New Delhi: “The government is only willing to give money, not discuss your rights,” said Deme Oram, president of the Anchalik Surakhya Committee, a group that has been seeking rehabilitation for villagers displaced by infrastructure projects in Sundargarh, a tribal-dominant district in north-western Odisha.
Oram was apprehensive about the fate of forest-dwelling communities’ land rights in the state. His concerns stemmed from a key new policy document that will fast-track land acquisition for industries in forest areas by estimating a monetary value to be paid as compensation for the land.
Internal communications reviewed by Land Conflict Watch (LCW), a website that tracks such issues, reveal that compensation claims by tribal communities for land lost to two mining projects in Sundargarh await approval from the state government.
The two projects prompted Odisha’s revenue and disaster management department to issue a circular introducing ‘comprehensive guidelines’ to compensate tribal families when forest lands they hold legal titles to are handed over to industries or development projects.
The circular, issued on 29 April 2023, set in place a mechanism to determine the monetary value of such land.
The circular alluded to a fair process to compensate tribal families for such land, but it provides guidelines on how to compensate only one set of rights—those of an individual under the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006, referred to commonly as the Forest Rights Act (FRA), to legally occupy and cultivate up to 10 acres of forest land per family, known under the law as individual forest rights (IFR).
The circular ignored the other, much larger set of rights under the FRA that entitle tribal communities to collectively manage forests for livelihood, deny consent to infrastructure projects and exercise customary rights over the land, known under the law as community forest rights (CFR) and forest resource management rights.
The FRA outlines the procedure for Adivasis or indigenous people, either as individuals or as communities, to obtain formal titles for lands and resources they have historically occupied.
Community rights include grazing, fishing, habitat rights, access to traditional resources for nomadic and pastoral communities, access to biodiversity, customary rights and the right to protect, regenerate, conserve or manage any community forest resource for sustainable use.
Tushar Dash, an independent forest rights researcher, said there was sufficient cause for alarm. “The approach of the government [in issuing this circular] is problematic,” Dash said. “They are reducing FRA to individual claims that can be managed.”
Experts were also worried that the policy would enable more forest land to be diverted for non-forest purposes, especially in light of the 4 August 2023 amendments to the Forest Conservation Act, 1980. By making it simpler to acquire forest land from individual right-holders, the government would be diluting existing protections enjoyed by land-holding tribals instead of safeguarding such rights, they said.
Odisha has been one of the leading states for FRA implementation nationwide. It was also one of the first to push for de-classifying forests after the controversial amendments to the forest conservation laws, a decision the state government was forced to quickly withdraw after a public backlash.
Tribal Ownership Of Land
Historically, the transfer of tribal land for industries (or land alienation for indigenous communities) has led to simmering land conflicts.
The FRA was enacted in 2006, to set right a “historical injustice” committed on account of not adequately recognising forest communities’ rights over their ancestral lands and habitats during pre- and post-Independence exercises to consolidate state forests.
The FRA ensured that those who have lived in the forests for generations would be given legal titles to these lands. The law also required consent from such communities for development projects that would impact them and their land. The entitlements under FRA included not just the right to use and live off the land but also a measure of self-governance rights.
Seven years later, another law, the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation and Resettlement (LARR) Act of 2013 was enacted to ensure fair compensation to private landowners and other dependent families during land acquisition.
By expressly including in its definition of ‘land-owners’ and ‘affected families’ forest-dwellers and scheduled tribes who may lose their rights over forest land in the process of land acquisition for industry or other projects, the LARR Act required that land rights held by tribals and forest dwellers be treated in the same way.
Additionally, the LARR Act allowed forest-dwelling tribes to be recognised as land owners regardless of the stage at which their FRA claims may be.
This entitled tribals to the right to prior public consultation, fair compensation and resettlement. Section 42 of the LARR also requires compensation to every villager, proportionate to compensation awarded, upon loss of community rights due to acquisition.
However, no method for calculating this amount has been prescribed by the union government.
The Circulars That Determine Compensation
The Odisha government has issued four significant circulars dealing with compensation for tribal-occupied lands. In May 2013, a few months before the enforcement of the LARR Act, the Odisha administration issued a circular stating that recognized FRA-rights holders should be compensated when such land is acquired.
Two additional circulars, issued in February 2020 and May 2022, laid down the groundwork for what would become the pivotal circular of April 2023.
