1 General Constitution & Non Forest Land under Forest Conservation Act 1980
1. WELCOME TO THE PRESENTATION ON
FOREST (CONSERVATION) ACTM 1980
AND FOREST, WILDLIFE & ENVIRONMENT ISSUES FOR
SUSTAINABLE MINING
BY
Ravindra Nath Saxena
Managing Director & CEO
Alpine Techno-legal Consulting (P) Limited,
Former Principal Chief Conservator of Forests, Madhya Pradesh
2.
3. OVERVIEW OF THE PRESENTATION
• Current regulatory regime of Forest (Conservation) Act, 1980; Wildlife (Protection)
Act, 1972; Indian Forest Act, 1927; Environment (Protection) Act, 1986; Scheduled
Tribe & Other Traditional Forest Dweller (Recognition of Forest Right) Act, 2006;
Panchayatiraj Extension to (Scheduled Areas) Act, 1996.
• Land matters in forest clearance
• Statutory & non-statutory reforms for sustainable mining.
• Experience sharing of obtaining “forest clearance” and “environment clearance” of
Tara Coal Block, CG.
• Mitigation planning and formulation of Wildlife Habitat Conservation &
Management Plan, Reclamation Plan, Landscape Plan (SMC).
• Issues related to Connecting Corridors, National Tiger Conservation Authority.
• Mine closure and post mining issues.
• Temporary working permission, net ptrsent value, forest types, forest density etc.
4. At the time of promulgation of the Constitution of India, subject of “forests”
was kept in the “State List”. There was no entry of “wildlife”.
“Forests” transferred to the “Concurrent List”, List-III as Entry–17A and
“Wildlife” as the Entry-17B by the 42nd Constitutional Amendment Act, 1976.
Article-251 & 254 of the Constitution provides that state statutes cannot be
repugnant to Central Acts. If there is any repugnancy, state statutes
automatically becomes “null & void”.
Constitutional provisions related to
“forest” & “wildlife”
All forest & wildlife statutes - FCA, WLPA, IFA, PESA, STOFDRFRAct are Central Acts. The
statutory reforms are in jurisdiction of the Parliament. Statutory reforms virtually
impossible for next 2 years.
5. Evolution of the forests and environment related
legislations -
Indian Forest Act, 1865, 1878 and 1927 -
India is having a rare distinction of long tradition of professional
forestry with a history of forest legislations since 1865, when most of the
forests were brought under the Government control. The first Indian Forest
Act was proclaimed in 1865 and was subsequently revised in 1878. Again the
old forest act was repealed and present Indian Forest Act was promulgated
in 1927, with consolidation of regulatory laws related to forests, the Indian
forests were managed for production. Subsequently, several amendments of
the Act were made and some of the States have promulgated their own
Forest Acts. The present Indian Forest Act, 1927 is being revised by the MOEF
and is being renamed as the “Indian Natural Eco-systems Act”. The details of
evolution of forest legislations have been provided in Chapter-I, II, V and VI.
6. National Forest Policies - 1894, 1952 and 1988
National Forest Policies
ndia is one of the few countries which has a forest policy since 1894. It was revised in
1952 and again in 1988. The main plank of the Forest Policy of 1988 is protection,
conservation and development of forest. The main aims are - (i) maintenance of
environmental stability through preservation and resotration of ecological balance ;
(ii) conservation of natural heritage ; (iii) to check soil erosion and denudation in
catchment area of rivers, lakes and reservoirs ; (iv) ensure check on extension of sand
dunes in desert areas of Rajasthan and along coastal tracts ; (v) substantial increase in
forest tree cover through massive afforestation and social forestry programmes; (vi)
steps to meet requirement of fuelwood, fodder, minor forest produce and small
timber to rural and tribal populations; (vii) increase in productivity of forest to meet
the national needs ; (viii) encouragement of efficient utilisation of forest produce and
optimum substitution of wood and ; (ix) steps to create massive people’s movement
with invovement of women to achieve the objectives and minimise pressure on
existing forests.
• The detailed National Forest Policy, 1988 has been provided in Chapter-IV.
7. Major Developments after N.F.P., 1988
• Case of T. N. Godavarman ver Union of India. Virtually re-written forestry
sector.
• PILs and judicial activism.
• FRA and PESA. Roll back not possible, have to devise ways to develop
syntheis approach.
• Flood of international conventions.
