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Self Determination and Indigenous People: the Fight for 'Commons'

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Self Determination and Indigenous People: the Fight for 'Commons' 144 Medico-legal Update, January-March 2020, Vol.20, No. 1 DOI Number: 10.37506/v20/i1/2020/mlu/194313 Self Determination and Indigenous People: The Fight For ‘Commons’ Swati Mohapatra Assistant Professor, School of Law, K.I.I.T , Deemed to be University Abstract History has always seen the less-privileged as the one suffering the alienation of their rights, entitlements. It is equally true that these communities have fought back to claim what is rightfully theirs. The principle of Self determination or the right to decide how to be governed can be traced back to World War-1 and the principles laid down by Woodrow Wilson. This right to Self determination exists for each one of us. This becomes even more imminent when it belongs to a community which has its own preserved culture to protect, it has its own resources of which it is the foremost protector. Here the paper emphasizes how the tribals in India have now been reduced to a mere dependant and beggary.The paper traces the various changes of the Indian legal system governing the relationship between the ‘Commons’ and the Tribal Communities. But ‘the history of Forests is the history of conflicts’. The researcher has taken two case studies- the struggles of the Dongria-Kondhs of Odisha and the Sentinelese from Andaman , to show how these communities have in their own unparalleled ways protect their Commons from the never-ending appetite of the industrialization and human greed. Lastly, the researcher has analysed various provisions from the Corpus of Indian laws, to find out where is the State missing out. Along with it, the researcher has also suggested potential reforms to those lags , so as to guarantee the Tribals their “Right of Self Determination” in wholesome. Keywords: Commons, Self-Determination, Tribals, Indigenous People, Conflicts, Tribal Advisory Councils, Constitution. Introduction day by day. “A thing that we share and enjoy jointly”(here For the adivasis who make 8.6% of the total after ‘Commons’), the significance of which has been population” according to the “Census 2011 report’’, taken from the way a mutual land was utilized among secluded from the mainstream, consider these forests a commune in medieval Europe, i.e. ‘it was “held in ‘safe haven’. Tribal communities have been enduring common’.6Absence of exclusive property rights except gradual disappearance of their original habitats and a right to enjoy the benefits out of it which is to enjoyed annihilation of their cultures through predatory by all in the community. This defies the conventional involvement. Making them mere wage earners with rules under the Transfer of Property Act, 1882(Criteria uncertain and non existent futures from self sufficient for ownership is the mentioned Act which requires owners of resources. There is one more dimension to it. Right,Title and Interest over the property). A Senior Forest Officer of West Bengal mentioned in an interview that “the participation of the locals is one A community who is dependant on the forest of the reasons for the increase in the forest cover.”8 It resources , have a single forest shared by all.Also,the is important to highlight that the participation at the term ‘khirkai/gaothan’ brings forth the importance of grass root level is essential for the environmental well this dependence7. The water bodies, resources (lac, being and for the realization of tribal rights.The paper resin, tendu patta), cremation grounds, connecting roads shall review the recent events which reflects how in the and other government created community assets are of current times for the sake of economic growth the State utmost importance. The sharing and caring behaviour has transformed itself protector has itself turned into of such community people is important in the current ravisher of indigenous communities. times especially when the resources are depleting at an exponential rate, human beings are becoming greedier Medico-legal Update,e, January-March 2020, Vol.20, No. 1 145 State’s Rough-and-Tumble with Forest government (hereafter, Government) , 1400 acres of Community’s ‘Right To Exist’ (Findings and forest area was to be diverted for iron ore mine.14 The Discussions) state government successfully obtained a permission from the MoEF by including in the diversion proposition Various propounders, starting from the great E.P seven (exact) repetitive gram sabha resolutions. These 9 10 Thompson to the Karl Marx , have portrayed in their proposals reflected a presumed free consent of the seven writings the hostility between the state players and the villages , and also expressing that they are not using the forest communities. said lands for the purposes of agriculture, in-habitation, In India like most of it’s counterparts ,the forest or any other sustenance. It was later found that