Abstract and Figures

Scholars and advocates increasingly favor rights-based approaches over traditional exclusionary policies in conservation. Yet, national and international conservation policies and programs have often led to the exclusion of forest-dependent peoples. This article proposes and tests the hypothesis that the failures of rights-based approaches in conservation can be attributed in significant measure to the political economic interest of the state in the tropics. To this end, the article presents findings from the empirical analysis of the Forest Rights Act of 2006 in India. Two key recommendations emerge from this analysis. One, the proposals for operationalizing rights-based approaches will likely be far more effective if they protect the inalienability of a minimal set of rights critical to the subsistence and well-being of forest people, as opposed to promising the protection of an expansive set of rights subject to the instrumentality of conservation. Two, the proponents of rights-based approaches in conservation need to guard against their actions reinforcing the institutional status quo of the state control of forests. This, in turn, requires international conservation groups to join hands with national forest rights movements.
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Land
Use
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31 (2013) 613–
626
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Use
Policy
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rn
al
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om
epa
g
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The
politics
of
rights-based
approaches
in
conservation
Prakash
Kashwan
Department
of
Political
Science,
University
of
Connecticut,
Storrs,
CT,
USA
a
r
t
i
c
l
e
i
n
f
o
Article
history:
Received
11
February
2012
Received
in
revised
form
9
September
2012
Accepted
15
September
2012
Keywords:
Rights-based
approaches
Property
rights
Indigenous
people
Politics
of
the
environment
Political
economy
of
conservation
Forest
rights
a
b
s
t
r
a
c
t
Scholars
and
advocates
increasingly
favor
rights-based
approaches
over
traditional
exclusionary
policies
in
conservation.
Yet,
national
and
international
conservation
policies
and
programs
have
often
led
to
the
exclusion
of
forest-dependent
peoples.
This
article
proposes
and
tests
the
hypothesis
that
the
failures
of
rights-based
approaches
in
conservation
can
be
attributed
in
significant
measure
to
the
political
economic
interest
of
the
state
in
the
tropics.
To
this
end,
the
article
presents
findings
from
the
empirical
analysis
of
the
Forest
Rights
Act
of
2006
in
India.
Two
key
recommendations
emerge
from
this
analysis.
One,
the
proposals
for
operationalizing
rights-based
approaches
will
likely
be
far
more
effective
if
they
protect
the
inalienability
of
a
minimal
set
of
rights
critical
to
the
subsistence
and
well-being
of
forest
people,
as
opposed
to
promising
the
protection
of
an
expansive
set
of
rights
subject
to
the
instrumentality
of
conservation.
Two,
the
proponents
of
rights-based
approaches
in
conservation
need
to
guard
against
their
actions
reinforcing
the
institutional
status
quo
of
the
state
control
of
forests.
This,
in
turn,
requires
international
conservation
groups
to
join
hands
with
national
forest
rights
movements.
© 2012 Elsevier Ltd. All rights reserved.
Introduction
The
era
of
forest
hinterlands
has
come
to
an
end
with
forests
attracting
unprecedented
national
and
global
attention
and
investments
(Rights
and
Resources
Initiative,
2010).
The
highly
anticipated
influx
of
international
finance
into
the
forestry
sec-
tor
adds
to
the
overwhelming
complexity
of
claims
over
forests
in
the
developing
countries
(Larson
and
Petkova,
2011).
A
number
of
emerging
challenges
to
the
interest
of
forest-dependent
groups
have
prompted
scholars
to
advocate
increased
attention
to
rights-
based
approaches
(RBAs)
in
forest
conservation
(Larson
et
al.,
2010;
Sikor
et
al.,
2010;
Sikor
and
Stahl,
2011).
At
the
same
time,
a
number
of
prominent
international
conservation
groups
have
issued
sig-
nificant
policy
statements
supporting
the
rights
of
forest
peoples
(Campese
et
al.,
2009;
Greiber
et
al.,
2009).
The
in-principle
celebration
of
forest
rights
stands
in
contrast
to
the
realities
on
the
ground,
where
ongoing
conflicts
over
forest
and
wildlife
conservation
persist
(Brockington,
2002;
Chapin,
2004;
Beymer-Farris
and
Bassett,
2012).
Indeed,
the
magnanimity
of
the
scope
of
the
rights
mentioned
in
the
proposals
for
oper-
ationalizing
the
RBAs
makes
the
failures
on
the
ground
quite
striking.
This
paper
seeks
to
build
on
the
existing
research
and
the
ongoing
debates
to
analyze
the
reasons
for
the
painfully
slow
progress
made
in
operationalizing
the
RBAs
in
conservation.
More
Correspondence
address:
365
Fairfield
Way,
U-1024,
Storrs,
CT
06269,
USA.
Tel.:
+1
860
486
7951;
fax:
+1
860
486
3347.
E-mail
address:
Prakash.kashwan@uconn.edu
important,
perhaps,
is
the
need
for
a
better
understanding
of
the
systemic
barriers
to
implementing
RBAs
across
the
forested
regions
in
developing
countries
(Cousins,
1997).
This
article
employs
a
political
economy
perspective
to
analyze
the
barriers
against
the
operationalization
of
RBAs
in
practice.
It
demonstrates
that
the
political
economic
interests
of
the
state
are
perhaps
the
most
significant
barrier
against
the
operationalization
of
RBAs.
Further,
it
is
argued
that
instead
of
promising
support
for
an
expansive
set
of
rights,
such
as
the
right
to
territorial
sovereignty,
only
to
subject
them
to
the
priorities
of
nature
conservation,
the
proposals
for
operationalizing
RBAs
would
benefit
from
accord-
ing
unconditional
protection
to
a
minimal
set
of
rights
critical
to
the
subsistence
and
well-being
of
forest-dependent
people.
By
dis-
cussing
the
case
of
the
Forest
Rights
Act
(FRA)
of
2006
in
India,
the
article
shows
that
the
goals
of
nature
conservation
and
the
rights
of
forest
people
are
likely
to
be
bolstered
when
international
con-
servation
groups
and
national
forest
rights
movements
join
hands
to
demand
greater
state
accountability.
