Annexure
NOTE ON NEW DIRECTIONS FOR WILDLIFE LEGISLATION
(A discussion note
for the NGO group analysing the Wild Life Protection Act of 1972)
Ashish Kothari
Background
Debates within conservation circles are increasingly focusing on the relationship of local communities and wildlife conservation. These are marked especially by the increasing realisation that local community needs, rights, and knowledge systems have often been ignored in the planning and implementation of conservation programmes, and that this has created hostility towards these programmes. Also increasingly realised is that the major forces impinging on our natural habitats are commercial-industrial, as witnessed recently in the spate of denotification proposals from many states.
No-one denies that natural habitats and wildlife need to be conserved: the question is how, and by whom? The current bureaucratic and legal set-up is clearly not adequate for the purpose; nor, however, can it be assumed that local communities on their own can (or often will want to) protect these habitats and wildlife. If, therefore, conservation is an important goal for our society, we will have to consider ways in which the relative strengths of all sections, especially of local communities and government agencies and conservation groups, can be put together. Such collaboration is especially necessary to counter destructive commercial-industrial forces.
The widespread people's response to the proposed new Forest Act appears also to have brought out these thrusts, towards much greater and more meaningful participation of local communities, towards meeting the basic requirements of these communities, and towards greater curbs on industrial exploitation.
New Thrusts Needed
I would therefore urge that we look at the Wild Life (Protection) Act of 1972 (along with its amendments on 1991), from the point of view of four basic parameters:
1. How amenable it is to a central role for communities in the planning, management, and monitoring of wildlife programmes, especially protected areas like national parks and sanctuaries, and what kind of changes would be needed to make it so;
2. How amenable it is to ensuring benefits (in kind and cash) to communities
who are traditionally dependent on natural habitats and wildlife, as a
recognition of their customary rights and as a means to receiving their support
for conservation, and what kind of changes are required to further ensure this;
and
3. What kinds of checks and balances it contains to ensure that no party
who has rights and powers related to a protected area, abuses these rights and
powers, and what kinds of changes are required to ensure such checks;
4. How strong it is in counter-acting destructive activities, especially those emanating from industrial and urban demands, and what kind of changes would be required to ensure the safety of wildlife habitats and wildlife from these forces.
In the case of protected areas, we may like to consider the recommendation that we move towards forms of joint or collaborative management, in which local communities, government agencies, and independent groups/individuals get together to plan and manage an area, with the objective of meeting conservation goals as also the needs of local people.
A Word of Caution
In the current climate of economic 'liberalisation' (euphemism for free- for-all), natural habitats everywhere in India are being eyed for their wealth of resources (minerals, hydro-electricity potential, timber...). Though activists often do not realise it, the Wild Life Act has been one of the main obstacles between industrialists and these habitats (Sariska, Bhittarkanika, Silent Valley, Valley of Flowers....and many other protected areas have been the reason for the dropping of destructive 'development' projects). There is therefore intense pressure from this industrial lobby to further dilute the provisions of this Act, so that they can more easily gain entry into protected areas.
Our analysis of the Act must be sensitive to this fresh threat, so that our arguments for amendments do not play into the hands of the industrial lobby. Any changes made to ensure the legitimate rights and requirements of local communities, and their role in conserving wildlife, must be adequately balanced by provisions which make the entry of destructive forces doubly difficult.
I would therefore appeal that we do not rush headlong into a populist demand
for amending the Act (or dropping it altogether, as some activists seem to
suggest), but go about it carefully and with abundant caution.
Some
Proposed Changes
Annexed here are some tentative suggestions for changes in the Act, as put forward by legal experts Chhatrapati Singh and B.J. Krishnan. Please note that I do not necessarily endorse all these suggestions, but am only attaching them to stimulate discussion.
Ashish Kothari
Kalpavriksh - Environmental Action Group
C17/A Munirka,
New Delhi 110067
and
Indian Institute of Public Administration
I.P.
Estate, New Delhi 110002
Ph: 11-3317309; Fax: 11-3319954; Email:
akothari@unv.ernet.in
(Note: for correspondence, please use the latter address)
PROPOSED CHANGES IN WILD LIFE ACT
Suggestions by B.J. Krishnan, Save Nilgiris Campaign
(excerpted from 'Legal Implications of Joint Management of Protected Areas', paper presented at the Workshop on Joint Management of Protected Areas, September 1-3, 1994, Indian Institute of Public Administration, New Delhi).
