MAC: Mines and Communities

The Weekend Essay: Manufacturing Consent in India

Published by MAC on 2019-05-19
Source: Capitalism Nature Socialism (2019-04-02)

Mining, Bureaucratic Sabotage and the Forest Rights Act

This article, written by Indian researchers Chitrangada Choudhury and Aniket Aga, originally appeared in the magazine Capitalism Nature Socialism in April 2018, and came online a year later on 2 April 2019.

The authors, in their own words, trace "...how substantive decision-making power over extractive projects is denied to India’s indigenous and forest-dwelling communities, even as they have clinched rights to ownership and consent under the landmark Forest Rights Act of 2006".

They proceed to "examin[e] the consent mechanism provided under the act" and "...contend that the possibilities, and limits of such mechanisms are shaped by the larger architecture of the state-bureaucratic apparatus and practices that govern the process of transferring forests (“forest diversion” in bureaucratese) from rural communities to corporations.

"By analyzing a case of a forest diversion proposal for an iron ore mine in India’s resource-rich state of Odisha, we argue that consent provisions are derailed by 'bureaucratic sabotage' - the power of corporations and state officials to control and manipulate the movement and circulation of  documents through different tiers of government.

"In conclusion, we offer some thoughts on the weaknesses of the FPIC [Free, Prior and Informed Consent] mechanism and the possible ways to address some of these. However, ultimately, the larger implication of such sabotage is the headlong collision between FPIC provisions and the principle of eminent domain".

"For FPIC to be meaningful, in India and globally, this fundamental contradiction must be confronted and resolved in favor of resource justice".

[Editorial note: Profuse apologies are due to the authors for any failures in formatting this essay. Several references and figures have also been ommitted from the original document - one that readers can obtain by contacting MAC]

 

Manufacturing Consent: Mining, Bureaucratic Sabotage and the Forest Rights Act in India

Chitrangada Choudhury & Aniket Aga

Capitalism Nature Socialism

Origionally published in September in April 2018

This version available online on 2 April 2019.

Introduction

In the past decades, hydrocarbon- and mineral-rich geographies the world over have been witnessing two conflicting developments. On the one hand, corporations, aided by governments championing neoliberal development, are acquiring and extracting resources, sparking grassroots conflicts across expanding frontiers. On the other, laws and regulations governing transfers of land, forests and other natural resources from communities to industry are slowly incorporating consultation, and in rare cases, consent mechanisms
(Kirsch 2014; Cariño 2005; Leifsen et al. 2017).(1)

Such concessions have been forced by protests from affected communities and advocacy groups demanding resource justice, and also by global policymaking agendas of indigenous rights, participatory development and good governance, emphasized in codes like the International Labour Organisation Convention No. 169, the United Nations Declaration on the Rights of Indigenous Peoples, and the World Bank Environmental & Social Framework 2016. The principle of free, prior, informed consent (FPIC), i.e. in brief, obtaining the meaningful participation and uncoerced approval of  communities impacted in a range of ways by extractive projects – from outright displacement to loss of habitats, livelihoods and cultural resources – is a key plank of such regulatory changes.

Indeed, FPIC has become the standard against which policy regimes are measured.

Indigenous communities and activists view FPIC as a tool of self-determination with which to arrest the long-running and violent expropriation of their lands, resources, knowledges and cultures (Cariño 2005). Yet, given the debilitating power asymmetry between industry and local communities, and  the deep resistance by governments and corporations to cede power to communities over decisions where enormous profits are at stake, consultation  and consent mechanisms have served to proscribe participation, and to depoliticize substantial conflicts of interest and disagreements (Perreault 2015; see also Leifsen et al. 2017; Li 2009).

In fact, texts such as the International Financial Corporation’s Equator Principles limit FPIC to a risk management strategy, which coheres well with neoliberal development paradigms and the interests of extractive capital.

Such a reading undermines questions of selfdetermination and collective welfare, and eventually legitimizes resource transfer (Bustamante 2015;  Fontana and Grugel 2016). The net effect remains that community opposition notwithstanding, even when explicitly and vociferously expressed through consultation and consent mechanisms, projects bulldoze ahead.

The crux of the problem lies in the paradox that impacted groups lack power over decision-making, even when they have clinched rights to consultation and consent, drawing on notions of ownership. Whereas “participation” and “consent” signal the capacity to meaningfully intervene in, and even veto proposed extractive projects (Kirsch 2014; Schilling-Vacaflor 2017), this is precisely the decision-making power wrested away from affected groups.

In this paper we examine the FPIC mechanism provided under India’s landmark Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (hereafter, the Forest Rights Act). While “communities” are not a homogenous monolith, in our context the term is useful for the purpose of sketching the dynamics of violent dispossession of forest-dwelling peoples to elucidate how decision-making power is snatched from those with rights to ownership and consent. We contend that the possibilities and limits of consent mechanisms are shaped by the larger architecture of state bureaucratic apparatus and practices, which govern the process of transferring forests from rural communities to corporations, known in India’s official parlance as “forest diversion.” In other words, what happens before, alongside, after, and even irrespective of consent proceedings is as germane to contests over resource extraction as the dynamics of participatory meetings (Dunlap 2017; Li 2009).

