Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

Indigenous and Tribal Populations Convention, 1957 (No. 107) - India (Ratification: 1958)

1. The Committee recalls that in its previous comments over several years - most recently at its 1988 session - it has examined the planned displacement of some 60,000 tribals from the lands they occupy because of the construction of the Sardar Sarovar Dam and Power Project (SSP). This is the first stage of a much larger project which will, it is said, involve the eventual displacement of over 1 million tribals. The Project is financed by the World Bank. The Committee has had before it on several occasions observations from the International Federation of Plantation, Agricultural and Allied Workers (IFPAAW), forwarding material received from the non-governmental human rights organisation Survival International for the Rights of Threatened Tribal Peoples.

2. The Committee notes with interest the detailed information provided by the Government to the Conference Committee in 1988. It has received from IFPAAW and forwarded to the Government further communications dated 27 February, 23 October and 20 December 1989; and has received the Government's observations on them in a letter dated 24 January 1990. The Committee has also received information from the World Bank, in a letter dated 2 February 1990.

3. The Committee takes special note of a statement in the IFPAAW communication of 31 October 1989, according to which there is a series of development projects already undertaken or planned in India which would involve the displacement of between 2 and 3 million tribal people altogether; and that inadequate provision has been made for their relocation and rehabilitation. The Committee requests the Government to provide any comments it may wish to make on this statement in its next report.

4. The Committee recalls that the SSP will displace tribal people in three Indian states: Gujarat, Maharastra and Madhya Pradesh. Each state has made separate arrangements, under agreements with the World Bank, for dealing with the displaced tribals and for the other consequences of the Project.

5. The Committee thanks the Government for the comprehensive information it has provided at each stage of the examination of this question.

6. Article 6 of the Convention. IFPAAW has stated that the arrangements in place do not satisfy this Article of the Convention, which provides that:

The improvement of the conditions of life and work and level of education of the populations concerned shall be given high priority in plans for the overall development of areas inhabited by these populations. Special projects for economic development of the areas in question shall also be so designed as to promote such improvement.

7. In its 1988 observation the Committee stated that "the question of whether these arrangements meet the requirements of Article 6, is still not ripe for a final evaluation, as it depends largely on what is concluded with respect to the other issues raised." In its January 1989 comments, IFPAAW stated that the Project is "designed to provide power and water for more settled populations; its benefits are not oriented at all towards the tribal people being displaced, which appears in itself to violate ... Article 6". IFPAAW refers also to the experience of tribal populations displaced by similar projects (e.g., the Tawa and Bargi dams) and the limited resources made available for compensation. It also states that the kind of forced development likely to result from the tribal peoples' displacement is of a kind least likely to lead to an improvement in their conditions of life and work.

8. The Government states in its comments that when completed, the SSP will benefit tribal and non-tribal persons equally, and that the central and state governments are fully committed to the overall socio-economic development of the tribal people. The Government states that this Article does not preclude economic development efforts affecting both tribals and non-tribals, and outlines the benefits expected to result, including relief of drought-prone areas, irrigation, water supply to industries, electricity supply, and employment through new industrial and agricultural undertakings.

9. The Committee notes the points made, and agrees that this Article does not preclude economic development efforts which assist both tribals and non-tribals. It appears in this case, however, that while both tribals and non-tribals are likely to enjoy some of the benefits of the SSP, the costs of the project are falling particularly heavily on the tribal people of these three States. Whether these costs can be reduced or compensated depends on how the other Articles concerned are applied.

10. Article 11. In its previous comments, the Committee noted the contention of IFPAAW that the arrangements made for compensation for displaced tribals did not fully apply this Article, which reads:

The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.

11. IFPAAW stated that compensation was being paid only for lands to which the displaced tribals had title, or another recognised right, and not for all those which they occupied. It recalled that many of the tribals use - for cultivation, grazing or gathering of forest products - lands to which they have no recognised title. The Government indicated that the State of Gujarat had decided to grant title to those tribals who "encroached" on government-owned land for cultivation, so that they would be compensated for this land when they are displaced (with this compensation in turn to be applied to paying for the acquisition of land in their place of settlement). IFPAAW stated in turn that 80 per cent of the affected tribals live in the other two States covered by the projects, and that no such arrangements had been made there; that the kind of ex gratia payments made by the Government of Gujarat avoided recognising that the tribals had any prior rights; and that no provision had been made for the hunter/gatherer elements of the tribals' economic life, but only for settled cultivation. The Government indicated in turn that a distinction had to be made between the traditional occupation covered by this Article, and unauthorised occupation of government lands; to require such special measures for encroaching persons would be to misconstrue Article 11.

12. The Committee noted in its 1988 observation that traditional occupation conferred land rights under the Convention, whether or not title had been recognised; and that even if occupation was recent, this did not mean that no land rights existed, especially in view of Articles 12 and 14 of the Convention. It also did not mean that the tribals affected should be excluded from the protections offered to those being displaced by the SSP. It asked for additional information on the measures being taken in Maharastra and Madhya Pradesh, and expressed the hope that all those being displaced could be provided for.

