- The passage of the Forest (Conservation) Amendment Act will have huge implications for the northeast of India where large expanses of forests are not notified as forests in any Act.
- The northeastern states are under various constitutional safeguards such as the Sixth Schedule and Article 371. The Amendment Act has created confusion amongst local communities of the region of what the impacts of this Act will mean for their ancestral lands in light of various constitutional safeguards and state laws.
- The Amendment Act is also set to open the floodgates of commercial plantations, including oil palm, in northeast India.
- The views in the commentary are that of the author.
Just days before the Lok Sabha passed the Forest (Conservation) Amendment Bill, 2023 — with little heed paid to the genuine concerns raised about its provisions by ecologists, bureaucrats, tribal communities, and citizens at large — I was in the Nilgiris. The verdant, green, tree-flecked hills lay spread out in front of me, touched by the golden rays of the setting sun. At first glance, everything looked like a picture of sylvan perfection. But I only had to scratch the idyllic surface to see that the relict montane shola forests and their surrounding grasslands were being engulfed by plantations of black wattle and eucalyptus, tea gardens and thickets of invasive species. While gazing at the threatened natural forest and grassland ecosystems, I was struck by the incongruity of a forest bill that dilutes forest conservation while actively promoting compensatory afforestation, or tree plantations, as forest replacements. The irony was also not lost on me that it was mining in the Nilgiris that had prompted the pivotal Godavarman Supreme Court judgement of 1996, providing umbrella protection to forests, irrespective of their exact provenance.
The passage of the Forest (Conservation) Amendment Act of 2023 is now set to dramatically rework the landscape of forest conservation in India, built upon more than four decades of painstaking legal and policy efforts. The amendment alters the landmark Forest (Conservation) Act of 1980 (FCA), which attempted to put the brakes on widespread deforestation by states following independence. It also whittles away at the Supreme Court judgement in the T. N. Godavarman Thirumulkpad versus Union of India and Ors case which gave teeth to the FCA by bringing forests within its purview based on their dictionary meaning, irrespective of ownership.
The amendment severely constricts conservation to only notified forests and forests recorded in government records, on or after October 25, 1980. It further exempts those forest lands converted to non-forest purposes before the Godavarman judgement on December 12, 1996. This will automatically divest 28% of India’s forests that lie outside Recorded Forest Areas (RFAs) – defined by the Forest Survey of India (FSI) as all areas recorded by the government – of any protection. Additionally, large swathes of forest are now exempt from the act for national security and other reasons.
The implications of these provisions have thrown citizens and experts into disarray since the net result will be rampant forest diversion for plantations, infrastructure and other commercial interests. The frontier forests of the northeast of India, some of the most biologically and culturally diverse areas of the planet, are set to be especially hard hit by this amendment.
The case of unclassed forests
Almost a quarter of India’s forest cover occurs on less than 8% of the country’s territory within the remote, mountainous regions of northeast India. Forest covers much of the geographical areas of these states ranging from a high of 84.5% for Mizoram to 79% in Arunachal Pradesh, 76% in Meghalaya, 74% in Manipur, 73.9% in Nagaland and 47% in Sikkim. Dense forests in particular account for an overwhelming 60% the total forest cover of northeastern states which includes 79% in Sikkim, 77% in Arunachal, 76% in Tripura, 33% in Manipur, 46% in Assam and 47% in Nagaland. In fact, the dense forests of the NE comprise as much as 25% of the country’s total dense forest cover.
These forests harbour large numbers of endemic and endangered species and are especially remarkable because species new to science are frequently still being discovered. This even includes large primates such as the Arunachal and Sela macaques, and birds like the Bugun Liocichla, as well as myriad other taxa. However, these forests are also arguably the ones most likely to be decimated by the Amendment Act. And this is unfortunate because these areas are already losing large portions of their irreplaceable forest cover at a rapid pace. The eight northeastern states lost 3698 sq. km in a decade between 2009 and 2019 of which 27.6% was in the last two years.