• Fast track amendments in WLPA – 1991, 1993, 2003 and 2006. WLPA
(Amendment) Bill, 2010 pending before the Parliament.
• Statutory functions of NTCA and CZA.
• Astronomical demand for forest land.
• Demand from industry for minng and infra-structure projects.
• Climate Change
• Ecosystem services approach in management.
8. Transfer of “forests” from State to Concurrent
List of the Constitution of India
After the promulgation of the Constitution of India on 26th January, 1950. The
“Forests” were placed in the “State List” (Seventh Schedule, List-II), but in the 27th
year of the Republic of India under the recommendations of the National Agriculture
Commission a need was felt to upgrade the status of “forests” from the “State List”
to “Concurrent List”. Accordingly the Constitution 42nd (Amendment) Act, 1976 was
passed and as per Section-57 “Entry-17A. Forests” was inserted in the “Concurrent
List” (Seventh Schedule, List-III). The Part-XI of the Constitution of India, Chapter-I,
Legislative Relations, Distribution of Ligislative Powers defines the relations between
the Parliament and State Legislative Assembles. The Articles-245, 246, 249, 250 and
251 provide very insight about the Centre-State Legislatures relations. The Article-
251 and 254 throws light on the inconsistency of the legislation made by the
Parliament under Article-249 and 250 and laws made by the Legislatures of States.
These articles are produced below for ready reference.
9. Article - 251
“Article-251. Inconsistency between laws made by Parliament under Articles-
249 and 250 and laws made by the Legislatures of States - Nothing in Article-
249 and 250 shall restrict the power of the Legislature of a State to make any
law which under this Constitution it has power to make, but if any provision of
law made by the legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament has under either of the said articles
power to make, the law made by the Parliament, whether passed before or
after the law made by the legislature of the State, shall prevail, and the law
made by the Legislature of the State shall to the extent of the repugnancy, but
so long only as the law made by Parliament continues to have effect, be
inoperative”.
10. Article - 254
Article-254. Inconsistency between laws made by Parliament and laws made by the
Legislatures of States - (1) If any provision of law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of an existing law with respect to one of the matters enumerated in
the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by the Legislature of the State shall,
to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State [***]1 with respect to one of the
matters enumerated in the Concurrent List contains any provision repugnant to the provisions
of an earlier law made by Parliament or an existing law with respect to that matter, then, the
law so made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that State.
Provided that nothing in this clause shall prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State
11. Article-253 of the Constitution provides that, ALL the
international conventions, protocols, treatises are
implementable in the country. Following conventions
have got impact on forestry & wildlife sectors:
World Conservation Union (IUCN).
Ramsar Convention.
Bonn Convention.
CITES.
Crane Convention.
International Whaling Convention.
Important Bird Areas (IBA).
Convention on Biological Diversity.
12. Constitution 42nd Amendment Act, 1976
The 42nd Constitutional Amendment, 1976 has empowered the
Parliament to effectively legislate on forest related issues. The
“Forests” remained with the Ministry of Agriculture for a long time. In
1978, the Govt. of India issued directive to all State Governments to
check indiscriminate diversion of forest areas for non-forest purposes.
But the response of most of the State Governments were lukewarm in
this matter and this situation forced the Central Government to
proclaim Presidential Ordinance for “Forest Conservation Act” on 25th
October, 1980 to regulate diversion of forest land for non-forest
purposes.
13. PRECARIONS CONDITION OF MINING UNDER THE
CONSTITUTION OF INDIA (SCHEDULE – VIII)
Environment & Residuary
Power
Entries–6,24,27,53, 54 & 97
Union List, List-I
SPCB’S/PCC’S Under State
Government
Mines & Mineral Development
Entry – 54,
List-I, Union List
Entry – 50, List – II
State List
Forest & Wildlife, Land
Entries – 17 A, 17B
Concurrent List
List – III
Entry – 18 State List, List-II
Articles – 245 to 254 deal with Union-State relations. Sometimes
Statutes have overlapping jurisdictions; rarely repugnant also.
Constitutional amendments shall take very long time.
Efficiency and attitude of civil services are the key words for success.
Perfect “project planning” to reduce timeline is must for success.
14. FOREST POLICY AND LEGISLATIONS
• First National Forest Policy enunciated in
1894, replaced by another policy in 1952 and
present policy was promulgated in 1988.
• First Indian Forest Act was enacted in 1865.
Second IFA was placed in statute book in
1878. The present IFA was promulgated in
1927.