all the communities owned and shared their natural resources. seven proposals were actually so designed by a coterie 3rd of August 1865 brought a upheaval when the report of OMC and the Government. of the then-incharge of forests in Burma culled away DONGRIA KONDHS, ODISHA, INDIA rights of forest dwellers(tribal).11 This initiated assertion of state monopoly rights over jungles. A law was enacted The Dongria Kondhs are one of the particularly putting an end to the exclusive right of the indigenous vulnerable tribal groups of the State of Odisha. They people on the surrounding resources. Forest were now consider the Niyama Hills as ‘sanctum sanctorum’, differentiated under The Scheduled Tribes and Other which defines their cultural, economic and social Traditional Forest Dwellers (Recognition of Forest realities. These people proudly refer these hills as Rights) Act, 2006 into: Reserved forests, protected Niyam Raja as their God. “It is unthinkable to detach forest.Baden Powel stressed here that “In olden days, links between the tribes and forest”15.”The Government native rulers used often to set aside considerable areas of Odisha agitated the lives of the indigenous people of forest land as hunting grounds.” Colonial bureaucracy when it begun to disport over 660 hectares of ‘forest intentionally misused this practice from yesteryear land’ for mining by the a Mining Company in the turning those lands and its resources into the property of districts which are one of the most resource enriched Colonialist through the rule of succession .”12 area of the State. What resulted next was nothing less than history. The battle was raised in forms of not-so- The modern India carried forward its “British silent marches and rallies, the sounds of which reached inheritance” by creating a department for Forests and from a tiny community in Kalahandi and Rayagada to keeping “The Indian forest act, 1927” . The diminutive the Wall Street and Madison Square. Their story was transition of such right from being an ‘exclusive considered similar to that of the Na’vi Tribe of the Oscar right’ to mere concessions conferred by the ‘state’ has winning movie Avatar. It is a matter of deep concern caused destructive displacement of unimaginable forest that the conventionally educated are still lagging behind dwellers resulting in to the destruction of the symbiotic to understand what Dongria Kondhs have realised and relationship between nature and its people/protectors. are much ahead in working on it by playing their own The vices of getting benefited from the rich flora and part in the larger scheme- Of saving biodiversity-rich fauna of the forest have substantially jeopardized the forests of Niyamgiri .Thirty-eight water resources have very existence of forest dwellers. They are in present their source-point from Niyamgiri hills and forests like deemed as trespassers to the forest and categorized this are a defence against climate change. No argument as torch bearers of extremism. It is not a new concept can be stronger when it is said that our Mother Nature but a hobby of the tyrannical government since time is truly safer in the hands of the local people and that’s immemorial. Not only the centre , but the various state the message they have sent out to the world. Dongrias laws have been implementing amendments to antique are unaware about private ownership of resources laws constraining the rights of the tribals, in favour of because for them their community is everything. Here 13 industries and real- estates. The new law has widened the Apex Court of India in the case of Odisha Mining the nature of the cultivable lands allowing use of land for Corporation Limited v. Ministry of Environmental suitable for the capitalists. Also by placing the said Law/s Forest Supreme Court of India, (Writ Petition (Civil) th in the 9 Schedule of the Constitution , the Government No. 180 of 2011),came upheld the customary and has successfully tried to avoid judicial review. cultural rights of tribal community over Niyamgiri and In 2016, in a collusive bid between the Odisha right of self determination of the Indigenous People Mining Corporation (hereafter, OMC) and and the state in accordance with the Forest Rights Act, Panchayat 146 Medico-legal Update, January-March 2020, Vol.20, No. 1 (Extension to Scheduled Areas) Act, and provisions The government which has exercised the policy of the Constitution thus instilled the authority of the of non-intervention till 1991 by not even carrying the gram sabhas to protect customary habitats and cultural census survey , has now suddenly opened the closed rights.The mining corporation has still built a refinery doors of such a pristine tribe to the outsiders. Thus the in the northern Part of the Niyamgiri hills. This has Indian government removed the restrictions in 29 islands displaced a large number of indigenous. The land grants where the Restricted Area Permit mandatory under the are limited to the people actually displaced.
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