Rethinking forest governance Towards a perspective beyond JFM, the Godavarman case and FRA Protection and regeneration of India’s vast forest land requires a more democratic and multi-layered approach that will necessitate a transformation of mindsets, bureaucratic structures and powers, forest rights assignments, and community attitudes, says Sharachchandra Lele. ‘rest governance is back in the news. More than 150 years after the British began their takeover of the cous:try’s forests, almost 60 years after Independent India’s first government reaffirmed the British approach in the name of national development, 30 years after the Centre began to regulate forests, and 20 years after it began a half-hearted attempt to change things through Joint Forest Managemenc, the issue of “who decides” is being finally being confronted head on. Who decides how much bamboo or firewood Giving absolute rights 10 any one group of users would be detrimental to the health o Destruction of trees in Assam is depicted here, moro m0 ka KONWAR should be harvested in the forests of Gadchiroli? Who decides that the Niyamgiri forests may be given for mining? Who decides that tigers and tribals cannot co-exist in the Biligii Rangan Hills? In the past, the answers to all such questions were the same: the State Forest Departments and the Central Ministry of Environment and Forests (MoE), all manned by foresters, Bur recently, MoEE has made tentative arcempts to go beyand this purely centralised system. The Minister has requested States co bring Joint Forest Manage- ment Committees (JFMCs) under the Gram Pan- ‘THE HINDU SURVEY OF THE ENVIRONMENT 2035 95Socially, in India, the livelihoods of 100-250 million people are intertwined directly with forests. These people live in close proximity to forests, and most of them have a long tradition of forest use, and therefore of a sense of customary rights and of how a forest should be. chayats, MoEF has stipulated that any conversion of forests to non-forest uses such as mining re- quires the consent of local Gram Sabhaé whose rights in the forests have been recognised by the Forest Rights Act (FRA) 2006. The Cabinet has approved a proposal co amend the Indian Forest Act to declare bamboo as a minor forest produce. Do these moves amount to anything? What is really required? Answering these questions re- quires us ro step back and explore the core concep- tual question: Why do forests need complicated systems of governance at all? Why should they not be treated just like, say, agricultural land and par- celled out to individuals to do what they please? Or why not just leave them all in the hands of a State agency such as the Forest Department? Who all should have a voice in decisions about forest use, conversion, or conservation? ‘After answering these questions from firse principles, we can examine how forests have ac- tually been governed in the past, how important attempts at reform, such as the JFM programme, the Supreme Court intervention, and the Forest Rights Act have panned out, and what the critical next steps might be. Why govern forests at all? ‘The question might sound absurd, but it is worth pondering on, especially in the current era when liberalisation and privatisation are seen as panaceas to the evils of excessive State control. Why not simply privatise forests and get the gov- ernment out of it? Ar the heart of the matter are the ecological and social features of che entity we call a forest. Ecologically, forests generate multiple benefits simultaneously. They not only produce tangible products such as timber, bamboo, fodder and wild honey, but they also moderate the hydrological behaviour of watersheds, provide habitae for wild- life, and sequester CO2. And these benefits accrue to different groups in society. While the tangible products may benefit villagers or logging contrac- tors, hydrological regulation benefits downstream water users, climate change mitigation due co CO2 sequestration benefits the entire world, and wildlife is also seen wday as a global heritage of humankind. Decisions about one aspect, such as logging for timber, have repercussions for all other goods and services. Leaving decision-making about forests to one beneficiary group alone, whether the timber company or the global wildlife conservation community, would therefore be un- fair to the others, Moreover, forests are slow- growing entities, so decisions taken today will have repercussions over a long period of time. Socially, in India, the livelihoods of 100-250 million people are intertwined directly with for- ests, These people live in close proximity to for- cscs, and most of them have a long tradition of forest use, and therefore of a sense of customary ights and of how a forest should be. Indeed, in many tribal communities, there was no simple separation between ‘forests’ and ‘non-forests’: for- ests are complerely integrated into their systems of shifting cultivation. And even settled agriculvural- istg think of pastures, woodlots and dense forests as