Missing the Forest For the Trees

In large parts of the country, land tenure is unclear due to multiple, overlapping claims, and land that is not explicitly declared as forest are especially susceptible to land grabs.

Forest officials have been known to lathi-charge villagers and deploy bulldozers and trained elephants in order to evict them from forest lands.

Forest officials have been known to lathi-charge villagers and deploy bulldozers and trained elephants in order to evict them from forest lands. Credit: Reuters

This is the second of a two-part series on compensatory afforestation. Read the first part here

On November 8, 2017, the government ordered land banks that specifically targeted non-forest land. The order clarified that using forest land for compensatory afforestation will not suffice. It offered a wide scope for land ‘banking’ by directing that land around protected areas, wildlife corridors and catchment areas of rivers or hydro-projects should all be acquired for compensatory afforestation.

The order targets a curious anomaly in India’s forest classification: ‘non-forest land that comes under the Forest Conservation Act (FCA).’

Land that is not explicitly declared as forest, like the plot in Jhadutola, Jharkhand, is especially susceptible to such land grabs. In large parts of the country, land tenure is unclear due to multiple, overlapping claims. For example, the land that was acquired in Jhadutola is ‘village common land’ that must have been wrested from zamindars through land reforms. Till date, many such land reforms continue to be accompanied by tenurial insecurity.

Non-forest land came under the FCA as an outcome of what is infamously known as the Godavarman judgement in which the Supreme Court of India declared that any land that conforms to the dictionary definition of forest, counts as a forest for the purpose of the FCA. The Supreme Court order failed to specify which dictionary it was referring to and sent forest classification in India into utter chaos.

Schrödinger’s forests

The key difference between these non-forest forests and land earmarked for compensatory afforestation is that the land acquired for such afforestation automatically gets classified as a reserve forest or a protected forest. This means that the land acquired for compensatory afforestation is automatically brought under the control of the forest department, which is notorious for harassing villagers. Forest officials have been known to lathi-charge villagers and deploy bulldozers and trained elephants in order to evict them from forest lands.

A new definition of forests drafted last year was aimed at doing precisely the same thing. It defined forests in terms of existing tree cover, regardless of classification. At first glance, this seems like a sensible approach – if it looks like a forest, and it feels like a forest, then let’s call it a forest, right?

But in practice, it gets much more complicated. You can’t simply call anything that looks like a forest a forest because there are a host of other issues to take into consideration: to whom does a forest belong?; who lived on its land before it was declared a protected forest?; how did they earn their livelihood?; what are their rights?; did they give their consent?; how will the forest department’s ownership affect them?

These questions are crucial in understanding compensatory afforestation because the programme achieves exactly this: it proposes to make land look like forests and, on this basis, decides that it is owned by the forest department. This is not very different from going into someone’s backyard, promising to plant some fruit trees, and then calling it your forest. In most cultures, it would be called stealing.

Compensatory afforestation renders the forest/non-forest distinction meaningless. On the one hand, forest land is being clear-felled at lightning speed. while on the other, the forest department is acquiring more and more land under the ruse of compensatory afforestation.

And it’s not just ‘non-forest land under the FCA’ that stands to become forest. Any and all other types of non-forest land qualify under the scheme. Add to this last year’s ‘streamlined’ definition and soon we might be seeing a map of India’s forests that looks drastically different from what it currently is.

This will cause internecine conflict between communities and conservation projects. Communities will technically have rights under the Forest Rights Act (FRA), 2006, since the law applies to all forest lands. But in practice, it is unlikely that these rights will ever materialise. The implementation of the FRA so far has already been skewed in favour of tribal communities. In some parts of the country, special tribal gram sabhas, constituted under the FRA, even limit membership only to tribal communities. This renders non-tribal people living in such areas completely vulnerable to displacement and curtailment of rights. Under the current circumstances, it is a near impossibility that these communities will be granted rights under the FRA.