The problem is that in the Northeast, large expanses of forests – more than 52% of the RFA – remain unclassed, i.e. they are not notified as forests under any Act. This includes 15.5% of the RFA in the case of Mizoram, 33% for Assam, 43% in Tripura, 53% in Arunachal Pradesh to as much as 76% in Manipur, 88% in Meghalaya and 97.3% of the RFA for Nagaland. This means that these areas will no longer fall within the purview of the amended Act, unless they have been recorded as forests in any government records as on or after the 25th October, 1980.
The Amendment Act does provides considerable leeway to recognise forests that are included in records held by the revenue or forest department as well as in records maintained by “any authority, local body, community, or council recognised by the state government.” However, parts of unclassed forests in the Northeast are privately or communally owned lands that are managed by traditional institutions. Therefore, while some of these unclassed forests may be recorded as forest lands in the records of local authorities, including those of village councils and other traditional institutions, it’s possible that large areas – we do not know exactly how much – are not. Take Nagaland for instance, where individuals, clans, and local communities own more than 90% of the forests, oral traditions predominate, and written records are largely non-existent. Here, according to a senior official of the state, most villages have not been officially surveyed and included in government records. The boundary demarcations are orally passed or are on prominent landmarks like ridges, streams and valleys. For example, a study conducted by TERI (2015) indicated that Nagaland has at least 407 Community-Conserved Areas but the extent of area they cover remains unknown, because the village councils do not maintain written records.
All unrecorded forest lands are set to lose protection, unless urgent mapping exercises are undertaken for incorporation into local records. It is the local communities and their traditions that have protected much of the northeast forests and the reason why such large areas of intact forests still remain. Obliterating forests because they are not part of official records is indefensible. Moreover, these forests are also critical to the food security of the region, as patches of forest are cyclically cleared to raise crops and then left fallow to regenerate to forest, a practice called shifting cultivation or jhum.
According to FSI’s (2021) data, approximately 29% of the forest cover of Nagaland lies outside the RFA and would technically be beyond the purview of the amended FCA (unless listed in some official records). The forest cover lying outside the RFA in the Northeast ranges from slightly less than 1.5% of the forest area of Mizoram to 38.5% in the case of Assam and accounts for almost 4% of India’s total forest cover. Interestingly, dense forests comprise as much as 44% of this forest cover lying outside the RFA in 8 states of the Northeast and 3% of India’s dense forest cover. But none of these areas would qualify for conservation under the Amended Act. These areas would then technically be available for diversion including for zoos and safari parks, which would dismember tracts of forest land into tiny fragments and exacerbate human-wildlife conflicts as humans and animals struggle for shared space.
The 100-km exclusion zone
Even more alarmingly for the northeastern states, under the amended Act, forest clearance is no longer required within 100 km of international borders or line of control or actual control for strategic linear projects of national significance. This exclusion zone encompasses some of India’s most biodiverse and fragile ecosystems and also includes almost the whole of the Northeast. Entire territories of the northeast states, such as 90% of Nagaland and the whole of Meghalaya, Tripura and Mizoram, fall within this range. All these exemptions raise red flags about the rights of local communities, given that a significant proportion of the Northeast’s forests are unclassed, some are privately owned (by individuals, clans, and communities) and managed by traditional institutions. This is despite the various constitutional safeguards that states in the Northeast enjoy, such as the Sixth Schedule and Article 371 that protect community land ownership and cultural traditions and practices.
To cite the case of Nagaland, Article 371 A protects local customary rights and provides special provisions to the state regarding its customary law and procedures and the ownership of land and its resources and by extension its forests. Under this Article, no Act of Parliament relating to these issues applies to the state of Nagaland unless the Legislative Assembly of the State “by a resolution so decides.” Nagaland passed the Forest (Conservation) Act 1980 but limited its applicability to only those lands under the control of the forest department which is less than 6% of forest lands. Therefore, technically the FCA of 1980 did not provide protection to the village-owned forests that encompass more than 90% of forest lands in the state. However, the Godavarman judgement by using the definition of forests irrespective of ownership brought forests in the state under its aegis.