all part of their ‘jungle’. Thinking about forests means thinking about the livelihoods of all these people from both a practical and a fairness per- spective. Neither is it practically possible for one entity alone (even the State forest department) to actually control the forested landscape effectively, nor is it advisable, as it is unlikely to meet local livelihood needs in a fair manner. Thus, the question is not jusc whether, say, logging should be carried out in a particular forest given the impacts it might have on the watershed or wildlife, but also who should benefit from the logging — the State treasury, the timber contrac- tor or the local community. The same applies to recurns from ‘minor’ for est produce such as bamboo or tendu leaves for beedi-making. Questions of forest rights thus Joom large in the Indian context. The right to harvest, the right to sell forest products, the right to exclude others, the right to modify the forest, and the right to convert are some of the rights at stake. As also the question of whether communi- ties downstream or further away from the forest have any right to the hydrological or climate change benefits that forests provide them. 96 ‘THE HINDU SURVEY OF THE ENVIRONMENT 2017Trib ha alee pi 2 ile i Miter free of Dhastgarh, Tht nA ip che ibd Mele Equally imporeant is the distribution of re- sponsibilities: who should have the responsibility of preventing unauthorised users, regulating au- thorised users, investing in conservation and re- generation, and ensuring @ balance between tangible and intangible or local and global bene- fies? Forest governance is about configuring these rights and responsibilities and associated dastitu- tions such that forese use and conversion will be first of all fair in its distribution of benefits and impacts between different local and non-local stakes and stakeholders, while ensuring produc- tive and ecologically sustainable use. And in a democratic country, the process of decision-mak- ing must be democratic and transparent. 1A colonial takeover land its persistence Where does our sys- tem of forest governance stand vis-a-vis these ex- t Ipectations? For this, one has to start from. the 1850s, when the British {forests viable for tribal sustenance, therefore, assumes great importance. r4oT0-A8UNANGSY ROY CHOWDMIUNY The structures the British set up — the forest laws and the forest bureaucracy — were aimed at fulfilling colonial objectives, primarily of forest produce (such as timber) and revenues. government began the process of taking over di- rect control of the country’s forests. The seructur- es they set up — the forest laws and the forest bureauctacy — were aimed at fulfi objectives, primarily of forest produce (such as timber) and revenues. Sustainability received at- tention, but only in terms of sustaining the flow of these desired products. Fairness was clearly not a concern. Foresters were police and sole managers. Local users were pests, and allowed to use only the poorer forests, demarcated as Protected Forests, but were not given management rights even in these forests. Exclusion and modification rights were conceded only where local protests forced the British to grant them, such as in community rights in Kumaon or Chhotanagpur or individual privileges in che Western Ghats. Customary prac- s such as shifting cultivation continued only where direct Brit- ish control could not be established, such as most parts of the north-east, or where princely States showed ing, colonial JUAVEY OF THE ENVIRONMENT 2071 97The National Forest Policy adopted in 1988 was the first (and till now only) coherent attempt by the government to formulate a new perspective on the forest question. “Environmental stability” was ta be the highest priority for forest management, and derivation of direct economic benefit was to be subordinate to this. neglect in enforcing British-style laws very strict- ly, such as in Orissa. Unfortunately, the government of Independ- ent India did not see the need to make a break with this colonial past. It continued with the same priorities (timber production and revenue gener- ation) and same structures (British laws and the hierarchical, uniformed forest service). Itin fact expanded the area under such control as it took over the forests in the princely Scates. The Indian Forest Service continued to see itself as the custodian of forests, local people as pests, and indeed as a 90-year old organisation in a new- ly-born country! While larger goals of ‘national development’ meant that forests were given away for dams, mining and roads, shifting cultivation was suppressed further, local use and management rights were never conceded, and even rights given by the British were curtailed in some ca One extreme example is the doing away of Panchayat Forests and Village Forests in Karnata- ka after the reorganisation of States and passing of ostensibly new State forest Acts. Equally egregious was the merger of forests in princely States into the categories under British Jaw