‘Green’ Displacement – Analysing the Ecological and Social Costs to Compensatory Afforestation

Compensatory afforestation seeks to offset environmental loss, but often harms ecosystems by replacing diverse forests with monocultures and displacing indigenous communities. The article argues that current regulatory frameworks favour development at the expense of local rights, advocating for the recognition of traditional indigenous knowledge to foster true environmental justice. 

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Introduction

“The way we see the world shapes the way we treat it. If a mountain is a deity, not a pile of ore; if a river is one of the veins of the land, not potential irrigation water; if a forest is a sacred grove, not timber; if other species are biological kin, not resources; or if the planet is our mother, not an opportunity––then we will treat each other with greater respect. Thus is the challenge, to look at the world from a different perspective.”

The above is drawn from the statement made by David Suzuki, the author of The Sacred Balance: Rediscovering Our Place in Nature.

With an ever-increasing rise in climate change, environmental protection and stricter environmental regulation is necessitated. Development is seen as a concept in its brighter side, of being progressive and a way of balancing ecological loss with regeneration and thus it necessitates itself by cutting down massive trees and interrupting with nature. However, the darker side of it is never contemplated, where are the trees ‘compensated’, at what place, at a barren land or near ‘volatile’ shelters, how are displaced people being compensated and rehabilitated, among other issues.

These are the questions that intrigue conversations and discourses around ‘compensating’ nature and forests and this is precisely why this piece will talk about the negative impacts of redevelopment and its counter balancing measure of compensatory afforestation adopted to ‘offset’ such environmental damage, particularly on indigenous communities and the environment at large. This piece will argue that the notion of nature being an object of human use is not truly an ecological justice; rather it is draping colonial ideologies in greener terms.

The complexities with ‘Compensatory Afforestation’

In simple terms, compensatory afforestation (CA) means “licensing” deforestation in one place and “compensating” the loss by undertaking afforestation in another place. In lieu of trees being cut and forests being diverted, another place is declared as ‘forest area’ to undertake afforestation. However, the main problem is the exclusion of local and indigenous people from any decisions affecting their lands. These people are displaced from their lands where afforestation is done, just as others were displaced where the initial deforestation occurred.

The word ‘compensation’ depicts a certain complexity. We usually use it while discussing Contracts law; that when one party has suffered breach done by another, the latter has to ‘compensate’ the former in the form of damages so that they can be put in the ‘same or similar position’ as if the ‘breach hasn’t happened’. The words like ‘compensation’, ‘same or similar position’, ‘breach hasn’t happened’ suggests a kind of reversibility of harm being done. However, in the context of environmental compliance, though it may appear to have the same logic, the reality is even more damaging, often leaving the affected communities and ecosystems in a worse state than before. The way it is being ‘compensated’ is that even though they might be able to plant some trees or vegetation in such lands, despite fierce resistance (if at all there is!), what comes up is monoculture plantations, instead of rich, diverse ecosystem that existed earlier, and creating ecological simulations. How can it be called a ‘compensation’ when it is not even fair?

In India, to mitigate environmental problems, the Forest (Conservation) Act, 1980 was enacted to regulate non-forest use of the land. The Supreme Court in 2001 ordered for establishing a Compensatory Afforestation Fund, and a Compensatory Afforestation Fund Management and Planning Authority (CAMPA) through its decision in the case of TN Godhavarman Thirumulpad v. Union of India (W.P. (Civil) No. 202 of 1995), ordering the creation of the Compensatory Afforestation Fund. This means that when forest land is used for developmental projects, industries are required to identify an area of non-forest land for afforestation. This case also defined the meaning of the term ‘forest’ according to its dictionary meaning. Therefore, every forest came under the purview of the Act. It is mandatory under the Forest (Conservation) Act, 1980, that an equivalent area of land be used for compensatory afforestation. The funds for compensatory afforestation are taken up by the industries, although the responsibility falls on the state or the union government as well. Also, a two-stage-clearance process was required by the Ministry of Environment, Forest and Climate Change (MoEFCC) to give approval of the same. In 2006, through Government of India (Allocation of Business) Rules, 1961,  the Tribal Affairs Ministry (MoTA) was allotted the rights of forests. This was followed by the Scheduled Tribes and Other Traditional Forest (Recognition of Forest Rights) Act in 2006, which required the MoTA approval for forest clearance. In the Forest Rights Act, 2006, the right to manage forests and its related area was given to local and indigenous people. But eventually different rules and amendments to the Act limited local people’s rights on forests to ensure that permission is granted smoothly to industries.

The recent Forest Conservation Rules of 2023 has created some loopholes in the rules pertaining to compensatory afforestation. Under these rules, the forest clearance process has been simplified for big corporate companies by implementing efficient methods and eradicating the elements that were hampering the process. This has in turn provided a major advantage to companies. Even though they are required to undertake compensatory afforestation, but a major problem is that commitments are not being met and are unregulated. There is also a problem of underutilisation of funds specified under CAMPA. Under Rule 11(d) of the said act, if forests are being cleared in a particular state, then compensatory afforestation can be carried out in some other state. This provision might be helpful in those cases where the land is not suitable for afforestation. However, this concept of offsetting forests can lead to significant impact on local biodiversity and climate, and their natural habitat as well.