We argue that bureaucratic procedures and documentation diffuse and dilute the power of affected groups to shape the terms on which they award or withhold consent for forest diversion. In brief, consent provisions are derailed by bureaucratic sabotage i.e. the power of corporations and state officials to control, and manipulate the movement and circulation of documents across different tiers of government. Thus, official diversion procedures and documents create the veneer of participation and consent, while denying substantive power to affected communities.

The paper begins with a brief overview of the Forest Rights Act and the legal and political terrain in which it sought to intervene. The next section sketches bureaucratic procedures for forest diversion, and looks into how an unprecedented consent principle was introduced in 2009, stemming from the FRA. We show that fundamental conflicts of interest over forest resources were bureaucratized in the process of resolving the corporate demand for forests with new rights to communities under the FRA. We elaborate such conflicts by analyzing a case of bureaucratic sabotage of FPIC to service clearance for a proposed iron ore mine in seven forested villages of the mineral-rich eastern Indian state of Odisha, inhabited by Adivasi (indigenous)
communities.(2)

We demonstrate how the bureaucratic architecture for forest diversion renders the consent provision and, more broadly, the FRA itself, vulnerable to sabotage by the state-capital nexus. We conclude the paper by reflecting on how the diversion process might be modified to address the sabotage that has come to characterize India’s FPIC procedures. However, the larger implication of such sabotage, we argue, is the headlong conflict between FPIC and eminent domain, which must be confronted and addressed, in India and globally.

Contested geographies and the Forest Rights Act of 2006

About 23 percent of India’s geographical area is designated as forest; an estimated 200 million people live in such areas (Sarin and Springate-Baginsky 2010). For such communities, their customary habitations, the tending of forests, and dependence on their produce was precarious since forests were enclosed, first by the colonial and then the post-colonial state, for timber production and commercial exploitation (Guha 1989; Sarin 2014). The colonial era Indian Forest Act of 1865, and later the Indian Forest Act of 1927, had empowered the state, via a cadre of forest bureaucracy including members of the Imperial Forest Service, to act as the legal custodian of all forests (Bijoy 2017).

The law systematically excluded forest communities and criminalized their customary ties to forests (Gadgil and Guha 1992), resulting in over 150 rebellions from forest communities (Sarin 2014).


In independent India, laws and policies such as the National Forest Policy of 1952 and the Forest Conservation Act (FCA) of 1980 further underscored the powers of the forest bureaucracy, now including the elite, nation-wide Indian Forest Service cadre. These regulations cast forests as a national asset while focusing on their economic exploitation for industry and urban markets. Although the Forest Conservation Act was pushed by the then-Prime Minister Indira Gandhi with the hope of protecting forests from large-scale destruction for agriculture, commerce and industry (Ramesh 2017), its procedures were directed toward the legal conversion of forests for non-forest use (Kohli and Menon 2014).

As we subsequently outline, decision-making processes surrounding these forest diversions were an exclusively bureaucratic exercise, with no formal space for public participation. More damagingly, these processes afforded no voice to communities which stood to be adversely impacted, even displaced, by forest diversions.

As the Indian economy started to liberalize in the mid-1980s, successive state and federal governments, pursuing corporate capital, emphasized the “ease of doing business.” This lodged the forest bureaucracy at the center of key decisions carrying enormous financial stakes for corporate capital, and generated immense rent-seeking opportunities (Shah Commission of Inquiry 2013). The saga of clashes between local communities – often poor, marginalized and non-literate Adivasis – and state authorities backing corporations intensified, frequently entailing brutal violence against the former (Bhatia 2005; Ramnath 2008; Choudhury 2009, 2013; Dungdung 2013).

Programs of participatory and joint forest management initiated around the 1990s also failed to address the systematic violence and injustice (Sundar, Jeffery, and Thin 2001). For instance, the Campaign for Survival & Dignity, a network of over 150 groups working with forest communities in ten states, estimated that over 300,000 people were evicted by forest officials and rendered homeless between 2002 and 2004 (Bijoy 2017). Such  evictions provided the immediate context in the early 2000s for nationwide mobilizations to demand resource and ownership rights for local forest  communities, and for the subsequent drafting of a forest rights bill aimed at securing such rights. For example, Pradip Prabhu (2005), an activist  working with forest communities in western India and a key figure in such efforts, wrote, “[d]enying Adivasis, who have preserved the forest for generations, their forest rights have reduced them to India’s poorest, [most] marginalized communities, condemned to starvation, malnutrition and  death.”

