 0.12 crore) etc.”[32]

The project developers for Lower Subansiri hydro-elecricity project, NHPC, notes in its Six Monthly Progress Report on Environmental Aspects (sent to MoEF, for the period ending September 2013) that it has spent about Rs 81 crore on compensatory afforestation, as against the original allocation of about Rs. 49 crore. No detailed account, however, was given for the amount of money reportedly spent on CA. It is evident that the information cannot be true, particularly in the light of CAG’s observation that Arunachal Pradesh could spend only Rs. 6.53 crore from the CAMPA funds in 2010-2011, of which Rs. 1.72 crore was for compensatory afforestation, and also its additional observation that no compensatory afforestation has been done in the state during the 2006-2012 period. This needs to be read together with an ‘Expression of Interest’ notice issued by the Arunachal Forest Department which invited bids for monitoring compensatory afforestation. The figure given in the Expression of Interest is Rs. 6.53 crore, including costs for 3 advanced nurseries for Lower Subansiri, which are pegged at Rs. 88 lakhs. Field research on Lower Subansiri, however, failed to find a single CA plantation.

No community participation

The CA process has not meaningfully engaged communities. In Andhra Pradesh and Maharashta, it was found that villagers had worked in the plantations on a daily wage. Even in areas where communities have traditional skills in plantation works, they were not assigned such a role. For instance, in Maharashtra, forest villagers in Taroba area, are, by occupation, forest workers—it was they who created commercially valuable plantations stretching over hundreds of kilometres for successive governments. In the Subansiri district of Arunachal Pradesh, the indigenous Apatani people are traditional tree-cultivators; at one time they used to raise and maintain a number of plantations within the village boundary, with each plantation serving a particular purpose. Why were they not involved in the CA exercise?

As in the cases of forest ‘diversion’, decisions about CA are controlled by the state and big corporations. Communities are at best external in this scheme of things.

Playing with big money: CAMPA, Compliance, monitoring and accountability

The entire experience of compensatory afforestation and the CAMPA funds tells us how forest and environmental laws and other legislations such as Forest Rights Act and PESA along with the Schedule V provisions under the Constitution, are being diluted to the point of redundancy.[33] It all ultimately boils down to giving forest land away to big private corporations or public sector giants, if necessary, for free. A number of exemptions are being granted, for instance, to energy projects. Thus Reliance Power has been exempted from identifying non forest land for compensatory afforestation for its Ultra Mega Power Project at Tilaya in Jharkhand. This exemption is applicable to all UMPPs. Because they are now considered as “national projects”, the user agencies will have to only deposit the money for compensatory afforestation.

What conclusions could we draw, and what bare facts can we hope to glean from the innumerable instances of laws enacted and violated, and at the end of it all, more deprivation and injustice?

When one peels the layers, there can indeed be a few simple conclusions. One, the CA is a money-making process, and it has given government enough money in last fifteen odd years, so much that nobody now knows what to do with it. Two, CA (by CA we mean here the entire-CA-NPV-CAMPA chain) is a pseudo-environmental excuse for neo-liberal land grab. Three, CA encroaches upon forest commons and other common lands, and deprives communities of their legal and constitutional rights. Four, the conservation in CA not only gives a greenwash to corporate projects that destroys forests and causes irreparable damage to environment, but also directly hurts communities by extending and deepening the process of rights denial by erecting new enclosures. Five, no amount of structural changes and monitoring can set the process right—all available records suggest that CA plantations are at best a green mirage, they were never meant to be raised in the first place.

