Notwithstanding the fact that union government or state government may have first right over the natural resources even if the said land is not fully inhabited, the Forest Rights Act and the Panchayats (Extension to the Scheduled Areas) Act, 1996 mandate for prior recommendation of gram sabha or the panchayats before grant of prospect licence or mining lease for minor minerals in the Scheduled Areas.
Similar recommendations are also mandatory for the exploration of minerals.
Under the PESA Act, the gram sabha is endowed with the power of ownership of minor forest produce, the power to prevent alienation of land in the Schedule areas and the power to manage village markets.
A senior Indian Administrative Service (IAS) officer from Orissa said, under the Forest Act, the traditional rights and traditions of the community have to be protected. Their entire livelihood depends on it.
“The development activity is covered under the PESA Act and local community activities are part of Forest Act. Animist faith like worshiping of Niyam Raja (about 10 Kms from the proposed mining site) are taken into account as their religious and culture rights, which extends to the entire tribal area,” the officer said.
“While the union government believes that tribals should be consulted for throughout the area, the state government acknowledges they have territorial rights over 12 gram sabhas only. The solution to break the impasse could be to award profit share to tribals or give them company shares. But under given circumstances, it seems difficult,” the officer added.
Ravikant, a Supreme Court lawyer, said under no circumstances the union or state government can forcefully acquire tribal land. It has to first provide livelihood to tribals and honour their customary rights.