Unsurprisingly, when the Forest Rights Act (FRA) was proposed, the forest bureaucracy perceived it as an attack on its wide-ranging powers. At its behest, the Environment Ministry opposed the act tooth and nail.(3) Nevertheless, advocacy for the FRA achieved legislative traction on account of the dual power centers and ideological tensions within the Congress Party-led United Progressive Alliance (UPA) coalition government,comprising, among others, the Communist Party of India (Marxist). The Congress Party has historically accommodated a range of political ideologies (Kothari 1970). While the overall thrust of the UPA government, under Prime Minister Manmohan Singh, was decidedly neoliberal [4], the authority and influence of the Congress President, Sonia Gandhi pushed for several landmark social justice programs and legislations [5].

When the Parliament eventually, and unanimously, passed the Forest Rights Act in December 2006, the UPA showcased the law as a landmark pro-poor legislation, which would address the insecurity of forest-dwelling communities. By giving them individual and community titles, the FRA aimed to formally recognize long-standing tenurial and access rights. As Kumar and Kerr (2012, 768) write, “From being considered criminals and encroachers in 2002, they were statutorily elevated to the status of victims of historical injustice, to be compensated through the recognition of their rights.”

The bureaucratic architecture of forest diversion

Given the FRA’s origins in proposals to end violent evictions of forest-dwelling communities by forest officers, the federal Ministry of Tribal Affairs was made the nodal ministry for the law. However, as a geographical, legal and bureaucratic entity, “forests” remained under the jurisdiction of the Environment Ministry, the nodal ministry for the Forest Conservation Act of 1980.

Restricting ourselves to forest diversions, we wish to highlight two key aspects of the FRA that sought to reorder the relationship between the state and forest-dwelling communities. First, responding to the demand to end insecurity of tenure and livelihood, the act provided for the recognition of a broad range of rights, including ownership rights in the form of titles. It acknowledged such rights as being inherent and pre-existing, and included  the Environment Ministry - referred today as the federal Ministry of Environment, Forests and Climate Change, and is the parent body of the forest  bureaucracy. Restricting ourselves to forest diversions, we wish to highlight two key aspects of the FRA that sought to reorder the relationship between the state and forest-dwelling communities.

First, responding to the demand to end insecurity of tenure and livelihood, the act provided for the recognition of a broad range of rights, including ownership rights in the form of titles. It acknowledged such rights as being inherent and pre-existing, and included individual, community and habitat rights over forests. Second, the FRA empowered the “gram sabha,” an assembly of all adults of the village, to carry out tasks under the law, from the mapping and recognition of rights, to protection, conservation and management of community forest resources. In its emphasis on the gram sabha as a locus of decentralized decisionmaking, the FRA built on the 73rd Constitutional Amendment of 1993 [6] and prior legislation such as the Panchayats (Extension to Scheduled Areas) Act of 1996 (Dandekar and Choudhury 2010). These had laid out a framework for local self-governance by formally institutionalizing the gram sabha and elected village councils called gram panchayats (Aiyar 2002).

The FRA thus recognized the rights of forest communities, and represented a significant downward shift of power over forested landscapes, away from bureaucracies at the district, state and federal levels and elected politicians, to gram sabhas[7]. As activist Madhu Sarin (2005, 2133) argued, “…the bill vests authority in the gram sabha…to ensure transparency and accountability and to protect the non-literate from the tyranny of paper work and
bureaucratic procedures.” Given the forest bureaucracy was complicit in the historical injustice the FRA intended to address, and in light of the Environment Ministry’s sustained opposition to its passage, advocates were particularly concerned about insulating the vesting of forest rights from the
corrosive influence of forest departments, and state bureaucracies more generally.

Yet, bureaucratic mediation was inevitable, as the Tribal Affairs Ministry’s attempts at implementing the FRA stepped onto the Environment Ministry’s
jealously-guarded turf. As activists well recognized, across forest landscapes, the FRA’s far-reaching provisions were bound to collide with entrenched
forest bureaucracies, institutional legacies of forest and environmental governance, and the considerable interests of mining and other industries  benefitting from lucrative forest diversions (Prabhu 2005). The forest bureaucracy’s recalcitrance has strong implications for the practical life of the legislation and its provisions, which envisage devolving decision-making powers from the state to local communities. In particular, it has triggered a running controversy over forest diversions.

The Forest Rights Act and the introduction of consent

Under Section 6 of the FRA the role of district and state-level bureaucrats was restricted to the functioning of the Sub-Divisional Level Committee and the District Level Committee, tasked with supporting gram sabhas with the logistics of vesting rights, and resolving complaints against gram sabha resolutions and disputes between gram sabhas...District revenue officers headed by the District Collector, the state government’s environment and  forests department would craft a diversion proposal.

The state government would then submit it for approval to the Environment Ministry. Here, forest bureaucrats would review the proposal and place it before an advisory body called the Forest Advisory Committee (FAC). Constituted by the ministry and comprising officials, and experts from outside the government, the FAC would review forest diversion proposals and offer recommendations to the Environment Ministry, that would then make the final decision.

