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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 71
June 7 , 2008

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Law Reform

Conservative Forest Act cannot conserve forests

S Rizwana Hasan

It is claimed that Bangladesh has a total of 2.52 hectors of land (17.08% of the total land area) under forest although the actual forest cover is only 8-9%. There is a policy commitment that forest shall be raised to 20% within 2010. According to various reports of the Forest Department (FD), the reasons behind degradation of forest include unlawful encroachment, illicit trade in forest-produce, incompatible use of forest-land, lack of conservation initiatives to protect unique species- flora and fauna, increased salinity, lack of accountability of the forest officials, absence of people's involvement in forest management and so on.

The public forests of Bangladesh are largely managed by the provisions of the Forest Act, 1927 and also the Wild life Preservation Order, 1973 (that has no provision on people's participation). The ever-deteriorating state of the forests of Bangladesh clearly suggests the ineffectiveness of the existing laws, institutions and approaches in protecting the precious forest eco-system. The laws are outdated, colonial in approach and lack appreciation for progressive and dynamic management concepts. The consequences have been obvious- more and more forest lands are being denuded, systematic alienation of the historical custodians of the forests taking place and the forest administration emerging in a draconian role with their anti-forest and hence anti-people policies and practices. The nation has seen how the 21,000 acres of the reserve and protected forest of Chokoria Sunderbans disappeared in promoting shrimp cultivation. We are also concerned about how the FD is promoting and defending the plantation of foreign species in our primary forest lands.

Revenue Target of the FD
The Forest Act of 1927 succeeded the Acts of 1865 and 1878. The 1927 Act was enacted to regulate the transit of forest-produce and the duty leviable on timber and other forest-produce. Hence since the time of enactment, protection was not the underlying notion, rather it is revenue generation that till today remains the very objective of the law and the administration. While the Forest Act as it stands today does not define 'conservation' and 'biodiversity', the administration has a revenue target of taka 100 crore per year!

Traditional Rights vs. Adverse Claims
Terming the 'traditional forest rights' as 'adverse claims' and calling the forest dwellers as 'ignorant people', the statement on Objectives and Reasons of the 1927 law amply demonstrate the colonial attitude of keeping people away from forest management. Although the country gained 'double independence', such attitude has not changed over ages! This is obvious from the following contradictory statement of the Forest Policy, 1994 that at one hand, wants to alleviate poverty through increased people's participation in forest management, on the other hand, terms forest dwellers as encroachers:

A large number of tribal people live around a few forest zones. Since the ownership of land under their disposal is not determined, they grab the forest land at will. They will be imparted ownership of certain amount of land through the forest settlement process. The rest of the forest land will be brought under permanent protection.

Does the government realize that such statement of the Policy reflects its apathy and miserable failure in settling the land rights of the forest dwellers?

Community Participation under the 1927 Act
However, despite the attitudinal problem in the 1927 Act that forest officials of independent Bangladesh is yet to overcome, the law has some strengths that could help in achieving the commitments of the Forest Policy, 1994 provided necessary amendments were incorporated to define protection, conservation, community, forest rights, forest dwellers, role of communities in forest management and of course to redefine the objectives and role of the forest department from 'revenue earners' to 'service providers'. Even some existing provisions of the 1927 law can be used to protect community rights over forests (Ss. 4-18, 29) and effectively involve communities in forest management (S. 28). Section 28 empowers the government to give out its powers over reserve forests to village communities for managing the same which shall then be called 'village forests'. The section also requires the government to draft rules on 'village forests' that would provide communities with timber, other forest produce or right to pasture. This section 28 places the notion of 'village forest' quite high as it says that in case a rule on such forest management is contrary to the provisions of reserve forest, the rules shall prevail.

The government has categorically failed to frame rules on village forest and not a single forest has been notified as such in the last 81 years of the law being in force.

Participation and Governance in Social Forestry
On the other hand, the Act was amended in 1927 to incorporate provision on Social Forestry that creates limited scope for people to participate and certainly does not put the participants on a higher stand to better negotiate, let alone creating a level playing field as village forest perhaps could have done. Such models of participation may have their own successes, but the same in no way improves forest governance by making it more accountable to the people. In fact allegations of undue sharing of benefit in some social forestry areas are not unknown.