To
these
ends,
the
article
draws
upon
scholarship
in
the
fields
of
political
economy,
political
ecology,
and
human
rights
(Nickel,
2005;
Sen,
2006;
Forsyth,
2008;
Caporaso
and
Levine,
1992).
A
number
of
important
factors
motivate
the
political
econ-
omy
approach
that
this
article
employs.
One,
governments
own
over
75
percent
of
the
world’s
forests
(Larson
et
al.,
2010),
a
fig-
ure
which
would
be
much
higher
if
one
were
to
focus
solely
on
tropical
countries
that
are
the
main
sites
of
international
nature
conservation.
Two,
the
RBAs
in
nature
conservation
must
account
for
the
competing
interests
of
actors
with
significant
differences
of
power
and
authority
in
the
domains
of
policy
formulation
and
0264-8377/$
see
front
matter ©
2012 Elsevier Ltd. All rights reserved.
http://dx.doi.org/10.1016/j.landusepol.2012.09.009
Author's personal copy
614 P.
Kashwan
/
Land
Use
Policy
31 (2013) 613–
626
implementation.
Three,
the
forested
countries
recognized
as
bio-
diversity
hotspots,
are
also
known
to
be
socio-political
hotbeds,
characterized
by
high
levels
of
poverty,
tenure
insecurity,
high
rates
of
landlessness,
and
a
long
history
of
colonial
and
post-colonial
state
repression
(Brechin
et
al.,
2002,
p.
42;
see,
also,
Rights
and
Resources
Initiative,
2010).
A
recent
compilation
of
statistics
from
a
variety
of
sources
puts
the
number
of
forest
people,
those
who
depend
primarily
and
directly
on
forests
for
their
livelihoods,
at
about
1.5
billion
(Chao,
2012).
The
salience
of
socioeconomic
and
political
factors
to
the
agenda
of
nature
conservation
makes
political
economic
analysis
an
important,
but,
an
underutilized
tool
in
this
debate
(Cousins,
1997;
Boyce,
2008).
Scholars
of
forest
rights
and
nature
conser-
vation
seem
to
agree
that
widespread
power
asymmetries
have
prevented
forest
peoples
from
realizing
their
rights
in
the
face
of
exclusionary
conservation
(see
essays
in
Sikor
and
Stahl,
2011).
Such
agreements
aside,
as
Molnar
et
al.
(2008,
p.
14)
argue,
even
after
a
decade
of
brainstorming
the
RBAs,
“(t)he
environment
and
development
communities
by
and
large
have
not
yet
adjusted
or
rethought
their
approaches”
to
address
the
apparent
conflicts
of
interests
over
nature
conservation.
This
article
leverages
the
polit-
ical
economy
perspective
to
analyze
the
barriers
against
realizing
rights
in
practice.
The
following
section
briefly
discusses
the
basic
tenets
of
the
political
economy
framework,
and
the
methods
employed
in
this
research.
Section
‘Rights-based
approaches
and
forest
conserva-
tion:
proposals
and
their
applications’
summarizes
the
conceptual
evolution
of
the
RBAs
in
conservation,
followed
by
a
brief
discus-
sion
of
the
proposals
that
international
conservation
groups
have
developed
to
operationalize
the
RBAs
in
the
developing
countries.
Section
‘Forest
and
forest
land
rights
in
India:
the
problem
and
attempted
solutions’
synthesizes
background
information
on
the
historical
and
contemporary
status
of
forest
rights
in
India,
and
Section
‘The
FRA
and
forest
responses
of
actors
concerned
with
con-
servation’
discusses
how
different
actors
related
and
responded
to
the
promulgation
of
the
Forest
Rights
Act
(FRA)
of
2006.
Building
on
the
empirical
evidence
presented
in
the
previous
sections,
Sec-
tion
‘Explaining
the
FRA’s
bumpy
ride
so
far:
a
political
economic
analysis’
analyzes
how
the
interests
and
strategies
of
prominent
conservation
actors
shaped
the
politics
of
forest
rights
in
India.
The
concluding
section
reflects
on
these
analyses
and
offers
specific
recommendations
on
bolstering
the
operationalization
of
RBAs.
Analytical
framework
and
methodological
approaches
The
political
economic
perspective
that
this
paper
employs
draws
our
attention
to
the
differences
of
interests,
endowments,
and
authority
among
key
actors,
and
how
such
differences
shape
the
distribution
of
decision
making
powers
in
the
policies
and
programs
related
to
nature
conservation
(Raik
et
al.,
2008).
In
par-
ticular,
it
focuses
on
the
state’s
control
over
natural
resources,
and
the
important
role
it
plays
in
mediating
competing
demands
for
the
resources
(see,
Caporaso
and
Levine,
1992).
The
state
is
also
the
key,
although
not
the
only,
provider
and
custodian
of
public
goods.
While
it
is
customary
to
think
of
nature
conservation
as
a
public
good,
an
equally
important
one
is
the
institutional
structure
com-
prising
the
rules,
norms,
and
conventions,
pertaining
to
say,
forest
property
rights
(see,
Brown,
2003).
Accordingly,
governments
must
take
lead
in
reforming
colonial
forest
property
rights
institutions,
which
in
turn,
is
vital
for
securing
the
legitimacy
of
forestry
laws
(Brechin
et
al.,
2002).
Institutional
reforms
are
easier
said
than
done,
partly
because
the
apparently
‘bad’
policies,
including
the
colonial
era
laws,
often
reflect
the
preferences
of
national
elites
who
benefit
from
resource
extraction
(Ascher,
1999).
This
explains,
perhaps,
why
many
post-colonial
governments
have
retained,
at
times
verbatim,
outdated
colonial
forestry
laws
(see,
Haque,
1998;
Sundar,
2011).
At
the
same
time,
inspired
by
the
catchy
thesis
of
the
‘tragedy
of
the
commons’,
national
governments
continue
to
micro-manage
natural
resources
such
as
land,
water,
and
forests
(Johnson
and
Forsyth,
2002;
Ostrom,
2010).
