New Delhi: Using “environmentally friendly” technologies for extraction of oil and gas and permitting zoos and safaris in forest areas without prior forest clearance from the central government are some of the key changes in the Modi government’s proposed amendment to the 1980 Forest Conservation Act (FCA). The Act, amended in 1988, had made the central clearance mandatory.
On 2 October, the Union Ministry of Environment, Forest, and Climate Change published a document with 14 proposed changes to the FCA, which encourages plantations and relaxes permits for economic activities within forest areas — contentious issues when it comes to forest conservation. The FCA, in its current form, prohibits any “non forest activity” without prior forest clearance from the central government.
Environmental researchers and experts have criticised some of these amendments and the way the government has called for suggestions to the proposal giving citizens only 15 days, till 17 October, to respond to the proposed changes.
The FCA is the primary law governing the use of forest land for non-forest activities across the country, with the stated objective of “checking further deforestation” in forest areas.
Changes to the Act
The FCA, in its current form, is applicable to all forest land regardless of ownership status, and considers plantations to be “non forest activity.” Plantations are generally not considered forests because they can come at the cost of biodiversity, especially if they are replacing forest land. Plantations also don’t have the same rates of carbon sequestration (absorption of carbon dioxide) as forests do.
According to the Act, only activities “ancillary to conservation,” such as the building of check posts, construction of fences and culverts are allowed without forest clearance from the Centre. Diversion of forest land for non-forest activity can attract a one-time payment called the Net Present Value (NPV). Compensation for the trees felled is also mandatory, in the form of compulsory afforestation (CA), among other measures.
The key change the Ministry has recommended to the Act is to define the “scope” of its application and exclude plantations on private forest land from its purview. In other words, to consider plantations as forest activity that don’t require prior forest clearance from the Centre.
The Indian government is bound by the Paris Agreement to create additional tree cover capable of absorbing 2.5 to 3 billion tons of carbon dioxide by 2030, as part of its Nationally Determined Contribution to help curb global warming. The proposed changes hope to improve forest cover while also paving way for plantations on forest land.
“It is necessary that extensive plantations and afforestation are encouraged in all possible available lands outside the government forests. But to ensure this, there is a need to dispel the apprehension among tree growers that vegetation or tree plantation raised on their private/ non forest lands will not attract the provisions of the Act,” says the document.
The plan suggests exempting forest clearance for highway, roadway, and railway projects for which land was acquired before 25 October 1980 (when the FCA was first enacted) because of “strong resentment” from concerned ministries.
Another proposal is to allow state governments to grant forest clearance for “strategic and security projects of national importance,” which “get delayed” because of the current clearance process.
The document also greenlights Extended Reach Drilling (ERD), a method of extraction that involves digging a well that is at least twice as long in length than in depth, which allows for the drilling to take place at a distance from the site of extraction.
“Ministry considers use of such technology is quite environment-friendly and as such should be kept outside the purview of Act,” says the document.
According to the proposal, zoos, safaris, and forest training infrastructure that comes up within a forest should be considered activities “ancillary to conservation,” and thus excluded from the FCA.
“It is understood that activities which are ancillary to conservation of forests and wildlife should not be considered as non-forestry activities. Accordingly, it has been proposed that, establishment of zoos, safaris, Forest Training infrastructures etc should not come within the meaning of “non-forestry activity” for the purpose of Section 2(ii) of the Act,” the Ministry has suggested in its proposal.
To strengthen compliance with the Act, the Ministry has also suggested “introducing an enabling provision in the Act to keep certain pristine forests showcasing rich ecological values intact for a specific period,” as well as making violations under section 2 of the FCA, which outlines provisions for forest clearance, punishable “with simple imprisonment for a period which may extend to one year and the offence shall be cognizable and non-bailable.”
The proposal suggests deleting Section 2 part 3 of the FCA, which is a specific provision for leases, and has become a loophole for miners not to comply with levies such as compensatory afforestation and safety zone plantation. Instead, the proposal says, Section 2 part 2 of the FCA mandates all levies for non-forestry purposes, and leases should be applied for through this provision.
A contentious matter
The proposed changes are significant because they also propose changes to the idea of what counts as a forest under the Act, experts say.
“These amendments don’t directly define a forest. But, by proposing that certain areas should be included and excluded from the FCA, they are implicitly saying some areas are forests and others are not,” said Manju Menon, Senior Fellow at the Centre for Policy Research.
“The environment ministry also makes a big assumption that once they exclude private and certain govt landowners from the FCA, they will be incentivised to grow plantations. But, once exempt, one cannot discount that there may be a greater incentive to develop that land,” she added.
In 1996, the Supreme Court decreed in what is known as the Godavarman judgment, that the word forest “must be understood according to its dictionary meaning,” a definition the FCA has since followed.
India does not have its own definition of a forest because forests and protected areas across India do not present the same characteristics. Having an unambiguous definition of a forest can also have varying — and possibly conflicting — implications on not only forest conservation, but also tribal rights and land diversion, said experts.
“It’s (the proposed amendments) in the direction of deregulating. It does so in two ways: First it tries to do so by limiting the scope of the Act by trying to define what forests are. That’s a very contested approach because the Godavarman judgment decided that anything that comes within the dictionary meaning is a forest, so it ended up applying to a vast array of land areas,” said Arpitha Kodiveri, an environmental lawyer and Postdoctoral Researcher at the New York University School of Law.
“My fear is that they are limiting the scope of application and organising the definition in a way that it will not apply to different kinds of land which may qualify as forest,” she added.
Experts have also pointed out that a 15-day window is not adequate for feedback on the suggestions, particularly among those most likely to be affected by these proposed changes.
“We have a law like the Forest Rights Act which acknowledges that people have lived in forests and have rights to that land. To not consult them at all means they’re being excluded once again,” said Menon.
The Forest Rights Act (2006) recognises the rights of the forest dwelling tribal communities and other traditional forest dwellers to forest resources.
(Edited by Paramita Ghosh)