A tiger at the Ranthambhore Tiger Reserve. Photo: Koshy Koshy/Flickr, CC BY 2.0
On September 7, India’s environment ministry sent an advisory to state governments asking them to ensure the implementation of one clause in the Forest Rights Act: the creation of critical wildlife habitats.
Critical wildlife habitats (CWHs) are areas inside wildlife sanctuaries, national parks and tiger reserves – known as ‘protected areas’ – where people’s activities like cattle grazing or collecting leaves compete with the needs of wildlife.
The Forest Rights Act, passed in 2006, recognises traditional land rights of millions of Adivasis and forest-dwellers, including nearly four million who live inside protected areas.
The Act defines CWHs as areas that are “required to be kept as inviolate for the purposes of wildlife conservation.” Such areas are determined for each protected area by a committee which has scientists, local people, and a representative from the Ministry of Tribal Affairs.
The committee decides whether the communities and wildlife could co-exist by making changes to their forest rights, say by restricting cattle grazing in certain pastures. Communities can be evicted if people’s presence or activities could cause “irreversible damage and threaten the existence” of wildlife.
No CWH has been declared so far in any of the 500-plus protected areas in India. Approximately 2 million individual and community land titles have been recognised so far, including in protected areas.
Wildlife conservationists said that the ministry’s advisory, which has not been reported in the press so far, was good because states have so far ignored the provision while implementing others. “State governments are happy to grant rights to voters in protected areas but they won’t give justice to wild animals as wild animals can’t speak and vote. Rights were denied to wildlife in last 13 years of the FRA,” said Kishor Rithe, founder of Satpuda Foundation in Amravati, member of the Maharashtra State Board for Wildlife, and a member of the CWH demarcation committee for Melghat Wildlife Sanctuary.
But forest rights activists and social scientists worry that the advisory could lead to evictions and land conflicts in wildlife sanctuaries and national parks across the country.
To implement CWHs effectively, state governments need to first recognise all rights under the FRA, hold consultation with gram sabhas and then understand “inviolate” areas as areas with minimum human impact and not free of human presence or use, said Neema Pathak Broome, who coordinates the Conservation and Livelihoods program at environmental non-profit Kalpavriksh and is the co-author of a recent study on CWHs.
“There is a concern that without following these steps there will be a push for relocation programs in protected areas in the name of creating CWHs,” she said.
The worry stems in part from the process that the Maharashtra government followed since 2018 to implement CWHs in the state. It is the first and only state to do so. The state high court halted the CWH process in late 2019 after a government panel found that forest rights had not been recognised or being illegally rejected. Many CWH committees included people without sufficient knowledge of the law or with a history of opposition to the FRA like Rithe.
There are also concerns that the Critical Wildlife Habitat guidelines of 2018, based on which the process would be done across India, were prepared without any public consultation and could be misused to evict forest dwelling communities.
Soumitra Dasgupta, Additional Director General of Forests (Wildlife), who issued the advisory, did not respond to calls for comment.
In the mid-2000s when the Indian government was drafting the Forest Rights Act, some groups raised concerns about what impact the recognition of the rights of forest dwellers could have on the wildlife.
Around that time, conservation researchers, as well as the International Union for Conservation of Nature, had also begun to recognise the role played by indigenous communities played in protecting forests. The idea behind the CWH was to enable a scientific process that is transparent and can be justified in public with evidence, says Shankar Gopalakrishnan of the Campaign for Survival and Dignity, a network of forest community organisations that lobbied for the creation of the Forest Rights Act.
However, the implementation of CWHs remained stuck for years as the environment ministry could not finalise the CWH guidelines. The ministry had issued the first draft guidelines for CWHs in 2007 and revised them in 2011.
These draft guidelines made several errors, such as by confusing CWHs with critical tiger habitats (a provision under Wildlife (Protection) Act, 1972) and by assuming that CWHs would automatically lead to relocation of communities, said Ravi Chellam, an expert on Asiatic lions and chief executive of the Metastring Foundation, Bengaluru.
The ministry finalised the guidelines after a long gap of seven years in 2018. These guidelines corrected some of the errors from before, Chellam said, such as by clarifying that relocation of communities could be done only if other options were not workable.
But unlike for its previous draft guidelines, this time the environment ministry did not carry out any open consultations, not even with the Ministry of Tribal Affairs, which is responsible for monitoring the implementation of the Forest Rights Act.
The guidelines still left out crucial parts related to coexistence. “The CWH guidelines need to satisfy the requirement that you must show “irreversible” harm to wildlife in CWH. The guidelines do not state what that evidence should be,” said Gopalakrishnan.