Thus, from conception to final outcome the forest diversion decision-making process circulated across multiple sites in corporate, district, state and federal government offices, formally bypassing affected forest communities as well as any public participation.

The Forest Rights Act came into effect on January 1, 2008, in a period marked by numerous clashes between communities and industry, especially in the mineral-rich forests of eastern and central India.[8] The then-Environment Minister Jairam Ramesh received seeral complaints about how the rights of local communities were being violated and how the Environment Ministry was illegally diverting forest land to industry, bypassing the FRA (Ramesh 2015). MPs, especially from the Left parties, who were part of the coalition government, as well as civil society organizations including the Campaign for Survival & Dignity and Kalpavriksh, petitioned the Prime Minister and Ramesh on these issues. The appeals pointed out that by summarily ignoring local communities and the rights guaranteed to them, companies and authorities were violating the FRA. Drawing out the meanings implicit in various provisions of the FRA, the groups argued that communities had the power of consent with regard to extractive projects appropriating forest lands and resources.[9].


For example, in a note sent to Ramesh in July 2009[10] Kalpavriksh representatives pointed out that as per the FRA, no forest dwellers were to be  displaced until their rights had been recognized and verified. The note argued that if communities were to be granted individual and community titles or
habitat rights under the FRA, in line with their customary use of forests, it only followed that the diversion of forests had to take place with their  consent. Further, the FRA empowered gram sabhas to protect wildlife, biodiversity,and their cultural and natural heritage; the act also stated that the
gram sabha was empowered to ensure that its decisions around the protection of these are complied with. The Kalpavriksh note argued that, given projects such as mines and dams often ended up severely impacting the cultural and natural heritage of local communities, besides endangering wildlife and forests, “the implication was that the gram sabha has the powers to stop such projects and that project proponents need to get its consent” for forest diversion. In this way Kalpavriksh contended that the FRA provided a “legal tool” to communities to contest their forcible eviction.

Similarly, in a letter sent in 2009 to Prime Minister Manmohan Singh, the Campaign for Survival and Dignity argued that, “since the [FRA] seeks to  protect the traditional rights of forest dwellers, it has a direct bearing on questions of forest diversion”[11]. They pointed out that under the FRA, the gram sabha was a “statutory authority,” and therefore forestlands could not be diverted without its consent.

In addition to the above petitions, there were also representations that tried to intervene in ongoing decision-making processes around specific forest
diversion proposals. For example, over 2002–2003, the transnational mining company Vedanta had partnered with the public-sector Odisha Mining Corporation (OMC) to submit a forest diversion proposal for a vast open-cast bauxite mine in Odisha’s Niyamgiri mountains. The proposed mine had sparked sustained protests from Dongaria Kondhs, a numerically small, culturally distinct Adivasi community, whose only habitat is Niyamgiri.

In petitions to authorities, environmental activists invoked provisions of the FRA, which were meant to recognize the rights of the Dongaria Kondhs,  and which could thereby potentially stall the forest diversion [12]. In August 2009 the Environment Ministry under Ramesh responded to the escalating conflicts with a circular, issuing key changes in the forest diversion. For instance, Section 4 (2e) mandated that the free and informed consent of gram sabhas was necessary before forest dwellers could be displaced and re-settled in order to protect wildlife [13]. From then on, all forest diversion  roposals to the ministry would need to include, among other things:

(1) A letter from the state government certifying that the complete process for the identification and settlement of rights under the FRA has been carried out for the entire forest area proposed for diversion;

(2) A letter from the state government certifying that proposals for such diversion (with full details of the project and its implications, in local languages) have been placed before each concerned gram sabha;

(3) A letter from each of the concerned gram sabhas, indicating that all the formalities/processes under the FRA have been carried out, and that they have given their consent to or rejected the proposed diversion and the compensatory and ameliorative measures, if any, having understood the  purposes and details of the proposed forest diversion;

(4) A letter from the state government certifying that discussions and decisions on such proposals had taken place only when there was a minimum quorum of 50 percent in the gram sabha[14].

In hindsight, this was a landmark circular for mentioning the word “consent,” thereby inaugurating the principle in the Indian context in the acquisition of natural resources, and for acknowledging the resource rights of local communities and their role in decision-making around resource transfers [15].

Such a principle may have well been implied by various provisions of the FRA, as grassroots groups and civil society advocates argued before the government. However, until the Environment Ministry under Ramesh issued the circular, securing the consent of forest communities was not an explicit
requirement for forestlands to be transferred to industry.