The
dual
role
of
the
state
as
a
guaran-
tor
of
fundamental
institutions
and
rights
on
the
one
hand,
and
an
actor
invested
in
resource
extraction
on
the
other,
institutionalizes
conflicts
of
interests
(Sundar,
2011).
Such
conflicts,
in
turn,
have
been
linked
to
the
violations
of
human
rights,
including
the
social
and
economic
rights,
of
forest
people
the
world
over
(Peluso
and
Watts,
2001;
Brockington,
2002;
Baviskar,
2005).
The
tussle
between
the
maintenance
of
state
authority
and
the
goals
of
socioeconomic
justice
intertwine
with
the
ongoing
con-
flicts
between
wildlife
conservation
and
the
rights
of
forest
peoples
(Brosius
et
al.,
2005).
As
Wilshusen
et
al.
(2002,
p.
20)
argue,
the
international
conservation
organizations’
pursuit
of
exclusionary
protected
areas
ignores
the
fact
that
protected
areas
have
been
used
as
tools
to
serve
the
various
goals
of
“territorial
control,
domination
by
rival
social/ethnic
groups,
and
advancement
of
elite
interests.”
The
extent
of
support
for
and
the
investment
in
exclusionary
conservation
strategies
alters
the
balance
of
power
between
forest-
dependent
groups
and
the
public
agencies
(Rodríguez
et
al.,
2007).
The
analytical
approach
this
article
employs
is
motivated
by
the
core
challenge
of
situating
the
concerns
of
social
justice
within
the
complex
field
of
international
support
for
nature
conservation.
The
context
of
historical
and
the
continued
marginalization
of
a
large
number
of
forest
people
is
arguably
at
center
of
the
ongoing
debates
over
the
RBAs
in
conservation
(Bawa
et
al.,
2011;
Sikor
and
Stahl,
2011).
Accordingly,
instead
of
embracing
an
‘uncritical
pluralism’,
i.e.
treating
the
stakes
of
different
actors
as
equal
and
all
positions
as
equally
valid
(Belsky,
2002),
this
article
focuses
on
the
key
actors,
specifically
the
state
as
well
as
national
and
international
non-
governmental
groups
that
promote
policies
and
programs
of
nature
conservation.
It
also
highlights
the
powers
these
actors
bring
to
bear
upon
the
agenda
and
activities
related
to
nature
conservation.
The
analyses
presented
here
are
inspired
by
Forsyth’s
(2008)
proposal
for
an
‘epistemology
of
social
justice’.1Comparing
the
endeavor
of
scholarly
inquiry
to
‘peeling
the
layers
of
an
onion’,
he
underlines
the
need
for
triangulation
of
multiple
information
sources
to
consider
the
“relationship
of
facts
and
norms”
(Forsyth,
2008,
p.
762).
The
present
article
outlines
the
essential
elements
of
normative
goals
derived
explicitly
from
the
existing
proposals
for
the
RBAs
as
discussed
in
the
following
section.
The
expectations
that
emerge
from
a
political
economy
perspective
are
triangulated
with
qualitative
and
quantitative
evidence
pertaining
to
the
politics
of
forest
rights
in
India.
Such
triangulations
inform
the
inferences
drawn
and
the
suggestions
offered
here
for
the
effective
opera-
tionalization
of
the
RBAs.
The
second
key
aspect
of
RBAs
in
conservation
relates
to
the
multi-scale
nature
of
the
problem.
Accordingly,
instead
of
a
detailed
investigation
of
outcomes
observed
either
at
the
local
or
at
the
national
level,
this
article
seeks
to
reveal
important
link-
ages
across
scales.
This
analytical
approach
has
implications
for
how
cross-sectional
variation
at
sub-national
level
is
understood.
For
instance,
while
past
studies
have
analyzed
variation
in
organi-
zational
attributes
of
forest
departments
across
different
states
in
India
(Kumar
and
Kant,
2005),
little
variation
exists
vis-à-vis
forest
property
rights
and
the
conflicts
they
engender
(Dreze,
2005;
Asher
and
Agarwal,
2007).
As
Section
‘Forest
and
forest
land
rights
in
India:
the
problem
and
attempted
solutions’
outlines,
the
state
for-
est
departments
have
faithfully
followed
the
forest
property
rights
1The
author
is
thankful
to
an
anonymous
reviewer
from
this
journal
for
suggest-
ing
this
citation.
Author's personal copy
P.
Kashwan
/
Land
Use
Policy
31 (2013) 613–
626 615
related
policy
prescriptions
that
the
federal
Ministry
of
Environ-
ment
and
Forests
(henceforth,
the
ministry)
has
issued.
Similarly,
no
perceptible
differences
are
visible
in
the
manner
in
which
forest
departments
have
responded
to
the
broader
policy
and
program-
matic
implications
of
the
FRA
(NCFRA,
2010;
Kumar
and
Kerr,
2012).
The
political
economy
perspective
outlined
in
this
article
is
most
relevant
to
the
forested
regions
of
peninsular
India,
includ-
ing
the
states
of
Gujarat,
Rajasthan,
Madhya
Pradesh,
Chhatisgarh,
Orissa,
Jharkhand,
Maharashtra,
and
Andhra
Pradesh
with
signifi-
cant
Adivasi2populations
(literally,
aboriginals;
henceforth,
forest
people).
These
states
share
the
socioeconomic
and
political
con-
text
that
characterizes
the
socio-political
hotbeds
in
other
forested
regions
of
the
world
(Sunderlin
et
al.,
2008,
p.
24).
Accordingly,
situ-
ating
the
forest
rights
politics
in
the
context
of
India’s
forest
peoples
makes
the
findings
of
this
article
applicable
to
forested
regions
in
other
developing
countries.
This
article
builds
on
a
long-term
research
project
on
the
pol-
itics
of
forest
management
and
forest
rights
in
India,
beginning
the
summer
of
2006
and
comprising
research
visits
in
the
states
of
Maharashtra,
Gujarat,
Rajasthan,
and
Madhya
Pradesh.