These conclusions apart, the decision of the Supreme Court[34] to allot huge amounts of CAMPA money to the states, and the subsequent CFA(Compensatory Afforestation Act) Bill tabled in Indian Parliament in May 2015 which provides that 90 percent of the funds now lying with ad-hoc CAMPA will be made available, de facto, to state forest departments, will hit forest communities in two ways. One, the money in CAMPA will be used for strengthening departmental hold over forests, at the cost of people’s rights. Two, such huge amounts of money in the hands of state governments will in fact provide a kind of perverse incentive to speed up forest clearance processes. This, in turn, will escalate invasion of forests and forest communities on the one hand, and, as demand for CA land increases, is bound to affect agricultural land and the remaining village commons outside recorded forests. Also, in a corruption-riddled state like India, huge amounts of easy unaccountable money will drive yet more corruption. As things stand now, one already gets a whiff of large-scale misappropriation of funds. When the sesame opens, and real money to the tune of thousands of crores starts flowing, one shivers at the thought of what will ensue.

Is there any way out of this morass? Is there any way the present mess of CA can be reasonably and equitably untangled? Can one expect that the already huge and growing fund in CAMPA will be spent meaningfully, and not for violating laws and obstructing and denying people’s access to forests? Given the present scenario, this does not seem likely. Nonetheless, here are certain things which could be done:

  • A review by an impartial and transparently constituted team of environmental experts and representatives of civil society groups to look into the CA process so far, including a thorough ground-level fact-finding exercise to determine how CA is being executed in the areas where deforestation(forest diversion) events are taking place: in particular, the review should look into the question of land for CA, and present as well as potential impacts on communities, and specific instances of violation of laws and denial of justice as well as issues of non-compliance and alleged corrupt practices.
  • A complete overhaul of the FC mechanism: instead of facilitating fast-track clearance of development projects that cause deforestation and displace forest communities, it should re really an environmental instrument: each proposed case of forest diversion, beyond those specifically recommended by Gram Sabhas under relevant provisions of FRA should be looked into separately, and judged only by its potential environmental impacts at micro-level as well as the larger ecological landscape level. Gram Sabha consent for all kinds of forest diversion projects are already legally mandatory and the new FC mechanism should incorporate this by making necessary changes in the FC(Rules) itself. The Rules should be changed in consonance with the relevant provisions of FRA and PESA, the GO issued by MoEF in august 2009, and the verdict of the Supreme Course in the Niyamagiri-Vedanta case in April 2013, all of which reiterate the primacy of Gram Sabhas in decision making.
  • The manifestly failed and false process of CA must be generally done away with. Because these offsets, instead of ensuring environmental compliance, only facilitate and escalate deforestation, allow a wide margin for corrupt practices, and finally encroach upon people’s lands and forests, the Forest Clearance mechanism should not have this provision at all. In exceptional cases, and only if the concerned communities give prior informed consent, the plantation part of CA should be handed over to affected communities: who should identify suitable land, species and cost for such plantations independent of interference by forest department or user agency. For this purpose, degraded forest land as well as plantation areas with commercial monoculture(eucalyptus, teak, pine varieties) can be used. Under no circumstances, community-held Jhum/podu areas with 40 percent canopy density( and below), can be used for CA.
  • In case a community gives its consent to a particular case of forest diversion, its control, access and use of forests must figure prominently in determining the mitigation exercise, if any, irrespective of whether such control, access and usage have been officially recorded by forest department. Section 5 of FRA provides for community control and access of all kinds of forests, and Section 3 and 4 of the same act stipulate that rights of governance control, access and usage have already vested in forest communities.
  • The money in CAMPA fund must be spent in an equitable, democratic and transparent manner. The communities who had been displaced or in any affected by cases of approved deforestation must be given first charge of this money for community development works including development of various sustainable forest-based livelihood programmes inc: the fund can be routed through local panchayats or autonomous councils(where such councils exist) to the concerned gram sabhas/community-level institutions. It must be ensured that CAMPA funds are no longer used for grabbing community land under the pretext of CA, and/or shifting villagers from wild life conservation areas in violation of FRA and Wild Life Protection Act.