without enquiring into the real status of hu- man presence and customary use in them. Conservation gets priority The 1970s saw the emergence of wildlife con- servation as a major issue. The Wildlife Act of 1972 led to the re-designation of significant areas of forests (and other kinds of land uses) as wildlife sanctuaries and national parks. But because the presence and rights of local communities had been ignored in the original demarcation of forest boundaries, they continued to be ignored when such sanctuaries were set up, leading to much conflict. Even today, the process of settling rights and final notifications for most wildlife sanctu- aries have not been completed precisely for this reason, Interestingly, the Chipko movement that emerged at the same time to fight for local control of forests and a local share in the economic bene- fits from their use only led to a tightening of logging policies. The Forest Conservation Act 1980 (FCA) was an attempt by the Centre to ineroduce some long-term thinking into the oth- erwise short-sighted conversion of forests to other uses. But it is based on a perspective that the Centre, through certain bureaucratic procedures, can determine what is bese in. the long run for society. While Environmental Impact Assessment guidelines required at least a local-level public hearing to be held, the FCA procedure did not have any such requirement of local consultation. The National Forest Policy adopted in 1988 was the first (and till now only) coherent attempt by the government to formulate a new perspective on the forest question, “Environmental stability” was to be the highest priority for forest manage- meng, and derivation of direct economic benefit was to be subordinate to this, Buc for the first time, meeting the needs of rural populations was also included in the list of management objectives, and revenue generation was explicitly removed. More importantly, it mentioned the need to pro- tect che rights and concessions enjoyed by tribal communities and to involve all rights-holders in forest management. This led to the directive from the Centre to the States in 1990, asking them to initiate participatory forest management programmes. ‘ JFM: radical change or sham? The idea of Joint Forest Management picked up on an experiment in Arabari in West Bengal, and suggested that sharing the harvests from re- generated or re-planted forests would be the way to get communities involved in forest protection and regeneration. The JFM programme initially received enthusiastic support from international aid agencies and several civil society organisations, as it seemed to mark 2 shift towards pro-people forest governance. Today, JFM covers all States and supposedly involves more than one lakh com- munities in the protection of more than 22 mil- lion hectares of forest land. The Director-General of Forests claims “ic has been a very successful attempt by a government department to genuine- ly involve the people in the management of re- 98 THE HINDY SURVEY OF IME ENVIRONMENT 2011sources.” Many would agree that JFM has soft- ened some of the age-old conflicts and mistrust between the Forest Departments (FDs) and local communities, But serious analyses of JFM across the country have criticised it sharply. Ac the heart of such contradictory assessments is a difference in the perceived objective of JFM. For the foresters, JFM is simply a cheaper way of doing forest protection, or a way to get local peo- ple to cooperate in achieving what the FD wants, which is to produce commercially valuable wood or to deal with errant encroachers from the village, and to garner large foreign funds which prefer to support seemingly ‘participatory forest manage- ment’ initiatives. These objectives have been fargely achieved. : For the activists, however, JFM was supposed to be a way of actually decentralising decision- making about forests into the hands of the local community, so that they could manage ic for meeting their diverse needs sustainably and en- hancing livelihoods. It was about bringing an en- tire landscape under community protection so as to solve the tragedy-of-the-commons, But jFM has never given the kind of autonomy and cov- erage required to achieve this. “Joint” manege- ment practice meant control by the FD through its official who was always the secretary of the JFMCs, who controlled the flow of funds, the decisions regarding planting and hatvesting, and other aspects. JEM has often meant managing on- ly a small part of the forest area used by villagers, leaving other parts unmanaged, And it usually does not change the rights to the harvest and sale of minor forest produce. And as JFMCs are set up under ‘programmes’ and not by law, they have no security of tenure and seem to depend more on the availability of external funding. As a result, many (possibly most) JEMCs are defunct. Moreover, where they are functioning ‘successfully’, they ate implementing timber-fo- cused forestry, thereby often hurting che poorer groups by denying them