• Till 1935, the subject of forests was placed in
the “federal list”. Government of India Act, 1935
transferred it to the “state list”.
15. Macro-planning issues for Sustainable Mining in India
A. Develop composite digital GIS maps with layer of –
Forest, identify fragile ecosystems, unique habitats
Wildlife (particularly Tiger and Asiatic Elephants); distribution of
national parks, wildlife sanctuaries, conservation reserves, community
reserves, Tiger and Elephant Reserves with their Buffer Zones and
connecting corridors. Sites covered under International Conventions.
Mineral deposits / reserves, identify requirement of fuel, atomic and
strategic mineral bearing sites.
Biodiversity hot-spots with Biodiversity Indexes.
Area of tribal communities (particularly primitive tribal groups),
Distribution of species of “Red Data Book” (IUCN, ZSI and BSI).
Water regime, vulnerable ecosystems & catchment areas.
Schedule-V and VI areas with PESA ramifications.
B. Identify GO – Areas : low risk areas, medium risk areas, high risk areas,
NO- GO Areas. Define “Criteria & Indicators” for selection.
C. Develop “Regional Mining Strategies” – MOEF attempt resisted in 2006
D. Define & develop parameters for site / project assessment by FAC,
SAG and EAC. Develop mathematical models to avoid arbitrariness.
16. Barrier Analysis to Forest (Conservation) Act, 1980 and
Environment (Protection) Act, 1986;
• Intricately woven “forest clearance” and “environment clearance”, but
impact assessment carried by different departments of State
Government & MOEF, and two different committees – FAC and EAC
examine project proposals.
• Land is having heterogeneous origin – forest, revenue forest,
dictionary meaning conforming forests, blanket notifications.
• Frequent modifications of constitution of committees.
• Absence of specifications of “parameters of impact assessments” in
FCA and EPA. Parameters of “impact assessment” modified frequently
by committees without any justification. Same parameter assessed by
two committees.
• Cumbersome, lengthy case assessment at several levels.
• No well established co-relation between “forest clearance” &
“environment clearance”.
• Move to amend IFA and make it PESA and ST&OTFD(RFR) Act
compliant – shall lead to lots of local socio-political interference.
17. TWO STAGE “FOREST CLEARANCE” MECHANISM UNDER
FOREST (CONSERVATION) ACT, 1980;
20. Statutory & Non-statutory Reforms required in
Forest (Conservation) Act, 1980
Statutory Amendments
Forest (Conservation) Rules, 2004 are still silent
about – de-notification, assignment of forest areas
and working plan operations. Revise FCA form urgently.
Parameters for evaluation of “forest” and “wildlife”
not framed; insert parameters in Section-2(ii) of
FCA.
Non-statutory FCA Guidelines, being modified frequently
with-out any vision / justification – notify only
“statutory guidelines” in the Gazette of India. Root
cause of confusion & delay. Sometimes guidelines
are contradictory also.
De-link FCA from ST & OTFD (RFR) Act, 2007. There is no
linkage between these two Acts – causing delay.
21. Non- statutory Amendments
Current “FCA application form absolutely out-dated” –
details about impact of climatic change & edaphaic
factors, silvicultural aspect of forest crop,
working plan prescriptions, status of wildlife
either missing or topsy turvey, biodiversity
indexing, reclamation plan, landscape plan etc. are
missing but GOI is insisting on these details at
advance stage.
Details of forest crop – girth class-wise numbers,
condition of forest crop (coppice or high forest),
growing stock, volume of timber & fuelwood,
number of trees / ha., projection of crop longevity
projections (senescence), site quality and density
assessment, basal area calculation, status of
regeneration, analysis of biotic factors etc.not provided.
Non- statutory Amendments / Reforms
22. Non- statutory Amendments / Reforms
Specify standard sampling techniques.
Biodiversity indexing – Shannon-Weiner Index ,
Brillouin Index, Brillouin Eveness Index, Simpson’s Index ,
Margalef Index, McIntosh's Measure of Diversity, Berger-
Parker Index etc.
Inventory of species of “Red Data Book” of
International Union for Conservation of Union, Botanical
Survey of India and Zoological Survey of India.
Issue “terms of reference” for the projects above 100 ha.
(as being performed under environment clearance,
Environment Impact Assessment, 2006).