Essentially, additional evidence in the form of gram sabha resolutions of affected villages, awarding or withholding consent, and letters from state governments certifying that rights under the FRA have been settled, must be part of the forest diversion application. Strikingly, the overall process of
decision making remains unchanged...Restricting ourselves to forest diversions, we wish to highlight two key aspects of the FRA that sought to reorder the relationship between the state and forest-dwelling communities. First, responding to the demand to end insecurity of tenure and livelihood, the act provided for the recognition of a broad range of rights, including ownership rights in the form of titles. It acknowledged such rights as being inherent and pre-existing, and included the requirement of recording the awarding or rejection of consent by such communities to projects that deeply impacted them, signified a move toward justice. The circular, then, could be read as a hard-won concession to agitating forest-dwelling communities, adding their voices to the diversion process, and recasting power relations in decision-making around forests, if only theoretically.

On the other hand, even in theory, the broader process of state-sanctioned appropriation of forests remained intact. For those facing eviction or dispossession, participation and consent in the real sense, i.e. the arduous process of seeking information, making sense of it, deliberating options, interrogating project proponents and state agencies, and formulating a position, were reduced and consigned to one step. This single step was
tacked onto an otherwise hostile procedure, firmly in the control of the forest bureaucracy.

Perhaps this explains why, other than mandating a 50 percent quorum and written records and certificates of gram sabha proceedings, the 2009 order
paid no attention to the substantive content of consent. Nor did it get into the practicalities of how these changes would reform a hitherto undemocratic
decision-making process, marked by deep power asymmetries. For example, there was no word in the circular on who would initiate such gram sabha
meetings. How would communities practically obtain information from project developers about the impacts of the diversion? What details were the latter obligated to disclose? Which official authority would mediate or oversee this process? What avenues were open to village communities if the
consent mechanism was vitiated or bypassed?

Moreover, the larger ideology of eminent domain, and the state’s commitment to extractive projects and foreign direct investment in the name of national development and economic growth, remained unchanged, continuing to dictate official responses to forest diversion proposals. The tenacious
hold of the forest bureaucracy over forest diversion processes is particularly apparent in the constitution and operation of the Forest Advisory Committee (FAC) – the only official body in the diversion process which includes members from outside the government. The FAC, tasked with reviewing diversion proposals and making recommendations, is chaired by a senior forest bureaucrat. It includes forest officials, non-official “experts”
from forestry and “allied disciplines,” as well as representatives from other federal ministries. The Environment Ministry constitutes the FAC, thus determining which interests get articulated and which remain unrepresented in its working. For example, the Environment Ministry mandates a soil conservation expert from the Ministry of Agriculture to serve on the FAC.

However, the concerns of Adivasi and other forest-dwelling communities, so deeply impacted by forest diversion, find no representation on the FAC16 – not even following requests from the highest levels of government. For instance, in November 2012 the Tribal Affairs Minister V. Kishore Chandra Deo wrote to the then-Environment Minister, Jayanthi Natarajan, expressing concern that her ministry continued to divert forests to projects while ignoring the FRA. As the head of the ministry overseeing the FRA, Deo pointed out that “it would be appropriate if this Ministry was represented on the Forest Advisory Committee. That may contribute to ensuring that forest rights receive adequate consideration in the decision-making process, and reduce the possibility of later disputes…”[17]. Deo’s request went unheeded.

Forests, mining and pliant subjects in Keonjhar

If the history of violent expropriation of indigenous communities in India and globally is anything to go by, the weak, under-specified consent mechanism introduced in 2009 to incorporate forest-dwellers’ voices and perspectives in decisions that are matters of life and death for them, was ripe for sabotage.

In this section we illustrate the limits of such a consent provision by analyzing a forest diversion proposal by the Odisha Mining Corporation for an iron ore mine in Odisha’s Keonjhar district.


Over 250 kilometres north of Odisha’s capital of Bhubaneshwar, in Keonjhar district’s Gandhamardan mountains, the Odisha Mining Corporation  intends to acquire 854 hectares of forests for an iron ore mine called “Gandhamardan-B.” It is a striking landscape of deciduous forests, Adivasi villages [16] As Madhu Sarin notes (2014, 115),“…the FAC has no accountability to the local people whose land and forests it is empowered to permit for diversion, and it is not required to take legally recognised rights into consideration.” [17]

Odisha is home to rich and diverse forests covering over a third of its area.[18] Several of its forested landscapes also contain some of India’s largest
deposits of ore: the state has an estimated 60 percent of the country’s bauxite, one-third of its iron ore and one-fourth of its coal. These forests are also the source of livelihood, and the cultural and natural habitat for multiple Adivasi communities, who comprise over 20 percent of the state’s population. Odisha’s Adivasis are overwhelmingly rural, and deeply marginal in the state’s polity and economy (Mohanty 2014).

This juxtaposition of mineral wealth and socio-economic marginalization of local communities has made Odisha a leading destination for global capital, which has allied with the state and dominant social groups (Kohli 2012) in the past two decades to seize resources on an unprecedented scale. Odisha is India’s most mined state then, as well as the site of numerous grassroots protest movements against mines, dams, steel and power plants, and industrial projects (Kumar 2014).

