FOREST RIGHTS ACT 2006 AND PESA ACT 1996 (With Special Reference to Rights of Tribals)

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FOREST RIGHTS ACT 2006 AND PESA ACT 1996 (With
Special Reference to Rights of Tribals)

• Prof. (Dr) A.B.Ota, IAS
• Director
• SC and ST Research and Training Institute
• Bhubaneswar, Orissa

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THE TWO TRIBAL FRIENDLY ACTS

• PESA ACT 1996
• (Provisions of Panchayat Extension to
  Scheduled Areas Act)
• FR ACT 2006 RULE 2007
• Scheduled Tribes and Other Traditional Forest
  Dwellers (Recognition of Forest Rights) Act

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KEY OBJECTIVES

• PESA ACT 1996
• Devolution of Power to PRI Institutions at Grass
  Root Levels
• Empowerment to Tribal People
• Enhancement of living condition and Ensuring
  Poverty alleviation of the Tribals

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KEY OBJECTIVES

• FOREST RIGHTS ACT 2006 RULES 2007
• Recognition of Customary Land Rights of Tribals
  and Other Traditional Forest Dwellers
• Ascertaining/Settlement of Individual and
  Customary Land Rights
• Enhancement of living condition and Ensuring
  Poverty alleviation of the Tribals

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FOREST AREA IN ORISSA

• Recorded forest area 37.34 of Total
  Geographical Area
• Forest cover 31.38 of Total Geographical Area
• 2 National Parks, 2 Tiger Reserves, 1 Biosphere
  Reserve and 18 Wildlife Sanctuaries covering an
  area of 0.8 million ha, 5.11 of GA

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Dependence on forests

• 1/3rd of States population depends on MFP
• Provides food security 4 to 6 months
• Contributes 20 to 50 percent to their annual
  income
• Backbone for women
• Villages having forest as land use 29,302 out of
  46,989 villages 1,779,953 ha (31) of forest area
  with a population of 15,934,768. (FSI 1999)

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TIME LINE OF FOREST RIGHTS ACT

• 5th February 2004 GOI formulated a Policy
  recognizing the rights of the tribal
  population on forest land and circulated to
  the State Governments to give legal
  recognition.
• 13th Feb 2005 ST Recognition of Forest Rights
  Bill 2005 Tabled in Parliament and Bill
  referred to JPC
• 29th July 2005 Orissa TAC recommended adoption
  of the Bill
• 23rd May 2006 JPC Presented the recommendation
• 15th Dec. 2006 Bill Passed in Lok Sabha
• 18th Dec. 2006 Bill Passed in Rajya Sabha
• 2nd January 2007 FRA Notified in Gazette
• 19th June 2007 Draft Rules sent by GOI to
  different quarters for comments within 45 days
  period
• 1st January 2008 Rules Issued by GOI
• June 2008 Interim Stay order of Orissa High
  Court in WP
• Aug 2009 Stay of the High Court lifted.

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SUMMARY OF RIGHTS

• BENEFICIARIES
• ST Residing Occupying Before 30.12.2005
• Other Traditional Forest Dwellers Residing and
  Occupying for 3 Generations.
• RIGHTS/ENTITLEMENT
• Individual Rights (Upto 4 Hect. Or 10 Acrs of
  Land)
• Community Rights (Water Bodies/Fishing/MFP
  Collection/grazing/Nomads/PTG habitat/Forest
  Village to Change the Nomenclature to Revenue
  Village)
• Rights to Ensure conservation of Forest and Wild
  Life/Indigenous Traditional Technology.

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TRIBAL RIGHTS UNDER FRA 2006

• Right to hold and live in the forestland under
  the individual or common occupation for
  habitation or for self, cultivation for
  livelihood.
• Community rights.
• Rights of ownership, access to collect, use and
  dispose of minor forest produce which has been
  traditionally collected within or outside the
  village boundaries. (Also in PESA)
• Community rights of uses or entitlements such as
  fish and other products of water bodies, grazing
  land and traditional seasonal resource access of
  nomadic and pastoralist communities. (Also in
  PESA)
• Community tenures of habitat and habitations for
  PTGs and pre-agricultural communities.
• Rights for conversion of pattas or lease or
  grants issued by any local authority or any State
  Government on forestlands to titles. (cont.)

