Learnings from the Peoples’ Tribunal - II: The Forest Dwellers’ Rights Act and the incomplete Regional Plan Process

At the conclusion of the Peoples’ Tribunal on the Restoration of Adivasi Homelands in Goa, the jury indicated to members of the press, that finalising the Draft RP 2021 without settling the rights of tribal communities under the Forest Dwellers’ Rights Act would seriously imperil the RP Process, leaving it open to legal challenge.

The Forest Rights Act gains the kind of centrality that the jury of the Peoples’ Tribunal attributes to it by virtue of Section 13 of the Act which indicates that “the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. The Act operates therefore, as an addition to any law already in force and with an impact on the intended beneficiaries of the Act. For a process such as the RP process which claims to have the interests of the people and their sustainable development at heart, the inclusion of the process of the Forest Rights Act is central for reasons of the aims and objectives of the Act.

The Act intends to right and remedy the wrongs, the ‘historical injustice(s)’ that have been done to the tribal and forest-dwelling communities in India, where their rights on land have not been recorded. The Act aims to “address the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to state development interventions”.

These are significant aims, and one that the State Government ought to take into consideration if it is serious about the Regional Plan process. It is a fact that the centrality of this particular legislation was pointed out to the State Government, while the process for the Regional Plan was still on. However, rather than act on the responsibilities laid out before it, the State Government has initiated some half-baked process only for those communities that live within the ambit of the officially designated forest areas of the State. In doing so, the State government (and Forest Department) has continued a long tradition of working to undermine tribal and forest-dwelling community interests. The Act is applicable to all Scheduled Tribe persons, and communities reliant on forest resources in the State. The faster the Government sets about realizing the objectives of the Act, the faster Goa would move toward sustainable development. This means pushing large chunks of the people back from the impoverishment they are being pushed toward.

Very interestingly, the Forest Rights Act envisages a system similar to the 73^rd amendment process that many activists have been proposing for the RP process. It requires a gram sabha to identify the usages of the community and this is eventually confirmed at the District Level. The process at the gram sabha is in fact the process that has been skipped all these past centuries and was referred to in the previous column written by me; the documenting of the various rights and traditional livelihood practices that have hitherto not been recognized by various land settlement and land tenurial systems.

What is most interesting however is that the Forest Rights Act actually stands to radically recognize the rights of not just Tribal groups but ALL Forest resource reliant communities in Goa. While the Act is defined as the Forest-Dweller’s Rights Act, the Act addresses itself to two communities; those who have been identified as Scheduled Tribes and “Other traditional forest dweller” that is to say, “any member or community who has for at least three generations prior to the 13^th day of December, 2005 primarily resided in and who depends on the forest or forests land for bona fide livelihood needs”. Read the latter definition closely and you realize that not just the Scheduled Tribes in Goa, but other communities as well, who have been reliant, and continue to be reliant on forest resources stand to benefit from this Act.

An example of communities would be the Scheduled Tribe groups and other dalit-bahujan Catholic groups who live along the spine of the Taleigao-Bambolim plateau, as well as those who live around the Kadamba plateau. These are groups that have been and will be most impacted by the urbanization of the landscape, as we carve the plateaus into homesteads for the rich and famous. These are groups that have relied on either the cashew and mango plantations on the hills, or continue to collect firewood to fuel their kitchen hearths (and bathing water), and graze the cattle that provide some additional income to the family kitty. None of these areas have been forests for quite some time, and yet this is not to say that these groups are not crucially dependent on the natural resources that they have tended to, or are reliant on for their livelihood needs. In fact the ‘rural’ nature of these locations is being systematically destroyed to create the ‘urban’ environment which not only endangers the livelihood options of these communities, but also places them, both socially and legally outside of the context within which they are imagined.

A careful reading of the Forests Rights Act however, would allow us to create a legal and processual framework through which the rights of these communities can also be addressed and justice served to them. The act defines “forest land” to be “land of any description falling within any forest area and includes unclassified forests, undemarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National parks;”. Further, the Act also indicates the rights that need to be protected. These include the right for self-cultivation for livelihood, the right to fish, and graze livestock and “rights in or over disputed lands under any nomenclature in any State where claims are disputed”. This final clause is interesting, since it seems to hold in it the seed for the creation of rights in properties from where these marginal groups have been illegally evicted.