Manoranjan Mohanty (2014,39) argues that Odisha has come to represent “a crisis of democracy…that has been consolidated through the formation and expansion of a middle class that provides services to the capitalist extractive economy, while vast sections of the population, especially adivasis, dalits, and agricultural workers, remain marginalized.” Northern Odisha, where a third of India’s hematite iron ore reserves are located, provides a stark example of this crisis. Over 2005–12, Keonjhar and the adjoining district of Sundergarh saw a frenzied scramble to mine the area’s mountains and forests for iron ore, largely for lucrative exports to markets like China. This process was marked by widespread abuses against local Adivasi communities, and the crushing of a range of environmental, forest and tax laws.

The scale of illegalities eventually forced the federal Ministry of Mines to establish a judicial commission of inquiry, headed by a former Supreme Court judge, M. B. Shah. Based on its investigation from 2011–13, the “Shah Commission of Enquiry into Illegal Mining” concluded that “super normal profits” had accrued to a sliver of political and economic elites, making illegal mining the largest-ever corruption scam in Odisha’s history. As the Commission darkly noted, “There is no rule of law, but [the] law is what the mighty mining lessees decide, with the connivance of the concerned [state] department” (2013, Volume I, 51). A wildly lucrative resource grab for industry and state functionaries, juxtaposed with local communities afflicted by ecosystem loss, provides the proximate context to our empirical case, i.e. the Odisha Mining Corporation’s forest diversion proposal for an iron ore mine in Keonjhar.

In September 2015, while studying that month’s agenda of the Forest Advisory Committee (FAC),19 we came across a forest diversion proposal
submitted by the Odisha government, seeking approval to divert 854 hectares of forest across seven Adivasi villages in Keonjhar’s Gandhamardan
mountains to the Odisha Mining Corporation (OMC). OMC proposed to turn this into an iron ore mine named “Gandhamardan-B.”20 As we subsequently
learnt, the Odisha government had submitted OMC’s forest diversion proposal to the Environment Ministry in January 2015. OMC’s proposal could only have advanced to the FAC once it had been routed through the seven gram sabhas, who had awarded or withheld consent for the diversion and documented the same in resolutions.

That September, Chitrangada traveled to the seven villages, but none of them had the relevant gram sabha resolutions. The villagers, in turn, expressed surprise at our questions, saying they had not held any meetings around such a forest diversion proposal for OMC. Several of them also
expressed shock at the possibility of the existence of records falsely indicating such meetings.

We subsequently filed a Right to Information request with the Environment Ministry for a copy of the file of OMC’s proposal, which we received in December 2015. The file was a bulky collection of photocopied papers, the majority of which corresponded to submissions made mandatory by the
2009 circular. It included consent resolutions from seven gram sabha meetings, dated between November and December 2011. Each of the resolutions
was hand-written in the regional language, Odiya, and ran into three pages. Corresponding English translations were typed, each less than a page long. Each Odiya resolution was appended with a list of names of villagers alongside their thumbprints or signatures. These lists, running into several pages, represented the adult residents present at the gram sabha meetings, thus satisfying the requirement of quorum.

As we read the resolutions, one feature was impossible to miss. Though these documents represented meetings in seven different villages at seven different points in time, the content of each gram sabha resolution was exactly identical. Each resolution stated that the said village had held a gram sabha meeting about the OMC’s proposal to take over their forest [19]The website www.forestclearance.nic.in provides information about forest
diversion proposals, FAC meetings, agendas, minutes as well as the final forest diversion approvals awarded by Environment Ministry.

It is revealing that the government first publicly discloses information about a diversion proposal, that too through the limited medium of an English-language website, only when most of the decisions at the state and district level have already been made.

The villages were Urumunda, Uppar Jagara, Donla, Ambadahara, Nitigotha, Uppar Kainsari and Ichinda. The gram sabha, according to each resolution, carried out “detailed discussions” in which villagers confirmed that they “are not using the forests for cultivation, house-building or any livelihood.” The
resolutions finally recorded that “it was proposed that the villagers, especially the tribal community, would get their livelihood after the opening of the mining operations.” All the resolutions ended with “a request to the government to execute the diversion proposal in OMC’s favour.”

Subsequently, Chitrangada traveled back to these villages with these documents. As villagers went through the copies of the gram sabha resolutions, there were sharp and angry reactions in each village. Gopinath Naik, a member of the forest rights committee of Urumunda village, was flummoxed on seeing a signature in English, purported to be his, certifying the Urumunda gram sabha resolution. “I sign like this—in Oriya,” Naik said, demonstrating his signature. “I’ve never studied English in my life. How would I sign in English?” In Nitigotha village, village panchayat member Shakuntala Dehury let out a volley of abuse on reading a copy of the Odiya resolution. The young woman angrily remarked, “Please bring the haraamzaada [bastard] officer before me who has written this absurd and false resolution.” In Upara Jagara village there were murmurs of “forgery, forgery” in English as villagers milled around a copy of the resolution claiming to be their village’s.

