The biggest casualty in giving the go-ahead to the single biggest FDI project – Posco – has been the Forest Rights Act.
Till date, the triumvirate of tigerwallahs, industry lobbies and forest bureaucracy were the only ones seen opposed to it. But Congress backed it, using it when the occasion arose in the Vedanta-Niyamgiri case to give Rahul Gandhi the pro-tribal makeover. Jairam Ramesh evoked the provisions of the act, besides other regulations, to shut down Vedanta's aluminium plant in Orissa. The Congress scion flew into the Biju Janta Dal citadel to claim the mantel of "the protector of tribals" and their voice in Delhi.
But with Posco, the UPA government has shown that beyond the political mileage it may get out of the legislation, it can also jettison forest rights out of the way when required.
The act has simple but powerful provisions intended to change the way forestlands are alienated from tribals and those who have traditionally used them. Forestlands are to be handed back to their traditional users – tribals – but also others who have used it for three generations or more. The lands cannot be taken away before their rights are ascertained and then bought by the state government. Crucial to this is the mechanism by which it occurs. The village council is given quasi-judicial powers in the process and in many ways it becomes the key authority – a first in Indian history.
To ensure that the Union environment and forests ministry's forest clearance process was in alignment with these new regulations, Ramesh passed a critical order in August 2009. The ministry would not give a forest clearance – handing the land to project developers – until the state government provided proof that the village council agreed with the takeover of its forests and that all rights had been settled in the area.
Orissa's administration, but not the affected village councils, claimed that it had verified and found that no one had rights in the forestland demarcated for Posco. After violence at the site and complaints from protesters, the Centre sent a committee to review the case.
The Orissa government had done little to identify people who had rights in the forests being handed over, said the four-member committee. In fact they had done much to deny rights to these claimants, said three of the four members.
The environment ministry's statutory Forest Advisory Committee too found that the Orissa government had not provided the requisite evidence under the August 2009 order to show it had met the provisions of the Act. Orissa had instead questioned the very validity of the order.
All three recommended that Posco be denied the forest clearance till the state government adheres to the regulations.
Ramesh disregarded the opinion of his appointed experts.
He instead asked Orissa to give an assurance that no one could claim rights over the forestland. Orissa had already given such an assurance a year ago. But, there is no such provision in the Forest Rights Act for an overriding assurance from the state. The village council is the only body that could have given the nod for diversion of forestland.
One may conjecture that the UPA found a greater economic trade-off in allowing the project that intends to export high-grade iron ore from the country besides producing steel. But the damage caused in pushing it through will reflect on all future cases of forest clearances – and there are hundreds in the pipeline.
Every project developer can now ask for similar favours from the government. The forest bureaucracy and industry was against the August 2009 order of the environment ministry. Now it has been dumped without being revoked. The states may never need to give evidence that they acted legally. They can get away with an assurance, even if it flies in the face of proof.
Aside: it is worthwhile to note that not many self-claimed defenders of forests – the wildlife lobbies – have stood up to oppose this either.