End Notes

[1] (If not otherwise mentioned, all conclusions and field data used in this note derive from an yet to be published study of compensatory afforestation and its impacts on communities in India. Carried out in four states in 2013-2014, this study by Soumitra Ghosh, Sahana Basavaptna, Pravin Mote, Arnab Bhattacharaya and Swarup Saha, was commissioned by Society for Promotion of Wastelands Development, New Delhi).

[2]      T G Godavarman Thirumalpad v Union of India, (2006) 1 SCC 1, paragraph 13 at p.15.

[3]      Recommendations of the Central Empowered Committee dated 9.8.2002 in IA 566 of 2000 in Godavarman, pending.

[4]      Order dated 5.5.2006 in T N Godavarman Thirumalpad v Union of India, W.P. (C) No. 202/1995, pending. By an  earlier order dated 29/30 October 2002, the Supreme Court directed the MoEF to frame comprehensive rules for the constitution of a body and management of compensatory afforestation funds in concurrance with the CEC.

[5]      Order S.O. 525 (E) by the Ministry of Environment and Forests issued and notified in the Gazette of India. See order dated 23.4.2004 in T N Godavarman Thirumalpad v Union of India, W.P. (C) No. 202/1995, pending.

[6]      2009. The Guidelines on State Compensatory Afforestation Fund Management and Planning Authority (State CAMPA), 2 July, Ministry of Environment and Forests, Government of India.

[7]      T N Godavarman Thirumalpad v Union of India, (2006) 1 SCC 1, paragraph 13 at p.15.

[8]  Ghosh, S, Basavaptna, S et al, Multiple Displacements:  A critical look into cases of forest diversion and allocation of land for Compensatory Afforestation (CA) in India, forthcoming.

 

[9]      See the CEC report dated 9.8.2002 in I.A No. 566 in W.P(C) No. 202/1995, Godavarman, para 5, p.6, pending.

[10]    Comptroller and Auditor General of Indi. 2013. Report no.-21 -Union Government (Ministry of Environment and Forests) Report of the Comptroller and Auditor General of India on Compensatory Afforestation in India, pp.34-35, available at http://saiindia.gov.in/english/home/Our_Products/Audit_Report/Government_Wise/union_audit/recent_reports/union_compliance/2013/Civil/Report_21/Report_21.html (last accessed on 9.9.2013) (hereafter referred to a “CAG Compliance Audit report 2013)

[11]             All working plans of the colonial forest department used this phrase to explain how forests were reserved. The phrase has been in use in more recent working plans, in the forest history sections. See Ghosh, S, Commons Lost and ‘Gained’? Forest Tenures in The Jungle Mahals of South West Bengal, Overseas Development Group, University of East Anglia, Norwich, UK, 2007.

[12]     Comptroller and Auditor General of Indi. 2013. Report no.-21 -Union Government (Ministry of Environment and Forests) Report of the Comptroller and Auditor General of India on Compensatory Afforestation in India, pp.34-35, available at http://saiindia.gov.in/english/home/Our_Products/Audit_Report/Government_Wise/union_audit/recent_reports/union_compliance/2013/Civil/Report_21/Report_21.html (last accessed on 9.9.2013) (hereafter referred to a “CAG Compliance Audit report 2013).The CAG report further notes, “There were no records to indicate the extent to which the conditions like transfer, mutation  and declaration of equivalent non-forest land and its declaration as RF/PF, funds for CA etc. had been complied/not complied with. Thus there was no proper follow up in MoEF/ RO to monitor the status of compliance with conditions stipulated at in-principle approval. MoEF stated (May 2013) that the onus to comply with conditions stipulated in the in principle approval lay with the user agency and the State/ UT Governments concerned. With the existing resources, it was not feasible for the MoEF and its regional offices to monitor compliance to the stipulated conditions. Even in the cases where compliance of conditions stipulated in the in-principle approval is awaited for more than five years and the inprinciple approval has not been formally revoked/ withdrawn, final approval to such proposal is accorded only in rare and deserving cases where State Government and the user agencies provide valid reasons for delay in compliance to conditions stipulated in the inprinciple approval. MoEF has however, noted the observation of the audit and will take appropriate action to formally revoke/ withdraw in-principle approval to all those proposals where compliance to conditions stipulated in the in-principle approval is awaited for more than five years.”