Issue specific statutory guidelines for “Wildlife Impact
Assessment” (WIA) and for preparation of “Wildlife
Habitat Conservation Plan”.
Specify “target species(s)” for “Wildlife Habitat
Conservation Plan”.
23. Non- statutory Amendments / Reforms
Project Impact Assessment with reference to “porosity”
and ‘fragmentation” of forest crop.
Specify limited role of “EAC (Mining & Coal)” in forest and
wildlife matters – causing duplication of
work without any utility / justification.
“Expert appraisal Committee” (EAC) not having any role in
Landscape Management Plan, Reclamation Plan,
“Wildlife Habitat Conservation Plan”, biodiversity
indexing etc.
Get prepared State / District / Regional Mining Strategies
for clarity of vision or deciding priority areas – cover
about 60 mineral rich districts.
Thorough crop assessment before deciding NO-GO
areas. Parameter of satellite imagery cannot be acceptable.
Geo-coordinates in all maps for meticulous assessment.
24. Non- statutory Amendments Reforms
Adequate still photography of forest crop – crown,
stem and ground to make status clear.
Adequate video-graphy to demonstrate crop
conditions, site quality, crown density, stem conditions,
status of regeneration, status of biodiversity, use of
habitat by wildlife, basal area calculation, as evidence
to substantiate yield table projections etc.
Mandatory screening of video-film of diversion area
before FAC and SAG.
State Advisory Group (SAG) should be a permanent
body like FAC. Frequent change of members is
detrimental to the cause of site assessment.
Drastically reduce processing levels – ministerial staff
and Secretariat staff cannot contribute to processing
except delay & confusion.
25. Non- statutory Amendments / Reforms
No site inspection during monsoon period i.e. Jul to
October. Monsoon provides wrong parameters for
assessment.
Impose area-wise “processing fee”, use this fund for
data generation. Sell data to project proponent for
saving time.
Annual monitoring of mining sites by satellite
imageries – monitoring of demarcation violation and
progress of reclamation operations are possible.
Punish violation of “forest demarcation” under Indian
Forest Act, 1927. Cognizable offence, stringent law.
Assess “Nistar & livelihood issues of local
communities”. Compensate loss of livelihood.
RET species – No vague comments, use and quantify
RET species under IUCN criteria.
26. Non- statutory Amendments / Reforms for Monitoring
Annual monitoring of mining sites by remote
sensing / satellite imageries – monitoring of
demarcation violation and progress of
reclamation operations are possible.
Constitute Monitoring Committee under Principal
Chief Conservator of Forest, Nodal Officer FCA as
Member Secretary.
Collect seeds from “plus trees” of felling area for
plantation to maintain “genetic pool” of the area.
Compulsory submission of annual “Monitoring
Report” to MOEF.
Capacity Building of assessing officers and
machinery – administrative and technical angles.
27. Non- statutory Amendments Reforms
Prepare cause list of cases to be listed before State Advisory
Group and Forest Appraisal Committee.
Make presentation compulsory before State Advisory Group,
Forest Appraisal Committee and Environment Assessment
Committee. The discussion should be compulsorily video-
graphed for transparency.
Several members of these assessment committees are not
having technical qualification, don’t possess any specialization,
often don’t have right type of mind-set for rational development
of the country. Appoint members with utmost care and after
thorough verification of their antecedents.
Assess quality of timber in the adjoining felling coupes /
relevant timber depot to decide future of crop.
Examine “water quality” for toxins & silt load particularly down
stream of metallic mines, tailing ponds, ash-dykes and
beneficiation plants – large scale mortality of trees taking place.
28. Forest Cover of India (S.F.R., 2011 of Forest Survey
of India)
Diversion of about 300 sq.kms. forest areas (0.04%) in next 20 years
can solve the energy problems of the country. Most of these coal
blocks are situated in different micro & milli-watersheds –
consequently it would not cause great ecological problems.
Coal Blocks are site specific projects and should get priority
Mineral rich areas
of coal and coal bed
methane (CBM).
Also inhabit large tribal
Population - FRA
29. FORESTS AT A GLANCE
• Geographical area – 32,87,263 sq. kms.
• Forest area – 7,57,740 sq. kms.
• Forest cover – 6,78,333 sq. kms. – the eco-resource for livlihood.
• Legal status of forest area –
A. Reserve Forests (RF) – 3,99,919 sq. kms.
B. Protected Forests (PF) – 2,38,434 sq. kms.
C. Un-classed forests – 1,36,387
• Un-culturable non-forest areas – 2,11,286 sq. kms.