Defining and Settling Forest Rights
Again although the Act of 1927 empowers the government to declare and manage forests as reserve or protected, no such declaration can be finalized unless the nature and extent of the rights of private persons are settled. In a large number of cases, the government has failed to settle the claims of traditional forest dwellers over forest land and has thus not succeeded in giving final declaration. The Modhupur Sal Forest is a classic example where 43, 039.04 acres of forest still await such declaration as the Forest Settlement Officer could not settle the claims. Contrarily, the forest dwellers are being constantly harassed as encroachers and for other alleged forest offences. In a recent move by the government to bring back confidence of the forest dwellers in the forest administration, the number of forest cases has been brought down from 7,252 to 150 in a span of one year and a half. This not only shows the extent of misuse of power by the forest officers against the forest dwellers, but also indicates to the very fact that 'policing' of the forest department is not at all solving the management crisis in the forestry sector.

Way Forward
We perhaps need to think differently like the other South Asian countries that are aiming to better management of forest and resolve conflicts over forest rights. While India has moved forward to define forest rights and also to prohibit non-forest use of forest land, Nepal has been very innovative in engaging the community that now manages 1. 2 million hectors of forest (25% of the total forest) as community forest (CF) with involvement of 1.6 million households (35% of the population).

Forest Rights vs. Conservation
In India, a law called the Forest Rights Act, 2006 has been passed unanimously by the Indian Parliament that in unambiguous terms admit that forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forest during the colonial period as well as independent India and that such denial of rights have resulted in 'historical injustice' to the forest dwellers who are integral to the very survival and sustainability of the forest eco-system. This law defines forest rights to include rights to hold land in the forest land under individual or common occupation for habitation or self-cultivation (maximum up to four hectors), to own, collect, dispose of minor forest products, to access to water bodies, fish and other aquatic resources, to be rehabilitated if evicted illegally and so on. These rights are heritable though not transferable and of course come with responsibilities to protect the wildlife, forest and biodiversity. Under the law, the Gram Shaba initiates the process of determining the rights which are to be examined by a Sub-divisional Level Committee and sent to the District Level Committee for final decision.

To ensure that the law actually delivers justice to the forest dwellers, the Rules of 2007 framed under the law has relaxed the requirement of producing land ownership documents (that traditional forest dwellers hardly have) and has proposed to accept public document, ID card, voters list, statements of elders, eviction notices and so on as evidence of possession of land.

This Act has been challenged before two fora of the Indian judiciary- on one petition, 10 groups (mostly wildlife conservationists) claim that it arbitrarily includes a range of communities that are not necessarily forest dwellers or tribes, that the involvement of the local level institutions to determine claims make them judge of their own case and that it undermines the other conservation laws. While the Indian Supreme Court has issued a show cause notice upon the government, in another case the Kerala High Court has given interim stay order against operation of the law in the reserve forests in allocating land right.

It is expected that the Indian judiciary shall be mindful of the sanction that people's representatives have attached to the law in addressing a long standing issue of justice.

Community Participation makes Governance Transparent
In Nepal, the government was thoughtful enough to introduce the concept of CF that basically keeps the right over forest land to the forest department, but virtually entrusts people with the management. Under section 30 of the Forest Act of Nepal, 1993 forest suitable for handing over as community forest to the user groups shall not be handed over as leasehold forest.

The Community Forest User Groups (CFUGs) are entitled to develop, conserve, use and manage forests assigned to them as CF and also to sell and distribute the forest products independently fixing their prices. They are required to prepare an operational plan and get the same approved by the forest department who then performs a monitoring role. The CFUG is empowered to impose penalty on its members and recover damages caused for violating the operational plan. The CFUG is empowered to spend money for other public benefits after making disbursements for the development of the community forest.

Over the years the dynamics added to the CF program of Nepal are contributing to achieving at least two objectives- fulfilling the subsistence needs of forest products and encouraging income generation even by obtaining loan from financial institutions giving forest products as collateral.

It was said that if the 1990 deforestation rate of Nepal (10.6%) would have prevailed, Nepal would loose its entire forest cover by 2006. The CF model of forest management has not only brought down this deforestation rate to 1.7%, but also in empowering people and bridging the gap between the forest officials and the local people.

With the World Environment Day, 2008 being observed with the slogan of Kick the Habit! Towards a Low Carbon Economy, it is high time that we act to protect our carbon sinks against the deadly threats of climate change and move to update our forest laws and policies to include and empower people, alleviate poverty and sustain development.

Let us debate all the options that are tested and have proved positive!

The writer is Director of Bangladesh Environmental Lawyers Association (BELA).


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