The Forest Rights Act is a landmark legislation that seeks to redress the wrongs that have been visited on marginalized social groups throughout our history, both prior to Western colonization and even before this. The Regional Plan process too claims to have the good of the Goan people at heart. If such is the case, it is inconceivable that the Regional Plan process can be completed without the completion of the settlement of rights of communities reliant on forest-resources. It would also be worthwhile, if the details of the Forest Dwellers’ Rights Act, and possible beneficial interpretations are converted into the vernacular languages and appropriate scripts of the State and disseminated post-haste among the intended beneficiaries of the Act.

(Published in the Gomantak Times 24 June 2009)

Learnings from the Peoples’ Tribunal: Common Property, Communidades, Temples and Churches

A critique leveled against this column last week, when it entered into the debate on the ‘Political Economy of the Church’ was that it ignored the issue of the lands and properties controlled by the temple committees in the State. It was pointed out, that the temple committee’s in the State are like the Church, also custodians of vast properties, that are effectively held privately, under the ridiculous proposition that they are private temples, and hence in that sense family properties.

To respond to this issue, we need to address a fundamental myth about communal institutions in Goa, be they the Communidades or the Temple Trusts in the State. Since perspective, or the position from which we understand the issue, is also important, let us adopt the perspective of those who are edged out of the whole equation, be it Communidade or Temple; the tribal communities of Goa.

In the course of the recently held Peoples’ Tribunal for the Restoration of Tribal Homelands, the institution of the Communidade emerged as a major location of conflict with regard to the livelihood rights of the tribal groups of Goa. In a large number of cases before the tribunal, it turned out that despite have Portuguese-era documents that attested to their rights in the land, the names of tribals in possession of, and husbanding properties, were not present in the Survey Records dating from the 1960s (that is under the Indian dispensation). In some cases, illiteracy has resulted in some people having no documents at all to prove their presence on the land. The result is that they are by and large unable to avail of any government service related to the land, since they have to get a No Objection Certificate (NOC) from the Communidade office. The Communidade in most places (both New Conquests and Old Conquests, and the majority of the stories came from the New Conquests) is run by dominant caste groups, who either dissuade them from pursuing the matter, or tell them to buzz off. In any case, the Communidade officials do not cooperate with the tribals to establish the fact that they have in fact been tenants of the Communidade, and are thus entitled to the rights that come with such a fact. As a result, when these Communidade lands are sold by the Communidade or acquired by the State, the tribal communities who are either wholly or substantially dependent on land have no stake in the process or benefit from the sale.

The case of temple properties is somewhat similar. The temples are claimed as family temples by a handful of upper-caste groups and vast properties cornered by these groups, while the tribals, to whom the deity originally belonged and who tend the properties of the temple, are reduced to persons who are merely tolerated. Once more rights are denied in pretty much the same way as in the case of the Communidades.

How did this situation come to be? The situation it should be noted is universal. In almost every society that makes a transition – through colonialism – to a capitalist society with written rules, the less resourceful groups get pushed out. They get pushed out because the colonizer does not speak with them to ascertain their rights in the whole process. It is the dominant group that represents the working of the social system and the rights of various groups. In this process, they either outrightly exclude marginal groups, or underplay the rights that they had in the working of the system.

In Goa thus far we have been treated to the myth that the communidades are composed of gãocars who are members of the ‘founding families’ of the village. This story should hold as much water in today’s world as the idea of ‘old families’. All families are as old as the other, what we mean when we say ‘old family’ is that the family has been powerful for a long time. Similarly ‘founding families’ are those clans/ caste groups who were dominant in the village at the time. The rest of the village groups, were subservient to these dominant groups, but definitely not without traditional rights. It was these rights that got excluded at the time of the framing of the Foral of Afonso Mexia in the early 1500’s and formed the basis of the Communidade system.