grazing or firewood. The setting up of districe-tevel Forest Development Agencies and calling them ‘federations of JEMCs’, when they are chaired and controlled by foresters, has further highlighted the absence of any radical democratic thinking underpinning JEM. Thus, rather than clarifying rights of local communities and setting up democratic institutions to exercise those rights, the FDs have sought to micro-man- age the so-called participatory process to suit their own objectives. Union Minister of State for Environment and Forests, Jairam Ramesh displays a transit pass for bamboo, which enjoys Minar Forest Produce status under the Forest Rights Act. He is joined in this April 2011 event by Sunita Narain of the Centre for Science and Environment and Devaji Tofa from Mendha Lekba village. msov0. Mea MENON Supreme Court interventions: muddying waters While the government was trying to address the question of people's participation in forest management through JEM, the Supreme Court suddenly got involved in forest governance through the now-famous Godavatman case. Dri- ven by concerns about rampant and unregulated logging and conversion of forests in the north- east, an activist Court passed a series of orders starting in 1996, whereby the FCA was held to be applicable even ¢o lands that were not legally for- est but were physically forested (such as village, lan and individual lands in the northeast), there- by requiring central clearance for their conver- sion. But what began as a reinterpretation of the scope of the FCA has ended up in the Court taking over a significant pare of day-co-day forest : THE HINDU SURVEY OF THE ENVIRONMENT 2011 +responsibility to ensure thar, the benefits of forest use are distributed equitably within the local community, Note that in most activities chat have envi- ronmental and social implications, the State does not actually takeover the productive activity itself, be it a factory, a thermal power plant ot a farm. It simply sets standards based on anticipated envi- ronmental impacts, and monitors and enforces the standards. The same can be true of forests: just because use of the forest by local communities may have some wider environmental consequenc- es does not mean the forest should be managed on a day-to-day basis by a forest bureaucracy. No bureaucracy can manage a forest thar is spread over 70 million hectares and is in constant use by 250 million people. What is required is vesting day-to-day use and management tights with local tions, which function within a well-defined framework that is defined and enforced in a trans- parent manner by a State regulatory agency. Three questions then arise: what should be the form of local institutions that manage these for- ests, what kind of use rights should they have, and what should be the nature and structure of the régulatory agency? Regarding the first, the propos- al to bring JFMCs under Gram Panchayats fails on several counts. On the one hand, retaining the Sjoint’ structure defeats the idea of day-to-day au- tonomy. On the other hand, the current structure of most Gram Panchayats in the country will work against the idea of sustainable and equitable man- agement at the local level. Gram Panchayats are generally large, dominated by an agrarian, mostly non-tribal, elite that tends to be less forest-de- pendent, and are set up to implement develop- ment programmes funded from above, rather than do bottom-up self-governance. The need therefore is to vest rights in hamlet- level bodies (or Panchayats formed under the PE- SA in scheduled areas). Areas under JFM would have to be handed over to such bodies, but this process will have to be part of a larger process of settling community rights across the entire forest- ed landscape that is under day-to-day use, so as to avoid future conflicts. This is alteady proposed in the FRA, but should be extended to the whole country, and taken up by the State suo motu, as it took up JEM, not waiting for communities to come forward. Clearly, the interest of local communities to take on this responsibility depends on their ob- 102 Who should have rights over the forest? The Environment Protection and Forest Rights Acts attempt 10 strike a balance. Here, a tribal child returns from the forest with she day's collection, near Mallampet Reserve forest, Khammam district. moro Gx 240 Ideally, timber rights should be preferentially allotted to the landless and marginal peasants, who have not benefited from land reform. taining a meaningful livelihood from forests. So, in addition co linking forest management to for- est-dependent hamlets rather than entire Gram Panchayats, the sights conferred must include all rights to harvest and sale of non-timber forest products (NTFPs) including currendly national- ised ones such as tendu leaves and bamboo, as well as some rights to timber. Ideally, timber rights should be preferentially allotted to the landless and marginal peasants, who have not benefited from land reform. Moreover, existing State-level controls