[13]     Ibid., p.23.

[14]    Robertson, Morgan M:  The nature that capital can see: science, state, and market in the commodification of ecosystem services, in Environment and Planning D: Society and Space 24(3), 2006, also Discovering Price in All the Wrong Places: The Work of Commodity Definition and Price under Neoliberal Environmental Policy, in the journal Antipode 39(3), 2007, available at http://onlinelibrary.wiley.com/doi/10.1111/j.1467-8330.2007.00537.x/full,

[15]     Garg, Anil. 2000. Lakho Vanwasio Ke Haq Me, Betul, Madhya Pradesh.

[16]     See for instance, Incidents of Land Grabbing in the Guise of Afforestation an undated statement issued by the Campaign for Survival and Dignity argues that compensatory afforestation is only a pretext to grab lands that are often community lands. The statement is available at  http://www.forestrightsact.com/climate-change/item/download/29. A press release by the Lok Sabha refers to the report of the High Power Committee on Zudpi jungle which notes that out of a total area of 1,78,525 ha, 27,507.34 ha of zudpi jungle were under encroachment. The central government in its letter No. 4-8/87 of 15.9.2000 allowed “…32,230 hectares of fragmented/patchy Zudpi jungle to be recorded as revenue land subject to teh condition that it will be used for pasture and grazing purposes only and in no case it should be used for construction and mining…”. See the PIB release at http://pib.nic.in/archieve/lreleng/lyr2001/rapr2001/23042001/r2304200141.html (all documents accessed on 18 February 2014).

[17]     Guidelines for diversion of forest land for non forest purposes under the Forest (Conservation) Act, 1980, F. No. 2-1/2003-FC, FC Division, Ministry of Environment and Forests, Government of India, dated 20.10.2003. On file.

[18]     Deshpande, Vivek. 2013. 86,000 hectares of shrub forest may be freed for development, The Indian Express, 9 November available at http://indianexpress.com/article/cities/mumbai/86-000-hectares-of-shrub-forest-may-be-freed-up-for-development/ (accessed on 18 February 2014)

[19]     2013. Maharashtra Forest Manual, Volume II, Draft for Approval, pp.92-93. Zudpi jungle, by way of a circular issued in 1992 (No. 4-8/87-FC dated 12.2.1992), is treated as forest land under the Forest (Conservation) Act, 1980. The State government was to transfer all such lands to a “Zudpi jungle land bank” for the purposes of compensatory afforestation. A 1991 letter issued by the Government of Maharashtra allows use of Khar lands. See GOM No. FLD/1390/C.N.743/F-10 dated 10.10.1991 quoted in the Manual.

[20]     See Planning Commission. 2001. Address by Shri Mukut Mithi, Chief Minister, Arunachal Pradesh, 49th N.D.C. Meeting, 1st September 2001, Vigyan Bhavan, New Delhi. http://planningcommission.nic.in/plans/planrel/pl49ndc/index.php?state=arunachal.htm (last accessed on 25 February 2014)

[21]     Letter dated 11.4.2011 No.FOR-1-4O/Cons/Vol 1-118, Itanagar, Identification of land for compensatory afforestationregarding. On file.

[22]     See http://www.anhadin.net/article206.html (last accessed 28 February 2014)

[23]     The figure has been mentioned in the new CFA Bill, 2015.