The main problem is that indigenous people are not involved in the decision-making process. There are numerous examples where such developmental projects are undertaken at the cost of local and indigenous people’s rights. One such example is the hydropower project in the Dibang Valley of Arunachal Pradesh for which around 270,000 trees have been wiped out of the region, affecting the indigenous Idu Mishmi community. Another example comes from Delhi NCR where the huge effects of flood in Yamuna River have now turned to a common occurrence. Though the causes of it can be political, a deeper issue remains to address are the lands, the vegetation, and the people whose source of income is derived from those lands. It has been reported that there has been construction done at the Yamuna floodplains in the form of bridges and roads, and some areas in the floodplain region have also been marked to undertake compensatory afforestation. Around 1.5 hectares has been given by the Delhi Development Authority (DDA) to the Forest Department for compensatory afforestation. Another instance is where the Land and Development Office, Ministry of Housing and Urban Affairs has given 700 acres to the Delhi Metro Rail Corporation (DMRC) for compensatory afforestation. Planting trees in a floodplain, which is a sensitive region, is not the best strategy as rivers also need some space so that the settlements cannot be submerged. This occurrence is not just common to Delhi. In Orissa, 2,600 acres of land has been converted to a “land bank” for compensatory afforestation. In fact, the Forest Department had also written earlier to DDA stating that there is an “acute need for land for compensatory afforestation and plantation, and transplantation, which often hinders the progress of important projects of national importance”. This shows their express intention of giving precedence to development over land protection.

Hence, no solutions are developed for the legal right holders of these lands. There are no consultations or discussions that take place with these communities. What is really needed for their protection is to recognise the legal rights of the local people of their lands.  

International law framework on protection of Indigenous Knowledge

The fact that many countries pursue such offsetting strategies reflects a deep, structural problem within the enforceability of Rights of Nature. The problem of compensatory afforestation is just one of the larger structural problems. The Rights of Nature movement has been seen as anti-anthropocentric by granting legal personhood to natural entities. The legal personality rule aims to grant environmental personhood to rivers, forests and the like, to be capable of holding their own separate legal rights. This right was first accorded by Ecuador in 2008, and then by Bolivia in 2010.

Under the United Nations Declaration on the Rights of Indigenous Peoples, the right to self-determination and the need for a free, prior consent becomes significant for protection of indigenous communities rights. Article 31 specifically affirms the indigenous rights to control, protect, and develop their traditional knowledge and cultural heritage. This further perpetuates the idea of separate legal personality in furtherance of the Rights of Nature. It has been followed by countries like Uganda by becoming the first African nation to give separate personality to nature, and in India, when Uttarakhand High Court declared rivers Ganga and Yamuna as legal persons; though its implementation was stayed by the Supreme Court.

Moreover, Article 8(j) of the Convention on Biological Diversity states that practices of indigenous and local communities must be preserved and maintained, and such practices should be further encouraged and applied for the conservation and sustainable use of biological diversity. Under this, traditional knowledge has been defined to cover practices of indigenous and local communities developed from generations of their experience.

In the Intellectual Property (IP) domain, in 2024 the World Intellectual Property Organization (WIPO) in the ‘Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge’ has granted IP protection to traditional knowledge of indigenous communities. It mandates patent applicants to disclose the origin of genetic resources and associated knowledge, to prevent erroneous, non-novel patents.

These are some developed/developing international frameworks on protection of environment and indigenous knowledge. Though some initiatives are being taken in this regard, the concept of Rights of Nature is still at its nascent stage under international law.

Conclusion and way forward

One of the ways to deal with this is to give recognition to the traditional knowledge and experience of the indigenous communities. A key characteristic is the kind of interaction between indigenous people and the environment. The field of indigenous economics deals precisely with this; the fundamental principle of such relation being of “balance and reciprocity” and “holistic wellbeing”. This indigenous economics is different from mainstream economics as mainstream economics “is absent of any sense of responsibility, any spiritual content, any loyalty, any feeling for other species.” The indigenous people have a sense of relationship with the species, they observe their “semiotic interpretation of their environment” and perceive them as similar to human beings. In modern commercial sense, inventions are patented to earn royalties. But indigenous people do not seek any monetary payment, so-called royalties or any legal protection for their traditional knowledge. They simply want the freedom to effectively live with the environment, for they believe in knowledge sharing rather than exclusive ownership.

It is usually the stance that traditional knowledge is not considered as mainstream knowledge because they are not ‘documented’. However, they are oral traditions that have been passed from generations, and it has its own characteristics and ways of approaching environmental problems. Therefore, what is required is recognition of traditional knowledge and experience of the indigenous communities, which have survived for generations, and which will continue to survive and hold value for the upcoming generations as well.

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By Jayanti Dhingra

Jayanti Dhingra is a fourth year law student at O.P. Jindal Global University.

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