Compensatory afforestation renders the forest/non-forest distinction meaningless. Credit: Manasi Karthik

Carbon sinks

Another feature of last year’s ‘streamlined’ definition of forests was the way it defined forests according to obscure criterion of crown density, contiguity, and so on. These criteria bore curious resemblance to conditions for carbon trading. Because forests sequester carbon, they can be bought by companies that are trying to ‘offset’ the costs of their pollution. For this reason, ecosystems have now become financial derivatives that are traded on international carbon markets, much like in a stock exchange.

India has strengthened its resolve to fight climate change primarily by creating ‘carbon sinks’, i.e., forests. The erstwhile Ministry of Environment and Forestry has now been rechristened as the Ministry of Environment Forestry and Climate Change. And India has declared a target of bringing 33% of India’s land under forest cover as part of its commitments to the Paris climate agreement. Compensatory afforestation was launched to achieve this target.

This is as much a business move as an environmental one. International programmes such as REDD+ now exist to connect forests to international carbon markets. Massive cash incentives are available to developing countries under the scheme. In 2013, the World Bank offered $180 million of funding for REDD+ and by 2016, its private sector arm was launching a $152 million in bonds financing REDD+. International climate exchanges, green investment firms, carbon brokers and environmental valuation agencies now facilitate the global trade in carbon.

This is why the Indian government is so keen to increase forest cover in the country. The basic idea behind REDD+ is that developing countries should receive monetary incentives to ensure that their forests act as carbon sinks that can stall climate change. So carbon is traded on international markets by buying forests as carbon credits.

But an idea that sounded novel on paper has already generated million dollar scams in which Interpol suspects the involvement of organised crime syndicates.

These markets are yet to materialise in India, but governments in East Africa, Nigeria and Brazil have deployed military forces to push compliance with REDD+, and communities in Tanzania have been forcibly displaced from their ‘carbon sinks’. It is unlikely that Indian forest departments that are already using police force and slapping cases on villagers will hesitate to follow suit.

Unfortunately, most REDD+ projects so far have actually failed to generate the anticipated revenue for host countries. Developing countries have had to invest more money than the revenue they have received. And India is going the same way by devoting a growing fund worth $6 billion to this purpose.

In a rich man’s world

Journalists repeatedly deem state forest departments in India to be underfunded and understaffed. But this growing billion dollar corpus has been made available exclusively to forest departments via the CAMPA since 2006.

Every time investors acquire forest land, they deposit a lumpsum into the CAMPA fund. The rationale here is that companies are compensating for land they have acquired. But making these funds available to the forest department only encourages rent-seeking behavior. Committees will now be more likely to divert forest land because it presents a financial opportunity.

This money will ostensibly be put to good use by compensating for lost forests.

But so far it’s been used for buying cars, mobile phones and laptops for state forest officials. In a remarkable irony, Rs 86 lakh from the fund has been used by the forest department to defend undertaking deforestation. After 70,000 trees were felled for widening roads, a case was filed in the National Green Tribunal against the Punjab forest department. The department then saw it fit to use Rs 86 lakh from funds earmarked for afforestation to pay for legal defense of their misdeeds and even cover their travel allowance!

The draft rules pertaining to the Act now clarify that funds cannot be misused. Although it’s better that we have these rules than that we don’t, the rules themselves can only do so much to remedy the situation. Legislations always supercede their rules. Since the Compensatory Afforestation Fund (CAF) Act, 2016, fundamentally vests discretionary power over the budget with the forest department, the rules are only likely to stall blatant misuse of the funds. As long as the funds are not actually devolved to local self-governing institutions, the forest department has a wide berth to covertly misuse funds.

Devolving funds to gram sabhas under the FRA has proven to be an effective solution. In Thane, communities fought to utilise the funds to promote local varieties of bamboo. In addition to generating green cover, this also enhanced livelihoods that derive from the use of bamboo.