One of them, Gobinda Munda, was shocked to see his name feature twice, with varying signatures, which he said were fake. Baidyanath Sahoo, another villager, saw his name feature on the list thrice, with a mixture of thumbprints and signatures. “They have sold me over thrice,” he remarked darkly. Going through the list of names appended to the resolution, the villagers also pointed out that over half of these were not people from their village at all. In every village, people who went through the resolution denied that such gram sabha meetings had ever taken place (for a detailed narrative, see Choudhury 2016).

Forest communities in this area, like in an estimated 15,000 villages across Odisha, practice community forest protection. For example, in Nitigotha
villagers showed us rosters that they maintained, designating five villagers to be on duty each day of the week to patrol the village’s section of forest and prevent tree-felling and timber smuggling. This made the assertions in the resolutions about villagers having no ties to the forest even more fantastic.

“We are protecting the forest. The forest nourishes us,” one villager Kaviraj Dehury said. “How would we ever sit in a gram sabha and say we have no claim to the forest and that we request the government to give it to OMC?” Ironically, while the gram sabha resolutions stated that the seven villages had no claims to the forest, we also found a certificate issued by the Keonjhar District Collector in the forest diversion file. In the certificate the Collector stated that all individual and community rights of residents in the seven villages had been settled under the FRA, and hence the forest diversion could go ahead in favor of the OMC. The contradiction between (forged) gram sabha resolutions declaring that villagers had no rights to the forest, and the district’s senior-most official certifying that all their forest rights had been settled, raised no eyebrows as the diversion proposal sailed through various tiers of the state and federal government, to finally be placed before the FAC in the national capital for approval [21].

All documents lead to consent

Two years after India’s Environment Ministry introduced the principle of settling the rights of forest communities in areas of proposed forest diversion, and taking their consent for such diversion, seven villages in Odisha’s ironrich district of Keonjhar apparently held gram sabha meetings. In these meetings they unanimously and identically declared that they had no rights to their village forests, and wanted the government to transfer them to the OMC for mining. Effectively, these copycat resolutions, meant to record the decisions of the gram sabhas, became the very means of bypassing the villages altogether.

While the FRA vested decision-making authority in the gram sabhas, the Environment Ministry diluted the act’s substantive promise of devolving power to the mere requirement of an additional paper document. Which specific office fabricated the gram sabha resolutions is not germane to our argument. And Gandhamardan’s story is hardly unique. As we outlined earlier, in a 2012 letter to the Environment Minister, the then-Tribal Affairs Minister Deo  himself pointed out that the Environment Ministry was approving forest diversions in violation of the FRA. Further, recent years have seen numerous complaints from resource-rich states, including Jharkhand, Chhattisgarh and Odisha, about forged gram sabha resolutions.

That the consent process is vitiated, and FPIC documents easily manufactured, seem to be an open secret within revenue and forest bureaucracies. As one senior forest officer wrote to Chitrangada after reading her journalistic account of the Gandhamardan case, “I have seen this many times in
many files.”


Given the forest bureaucracy’s opposition to the FRA, it is unsurprising that the law’s emphasis on addressing historical injustices against forestdwellers
has not permeated bureaucratic culture, or put brakes on contested resource transfers.[22] The FRA has had some impact: unlike earlier, now the state government needs a letter, whether authentic or forged, with signatures of at least 50 percent adult members of a village, in order to demonstrate that...it has complied with the law. However, since the overall process for forest diversion remains unchanged, such compliance gets reduced to the paper requirement of a consent resolution, and diffuses decision-making power away from project-affected communities.

Would a reassessment of the FPIC regulation and the larger diversion process mitigate this problem? First, as we indicated earlier, the skeletal 2009 order needs to flesh out the substantive content of the FPIC process. For consent to be genuinely free, prior and informed, the regulation needs to lay down clear standards of what disclosures companies and state authorities have to make. For example, in the Keonjhar resolutions, there was no mention of what information was provided to the gram sabhas about the proposed iron ore mine, and its social and ecological impacts. There is the related complexity of conveying impacts in a language that speaks to the ecological frameworks and worldviews of indigenous and forest-dwelling communities (Kirsch 2014; Leifsen et al. 2017). Moreover, the state needs to make substantial efforts to inform communities about their rights under  the FPIC order and the FRA, and to provide them with the resources and the capacity to exercise these rights.

