Whether consent from tribal village councils is essential before using forests could hinge on a case being heard by the National Green Tribunal on the Thoubal multipurpose dam project, which has been under construction since 1989 in Manipur.
The tribal affairs ministry has told the court it does not have the power or a mechanism to verify claims of state governments that consent of tribals had been sought under the Forest Rights Act, 2006, before handing over forests to industry.
An affidavit stating its position was submitted by the tribal affairs ministry to the tribunal in July 2014. This has become the main point of contention in the court hearings.
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The statement of the tribal affairs ministry is contrary to its position stated repeatedly over the past year to the prime minister's office and the environment & forests ministry.
The petitioners in the case, claiming the Thoubal project had come up without requisite clearances, pleaded through lawyer Ritwick Dutta the statement of the tribal affairs ministry be reviewed, as it would set a precedent over use of tribal forests. The court is set to hear more on this at its next hearing on August 4.
The tribal affairs ministry is the nodal ministry for implementation of the Forest Rights Act. The environment & forests ministry issues clearances to industries to use forest land under the Forest Conservation Act, 1980. As the Forest Rights Act supersedes all previous laws, the clearance process was brought in conformity by the environment ministry in 2009.
The environment ministry ordered that the rights of all must be settled on a piece of land before it could be diverted, and the consent of village councils, the statutory authority under the Forest Rights Act, must be sought. Gram Sabha resolutions giving consent and the district authorities' confirmation that all rights had been settled were to be sent to the environment ministry to be checked before any project was allowed on forest land.
This process of seeking village councils' consent became part of the Vedanta mining judgment of the Supreme Court during the United Progressive Alliance regime.
After the National Democratic Alliance assumed office at the Centre, the environment ministry asked the Prime Minister's Office that such consent be done away with through an executive order.
But the tribal affairs ministry repeatedly held consent provisions could be done away with only by amending the Forest Rights Act.
"The Forest Rights Act does not provide for any exemption to its provisions (of requiring prior consent from tribal people) for any category of forests, projects, persons, etc, in order to prevent any violation of law," the tribal affairs ministry wrote.
Reacting to the environment ministry's draft notification to dilute tribal consent provisions, the tribal affairs ministry had said this was "illegal, encroaching upon the jurisdiction of the judiciary and the legislature" and called it unacceptable.
But the tribal affairs ministry, referring to the Thoubal dam project, told the National Green Tribunal: "As per the state government, the land in question has been purchased by the government of Manipur from affected villagers through their duly elected village authorities (equivalent to Gram Sabhas) and the rights of any fresh dwellers residing in the project-affected area have already been settled as per law. The spirit of the (Forest Rights) Act seems to have been followed in the instant case."
It added it was relying solely on the submissions of the state government regarding the consent of tribals. "That this being a question of fact, and the answering respondent (the tribal affairs ministry) being a ministry of the central government, does not have any statutory power or mechanism for verification of such submissions made by a state government, and is therefore bound to accept that such submission is made correctly and with due responsibility."
In contrast, in the Vedanta mining case, the Centre had set up a committee to review tribal rights and verify claims of consent by the Odisha government. Based on the Centre's statements, the Supreme Court had ordered more than a dozen tribal councils in the affected area to hold meetings and pass resolutions in favour or against the project. These meetings were supervised by the tribal affairs ministry.
In Thoubal, project developers built the dam from 1989 without a clearance. The project received the first of a two-level statutory forest clearance in 2010. When the petitioners went to court against the project, the environment ministry issued the final forest clearance in 2013.
The petitioners pleaded that the final clearance had been issued without the consent of tribal people. The environment ministry left it to the tribal affairs ministry to decide. The tribal affairs ministry first said consent was essential and then said an exception could be made for the particular project.
In July 2014, the tribal affairs ministry disowned responsibility of verifying whether consent had been sought.