The
most
intensive
and
extended
segment
of
field
research
was
conducted
in
2009.
The
majority
of
the
yearlong
field
work
was
in
Gujarat,
which
involved
collecting
quantitative
and
qualitative
data
pertaining
to
the
formulation
and
implementation
of
the
FRA,
including
inter-
views
with
the
key
state
and
district
level
forest
officials,
NGO
representatives,
activists,
and
community
members
cited
in
the
article
(see,
Kashwan,
2011
for
details
of
the
larger
project).
In
addition,
the
author
also
interviewed
activists,
scholars,
and
pol-
icymakers
in
the
national
capital
New
Delhi
and
the
state
capital
Ahmedabad.
Given
the
contested
nature
of
the
questions
of
forest
rights
and
forest
conservation,
the
interviews
do
not
always
yield
the
most
pertinent
information.
To
overcome
these
limitations,
this
research
also
draws
upon
an
exhaustive
review
of
newspaper
arti-
cles,
government
circulars,
and
the
reports
produced
by
civil
society
groups
including
the
‘National
Committee
on
the
Forest
Rights
Act’
(NCFRA)
appointed
jointly
by
the
ministries
of
the
environment
and
forests,
and
the
tribal
affairs.
The
insights
put
together
from
the
primary
and
secondary
sources
are
juxtaposed
to
the
available
evidence
on
the
forest
rights
claims
made
in
the
major
forested
states
in
the
country.
Rights-based
approaches
and
forest
conservation:
proposals
and
their
applications
Principles
of
RBAs
in
conservation
The
early
discussions
of
RBAs
in
forest
and
nature
conser-
vation
conceptualized
the
devolution
of
rights
to
individuals
or
community
groups
as
an
instrument
meant
to
serve
the
goals
of
mitigating
forest
degradation
or
wildlife
poaching
(Johnson
and
Forsyth,
2002).
Research
on
forestry
decentralization
shows
that
national
governments
pledged
the
devolution
of
a
variety
of
forest
rights
entitlements,
but
they
failed
repeatedly
and
consistently
in
upholding
these
rights
in
practice
(Tacconi,
2007;
Ribot
and
Larson,
2011;
Rights
and
Resources
Initiative,
2012).
These
failures
con-
tributed
to
the
frequent
violations
of
forest
rights
in
conservation
projects
the
world
over
(Brockington,
2002;
Chapin,
2004).
The
recurrent
forest
tenure
conflicts
prompted
scholars
and
activists
to
demand
that
secured
forest
property
rights
be
made
an
integral
2Adivasis,
India’s
aboriginal
peoples
are
divided
into
more
than
600
distinct
groups.
They
constitute
over
84.3
million
or
8.2
percent
of
India’s
population,
and
roughly
a
quarter
of
the
estimated
total
population
of
indigenous
people
worldwide
(Bijoy,
2008).
Adivasis
are
often
referred
to
as
“tribals”,
or
as
“Scheduled
Tribes”
in
the
official
parlance
in
India.
component
of
the
RBAs
(Campese
et
al.,
2009;
Greiber
et
al.,
2009;
MacKay,
2011).
By
bringing
together
a
diversity
of
voices
on
the
RBAs
in
forestry
and
conservation
Sikor
and
Stahl
(2011)
outline
an
expansive
and
inclusive
forest
rights
agenda.
Instead
of
justifying
forest
people’s
rights
on
the
basis
of
their
presumed
stewardship
of
forests,
or,
in
the
name
of
poverty
alleviation,
they
advocate
the
recognition
of
forest
rights
on
the
basis
of
historical
and
political
grounds
(Sikor
and
Stahl,
2011;
see
also,
Colchester
et
al.,
2008).
They
engage
with
the
grassroots
movements
demanding
forest
tenure
redistribution,
indigenous
peoples’
rights
to
self-determination,
and
the
inter-
national
human
rights
advocacy
(Sikor
and
Stahl,
2011;
see
also,
Colchester
et
al.,
2008).
The
policy
statements
on
the
RBAs
that
international
conserva-
tion
organizations
have
put
forth
also
restate
the
ambitious
rights
agenda
articulated
by
indigenous
rights
advocates
(Colchester
et
al.,
2008).
For
instance,
the
World
Wide
Fund
for
Nature
(WWF)
sup-
ports
the
indigenous
peoples’
rights
to
“the
lands,
territories,
and
resources
that
they
have
traditionally
owned
or
otherwise
occu-
pied
or
used”
(WWF
International,
2008,
p.
2;
see
also,
Campese
et
al.,
2009).
Similarly,
Greiber
et
al.
(2009,
p.
13)
list
over
a
dozen
major
rights
including
the
right
to
property,
the
right
to
ade-
quate
standards
of
living,
and
even
the
right
to
self-determination,
which
these
authors
regard
as
“controversial”.
Given
the
long
his-
tory
of
exclusionary
conservation
in
the
tropics,
the
acceptance
of
the
rights
of
forest
people
amounts
to
a
significant
change.
The
following
subsection
reviews
some
of
the
key
proposals
for
the
operationalization
of
RBAs
by
international
conservation
organi-
zations.
The
operationalization
of
RBAs
in
conservation
The
2003
World
Parks
Congress
held
in
Durban
was
unusual
in
that
for
the
first
time,
a
large
contingent
of
indigenous
lead-
ers
participated
in
this
annual
congregation
of
the
international
conservation
community.
Recognizing
that
forest
peoples
bear
a
disproportionate
share
of
the
costs
of
nature
conservation,
the
congress
issued
a
declaration
christened
as
the
Durban
Accord.
A
media
report
explained
it
as
“a
paper
infant
many
hope
will
grow
up
to
change
the
face
of
conservation
and
heal
old
wounds”
(Carnie,
2003).