“The law says that instead of being demarcated on the basis of bureaucratic fiat, the CWHs should be based on a scientific process and that process should be transparent. You should have to justify it to the public and especially the affected community. The guidelines don’t address this. So once again it leaves these in the hands of the forest department.”
The environment ministry’s advisory now appears to go against its own guidelines.
Under the Forest Rights Act and the CWH guidelines, CWH demarcation can begin only once all possible rights are recognised.
At least 511,000 claims are in process, according to Ministry of Tribal Affairs data, and another 1.7 million previously rejected claims are under review as per a Supreme Court order. Just about 13% of the total potential area under traditional rights has been estimated to be recognised under the Act.
The advisory gives a “clear hint” to start the CWH process side-by-side with recognising forest rights, said Sharachchandra Lele, Distinguished Fellow in Environmental Policy and Governance at Ashoka Trust for Research in Ecology and the Environment (ATREE), Bengaluru.
Lele explained that after a community’s forest resource rights are recognised, it has to prepare a CFR management plan that describes how they will exercise these rights, which includes the extent of grazing and other activities, and steps they will take to conserve the forests and wildlife.
“For all you know the community’s management plan might automatically address the objective of wildlife conservation,” Lele said.
The advisory “is perverting the whole logic of the Act [FRA],” he said.
The case of Melghat Wildlife Sanctuary
Maharashtra government began the process of creating CWHs in 2018, triggered by the petition that Vanashakti, a Mumbai-based NGO filed in the Bombay high court in 2014 seeking an order for the Maharashtra government to implement CWHs across the state’s 54 sanctuaries.
As per the Forest Rights Act, expert committees are formed under CWH provisions for each wildlife sanctuary and national park, which analyse whether or not coexistence between people and wildlife is possible.
According to the environment ministry, each committee should have three government representatives, the village head, and three non-government members, which include one social scientist and two experts in life sciences like ecology, zoology, botany, and wildlife sciences.
On October 25, 2019, the committee of Melghat Sanctuary issued a public notice that it will begin consultations in all the 14 villages in the sanctuary. But the committee has no social scientist as required by the CWH Guidelines.
Its three non-government members include Kishor Rithe of Satpuda Foundation, who is also the representative of the non-profit Nature Conservation Society in an ongoing Supreme Court petition seeking to strike down the Forest Rights Act as being unconstitutional.
“A person who does not believe that the FRA is constitutional cannot be expected to participate and implement any of its provisions, especially highly sensitive provisions such as the CWH, with objectivity,” reads an August 2020 report on the CWHs jointly prepared by ATREE and non-profit Kalpavriksh.
Rithe rejects this claim. “Looking at my long experience of working in protected areas on both wildlife and tribal issues, I find myself fit to work on this committee which was set up by the Government,” he told me.
Two weeks after the CWH committees issued the notice in October 2019 to begin consultations in the 14 villages of Melghat Santuary, Maharashtra’s tribal development department formed a panel under Vinoba Patil, the department’s Additional Tribal Commissioner for Amravati district where the sanctuary is. The panel was asked to ensure that the CWH process in Melghat follows procedures in the FRA.
On November 9, the panel gave a preliminary report to the tribal department that the CWH work began before the complete settlement of rights of the communities in the villages. Community forest rights claims of ten villages had been illegally rejected on the grounds that they were inside a protected area. This is not one of the grounds on which a title claim can be rejected as per the FRA. Their appeals were pending. Two villages were yet to file their claims.
The panel recommended suspending all CWH activities until the recognition of forest rights was completed. On 18 December 2019, based on an application filed by KHOJ, a non-profit in Melghat, the Bombay high court halted the CWH recognition process in Melghat until all the FRA claims were settled. The court gave the Maharashtra government three months to complete this process.
The panel conducted field visits in Melghat in January 2020, it found that the local administration was still illegally rejecting many FRA claims or recognising them on a smaller area than the people claimed.
On 5 August 2020, the District Level Committee headed by Amravati district collector rejected the community forest rights applications of two villages, Pastalai and Mangia in Melghat Sanctuary. Following this, the gram sabha of Pastalai filed an appeal against the rejection before the Divisional Commissioner, the final appeal under the Act in Maharashtra (in other states, the District Level Committee is the final appeal body). One month later, the forest department began arresting people and their cattle, and creating “an environment of unrest and uncertainty in the village,” according to a complaint KHOJ filed with the Maharashtra tribal development department.