Currently, there is abject confusion created by this ambiguously worded Amendment Act for the people of Nagaland and other northeastern states. They are still trying to unpack what this will mean for their ancestral lands, and in light of various constitutional safeguards and state laws. In Nagaland, for example will Article 371 A continue to provided their forested community lands with protection from the amended Act? Will they have to pass the amended act for the 100 km exemption and other provisions to apply to their lands? Or does the Godavarman judgement mean that the Amended Act will apply to their lands irrespective of the safeguard of Article 371A and their right to pass resolutions accepting or rejecting any act that might infringe on the rights of their tribal lands? With the proverbial sword of Damocles over the heads of people of the Northeast, the fate of their ancestral, resource-rich lands hangs in the balance. Local communities and politicians are also pointing to the patent absurdity of an Act that requires state governments to take permission of the central government for any forest diversion, while the central government has carte blanche over their lands – despite constitutional safeguards – to convert them to commercial plantations, use them for infrastructure or even turn them into militarised zones. Meanwhile legal experts and others are trying to unravel these and other complexities unleashed by the Amendment.
In general, this Act is completely silent on the rights of local forest communities. It makes absolutely no mention of the FRA or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act, 2006). The FRA applies to all the northeastern states except Nagaland and Mizoram. The latter two States under the special provisions of Article 371 (A) and 371 (G) require their state legislative assemblies to extend the FRA to their states. While Mizoram has done so, Nagaland has not. Despite the applicability of the Act to most of the NE States, currently, only Assam and Tripura implement the FRA while Arunachal Pradesh, Manipur, Mizoram, Meghalaya and Sikkim have failed to do. Nagaland has been sitting on a decision about the Forest Rights Act despite setting up a committee to look into the matter. According to Nagaland, “The land holding system and the village system of the Naga people is peculiar in that the people are the landowners. There are no tribes or group of people or forest dwellers in Nagaland. Hence, the FRA per se may not be applicable to Nagaland. However, a committee has been constituted to examine the applicability of the Act in Nagaland as per provision of Article 371(A)”.
Oil palm as forest
With large swatches of India’s forests slated to lose protection, the focus is now squarely on the use of carbon-intensive plantations as surrogates for forests to meet various climate commitments.
The amendment act appears to view forests merely as stands of carbon-sequestering trees. This blithely ignores the strong science supporting the role of biodiverse forest ecosystems in climate mitigation and the provision of myriad other ecosystem services, especially water. For example, studies from the Western Ghats suggest that evapotranspiration from the vegetation of this area contributes as much as 25-40 percent of the southwest monsoon rainfall over water-deficit Tamil Nadu. Other studies suggest that streams in forested catchments with a high diversity of native species are perennial, unlike catchments covered with monoculture plantations where stream flows are seasonal and intermittent. Moreover, a recent paper in Nature underlines the superiority of natural forests for carbon storage as compared to commercial tree plantations. This is bad news for India where natural forests are heavily degraded, and even plantations on road, rail, canal sides as well as rubber, tea and coffee plantations now officially masquerade as forests.
The northeastern states are likely to see widespread conversion of forest lands to plantations. These states already face huge threats from externally driven resource intensification, and government policies on commercial plantations of oil palm. Nagaland currently has 4623 ha under oil palm and the target is another 15000 ha in the “wastelands” of seven districts under the National Mission on Edible Oils-Oil Palm-a Centrally Sponsored Scheme. The Nagaland Government has already signed agreements with Patanjali and Godrej Agrovet Limited.
The Amendment Act will likely open the floodgate of commercial exploitation of forests of the Northeast of India and replace large tracts of still relatively unspoiled forests with plantations. And paradoxically, all these areas will be reported as forests by the Forest Survey of India, since a forest includes,” all lands more than 1 ha in area, with tree canopy density of more than 10 percent, including tree orchards, bamboos, palms, etc.” Clearly, the value of a forest in India is now far less than that of a plantation.
The author has a PhD from the University of Illinois and has worked extensively in northeastern India.
Banner image: Forests of northeast India. Photo by Pia Sethi.