1. Restoration of Rights To Scheduled Tribes
In a rare exception, the Wild Life Protection Act exempts the Scheduled Tribes of Nicobar Islands in the Union Territory of Andamans and Nicobar Islands, from its purview (Sec.65). But no other tribal community in India was given this right, though there are many compact tribal communities, such as the Chola Nayakans of the Wynad area in the Nilgiris, who still retain their traditional character. Such communities can be identified and listed in a schedule annexed to the Act. The exemptions given to them may exclude hunting of Schedule 1 species. Sec. 65 of the Wild Life Protection Act may be suitably amended, to provide for the new schedule.
2. Restoration of Rights of the Tribal Villages:
Tribal villages should be recognised as a
legal unit under the Wildlife Protection Act. They should
be defined under Sec. 2 of the Act as human settlements inside the
sanctuary/national park consisting of tribal people (listed in the
schedule mentioned above). Sec.27 which deals with the
restriction on entry in sanctuary/national park, should be suitably
amended, exempting tribal villages.
A new
schedule, listing out the Tribal Villages may be added to the Act by
necessary amendment. The identification of Tribal Villages and
consequent amendments may be left to the state governments.
Hunting and cultivation in the Tribal Villages
inside the sanctuary/national park may be regulated under Wildlife Protection
Rules notified by the concerned States.
3. Restoration of
Rights of Forest Villages
Forest Villages
are not a recognised legal entity in the
existing enactments. The Indian Forest Act 1927 refers to
"forests adjoining villages" but not "villages adjoining
forests". However the National Forest Policy states that
"while safeguarding the customary rights and interest of such people (tribal and
forest dwellers) forestry programmes should pay special attention to
the development of Forest Villages on par with Revenue Villages." The
term "Forest Village" should be defined as a human
settlement consisting of tribals and other forest people situated
inside the sanctuary/national park/reserved forest and included in
the definition clauses of the Wild Life Protection Act as well as
the Indian Forest Act.
The
State Governments may list out the Forest Villages and add a new
schedule in the Wild Life Protection Act. Consequently the
Forest Villages should also not come under the purview of Sec.27
(restricting entry) of the Wild Life Protection Act.
Hunting and cultivation inside the Forest
Villages can be regulated under Wildlife Protection Rules notified by State
Governments.
4. Tribal/Forest Labour Co02/22/99operatives
One of the major causes for degradation of
forest is illegal cutting and removal by contractors and their labour. The contractors should be replaced by Tribal/Forest Labour
Co-operatives. Tribal/Forest Laborers Co-operative
Societies should be formed for plantation work, harvesting, marketing
and distribution of minor forest produce. The Co- operative
Societies can take forest contract work. The minor forest
produce should be given to these societies either free or at a
nominal cost. Forest labourers and artisans should join the
Co-operative Societies and can produce baskets, agriculture implements and other
products which can be marketed by the Societies.
These Co-operative Societies can
successfully function from inside the protected areas and the
reserved forests. The Wildlife Warden can be the ex-officio president
of these societies and guide the forest
dwellers. Institutional arrangements for the marketing of
minor forest produce is very essential. State governments
can make necessary rules in this regard in their respective Wildlife
Protection Rules.
5. Employment in the
Forest Management
The Forest Department should employ at least
one male member of every tribal family of the area as a Watcher/Guard
in the protected area. The minimum qualification for appointment of
Watcher/Guard should be relaxed if necessary. These tribal
Watchers/Guards should not be transferred to other
sanctuaries/national parks. Appointment of Watchers/Guards
from tribal families from the respective area should be made
mandatory. This should be incorporated in the Wildlife
Protection Rules of the States.
6. Village Forest and Wildlife
Protection Committees
Village Forest and Wildlife Protection Committees, consisting of local communities, Forest Department officials and NGOs can be formed for Joint Protected Area Management. The working and management plan for any forest area should be finalised only after consulting these Committees. These Committees should be given appropriate legal status.