Regarding the larger diversion process itself, it would certainly help if the FAC gathered inputs from the interested company and various government
offices, but also directly from the gram sabha, while considering diversion proposals. It would also help if the recommendations of the state government and the FAC were communicated to the gram sabha, and in the language in which it operates, for its responses. Currently, other than the gram sabha resolution, all diversion documents and proceeding records get drafted in English – a powerful ground for excluding communities. To put it in stronger terms, the gram sabha must not be inserted as a one-off actor into an otherwise unchanged process....It must instead have a substantive
role in decision-making around diversions, and it must feature at multiple stages of the decision chain. Another urgent measure, as flagged by former Minister Deo in 2012, is a reform of the FAC to incorporate Tribal Ministry officials and non-official experts who will represent the interests of Adivasi and forest-dwelling communities. In a similar vein, designating the tribal affairs departments of state governments to supervise FPIC procedures at the village level might help to create some institutional safeguards for communities to be able to exercise their rights under FRA, in the face of an often hostile forest administration.

Yet, such redesigning will only go so far to bolster the gram sabha’s authority and aid the larger project of resource justice. It will not fundamentally alter the power asymmetry between the state-capital nexus and Adivasi and forest-dwelling communities, for our case study does not merely point to
the limits of a neoliberal framework of FPIC. The forgeries that have come to characterize India’s FPIC processes shed light on a subversion which is both deeper and cruder. Even the rituals of participation that attend the watered-down, neoliberal version of FPIC are being dispensed with.

Thus, even as the 2009 circular formally gives gram sabhas FPIC powers, the bureaucratic sabotage of the consent mechanism has to be understood
by looking beyond manufactured gram sabha resolutions, at the unresolved paradox between FPIC and eminent domain, or, as we stated earlier, the
contradiction between having the right to consent without the power to make decisions.

A clear instance of where the final authority resides comes from the case of the coal-rich Hasdeo Arand forests in Odisha’s neighboring state of Chhattisgarh. Here organized villagers managed to wrest individual and community forest titles under FRA. They also embraced the statutory power of the gram sabha under FRA to repeatedly register their antimining stance in written resolutions (Gupta and Roy-Chowdhury 2017). In response, the state has withdrawn the community forest title for mining to continue unhindered – a move which villagers have had to challenge legally
(Choudhury 2019b).

This is why close to a decade after FPIC was introduced in India, what gram sabhas say matters little in the larger project of resource appropriation, and “environmental clearances are being granted as a rule,” as India’s powerful Finance Minister, Arun Jaitley declared in December 2015 while showcasing his government’s achievements (Choudhury 2016). We must then ask what it means to have FPIC when it gets shredded to bits everyday by reigning neoliberal frameworks of “one-stop access,” “ease of doing business” and “single-window clearances?” The deeper challenge that FPIC provisions confront headlong in India and globally is this contradiction between the power of community veto (or the right to say “no”) and the
power of eminent domain in the service of corporate capital and state agendas.

Conclusion

Prior to the enactment of the Forest Rights Act, forest diversion in India, namely, the state-sanctioned expropriation of forest lands, could proceed lawfully by summarily neglecting and violently evicting communities with customary ties to forests. However long and loudly communities protested, the bureaucratic procedures of diversion rendered them mute. The FRA and the 2009 regulation it triggered grant them the right to award or withhold
consent, but without the power of decision-making. The latter remains firmly within the grasp of the same forest administrative structures whose formidable power over the fates of local communities the FRA was meant to check.

As our paper demonstrates, a hitherto exclusively bureaucratic exercise has opened up to include communities, but only as pliant subjects, to ensure
diversion proceeds unhindered.

This is why seven gram sabha resolutions, identical to the last word, can travel unremarked and unquestioned from the Collector’s office in Keonjhar
district to the state capital of Odisha, to the Environment Ministry in New Delhi. This betrayal of the FPIC promise was not achieved by managing participation (Dunlap 2017) or circumscribing its terms (Schilling-Vacaflor 2017).

Rather, FPIC is undercut by the larger architecture of bureaucratic decision-making and the intact paradigm of eminent domain, to the extent that even the motions of holding a consent hearing can be done away with. Multiple studies have now highlighted the deep chasm between the practical  experiences of FPIC and its stated goals. The time has come to squarely confront and address the fundamental contradiction: FPIC provisions cannot
meaningfully co-exist alongside the enormous power of eminent domain in the service of corporate capital, which is where decision-making authority
ultimately resides. To achieve the real meaning of FPIC and reverse the long-running trajectory of resource injustice and unsustainable development,
it is imperative, then, to demand severe limits to, and robust checks on eminent domain powers.

Acknowledgments

Chitrangada carried out much of the fieldwork for this paper as a Fellow with the Open Society Foundations. She is grateful to Bipasha Ray, Stephen Hubbell and Milap Patel at the fellowship program. We are also grateful to the residents of the seven villages of Keonjhar for their generosity, insights, and efforts to protect their forests. Stuart Kirsch and Omolade Adunbi’s feedback improved our paper.

Finally,we are very grateful to the anonymous reviewers for their valuable comments. The usual disclaimers apply.

Disclosure statement

No potential conflict of interest was reported by the authors.
ORCID
Chitrangada Choudhury http://orcid.org/0000-0002-4382-2069
Aniket Aga http://orcid.org/0000-0003-1074-3441

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