Autonomy sans rights

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

"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”.