This
‘new
paradigm’
in
conservation,
indigenous
rights
scho-
lars
hoped,
would
foster
recognition
and
the
respect
for
the
rights
of
indigenous
and
mobile
people
(Colchester
et
al.,
2008).3
A
number
of
international
conservation
groups,
including
the
International
Union
for
Conservation
of
Nature
(IUCN),
Center
for
International
Forestry
Research
(CIFOR),
and
the
World
Wide
Fund
for
Nature
(WWF)
have
since
published
policy
statements
calling
on
the
global
community
to
embrace
rights-based
approaches
(RBAs)
for
effective
and
equitable
conservation
outcomes
(Maginnis
and
Sayer,
2008;
WWF
International,
2008;
Campese
et
al.,
2009;
Greiber
et
al.,
2009).
The
IUCN’s
Environmental
Law
Centre
developed
an
internet
portal
(www.rights-based-approach.org)
dedicated
exclusively
to
rights-based
approaches
(RBAs)
to
con-
servation.
A
review
of
these
proposals
suggests
that
key
international
con-
servation
groups
consider
RBAs
as
an
instrument
meant
to
serve
the
goals
of
nature
conservation.
For
instance,
Greiber
et
al.
(2009,
p.
5,
emphasis
in
the
original)
state
that
RBAs
are
“expected
to
be
a
means
to
ensure
conservation
with
justice.
Given
their
man-
date,
the
instrumental
approach
that
international
conservation
groups
employ
is,
perhaps,
understandable.
Even
so,
considering
3IUCN
The
World
Conservation
Union,
Durban
Accord,
accessed
June
1,
2012
at
http://www.forestpeoples.org/sites/fpp/files/publication/2010/10/
wpcdurbanaccordeng.pdf.
Author's personal copy
616 P.
Kashwan
/
Land
Use
Policy
31 (2013) 613–
626
that
RBAs
are
needed
to
protect
forest
people
against
the
vio-
lation
of
their
rights,
RBAs
must
be
designed
to
deal
with
situations
of
direct
conflict
between
forest
rights
and
the
goals
of
nature
conservation.
Jayal
(2001,
p.
82)
refers
to
these
as
“unhappy
tradeoffs”,
and
wonders
to
what
extent
a
“wide
gamut
of
political
values.
.
.fundamental
and
integral
to
the
quality
of
human
life
in
society”
may
be
traded
off
against
conservation
values.
None
of
the
key
proposals
for
RBAs
reviewed
for
this
article
addressed
this
fundamental
question
in
any
conclusive
way.
The
most
relevant
statement
concerning
this
tradeoff
is
made
in
the
WWF
report,
which
otherwise
favored
protection
of
an
expansive
set
of
indigenous
rights
(WWF
International,
2008,
p.
4,
emphasis
added):
“[The]
WWF
may
choose
not
to
support,
and
may
actively
oppose,
activities
it
judges
unsustainable
from
the
standpoint
of
species
or
ecosystems
(WWF
International,
2008,
p.
4,
emphasis
added).
The
WWF
position
on
conservation-social
justice
trade-off
as
reflected
in
the
document
mentioned
above
is
not
explained
in
terms
of
concrete
criteria
about
specific
conservation
requirements
pitched
against
specific
rights.
Instead,
it
reserves
the
right
to
oppose
activities
it
judges
to
be
unsustainable.
The
position
that
WWF
outlines
is
not
anomalous
to
the
general
understanding
of
RBAs
among
international
conservation
organizations.
Despite
rec-
ognizing
the
limitations
of
instrumental
approaches,
a
key
IUCN
report
notes,
“it
is
difficult,
and
perhaps
not
very
useful,
to
make
too
strict
a
distinction
between
rights-based
and
instrumentally
driven
approaches”
(Campese
et
al.,
2009,
p.
13).
The
instrumen-
talist
approach
to
RBAs
begs
the
following
questions:
What
if
politically
influential
national
and
international
actors
argue
that
the
conservation
gains
they
expect
to
make
from
supporting
forest
rights
are
not
sufficiently
attractive?
What
types
of
rights
would
be
worth
protecting
in
any
case?
The
empirical
analysis
that
follows
seeks
to
shine
light
on
these
questions
in
the
context
of
forest
rights
in
India.
It
seeks
to
place
the
instrumentality
of
rights
within
the
political
economic
context
characterized
by
the
conditions
of
widespread
asymmetries.
The
insights
emerging
from
this
analysis
are
then
used
to
revisit
the
key
attributes
of
RBAs
in
conservation
discussed
above.
The
following
section
describes
the
historical
and
contemporary
context
of
forest
and
forest
land
rights
in
India.
Forest
and
forest
land
rights
in
India:
the
problem
and
attempted
solutions
The
historical
and
contemporary
context
of
forest
tenure
conflicts
In
1864
the
colonial
British
Government
of
India
founded
the
Imperial
Forest
Department,
primarily
for
“securing
the
best
possi-
ble
legal
titles”
in
favor
of
the
colonial
government
(Haeuber,
1993,
p.
55).
The
colonial
forest
officials’
jobs
were
not
easy
given
that
they
avoided
visiting
the
remote
forests
with
significant
populations
of
forest
peoples,
who
the
officials
considered
criminals
likely
to
mount
violent
attacks
(Rawat,
1993,
pp.
114–5;
Rangarajan,
1996).
As
a
result,
the
officials
relied
on
cartographic
techniques
to
classify
as
public
forests
the
vast
areas
of
land
that
forest
peoples
occupied,
watched
over
as
common
property,
or
simply
used
as
open-access
(see
also
Kalpagam,
1995;
Vandergeest,
1996).
The
governments
in
independent
India
failed
to
resolve
the
colonial
era
conflicts
related
to
forest
tenure
(MoEF,
2004).
Instead,
the
area
classified
as
de
jure
public
forestland
increased
from
40.48
million
hectares
in
1951
to
69.63
million
hectares
in
2008.
In
other
words,
Indian
govern-
ments
classified
over
70
percent
additional
land
as
government
forest
land.4This
expansion
not
only
reinforced
the
colonial
era
conflicts,
but
in
many
cases,
also
created
new
conflicts
(Guha
and
Gadgil,
1989).