The May 2022 circular laid down several key steps— joint enquiry by land acquisition officers, district officials and representatives of the forest department—to determine the value of residential structures, along with calculating compensation according to LARR Act provisions. It said rehabilitation and resettlement processes were to be carried out in accordance with both, the LARR Act and state laws.
According to the April 2023 circular, the Sundargarh collector had requested for ‘comprehensive guidelines’ on this compensation, and the revenue department therefore issued this policy prescribing the procedure to be followed by all.
Internal documents of the revenue department reviewed by LCW revealed that the query from the Sundargarh collector arose from 50 pending claims for compensation from FRA title holders on forest land that was under acquisition for two mining projects.
Protections Missing In Streamlined Procedure
While the LARR Act of 2013 relies on consent, the April circular ignored most of the protections extended by the law. The law protects landowners (as per section 3(r)(ii)), affected families (section 3(c)(iii)-(iv)), and interested persons (section 3x(ii)), and all three categories include forest-dwelling tribes, regardless of whether their rights have been recognised under the FRA or their claims are pending.
Excluding one or the other category from the policy would lead to communities losing an entire bouquet of rights guaranteed under the LARR Act. The Odisha circular only mentioned tribals under the narrow definition of ‘affected families’ in section 3(c)(iii), or tribals who are set to lose land that they were granted legal rights over.
Furthermore, determining fair compensation to be paid to tribal communities for forest lands is a complex problem. While private landowners may be compensated using the market value, this method is inadequate for forested territories.
Forestlands have always been owned and managed by the government (and tribal communities). When transferred to other government departments or industries, it is diverted under forest conservation laws, not land acquisition laws. The market value of land, however, is determined by factors such as the previous highest transaction in recent years. As such, forestlands, not having seen any such commercial transaction, would have a negligible market value.
While the circular prescribes the market value to be determined by looking at similar adjoining areas, it is unclear if the Odisha government has a prescribed value for forest lands to begin with.
In the past, the Union and state governments have tried to dilute the protections ensured by the Act. The LARR Act requires affected families to be given the opportunity to file objections and for their consent to be obtained in writing for private projects. However, according to rules notified by the Union government in August 2014, this entitlement was changed to pertain only to landowners, not ‘affected families’.
The LARR Act also requires a public hearing be held for all affected families during a social impact assessment (SIA) study. The study helps assess the impact on the livelihood of affected families and landowners, with prior consultation with local gram sabhas.
The Union government has tried to do away with the SIA study in multiple cases, including for industrial projects with private-public partnerships. This was done using an ordinance in 2015 that lapsed after six months without becoming law.
In March this year, the Odisha government introduced a bill to do the same—do away with the SIA requirement for infrastructure projects, health infrastructure and government offices, among others.
The bill was withdrawn after protests in March 2023 but some reports indicated that it may be promulgated as an ordinance. Odisha, however, is not the first to try and amend the 2013 land acquisition law. Telangana, Gujarat, Maharashtra, Jharkhand and Andhra Pradesh have already passed amendments to fast-track projects and do away with the SIA.
One Step Forward, Two Steps Back
Six months after the issuance of the circular, implementation remained lacking.
Rajendra Naik, a member of Jan Shakti Vikash Parishad (JSVP), a local rights-based collective, and a resident of Ratansara, a revenue village in Sundargarh district, said claims for compensation made by IFR title holders of land under acquisition for one of the mining projects were pending, but mining has already begun.
“The law states that forest rights must be settled first,” said Naik. “We have approached the administration so many times.”
Article 14 contacted Sundargarh district’s collector to ask about the compensation claims filed by IFR title-holders. He was, however, unavailable despite multiple phone calls and emails.
Officials said land acquisition for this coal block was complete, but Naik and other activists contested this.
Naik said a large number of tribals were excluded from the process of resettlement mandated by the April 2023 circular. Under the state Rehabilitation and Resettlement Policy, families owning homestead or agricultural land are eligible to be rehabilitated once displaced.
Non-rehabilitation of tribals dependent on the forest could lead to a complete loss of livelihood, said Naresh Meher, a tribal and a member of the JSVP.
“You are completely dependent on the jungle,” Meher said, of forest-dwelling communities that cultivate forest land, or collect tendu leaves and other minor forest produce, generating an income for about six months of the year. “Without the forest, where will tribals go?”