Much later in time, the Portuguese realised the need to regulate the Temples and formulated the Lei de Mazanias. Once more, upper caste groups were able to take control of the process and through relying on the already established myth of ‘founding families’, and the fact that they were literate and able to manipulate records, argue that the temples (and their properties) were family temples.

The release from Portuguese rule should have ideally led to a release from the mistakes of the Portuguese (feudal) past into the socialistic future we were promised. However this was not to be. As mentioned above, the Survey of the 1960’s has in fact made life even more difficult for Goa’s tribal groups, since their Portuguese era land documents, held valid under the Portuguese are no longer recognized by judicial authorities. Even worse, the possibly liberative recognition by the Portuguese State embodied in the Code of the Communidades, that the village lands were not owned by the State, but were the property of the village, was not recognized by the Indian State. Liberation from the point of view of the Goan tribal then, has yet to come.

What is the solution to this problem? Tribal activists argue that the answer lies in the recognition of their right of private property over the lands that they were tenants to, or rely on. My personal position stems from a recognition of the situation that in fact existed prior to the Portuguese arrival, a system that was de facto in place over large parts of Goa, until the capitalist expansion began hardly 3 decades ago. There can be no private ownership of land. Land does not exist to be owned. Land is the property of the village in which every member of the village (gãocar or not) has an equal right to benefit from. Land unused by a family, returns to the village pool, to be re-allotted elsewhere. This is not a utopian system, it exists in the North-east protected under the very same Special Status provisions of the Indian Constitution that are desired by some for Goa.

This argument is NOT an argument against private property. It is an argument in favour of a tendency toward equal access to land, and against the notion of ownership of land, while respecting the right to occupy land. It is also an argument that privileges democratic control over resources (like land) that are already seen as common property.

To return to the issue of the Church and property, we must recognize that the contemporary Church has taken some steps toward democratizing the operation of local Churches, and access to its resources. Caste based confraternities and fabricas have been done away with, at least on paper, and the operation of the local Church opened up to all caste groups. What is required now is to push for these on-paper-reforms to be equitably enforced (without animosity to formerly dominant caste-groups). This is an example that Goan temples riven with inter-caste disputes would do well to adopt.

Under this circumstance, it does not appear as if greater governmental control will resolve anything. What is required is for either effecting changes in governance structure to make the institution more representative of village communities. And subsequently ensure that these institutional changes don’t remain on paper. This task requires a social movement not governmental control. If anything, we know that putting our faith in the government will result in more sale of common property for dubious ‘public purpose’ schemes.

(Published in the Gomantak Times 17th June 2009)

Fight the Good Fight: A People’s Tribunal and an activist’s Epiphany

On numerous occasions well-meaning friends have come up to me asking me why I have railed, raved and ranted against some of the positions of the GBA. ‘They are trying so hard’ they’d say, ‘why not give them a little credit’. In a wonderfully self-reflexive and honest column in the Herald yesterday, Venita Coelho laid out what exactly was my (and others’) gripe with the positions that the GBA and associated groups and individuals had been taking for a long time, “It was all about land and land use – and not about people and the reality of their lives at all”. Welcome to my world Venita, we are now on the same page!

For another healthy slice of the reality of people’s lives, I would have recommended attendance at the Peoples’ Tribunal held on the “Restoration of Adivasi Homelands in Goa” organized by the Gawda Kunbi Velip and Dhangar Federation (GAKUVED). Over the two days at the end of the last month, close to 60 tribal persons from Goa presented their woes before a jury, indicating the wide number of problems they faced, none of which have been even remotely touched by the Regional Plan 2021 process.

The sorry fate of the tribals of Goa is primarily because of the invisibilisation that they have been subjected to. Goa is constructed both internally and externally by discourses that would see Goa as either Dourada (Indo-European) or Indica (Brahmanical). The originary myth of the first is that of the creation through contact with the Iberian west, the originary myth of the second is of creation through the peaceful extension of the land by brahmanical settlers. Both myths have a basis in fact and both have done much to deprive the tribal population of the rights of dignified existence. As a result of the operation of these two frameworks, the woes of the tribals have as yet never been articulated systematically, and the Tribunal was probably the first time such a systematic articulation was achieved. For this reason alone, the Tribunal was a momentous occasion.