Notwithstanding
that
the
forest
peoples
lived
in
these
areas
long
before
the
Imperial
Forest
Department
came
into
existence,
the
actions
of
the
colonial
and
post-colonial
governments
reduced
them
to
mere
squatters.
More
important,
the
legislative
and
admin-
istrative
structures,
including
the
Indian
Forest
Act
of
1927,
put
in
place
by
the
colonial
government
continue
to
serve
as
the
founda-
tion
for
forest
management
in
India
even
to
this
day.
In
fact,
the
1972
Wildlife
Protection
Act
institutionalized
an
even
more
exclu-
sionary
wildlife
conservation
regime
(Bijoy,
2011).
Subsequently,
the
promulgation
of
the
Forest
Conservation
Act
of
1980
placed
a
legal
moratorium
on
non-forestry
use
of
forest
land,
the
demar-
cation
of
which
had
been
erroneous
in
many
cases
(Asher
and
Agarwal,
2007;
Dreze,
2005).
While
the
Forest
Conservation
Act
was
ostensibly
aimed
at
preventing
large
scale
deforestation,
given
the
widespread
power
asymmetries
and
poor
implementation
of
a
rule
of
law,
forest-
lands
continued
to
be
given
away
for
mining
and
industrial
projects
which
created
few
jobs
for
the
forest
peoples
(Sundar,
2011).
In
the
absence
of
titles,
forest-dependent
groups
failed
to
secure
com-
pensation
even
in
cases
where
privately
held
and
cultivated
lands
were
acquired
via
eminent
domain,
often
for
industrial
develop-
ment
(Ramanathan,
2009).
In
parallel,
hundreds
of
thousands
of
families
whose
ancestors
lost
the
rights
to
existing
property
usage
including
residences,
cultivations,
a
variety
of
customary
rights,
and
open-access
utilization
of
forest
produce
for
subsistence
con-
tinued
to
be
regarded
as
“encroachers”
in
forest
department
records
(Guha
and
Gadgil,
1989;
MoEF,
2004).
Moreover,
the
Forest
Conservation
Act
severely
restricted
the
ability
of
forest-dependent
people
to
claim
rights
to
the
pre-
existing
cultivations
and
homesteads.
In
many
cases,
entire
villages,
located
inside
the
erroneously
demarcated
boundaries
of
pub-
lic
forestlands,
were
recorded
as
“forest
villages”
and
were
kept
out
of
the
purview
of
the
civil
administration
(Shah,
2005).
The
moratorium
on
the
use
of
forest
land
for
non-forestry
purposes
prevented
public
agencies
other
than
the
forest
department
from
putting
up
essential
infrastructure
related
to
drinking
water,
health,
education,
and
all-weather
roads
(Kumar
and
Kant,
2005;
Springate-Baginski
and
Blaikie,
2007).
A
powerful
group
of
Indian
wildlife
conservationists
constantly
lobbied
the
government
of
India
to
increase
the
number
of
protected
areas
devoted
exclusively
to
wildlife
conservation
(Guha,
1994;
Saberwal,
2000).
These
systematic
institutional
constraints,
reinforced
through
the
dynamics
of
inter-regional
and
intra-regional
inequities,
led
to
widespread
poverty
and
marginalization
among
the
forest
peo-
ple
(see,
Baviskar,
1994;
Shah
et
al.,
1998).
Recent
estimates
of
the
Oxford
Poverty
and
Human
Development
group
put
the
poverty
rates
among
India’s
forest
peoples
at
81.4
percent
(Alkire
and
Santos,
2010).
Accordingly,
the
statutory
recognition
of
pre-
existing
forestland
cultivations
and
homesteads,
as
well
as
the
forest
rights
related
to
the
collective
protection
and
management
of
the
forests
that
aid
livelihood
security
is
critical
to
the
forest
peoples’
ability
to
exercise
broad-based
social
and
economic
rights.
India’s
longstanding
forest
and
land
rights
movements
have
sought
to
mobilize
forest
peoples
to
demand
these
rights
(Guha
and
Gadgil,
1989).
The
first
major
national
level
forest
rights
mobilization
aimed
to
protest
the
1982
Draft
Forest
Bill,
which
the
activists
saw
as
an
attempt
by
the
government
of
India
to
further
recentralize
India’s
forest
policies
(Chhatre,
1994).
The
draft
act
would
allow
4Data
available
from
http://www.indiastat.com.
Author's personal copy
P.
Kashwan
/
Land
Use
Policy
31 (2013) 613–
626 617
state
governments
to
suspend
the
rights
of
forest
peoples
and
to
declare
any
forest
closed
for
30
years.
It
would
also
empower
forest
officials
to
arrest
individuals
under
“reasonable
suspicion”
of
intent
to
commit
forest
offenses
(Kulkarni,
1982,
p.
57).
The
nationwide
civil
society
mobilization
against
the
draft
bill
was
successful
in
halting
government’s
attempts
to
further
centralize
forest
governance
in
India.
The
movement
also
helped
galvanize
non-governmental
organizations
seeking
to
promote
collabora-
tions
between
forest
departments
and
forest
peoples
to
promote
joint
and
community-based
forest
conservation
(Chhatre,
1994).
The
collaborative
program
of
Joint
Forest
Management
(JFM),
introduced
in
1990
by
the
ministry,
and
subsequently
replicated
in
a
dozen
countries,
was
expected
to
help
resolve
long-standing
con-
flicts
between
forest
officials
and
forest
users
(Sivaramakrishnan,
1996;
Joshi,
1999).
While
JFM
helped
bring
communities
around
to
the
idea
of
collaboration
and
contributed
significantly
to
local
forest
conservation,
it
suffered
from
a
number
of
fundamental
weaknesses
(Khare
et
al.,
2000;
Sundar,
2001).
The
rights
devolved
under
JFM
were
not
protected
by
a
statute,
which
allowed
the
state
governments
to
unilaterally
alter
the
benefit
sharing
mechanisms
by
issuing
new
executive
orders
(Springate-Baginski
and
Blaikie,
2007).