Some individuals from Meher’s village received IFR titles recently as the Odisha government fast-tracked the process before elections in June 2024, but though Meher’s village, Ratansara, applied for community forest rights back in 2011-12, the claims recognition process remained incomplete.
Noted activist Prafulla Samantara echoed Meher’s concerns.
“Everyday, we are fighting for FRA implementation,” said Samantara. “But coal mines are given to companies in auctions without any consultation, without any settlement of FRA (claims).” He said the government kept acquiring land on which CFR titles were given, but people were not even informed of these proposals.
Without Prior Consent Or Consultation
Samantara was a part of the public consultation process for a mining project in the district back in 2017, where he highlighted the lack of transparency in the process. Before any piece of land is acquired, prior consent from the local gram sabha is mandatory. However, for mining projects such as the one he opposed in 2017, issues such as non-issuance of prior notice to the gram panchayat persist.
Samantara was abducted in August before a press conference against bauxite mining in the state. “No laws are being followed, no consultation is being done,” he said.
Avaya Kumar Nayak, the special secretary to the Odisha government’s revenue department, however, stressed that the consent provisions remain mandatory.
“It is mandatory for officials to ask for consent from gram sabhas in land acquisition. So we have not gone into the question of consent to further confuse them,” says Nayak.
According to Nayak, the April 2023 circular was issued due to “confusion about how to calculate the compensation of such lands”.
Missing from this discussion, however, was that tribal rights are not the subject of the revenue department. The nodal agency for tribal rights, the Scheduled Tribes and Scheduled Castes development, minorities & backward classes welfare department, said they were not consulted before the circular was issued.
Officials from the welfare department called it an internal government matter, saying that the issue would be addressed by the department.
Y Giri Rao, director of tribal rights non-profit Vasundhara, said that the April circular was confusing and needed more clarity. He said the issuance of the circular may itself be questioned.
“Since a majority of the state has Fifth Schedule districts, consultation with the nodal agency is necessary,” said Rao. “Without consultation with the tribal advisory council or any discussion at the State Level Monitoring Committee, issuing such a circular would lead to various provisions of the law being violated.”
Land Alienation, Despite Forest Rights
When it comes to forest rights, IFR title holders only comprise one segment of possible right-holders. Revenue officials did not include Community Forest Rights in the purview of the April 2023 circular. Nayak said that the revenue department does not have any formula to use to determine the value of CFR land.
“In the case of CFR acquisition, there will be loss to the community, alienation of land, and many such factors,” said Nayak. “The officers on the ground should be able to calculate using a simple formula but we have not been able to come up with one just yet.”
Meanwhile, the state government declared that it would saturate the rights granting process by 2024. However, several land conflicts from the Land Conflict Watch database suggest that tribal communities are plagued by the non-recognition of CFR rights.
Communities without CFR recognition often face the threat of eviction and loss of land and livelihood options, as seen with the conflicts in Odisha involving the Rengali Dam project in Deoghar, plantations in Nayagarh, and mining in Khandahar Hills in Sundargarh. Common reasons for protests include the potential loss of livelihood, the threat of displacement or eviction, or opposition to the environmental damage by projects.
Odisha is not the only state that sees such clashes between industries and forest-dwelling communities. Eighty-eight land conflicts across the country in the LCW database explicitly see this friction. These conflicts often see communities refusing to give up their land for projects (54% of these conflicts), or demanding to retain access to common resources (42% of these conflicts).
Without recognised rights under FRA, it is possible to bypass statutory requirements for prior consent and consultation. The state of Chhattisgarh also prominently features such conflicts, as seen with protests against Rowghat iron ore mines in Narayanpur, Parsa Coal Block in Surguja, and Baghmara gold mine in Baloda Bazar. All of these conflicts involve pending CFR claims while communities protest against large scale industrial projects.
Summing up the approach of the government, Sankar Pani, an advocate at the Odisha high court, said, “In the ideal sense, land titles under the FRA are not transferable and should not be acquired. In the practical sense, the government doesn’t recognise these rights in the first place. At the end of the day, tribals are deprived of their rights by procedural means.”
(Anmol Gupta is a lawyer working with Land Conflict Watch, an independent network of researchers studying land conflicts, climate change, and natural resource governance in India.)
Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.