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TRIBAL RIGHTS UNDER FRA 2006

• Rights of settlement /conversion of all forest
  villages, old habitation, un-surveyed and other
  villages in the forest whether recorded, notified
  or not into revenue villages.
• Right to protect, regenerate or conserve or
  manage any community forest resource which
  tribals protect and conserve for sustainable use.
• Rights which are recognized under any state law
  or laws of any autonomous district council or are
  accepted as rights under any traditional or
  customary law of the concerned tribes of any
  state. (Also in PESA as underlined)
• Right of access to biodiversity and community
  right to intellectual property and traditional
  knowledge related to biodiversity and cultural
  diversity.
• Any other traditional right customarily enjoyed
  by the forest dwelling STs or other traditional
  forest dwellers which are not under the clauses a
  to k but excluding the rights of hunting or
  trapping or extracting a part of the body of any
  species of wild animal.
• Right to in-situ rehabilitation including
  alternative land in cases where the STs and other
  traditional forest dwellers have been illegally
  displaced form forestland.

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States Initiatives
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INITIATIVES

• Constituted mandatory bodies as required under
  the law
• FRCs (47810)
• SDLCs
• DLCs (30)
• Translation of Act and Rule (Oriya and 10 tribal
  languages)
• Simplified guidelines Issued to all quarters
• Awareness Camps for both implementing authorities
  and FRCs
• Involvement of Civil Societies, Forums, Research
  Institutions, Academicians, experts in the
  implementation process

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INITIATIVES

• Forest Deptt. has dropped 9,000 pending forest
  offence cases
• Permission to collectors for appointment of 10
  RIs and
• Amins and Data Entry Operators
• Regular coordination among STSC Dev Deptt, FE
  Deptt, Revenue Deptt Panchayatiraj Dept. have
  been made
• Close Fortnightly Monitoring at State Level
  through Video Conferencing
• Production of Small Documentary Film on Forest
  Right Act in regional and tribal language and
  its display through Gram Sat/Door Darshan
• Phone-in-Programme in both T.V and Radio on the
  Act and its provisions

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INITIATIVES (Contd)

• Printing of Compendium of all Circulars and Act
  and Rules in English and Oriya Language
• Squad approach for wider coverage of tribal
  people
• Training to the PTG Tribal Youths from all the 17
  Micro Projects by creating at least 50 Tribal
  Youth Ambassadors of 13 PTGs
• Distributing Free Application Forms among
  eligible tribal people (both community and
  individual rights)

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STATUS OF FR IMPLEMENTATION
(As on 13.08.2010)

• INDIVIDUAL CLAIMS
• Total Individual Claims Received 4,29,220
• Total Claims Approved by FRC 3,87,800
• Total Claims Approved by Gram Sabha 3,14,407
• Total Claims Approved by SDLC 2,25,490
• Total Claims Approved by DLC 2,16,235
• Total Titles Distributed 2,02,266
• COMMUNITY RIGHTS
• Total Claims Received
• Total Claims Approved by DLC
• Total Titles Distributed
• TOTAL PTGs CLAIMS APPROVED BY DLC 14,554

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BACKDROP OF PESA ACT

• On the recommendations of the Bhuria Committee
  Report PESA Act (Central Act) came into force
  w.e.f. 24. Dec. 1996.
• Panchayat Samiti Act,1959, Govt. of Orissa
  modified the Orissa Panchayati Raj Act,1964 and
  Orissa Zilla Parisad Act 1991 in the light of
  Central PESA Act and implemented this Act w.e.f
  22. Dec.1997.
• III. State Govt. have amended some existing Act
  and Rules in consonance with Central PESA and
  devolved power upon PRIs in respect of
  functions of Depart.