[24]     Supra note 57, Clause 8(d)(i). (CAMPA guidelines 2.7.2009)

[25]     See Sethi, Nitin. 2013. Since 2004, 6 lakh hectares of forest cleared for mining, The Times of India, 20 April, http://timesofindia.indiatimes.com/home/environment/developmental-issues/Since-2004-6-lakh-hectares-of-forest-cleared-for-mining/articleshow/19642811.cms (last accessed on 19 February 2014). The CSE data is in variance with the figures put out by The Times of India. Table 1 figures above indicate that around 4,27,119.12 ha of forest lands were diverted between 2002 and 2013 (this year covering only January to April).

[26]     Ibid.

[27]     Shripad Dharmadhikari and Shantanu Dixit, Thermal Power Plants on the Anvil: Implications and Need for Rationalization, Prayas Energy Group, Discussion Paper, 2011, p. 2. http://www.ercindia.org/files/Prayas_Paper_TPP_Aug_2011.pdf

[28]     Analysis of MoEF’s EAC on River Valley Projects, The Expert Approval Committee has zero rejection in 6 years, April 2007 to December 2012, South Asian Network on Dams, River & People, February 2013, p.2 http://www.sandrp.in/ (last accessed 24 August 2013). See also, Nitin Sethi, Only 19 projects were denied green clearance from 2008 to Aug 2011, Times of India, 16 August 2011, http://articles.timesofindia.indiatimes.com/2011-08-16/environment/29891715_1_clearance-thermal-power-projects-mining-projects (last accessed 1 September 2013). Sethi notes that “Out of the 1,689 projects that the environment ministry decided upon from 2008 up to August 2011, only 19 were rejected. The ministry cleared 186 thermal power plants in the same period. Another 641 building and construction projects got the nod from the government and not a single project was rejected. Forty-five hydroelectric projects were given green sanction without any rejection.”

[29]     See Sethi, Nitin. 2011. Forest officials pose danger to forests: Experts, Times of India, September 10.

[30]   http://timesofindia.indiatimes.com/city/nagpur/Forest-officials-spend-crores-on-plantation-with-nothing-to-show-for-it/articleshow/47239889.cms

[31]     The CAG notes, “In the fifth and sixth meetings of Ad-hoc CAMPA held in February 2007 and April 2007, it was decided to seek permission of the Supreme Court of India for release of compensatory afforestation money for the ongoing CA projects to the States/ UTs. In the eighth meeting of Ad-hoc CAMPA held in April 2008 it emerged that in spite of many requests received from the States for the release of funds Ad-hoc CAMPA was unable to do so in the absence of authority to act in this regard from the Supreme Court. Inthe tenth meeting of Ad-hoc CAMPA held in May 2009 it was observed that the States/ UTs forwarded the APOs which lacked comparability and hence it was decided that the States should prepare the APOs once again and the release of money would be based on analysis of coherent and comparable proposals from the States and upon the directions of the Supreme Court in the matter.” CAG Compliance Audit report 2013, p.87.

[32]     CAG Compliance Audit report 2013. See Table 34: Expenditure incurred in contravention of the State CAMPA guidelines and directions of National CAMPA Advisory Council, p.100. See also, Rajshekhar, M. 2012. India’s forests are in serious decline, both in numbers and health, Economic Times, April 5. http://articles.economictimes.indiatimes.com/2012-04-05/news/31294305_1_forest-survey-sq-km-timber-plantations

[33]     Sethi, Nitin, 2014, PMO diluted green norms, The Hindu, 27 February,  http://www.thehindu.com/todays-paper/pmo-diluted-green-norms/article5731036.ece (last accessed 27 February 2014)

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One Comment

  1. Sally Dugman says:

    This horrid pattern of development is happening across the globe, including in my neighborhood about which I write here: “Please Sign This Petition. I Desperately Need Help!” … You may wish to check out:
    A Short History of America by R. Crumb and Joni Mitchell – YouTube
    Inline image 1▶ 2:51

    https://www.youtube.com/watch?v=mRkq595NhD0
    Sep 21, 2009 – Uploaded by bdlightner
    Music Video: “A Short History of America” cartoon poster by R. Crumb with music by Joni Mitchell, “The …