over valuable NTFPs will have to be re- placed by price and marketing support programmes. The secord so far in this regard is hardly en- couraging, primarily because the State has contin- ued to think that NTPs are its property and tribal and other collectors are primarily wage la- bourers who are also ignorant and unable to man- age NTEP harvest and marketing — paternalistic view that needs to be abandoned. Regarding the structure and functioning of the regulatory agency, clearly a professional service will be required. But the existing forest depart- ments and service would have to be restructured THE HINDU SURVEY OF THE ENVIRONMENT 2011Even if communities do not take full management and protection responsibility in such areas that are typically sparsely populated, they would have to be given additional rights over tourism in compensation for the reduction in use rights in the wildlife areas. extensively to ensure that they shed their colonial history and style and become more transparent and accountable. The regulatory agency would have to be answerable co a body that includes much greater downward accountability and voice for local communities than provided by State gov- erments so far. Given the size of the country and the diversity of socio-ecological conditions, such accountability structures are best set up at the districe level. State support will also be required for two other purposes: providing policing support to lo- cal institutions against, say, armed timber mafia, and technical support for forestry. While the pol- icing support can pethaps be provided by the reg- ulaory agency, technical support is best provided by a separate set of institutions where scientific research, open debate, and sensitivity to people’s needs are part of the culture. The ICFRE system would have to be revamped, and a more decentral- ised set-up involving local universities, research institutions, colleges, NGOs and community in- stitutions would have to be createil. The above addresses the basic needs of man- agement of forests as forests for local use. Two other dimensions. of forest governance require to be addressed: conversion ta non-forest use, and wildlife conservation. The FCA would have to be amended to ensure that community forestry institutions and disirict-leyel bodies have a clear say in (preferably veto over) any proposal to divert forests for non-forest purposes. The ap- proach to wildlife conservation would also have to change. Firstly, the attempt by the FRA to re-visit and rationalise the identification and declaration of areas to be set aside for wildlife conservation and also those subsets chat are to be maintained inviolate must be carried through. Second, even if communities do not take full management and protection responsibility in such areas that are typically sparsely populated, they would have to be given additional rights over tou- rism in compensation for the reduction in use rights in the wildlife areas. Third, wildlife conser- vation may requite a separate professional service, which is better trained in both conservation and also in transparency, accountability and interac- THE HINDU SURVEY OF THE ENVIRONMENT 2071 tions with local communities. Challenge Clearly, shifting to a more democratic and multi-layered forest governance system will be a massive task, as it involves not just a one-rime settlement of land rights, but a complete restruc- turing of mindsets, bureaucratic structures and powers, forest rights assignments, and even com- munity attitudes towards taking on responsibil- ities rather than just waiting for handouts. Many complexities need to be addressed: re- nal variations in land and forest boundary de- marcations, enormous confusion in land records, pre-existing individual and community forest rights, the rights of nomads, developing region- specific sustainable management norms for differ- ent forest products, and so on. Many laws will have to be amended if not replaced, starting with the pre-Independence Indian Forest Act itself but also corresponding State forest acts and other legislation. Many actors stand to lose under this new ap- proach: foresters conditioned to exercise absolute control on the forest estate, timber and NTFP contractors accustomed to wink-and-nod arrange- ments, politicians who prefer to encourage forest encroachment as an casy way of garnering votes, and village elite who fear that hamfet-level devolu- tion and enhanced forest rights and livelihoods will threaten their dominance of tibal and la- bourer communities. These actors will mount stiff opposition. But the gains, both environmental and social, from such a restructuring will make this enterprise more than worthwhile. Sharachchandra Lele is a Senior Fellow in the Cencre for Environment & Development, Ashoka “rust for Research in Ecology and the Environment (ATREE), Bangalore. He works on questions of the ecology; economics and governance aspects of forests in south, Asia and on ideas of sustainability and sustainable development in general. 103