In
effect,
this
amounted
to
the
public
agencies
capturing
the
gains
in
forest
productivity
clearly
attributable
to
community-
based
forest
protection
(Véron
and
Fehr,
2011).
A
World
Bank
study
concluded
that
the
participants
in
JFM
were
“reduced
to
mere
laborers,
hired
mainly
to
plant
trees”
(World
Bank,
2005,
p.
9).
These
findings
vindicated
critics
who
argued
that
the
multi-million
dollar
forestry
projects,
often
promoted
by
bilateral
and
multilateral
donors
as
policy
and
programmatic
reforms,
were
not
equipped
to
bring
about
substantive
reforms
to
the
forestry
sector
(Lele,
2000;
Brosius
et
al.,
2005).
On
the
con-
trary,
scholars
documented
numerous
cases
in
which
state
forest
departments
used
international
aid
to
reinforce
and
even
expand
the
de-jure
forest
boundaries
demarcated
during
the
colonial
times
(Sundar,
2001;
Sarin,
2005;
Springate-Baginski
and
Blaikie,
2007).
Such
attempts
by
the
forest
department
reached
an
unprecedented
scale
in
2002.
Following
an
executive
order
by
the
ministry,
the
state
for-
est
departments
‘cleared’
152,400
ha
of
pre-existing
cultivations
located
within
the
de-jure
forest
boundaries
(Dreze,
2005;
Bijoy,
2008).
While
the
ministry
did
not
disclose
the
number
of
families
affected
by
these
evictions,
press
reports
put
this
number
at
over
150,000
families
(Kaur,
2002).
The
eviction
campaign
also
led
to
human
rights
violations.
Forest
departments
employed
elephants
to
crush
mud-thatch
houses
in
the
states
of
Maharashtra,
Assam,
and
Kerala
(CSD,
2003;
Asher
and
Agarwal,
2007),
and
the
forest
and
police
personnel
fired
gunshots
at
women
and
children
participat-
ing
in
anti-eviction
agitations
(Dreze,
2005).
Amnesty
International
noted
these
instances
of
human
rights
violations
committed
against
forest-dependent
groups.5
Forest
rights
collectives,
such
as
the
Campaign
for
Survival
and
Dignity
(CSD)
and
the
National
Forum
of
Forest
People
and
For-
est
Workers,
among
others,
demanded
recognition
of
and
respect
for
the
rights
of
forest
people
(CSD,
2003;
Prasad,
2006;
Asher
and
Agarwal,
2007).
The
nationwide
mobilization,
combined
with
for-
tuitous
political
circumstances,
led
to
the
enactment
of
the
Forest
Rights
Act
(FRA),
which
is
briefly
introduced
in
the
following
sub-
section.
Forest
rights
act:
recognizing
private
and
collective
rights
The
Forest
Rights
Act
(FRA)
of
2006
provides
for
the
statutory
protection
of
the
historical
rights
of
forest-dependent
groups
(Lele,
5Amnesty
International,
Forced
Evictions
Target
Adivasi,
27
April
2007,
accessed
June
5,
2012
at
http://www.amnesty.org.au/news/comments/1160/.
2009).
Unlike
other
forest
restitution
policies
that
resulted
in
stand-
ing
forest
patches
privatized
in
favor
of
households
(see,
Fay
and
James,
2009),
the
FRA
provides
neither
for
the
clearing
of
forests,
nor
the
privatization
of
collectively
owned
lands.
Instead,
to
para-
phrase
Kothari
et
al.
(2011),
the
FRA
recognizes
the
rights
of
forest
peoples
to
the
lands
currently
under
subsistence
cultivations
and
homesteads,
but
classified
in
government
records
as
“forests”.
This
description
matches
with
the
ministry’s
characterization
of
the
sit-
uation
in
an
affidavit
it
submitted
to
the
Supreme
Court
of
India
(see,
MoEF,
2004).
The
FRA
also
grants
statutory
protection
to
the
collective
rights
of
forest-dependent
groups
to
protect,
regener-
ate,
conserve
or
manage
community
forest
resources
(GOI,
2006a).
In
addition
to
the
clearly
delineated
private
and
collective
rights,
the
FRA
is
equipped
with
a
number
of
safeguards
against
potential
misuses
of
the
statute.
The
Act
requires
the
locally
elected
forest
rights
committees
to
conduct
a
field
verification
of
a
household’s
claim,
and
record
in
writing
the
evidence
gathered
during
the
verification
process.
The
committee
is
also
required
to
invite
forest
department
officers
to
be
present
during
the
verification.
The
forest
officers
present
dur-
ing
the
field
verification,
or
the
senior
forest
officials
represented
on
sub-district
and
district-level
committees,
are
authorized
to
record
in
writing
any
objections
they
may
have
regarding
forest
land
claims
under
consideration
(GOI,
2008).
Though
the
FRA
also
applies
to
forest
rights
claimed
within
wat
are
now
national
parks
or
wildlife
sanctuaries,
any
forest
areas
that
actually
house
endan-
gered
wildlife
can
be
declared
“critical
wildlife
habitats”
(CWHs).
A
more
detailed
discussion
of
the
issue
of
CHWs
is
reserved
for
Section
‘The
forestry
administration
and
forest
rights’.
The
FRA
provisions
led
to
a
vigorous
debate
from
2005
to
2007.
With
some
simplification,
the
participants
in
the
FRA
debates
could
be
classified
into
three
different
groups:
the
forest
rights
activists,
wildlife
conservation
groups,
and
the
proponents
of
community-based
conservation.
The
FRA
activists
articulate
an
explicitly
political
perspective,
justifying
forest
rights
based
on
the
historical
injustices
meted
out
to
forest
peoples.
At
the
same
time,
somewhat
counter
intuitively,
they
also
justify
their
demands
with
an
instrumental
position
they
add
that
the
environmental
ethos
integral
to
forest
peoples’
culture
make
them
the
ideal
forest
stewards
(Bijoy,
2008;
Gopalakrishnan,
2010).
On
the
other
hand,
India’s
wildlife
conservation
groups
lobbied
for
securing
inviolate
nature
reserves
to
be
protected
through
stricter
security
measures
(Sahgal
and
Scarlott,
2010).