It became clear, in the course of the Tribunal that there were at least three categories of problems that the Goan tribals face. The first emerged from among those who lived on the fringes of Goa’s forests. Like tribals in the rest of India, their interaction with the Forest Department officials is far from ideal. They are harassed by the operation of the Forest Department, their rights not settled and very often are illegally assaulted and interrogated by Forest department officials. The space of the Communidade emerged as the second arena of problems faced by the Goan tribal. All too often their names are not recorded in the Government’s land survey records as the tenant. This is despite their being present on, and tending to the land for at least two generations, and very often also having Portuguese-era documents to prove their title. Somehow, subsequent to the ‘Liberation’ their presence on the land, and their rights on it, were cleanly erased. As a result today, they are unable to claim Government benefits and schemes, unable to extend their homes, get electricity or water and are made to beg for permissions, not from the Government offices, but from the Communidades. The third category of cases is the threat of mining. Many of the tribals who are educated are first generation learners. Their primary skills lies in tending the land. this they have done for generations now. The extension of mining leases threatens to destroy their homesteads (and livelihood bases) either through appropriation for mining, through the illegal dumping of mining rejects in their fields and forests, or through the destruction of the fresh water aquifers that quench not only their thirst but all of Goa. Listening to this last category of problems, the audience realized with a shock that the large sightings of wild-life in Goa, and the large number of reports of crop destruction or at least straying into villages, was the result of the aggressive extension by industry into the forest areas. As is normally the case however, rather than deal with industry, it is the tribal who gets caught by the Governmental machinery.

In the context of the Regional Plan, it also became clear that there was wild confusion as to what was the status of their proposals. Would proposals in the light of recent information be accepted? Further, it became clear that there was no uniform system that was followed with regard to the articulation of the village plan. Interestingly some villages in Sattari that were in opposition to the Eco-I status of lands in their village had this decision taken in the chamber of their Legislator in Porvorim. Interesting!

On another front, one that would have been hilarious if it weren’t so tragic, it appears that most developmental schemes formulated by the Government have compounded rather than relived the condition of the tribals. One case in point was that of the Bandharas, that dam water in the rivers, but instead of proving any use, make impossible the traditional cultivation of the river bed. When Venita therefore realizes that planning is about people and their problems, and listening closely to what the facts on the ground, as articulated by the people say, she has hit the nail squarely on the head.

Both Venita and the representatives at the Peoples’ Tribunal would have agreed on one fact. That a mere gram sabha deciding the Village Plan is not enough. What is necessary is an honest collation of the factual conditions in the village, and the building of claims and decisions on the basis of those conditions. What was very clear through the representations however, and through the dossier submitted prior to the Tribunal, was that what was required was first a recognition of their land rights (rather than solely that of the landlords) and secondly a system for consultation with the tribal groups in villages across the State.

The next couple of columns will identify a few issues that emerged in the course of this Peoples’ Tribunal and deal with them at some length.

Before concluding however, we must recognise that Venita’s epiphany, and the Peoples’ Tribunal were made possible primarily because both the GBA and GAKUVED looked outside of Goa for inspiration. This is not to say that Goa is lacking of ideas, but that they have hit on a very vital ingredient for successful social mobilization; networking. All too often Goan struggles have refused to take lesson from similar struggles in other parts of India. The tragedy of the Regional Plan process is exactly this. Rather than looking across our borders for communities that have already invented the wheel, we attempted to invent it ourselves. In the process, we have failed to draw strength from across our borders. But, as Venita’s realization, and the Peoples’ Tribunal indicate, it is not yet too late and there is much that can still be salvaged.

One last point. It should be seen as part of a divine plan that the GBA consultation that Venita benefited from and the Peoples’ Tribunal occurred at around the same time. If networking and listening to the voices of the people are the lessons that we are being asked to learn, then surely, the renewed process towards a Regional Plan must see a networking between these two groups?

(Published in the Gomantak Times 3rd June 2009)