This is the real ‘win-win’ that can be made possible by compensatory afforestation. The Thane example demonstrates that gram sabhas under the FRA can use available funds to successfully meet the simultaneous aims of poverty alleviation and community based conservation. But gram sabhas in Thane had to rely on the sympathies of a high-minded forest official in order to have funds directed to them. Instead of making this kind of democratic devolution contingent on a lone forest officer, we should make gram sabhas under the FRA, Panchayat (Extension to Scheduled Areas) Act, 1996, and gram panchayats integral to managing these funds.

Land ‘banking’

But it’s not just the forest department that benefits financially from compensatory afforestation.

In Odisha, 2,700 hectares of land was acquired in 2011 under the parent law to the CAF Act: the Forest Conservation Act, 1980. This land was acquired for the South Korean steel giant POSCO which withdrew from the project earlier this year. The government of Odisha has since constructed a boundary wall to bring 1,700 hectares into a land bank. Over 400 villagers protesting this have been arrested. Similarly, land in Jharkhand, Chhattisgarh, Madhya Pradesh, and Rajasthan is also being banked.

The government of Odisha is now signing a Memorandum of Understanding (MoU) to hand over its land bank to JSW Steel Ltd (a subsidiary of the Jindal Steel Group) by first acquiring the land under the Industrial Development Corporation of Odisha.

So the Jindal Steel Group in Odisha is benefitting from land that has been kept off the market for six years now. A land bank or a CAMPA plantation will keep land from appreciating in value by taking it off the market. Contrary to typical free-market economic logic, this ensures that investors don’t have to pay competitive market rates when they acquire land. This effectively protects investors from paying the full costs of starting business ventures.

The term ‘land bank’ is a euphemism for what should be called a land grab. Credit: Reuters

…or land grabbing?

MoUs such as this violate the land acquisition process prescribed under the Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR). The law requires that land acquisition is undertaken only for ‘public purpose’. The landmark judgement issued by the Supreme Court in the Singur case also specified that acquiring land for private companies does not fulfil the criterion of public purpose.

The Indian government is now acting as what Michael Levien, sociologist at Johns Hopkins University, calls a ‘land-broker state’. By acquiring the land bank through a public entity, the government is aiding and abetting a private company that is violating the law.

The overt driver of these land banks is the attempt to attract private investment. But land banks are also part of the strategy for establishing CAMPA plantations. The rationale behind these land banks is that they enable investors to avoid the legal hurdles that belie land acquisition in India by making land available even before a business venture is established.

But the term ‘land bank’ is a euphemism for what should be called a land grab. Neither the CAF Act nor any other existing legal land acquisition procedure in India permits these preemptive land banks.

Land can be legally acquired for ‘public purpose’ under the Land Acquisition Rehabilitation and Resettlement Act of 2013. If it has been scientifically demonstrated that communities cannot co-exist with wildlife, it can be protected for conservation under the Forest Rights Act(2006) and Wildlife Protection Act (2006).

The practice of land banking emerged in the 1990s. But land acquisition in India is supposed to comply with the principle of ‘public purpose’. So land banking has largely been implemented via executive fiat.

For example, in 2007, the industries department of the government of Tamil Nadu released an industrial policy to bank land for a Special Economic Zone. In the above example from Odisha, the state government took advantage of a loophole provided by the Land Acquisition Act of 2013. Although the statute does not itself provide for land banks, it allows state governments implementing the law to formulate their own rules pertaining to land that is left unused once it is acquired.

Government response

A number of civil society groups have petitioned the Ministry of Environment, Forests and Climate Change asking for the order declaring land banks to be withdrawn. They have also elucidated in detail how the CAF Act fails to comply with international human rights standards and constitutionally standards. In the current session of parliament, the Ministry of Tribal Affairs has also clarified that plantations should not be allowed in areas where forest rights have been recognised.

Despite all these efforts, the ministry continues to turn a blind eye to the issue. When asked to clarify its position in parliament, ministry representatives denied receiving any petitions. They also insist that the corruption and criminality inherent in compensatory afforestation will be endorsed at the highest level by insisting that state forest departments will control the project.