Similarly,
the
forestry
establishment
raised
fears
of
ecological
destruction
to
voice
objections
against
the
FRA
(Venkatesan,
2005).
The
third
group
in
the
debate
comprises
votaries
of
community-
based
conservation,
many
of
who
came
together
to
form
the
Future
of
Conservation
in
India
network
(Lele,
2009;
Kothari
et
al.,
2011;
Bawa
et
al.,
2011).
The
network
has
been
equally
active
in
developing
a
scientifically
robust
approach
to
operationalize
FRA
proposals
related
to
critical
wildlife
habitats
(CWHs).
The
votaries
of
community-based
conservation
point
to
the
potential
gains
to
be
had
from
the
mitigation
of
pending
tenure
conflicts
and
the
recog-
nition
of
collective
rights
to
forest
management
under
the
FRA
(Lele,
2009;
Kothari
et
al.,
2011).
In
addition,
they
have
emphasized
the
clarity
of
property
rights,
and
the
scope
for
further
clarifying
the
institutional
arrangements
in
the
vein
of
the
commons
literature
(see,
Lele,
2009;
Bawa
et
al.,
2011;
Kashwan,
2011).
The
FRA
has
led
to
an
extensive
literature
on
the
challenges
of
implementation
across
the
country,
which
is
reviewed
in
Springate-Baginski
et
al.
(2009),
NCFRA
(2010),
and
Kothari
et
al.
(2011).
As
discussed
above,
the
empirical
analysis
presented
in
this
article
focus
on
the
politics
that
the
FRA
unleashed
among
com-
peting
interest
groups.
Accordingly,
the
following
section
offers
a
documentation
of
the
policy
positions
and
actions
of
the
two
key
Author's personal copy
618 P.
Kashwan
/
Land
Use
Policy
31 (2013) 613–
626
FRA
actors:
the
forestry
establishment
led
by
the
ministry
and
the
exclusionary
wildlife
conservation
organizations.
The
FRA
and
forest
responses
of
actors
concerned
with
conservation
The
forestry
administration
and
forest
rights
An
apparent
confusion
engulfs
the
positions
and
actions
of
the
Ministry
of
Environment
and
Forests
vis-à-vis
the
questions
of
forest
rights.
In
June
1990,
the
ministry
issued
a
series
of
six
circulars
that
dealt
with
the
various
aspects
of
forest
tenure
con-
flicts
(Dreze,
2005).
These
circulars
remained
unimplemented,
an
outcome
that
the
ministry
attributed
to
the
failure
of
the
state
governments
(MoEF,
2004).
Seeking
to
avert
potential
opposition
from
the
ministry,
the
committee
that
wrote
the
FRA
based
its
key
clauses
on
these
circulars
(Rajshekhar,
2009).
Yet,
the
ministry
consistently
opposed
the
statute
while
it
was
debated
between
2004
and
2006
(Asher
and
Agarwal,
2007).
The
chairperson
of
the
National
Forest
Commission,
a
body
appointed
by
the
ministry,
publicly
criticized
the
FRA
as
being
“politically
motivated
and
eco-
logically
suicidal”
(Ananthakrishnan,
2006).
The
Prime
Minister’s
office
noted
that
“the
[ministry]
was
trying
to
consciously
sabotage”
the
FRA
(Rajshekhar,
2009,
p.
31).
Even
so,
some
of
the
reservations
against
the
FRA
likely
con-
cerned
the
statute’s
lack
of
specific
conservation
guidelines
and
its
potential
to
aid
forest
fragmentation
(see,
Lele,
2009;
Bhargav,
2011).
That
being
the
case,
a
rational
action
for
the
ministry
and
state
forest
officials
would
be
to
strengthen
and
popularize
the
collective
forest
rights
regime
within
the
FRA.
Within
the
Indian
context,
community
forest
rights
are
not
linked
to
logging
or
other
large
scale
extractive
operations.
Instead,
collective
rights
allow
community
groups
to
organize
local
forest-protection
efforts
in
return
for
harvesting
and
marketing
of
minor
forest
produce
(Lele,
2009).
A
variety
of
evidence
available
from
all
over
the
country
would
suggest
that
India’s
forestry
administration
also
resisted
the
FRA
provisions
related
to
the
devolution
of
collective
forest
rights
(NCFRA,
2010;
Kashwan,
2011;
Bawa
et
al.,
2011).
Similarly,
a
national
review
of
the
FRA
suggested
that
instead
of
using
the
provisions
related
to
Critical
Wildlife
Habitats
(CWHs)
to
promote
high
value
conservation,
the
ministry
attempted
to
exploit
this
pro-
vision
to
the
end
of
excluding
protected
areas
from
the
purview
of
the
FRA
altogether
(NCFRA,
2010;
Bijoy,
2011).
The
discussion
above
suggests
that
the
ministry’s
opposition
to
the
FRA
could
not
be
explained
in
terms
of
any
systematic
assess-
ment
of
the
potential
impact
that
different
provisions
of
the
FRA
could
have
on
the
conservation
of
forests
or
biodiversity.
The
fol-
lowing
section
gets
into
the
details
of
the
politics
over
two
specific
aspects
related
to
the
provisions
of
the
FRA:
the
trade
in
non-timber
forest
produce
and
the
declaration
of
CWHs.
Non-timber
forest
produce
The
FRA
devolves
“rights
of
ownership,
access
to
collect,
use
and
dispose
of
minor
forest
produce
which
has
been
traditionally
collected”
(Chapter
2,
Section
3.1c
GOI,
2006a).
The
case
of
FRA
rights
over
bamboo
presents
an
interesting
illustration.
Botanically,
bamboo
is
classified
as
a
grass
species,
and
as
a
non-timber
for-
est
produce
in
the
technical
forestry
literature.
However,
India’s
forestry
laws
categorize
bamboo
as
“tree”,
which
brings
it
under
the
purview
of
laws
meant
to
keep
timber
trade
under
government
control
(Springate-Baginski
and