Au­ton­omy sans rights

Over-ad­min­is­tra­tion leaves lit­tle scope for com­mu­ni­ties to as­sert their rights over nat­u­ral re­sources

Down to Earth - - COVER STORY -

"Cen­tral laws do not recog­nise cus­tom­ary laws of trib­als. Au­ton­o­mous dis­trict coun­cils set up un­der the Sixth Sched­ule recog­nise only a few" "No au­thor­ity ex­er­cised con­trol over Na­gas' land own­er­ship rights. Land deeds or land tax is un­known in Na­ga­land"

THE CEN­TRE, states and com­mu­ni­ties in the North­east are fight­ing for a slice of the nat­u­ral re­sources pie.The re­gion has landed in this pe­cu­liar sit­u­a­tion be­cause of a com­plex his­tory of im­po­si­tion of mod­ern laws over the cus­tom­ary ones. Com­mu­ni­ties have tra­di­tion­ally owned and con­trolled vast tracts of land in the re­gion. Although each com­mu­nity has its own agri­cul­tural and lan­duse sys­tem, they have one thing in common, and that is own­er­ship of land and its re­sources is vested in the com­mu­nity struc­tures, says Jeuti Ba­rooah, who has doc­u­mented cus­tom­ary laws of 47 ma­jor tribes in the North­east as di­rec­tor of Le­gal Re­search In­sti­tute of the Gauhati High Court be­tween 2004 and 2007.

Since the Bri­tish times, gov­ern­ments have re­spected the au­ton­omy of the com­mu­ni­ties. After In­dia be­came in­de­pen­dent, the Cen­tre de­cided to pro­tect their au­ton­omy by in­tro­duc­ing sev­eral pro­vi­sions in the Con­sti­tu­tion which led to the cre­ation of au­ton­o­mous lo­cal gov­er­nance bod­ies. The hilly ar­eas of Assam, Megha­laya, Tripura and Mi­zo­ram were brought un­der the Sixth Sched­ule of the Con­sti­tu­tion, which re­quired au­ton­o­mous dis­trict coun­cils (adcs) and re­gional coun­cils to be elected by com­mu­ni­ties to gov­ern ar­eas un­der their ju­ris­dic­tion. Th­ese coun­cils were au­tho­rised to make lo­cal laws, in­clud­ing the ones on land use. “But the Sixth Sched­ule does not for­mally recog­nise or cod­ify cus­tom­ary struc­tures of com­mu­ni­ties, nor does it de­fine their relation with adcs, ”says C R Bi­joy, an en­vi­ron­ment lawyer with Cam­paign for Sur­vival and Dig­nity, a fo­rum of non-prof­its work­ing on for­est rights.

Spe­cial pro­vi­sions were also made for Na­ga­land, Ma­nipur, Mi­zo­ram and Arunachal Pradesh un­der var­i­ous Ar­ti­cles of the Con­sti­tu­tion to pro­tect their au­ton­omy. Ex­cept Ar­ti­cle 371-A for Na­ga­land, none of the pro­vi­sions for other states ex­plic­itly men­tions that com­mu­ni­ties own nat­u­ral re­sources. As a re­sult, a chaotic sys­tem of gov­er­nance en­sued.

While com­mu­ni­ties con­tinue to follow their cus­tom­ary laws, the lo­cal laws pre­pared by au­ton­o­mous coun­cils recog­nise only some of them. Even the laws recog­nised and made by au­ton­o­mous coun­cils of­ten clash with state laws.The na­tional regime re­mains silent over the mat­ter, says en­vi­ron­ment lawyer San­jay Upad­hyay, one of the first law schol­ars to have stud­ied the le­gal com­plex­i­ties af­fect­ing com­mu­nity forestry in the North­east.

As per mod­ern laws, oil and coal are “na­tion­alised” min­eral re­sources, mean­ing th­ese re­sources are un­der the Cen­tre’s con­trol ir­re­spec­tive of the own­er­ship of the min­eral-bear­ing land. Un­der the In­dian For­est Act, 1927, the state for­est depart­ment is the sole for­est au­thor­ity. Th­ese laws hardly re­flect the cus­tom­ary laws and prac­tices of more than 200 tribes liv­ing in the North­east. For in­stance, United Khasi Jain­tia Hills Au­ton­o­mous Dis­trict Act, 1956, recog­nises nine kinds of for­est by tak­ing lo­cal prac­tices into ac­count. But Megha­laya fol­lows the na­tional for­est law and recog­nises only three cat­e­gories of forests ad­min­is­tered by the for­est depart­ment.

Such con­flicts have been there for long.But they got ag­gra­vated re­cently after gov­ern­ments and mar­ket forces be­came des­per­ate to ex­ploit the vast nat­u­ral re­sources trapped un­der the com­mu­nity-man­aged ar­eas. “For long, th­ese com­mu­ni­ties were the only ones us­ing the land and its re­sources, in­clud­ing forests, mi­nor for­est pro­duce and min­er­als that can be found at shal­low depths and eas­ily ex­tracted, such as coal in Megha­laya. They could not ex­tract min­er­als like oil that are at greater depths,” points out veteran jour­nal­ist B G Vergh­ese. “Now that the gov­ern­ments and the mar­ket want to ex­ploit re­sources like oil, the contest over own­er­ship has in­ten­si­fied.”