7. New Classifications of Forest and Protected Areas
It is now broadly admitted that the
present classification of forests into Reserve Forests,
Protected Forests, Village Forests, Sanctuaries and National Parks,
is inadequate in the emerging perceptions of forest
management. The Man and Biosphere programme introduced a
set of new classifications like Core Zone, Buffer Zone, Manipulative
Zone and Cultural Zone. These zones though important have
no legal sanctity. Core zones are critical for conservation, and if
necessary all human interference and activities should
be kept outside the zones. Such areas are
few. But such zones are not legally demarcated within the
protected areas. On the other hand, areas which are prone
to social conflict, and where the conflict cannot be resolved within a protected
area context, should be denotified as sanctuaries/national
parks and classified as Village Forests. Constituting
friendly "Social Zones" within the forests (both protected areas and
other forests) should be considered.
Contact: B.J. Krishnan, Save Nilgiris
Campaign, Nahar Building, Charing Cross, Ootacamund 643001.
PROPOSED CHANGES IN WILD LIFE ACT
Suggestions by Chhatrapati Singh, Centre for Environmental Law, WWF-I
(excerpted from 'Legal Policy for India's National Parks and
Sanctuaries', paper presented at the Workshop on Joint Management of Protected
Areas, September 1-3, 1994, Indian Institute of Public Administration, New
Delhi).
Background
1. Wildlife and forest are in the Concurrent List of the constitution. This implies that the States have the powers to change their policy/law concerning wild habitats or sanctuaries. The Amendment to the Wild Life Act now provides that the States can change the boundaries by passing a resolution by the State Legislature through a simple sitting majority. This has allowed various governments, such as Gujarat, Orissa and Maharashtra to denotify sanctuaries and alter their boundaries in ways which destroy the habitats of wildlife. This amendment to the Act has led to a Constitutional crisis which needs to be immediately set right if sanctuaries are to be safeguarded.
2. The settlement of rights of the local people, under section 24 (2) (c) of the Wild Life Act, has not been done in most sanctuaries as yet. This creates a major problem in determination of occupancy or resource rights of the indigenous people.
3. The conservation practice and plans are operating with various terms which
have no legal definitions, such as `Protected Areas' `Tiger
Reserves', `Biospheres', `Buffer Zones', etc. These create numerous
problems.
Legal Alternatives
A paradigm shift in legal thought is required if the interest of the sanctuaries and the local people are to be safeguarded. A number of experiences reveal that recognition of group right, whether that group is an ethnic one of a tribe, or an administrative one of a committee or a statutory one of a panchayat district or a state, does not in itself guarantee sustainability of the resources. Additional legal principles need to be invoked and implemented to attain this. As noted earlier, a balance of interests and powers seems to be the most efficacious way to attain the goals. This can be achieved in the following way:
2. Interests of the State: The basic interest of the State is to retain sovereign rights over the designated sanctuary. In the interest of the conservation of biological, diversity it is evidently not interested in the trade, transfer or use of the resources from the area.
In the light of this, the Wild Life Act needs to clearly prohibit all trade and transfer of wildlife species by the State or any of its agencies; the state needs to declare that it is holding the National Park or Sanctuary as a trustee for the people of India. With these clear provisions in the Act, the interests of the state will be safeguarded. The State is also evidently, not interested in "developing" such areas. The Law must also prohibit all development activities in these areas.
3. Interests of the Wildlife: The flora and fauna need to certainly stay in the habitat, that would be their first interest. To establish their right to reside Article 19 (1) of the constitution could be extended to apply to all living beings in the national Parks or Sanctuaries, or alternatively, the Wild Life Act could be amended to make the occupancy right of the wildlife non-alienable. The Act must also guarantee the right to resource to all living beings in such areas.
4. Interests of the people: Local people who have established occupancy/residence rights in law and are interested in staying within the parks and sanctuaries, need to be allowed to do this, with a clear understanding that there will be no development activities in such areas, such as schools, roads, electricity and other facilities or services. The Wild Life Act must clearly prohibit all development activities by the states or others in the Parks and Sanctuaries as well as in the buffer zones around such areas. The limits of the buffer zone must be clearly defined in law.
Where such bona-fide occupancy right of non- tribals or outsiders who have recently migrated into the designated area, cannot be established, or whose rights are genuine and wish to move out, the Wild Life Act must clearly state that they will be rehabilitated and compensated for displacement. The Act must make the planning and implementation of rehabilitation and compensation mandatory and also prior to the full legal recognition of an area as National Park or Sanctuary.
Contact: Chhatrapati Singh, Centre for Environment Law, World Wide Fund for Nature - India, 172-B Lodi Estate, New Delhi 110003.
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Last modified on: Tue Feb 26 20:05:28 2002