The tribal department wrote to the Amravati district collector the next day to stop any evictions until the appeal before the Divisional Commissioner was concluded. But the evictions did not stop.
On November 9, Patil, who had headed the state monitoring panel, told the forest department that its officers and local police were “intimidating villagers” in at least four villages and “forcing them to relocate”. “Such action was not expected,” Patil wrote, reminding the forest department about the requirement for declaring CWHs as laid down in the Forest Rights Act and the state high court’s orders about not evicting anyone until their forest rights application process concludes.
The next day the divisional commissioner issued orders to stop evictions in Pastalai until their appeal was concluded.
A broader problem
Across Maharashtra, many CWH expert committee members said they had no idea what the provisions really meant, and they were given no background, said Lele from ATREE, who was also a member of the tribal department panel. “It was treated as a given that wildlife conservation requires pristine areas, that pristine means people have to be evicted, and that CWH provisions allow us to declare which part of the protected area is to be kept pristine.”
“You can’t measure all wildlife sanctuaries by the same yardstick while discussing the issue of ‘coexistence’ and ‘inviolate’,” said Rithe of the Satpuda Foundation. “You need to understand ground realities. The bird sanctuaries notified to provide protection and conservation of Great Indian Bustard (GIB) and Lesser florican can very well coexist with human habitations because these birds feed in agricultural lands and surrounding grasslands,” he said.
“But if you talk about protected areas which are homes to tigers, you can’t think of people co-existing with Tigers. So you need to treat every PA on a scientific and case by case basis,” he said.
The ATREE-Kalpavriksh report had said that across Maharashtra, the expert committees did not have social scientists and that experts in life sciences were replaced by “local wildlife enthusiasts.” Based on that finding, the report recommended that the local CWH committees needed to be retrained because their task was “extremely challenging and complex, requiring detailed assessment, consultation, adherence to due process and transparency, use of scientific data and inclusion of traditional knowledge.”
The report also warned that past experience of forest-dwellers in a sanctuary is “not a good guide to what will happen in the future”. That is because the past behaviour took place when people were under the threat of eviction. Once secure rights are granted over well-defined areas the likely effects on wildlife has to evaluated afresh, the report said.
“In theory, this would require monitoring the impact of the activities of the Gram Sabhas over (say) a five year period,” the report says.
“Of course, wildlife has rights,” said Pathak-Broome of Kalpavriksh. “But many of the areas being declared CWH are areas where local communities have lived for generations and followed lifestyles which are much more conducive to wildlife. Far more than people like us who may talk about the rights of wildlife but whose consumption levels, lifestyles, and definition of ‘development’ are causing havoc and destruction of wildlife in all landscapes.”
A bottom-up solution to an old problem
Wildlife conservation began with a “top-down” idea of creating ‘protected areas’ that kept humans outside. Globally most protected areas came up on lands that indigenous people inhabited for generations. But they were still evicted from there without compensation. The ensuing criticism led to a second wave of conservation where governments began offering compensation in terms of money or alternate land to the evicted communities.
Provisions like CWH are part of a growing recognition of the historical land rights of indigenous peoples among some conservationists and governments. CWHs also represent an emerging understanding that keeping forests free of humans is not necessary to preserve wildlife, conservation experts say.
The CWH provisions could represent a new wave of a “bottom-up” approach of wildlife conservation, said Amrita Neelakantan, a conservation scientist who recently completed a doctoral thesis at the Columbia University on the resettlement of communities from the Kanha National Park in central India.
But ground realities are such that villages have little autonomy in making decisions and people do not have the agency necessary to exercise their rights, said Neelakantan, the conservation scientist. “People living in sanctuaries are usually poor and vulnerable and want schools where a teacher shows up. They are thinking two years ahead. So when there is a choice to relocate outside to a piece of land that is near a hospital, school or an upcoming factory, people end up making that choice,” she said. “So it is also important to build agency from the ground up.”
“Whether people have agency or not doesn’t mean you can take their agency away,” Gopalakrishnan told me. “The point is that the process [to demarcate CWHs] is transparent and open to public scrutiny, and that is all that is required.”
CWHs can be declared properly only after its essence is understood by all those who will be involved in the process, else the forceful and illegal eviction of the communities will go on unchecked. Gopalakrishnan says, “there is a growing consensus among conservationists that wildlife conservation is effective in the long run only if it is democratic. When it is rooted in the community and not against them.”
Nihar Gokhale is an independent journalist and policy researcher with Land Conflict Watch, an independent network of researchers documenting ongoing land conflicts across India.