So, should com­mu­ni­ties be left to man­age their own re­sources? For­mer bu­reau­crat N C Sax­ena, who headed a Cen­tral gov­ern­ment com­mit­tee to re­view the im­ple­men­ta­tion of the For­est Rights Act (fra), 2006,says this is not an easy so­lu­tion, given the chang­ing so­cial and eco­nomic sce­nario. “Most forests in the North­east have ei­ther been un­der com­mu­nity con­trol or are pri­vate or rev­enue forests. The for­est depart­ment has hardly been there. Yet there is no ev­i­dence that the forests are well main­tained. A rea­son for this is that most forests were, in prac­tice, con­trolled by tim­ber con­trac­tors.”

"Most forests in the North­east are un­der com­mu­nity con­trol. Still they are not well main­tained"

"Once the com­mu­ni­ties have ti­tles to their cus­tom­ary rights over for­est and its re­sources, they can contest mod­ern laws"

Vergh­ese says at times out­siders marry a lo­cal per­son or have a lo­cal front­man to take con­trol of for­est land and that a lot of com­mu­nity forests are be­ing pri­va­tised by the elites of the com­mu­nity. How­ever, one can­not gen­er­alise the trend.The Apata­nis com­mu­nity in Ziro val­ley in Arun­chal Pradesh and most com­mu­ni­ties in Na­ga­land have been man­ag­ing forests very well, he says.

The con­flicts and con­fu­sion could have been avoided had the gov­ern­ments and civil so­ci­ety worked to­wards em­pow­er­ment of com­mu­ni­ties, ac­cord­ing to a de­vel­op­ment pro­fes­sional from Tripura who works with an in­ter­na­tional aid agency. “The Sixth Sched­ule gives au­ton­omy to com­mu­ni­ties to gov­ern the re­sources in tra­di­tional ways and leaves it there. As the so­cial and eco­nomic dy­nam­ics changed, in­stead of em­pow­er­ing them in nat­u­ral re­source man­age­ment, the state and the Cen­tre started con­test­ing with them,” he says.

Gov­ern­ment’s in­ac­tion is vis­i­ble in the cases of oil and coal where nei­ther the Na­ga­land gov­ern­ment nor the au­ton­o­mous dis­trict coun­cils used their pow­ers un­der the Con­sti­tu­tional pro­vi­sions to put in place an ef­fec­tive ben­e­fit-shar­ing mech­a­nism.

Bi­joy says the tra­di­tional sys­tems of the com­mu­ni­ties are not able to com­pre­hend and man­age the pen­e­tra­tion of ex­ter­nal mar­ket forces and the for­mal sys­tems that were es­tab­lished to pro­tect their au­ton­omy could not gain the con­fi­dence of the com­mu­ni­ties.“In such a sit­u­a­tion re­sources seem to have be­come free for all. Since the states can­not al­low law­less­ness they want to make laws which reg­u­late this loot, ”Bi­joy adds. “That is why we see the states in­tro­duc­ing laws and poli­cies that for­malise the trans­ac­tion of re­sources from com­mu­nity lands to pri­vate play­ers.” (See ‘In pri­vate in­ter­est’.)

The big­gest prob­lem in the North­east, Sax­ena points out, is the ab­sence of records of who owns how much. “Due to this a lot of com­mu­nity for­est is be­ing grabbed by pow­er­ful peo­ple in the com­mu­nity.”

Tribal rights ac­tivist Madhu Sarin, who has been in­stru­men­tal in the en­act­ment of fra, says the Act has pro­vi­sions to record all the ex­ist­ing rights on forests. “Once the com­mu­ni­ties have ti­tles to their rights they can contest mod­ern laws that are con­tra­dic­tory to cus­tom­ary laws,” she says. How­ever, com­mu­ni­ties fear that fra will limit in­di­vid­ual land­hold­ing to 4 ha. Sarin thinks the fear is un­war­ranted be­cause fra recog­nises all the ex­ist­ing rights. “Com­mu­ni­ties in the North­east are gen­er­ally ap­pre­hen­sive of Cen­tral laws as it means ac­cept­ing the au­thor­ity of the Cen­tre over their ter­ri­to­ries. How­ever, states can con­vince com­mu­ni­ties and take the ini­tia­tive for survey and de­mar­ca­tion of com­mu­nity ter­ri­to­ries un­der fra,” says Bi­joy.

This is what for­mer prime min­is­ter Jawa­har­lal Nehru had en­vi­sioned. “We should not over-ad­min­is­ter th­ese ar­eas... we should rather walk through, and not in ri­valry to, their own so­cial and cul­tural in­sti­tu­tions,” he said in his “Panchsheel for tribal de­vel­op­ment”.

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