• Growing Stock – 4740.858 million cubic meter
• Growing Stock / ha. – 74.42 cubic meter
• Current Annual Increment – 8.76 million cubic meter
• Current C.A.I. - 0.69 cubic meter / ha.
• Potential CAI possible - 3.60 cubic meter / ha. (Peterson’s formula)
• Simpson’s Biodiversity Index, Berger-Parker Species Richness Index, Shannon
Weiner Biodiversity Index not provide promising picture.
• Forest cover stagnant with cyclical change, qualitative deterioration of
ecological resources due to scarcity of finances.
30. So far the forest cover has been analyzed on
“area parameter” only; if we analyze forest
cover in terms of productivity {0.69
cmt./ha./annum, world average 3.10
cmt./ha./annum}, growing stock, site quality,
biodiversity, almost absence of trees above
selection girth, density, regeneration, MAI, CAI,
susceptibility to biotic pressure, site quality
distribution, rapidly vanishing mesophytic
species, increasing dominance of xerophytic
species, rapidly drying forest area due to
repeated coppicing – scenario is not promising.
31. Continue…
Existing forest cover – 6,33,397 sq. km.
Target forest cover as per National Forest
Policy, 1988 –10,84,917 sq. km.
Gap in forest cover – 4,51,520 sq. km.
Almost impossible to increase forest cover
except reducing diversions & effective
extension in non-forest areas. Thus FCA,
EPA enactments are the only solutions.
32. Climate Change & Forests
•Continuous monitoring of forest crop, particularly at
2035 and 2085 levels on C-Stocks..
•Increased capacity of Forests to sequester more
carbon.
•Investment in climate change sector.
•Developing “Cs & Is” for monitoring of forests.
33. Red indicates that a change in vegetation is projected at that grid in the
time-period of 2021-2050 and 2071-2100 (under A1B
scenario). Green indicates that no change in vegetation is projected
by that period.
Climate Change and Forests
Vegetational changes projected by 2021-2050 and 2071-2100
Based on computer simulation models of National Remote Sensing
Agency & ICFRE
34. PROJECTED
IMPACT OF
CLIMATE
CHANGE
ON
FORESTED
GRIDS IN INDIA
A2 SCENARIO
Source: Chaturvedi et al., 2011
39% of the forest grids likely
change under A2 scenario by
2085 causing loss of Carbon
stock and biodiversity
1 = stable grids
2=forest grids
undergoing
change
35. Biodiversity Vulnerable Grids of India (marked red)
in the A1B scenario – for India - 2035 and 2085
Climate Change and Biodiversity
Vegetational changes projected by 2021-2050 and 2071-2100
36. Assessing crop condition and crop longevity projection in
the context of Climate Change and Kyoto protocol
Lessons of Conference of Parties (COP) of Kyoto Protocol
held at Durban
India and China are placed in Non-Annex List of
Kyoto Protocol.
No legally binding GHG emission reduction can be
enforced on India. But China has developed their
“power sector” and now submitting voluntary GHG
reduction by 20% achievable by 2030.
India in under tremendous pressure to reduce GHG
emission voluntarily.
India has been provided time till 2017 to decide the
matter - wise decision to develop “power sector”
before deadline.
43. STATUS OF PROTECTED
AREAS
There are 85 NPs and 445
sanctuaries, 11 Biosphere
Reserves in the country.
Area 148532.88 sq.km
Mostly located in the Central
India & the Himalayas. Coincide
with forest cover.
Many sanctuaries located in
revenue areas only.
Potential for 750 PAs, covering
1,90,000 sq. kms.
45. BIODIVERSITY SECTOR
With over 45,000 plant species and 81,000 animal
species, India is one of the world's 12 mega-biodiversity
centers.
The ethos of conservation is ingrained in India's cultural
heritage, developmental activities are increasingly
threatening this rich biodiversity.
Approximately 20 wildlife species are categorized as
"possibly extinct," 1,500 plant species are considered
vulnerable and endangered, and some domesticated
breeds have suffered genetic erosion.
46. Enunciate Biodiversity (Conservation) Policy.
Panchayati Raj Extension to Scheduled Areas
Act, 1996 or PESA (73rd Constitution
Amendment) is not having overriding effect on
IFA or WLPA.
Issue ‘white paper’ on this imbroglio before it
becomes too late.