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Minor Forest Produce

• Panchayati Raj Deptt. Resolution No.8131 dated
  26.5.2000 has given the necessary powers to Gram
  Sabhas based on the Forest Env. Deptt.
  Resolution No.5503 dated 31.3.2000.
• The OGP (Minor Forest Admn. Rules, 2002) has
  come into the force w.e.f. 15.11.2002. The GP
  shall have the power to regulate, procurement and
  trading of MFP whether in Govt. land or forest
  areas. The PS shall have the power to fix up the
  minimum price of procurement of different MFPs
  payable to the primary gatherers.

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Minor Minerals

• The Mines Minerals (Dev. Regulation) Act of
  1957 (67 of 1957) has been amended on 31.8.04
  wherein no prospective license or mining/quarry
  lease or its renewal or auction of source shall
  be granted without recommendation of the
  concerned GP.
• TRANSFER OF TRIBAL LAND
• The Orissa Schedule Areas Transfer of
  Immovable Properties (by STs) Regulation 1956 has
  been amended by Regulation 1 of 2002 which has
  come into effect from 4.9.2002. While settling
  Restored property in favour of non-STs, prior
  approval of G.P. necessary with concurrence of
  Gram Sasan

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Devolution of Power to PRIs

• Govt. of Orissa in Panchayati Raj Deptt. has
  issued circular vide letter No.6886, dated
  4.7.2003 containing devolution of Powers to PRIs
  and to assign definite functions and provide
  functionaries to PRIs for implementation and
  execution of functions.
• Specified functions of 11 Deptts. Like
  Agriculture, Cooperation, School Mass
  Education, Food Supply C.W., STSC Dev., Health
  FW, WCD, FARD, RD., P.R., and Water Resources
  have been devolved upon PRIs along with control
  of the functionaries.

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Major Rights Given by Central PESA

• Gram Sabha to safeguard and preserve the
  traditions and customs of the people, their
  cultural identity, community resources through
  Gram Sabha.
• Gram Sabha to be consulted before making
  acquisition of land in the Scheduled Areas for
  development of projects or before resettling or
  rehabilitating persons affected by such projects
  in Scheduled Areas.
• Gram Sabha/Panchayats at the appropriate level
  for grant of prospecting license or mining lease
  for minor minerals in the Scheduled Areas and
  for grant of concession for the exploitation of
  minor minerals by auction
• IV. State Govt.will ensure delegation of powers
  to Panchayat/GS to claim ownership rights over
  minor forest produce from village forests and
  reserve forests, to prevent alienation of land
  and to restore any land alienated illegally and
  to ensure management of minor water bodies.

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Orissa State Compliance of Central PESA

• Gram Sabha to safeguard and preserve the
  traditions and customs of the people, their
  cultural identity, community resources through
  Gram Sabha.
• Gram Sabha to be consulted by Zillaparishad
  before making acquisition of land in the
  Scheduled Areas for development of projects or
  before resettling or rehabilitating persons
  affected by such projects .
• Gram Panchayats to recommend for grant of
  license or mining lease for minor minerals in the
  Scheduled Areas and for grant of concession for
  the exploitation of minor minerals by auctions.
• IV. State Govt. delegated powers to
  Grampanchayat the rights to recommend for issue
  of license for manning/quarry lease, to own
  manage 70 items of MFPs , to prevent alienation
  of land and to restore any land alienated
  illegally and delegate powers to Zillaparishad
  to ensure management of minor water bodies.

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Operational Issues/Conflict

• The process of customary rights, especially right
  of community tenure over habitat of PTG is to be
  shorted out
• The process of right settlement of Nomadic and
  Pastoral communities is to be shorted out
• Similarly the Rights of Displaced Communities
  have not been addressed yet under Forest Rights
  Act
• Conversion of forest and unsurveyed villages into
  revenue villages are to be addressed.

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LEGAL CONFLICTS

• Cases filed against the forest rights act are
  pending in the Honble SUPREME COURT of India
• The Orissa Case is also referred to the Supreme
  Court for consolidated hearing

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Thanks