13. The Government informed the Conference Committee in 1988 that it did not agree that recent occupation of government-owned lands conferred any land rights at all on tribals. Encroachment could not be considered as "traditional occupation" in the sense of Article 11, or as "habitual occupation" in the sense of Article 12. The Governments of Maharastra and Madhya Pradesh had recently updated their rehabilitation policies along lines similar to those of Gujarat, and the Government of Gujarat had decided that all those who wished to resettle in that state would be given equal treatment, with full land titles.

14. In its communication of 24 January 1989, IFPAAW stated that the distinction between traditional occupation and encroachment on state-owned lands is arbitrary, since even when the tribals came under British rule in the nineteenth century, some of the lands they occupied were titled and some were not. Many of the tribals had been occupying these lands for a very long time without recognition, and this applied especially to the Reserved Forest in the Narmada Valley. In addition, most of the tribals have a mixed economy that extends well beyond any lands to which they might have title. IFPAAW states that Article 11 therefore applies to forest and waste lands as well as to settled lands.

15. In its communication of 24 January 1990, the Government states that the allegation concerning those who occupied land even before British rule is too general to warrant comment. The Government repeats its understanding that Article 11 of the Convention "in no way permits unauthorised occupation of Government lands, as such occupation cannot ... be deemed to be traditional occupation." The Government refers to its commitment to recognising title to lands traditionally held by tribals, and to legislation enacted to control alienation of tribal lands and to restore alienated tribal lands. The National Forest Policy of 1988 recognises that a primary task of all responsible for forest management should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around them, and the customary rights and interests of such people are to be fully safeguarded. Finally, the Rehabilitation and Resettlement policies of all three State governments provide for allotment of land to families which have been cultivating Government waste and forest lands without authorisation, and Maharastra has regularised all unauthorised occupation occurring before 31 March 1978. Both Maharastra and Madhya Pradesh now provide that encroachers and families having legal title will be treated on the same footing for the purpose of entitlement to compensation and for rehabilitation. As concerns Maharastra, the Committee notes Resolution No. RPA-3188/CR-130/88/R-5 of 29 June 1989, containing the Policy concerning Rehabilitation and Resettlement of Oustees. The Policy lays down rules for compensating oustees for their land holdings, their resettlement and the acquisition of alternative lands in Maharastra or Gujarat, compensation of "encroachers" for the lands they occupied, and other elements of compensation and rehabilitation. It also provides for the financing of the scheme. The Government has forwarded a similar document, dated November 1987, adopted by the Government of Madhya Pradesh (which however includes no provisions on financing the arrangements specified).

16. The Committee notes with interest the detailed information provided by IFPAAW and by the Government. It cannot fully accept the distinction drawn by the Government between traditional occupation and encroachment. Traditional occupation, whether or not it has been recognised as authorised, does create rights under the Convention. In addition, use of forest or waste lands, title of which is held by the Government for hunting and gathering - again, whether or not this has been authorised - satisfies the use of the term "occupation", and if it is traditional it meets the requirement of this Article. The term "traditional occupation" is imprecise, but it clearly conveys that the lands over which these groups' land rights should be recognised are those whose use has become part of their way of life. The Committee is not prepared to judge, in the context of the present discussion, how much time would have to elapse before occupation would become "traditional"; nor does the Committee have available to it information which would allow it to decide that traditional use has not been recognised in any particular situations. However, to the extent that the indications provided by IFPAAW are accurate, they would create a presumption of land rights under the Convention. The Committee notes that, as IFPAAW has indicated, no compensation has been allocated for tribals who carry out hunting and gathering, as opposed to settled cultivation. The Committee hopes that, in deciding on the land rights giving rise to compensation, the Government will ensure that the cost of the project does not fall heavily on these helpless and already impoverished tribals, and that they are not deprived of the means of subsistence which they have had for many years. The Committee hopes that the Government will adopt an interpretation consistent with the spirit of this Article of the Convention as well as with its letter.

17. Article 12. The issue here relates to Article 12, paragraph 2:

When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees.

18. The issue of the land rights which these groups already have, is important because under arrangements concluded with the World Bank by each of the State governments concerned, this will determine what lands or other compensation displaced tribals receive when resettled. The Committee has already considered the question, raised by IFPAAW in earlier comments, of whether there is sufficient land available of acceptable quality to allow the resettlement of all 60,000 tribals who are being displaced from their lands; and whether the other measures being taken are adequate to meet the requirements of the Convention and the objectives of the resettlement and rehabilitation components of the credit agreement with the World Bank. The Committee noted in its previous comments that the Government was making real and considerable efforts in this connection, but that problems persisted. It noted in particular that, while Gujarat State had made lands available and provided for rehabilitation efforts, the other two states had done much less although 80 per cent of the tribals to be displaced live in Madhya Pradesh and Maharastra. The Government informed the Conference Committee in 1988 that all the displaced tribals who were willing to settle in Gujarat would be treated equally. Efforts were being made by the three states to buy large tracts of land of acceptable quality so that resettlement of the "oustees" would not be fragmentary and their communities would not be dispersed. Relocation to Gujarat had been proposed as it was there that new lands were to be brought under irrigation, but oustees would be settled in their own states if they preferred.

19. In its comments of 24 January 1989, IFPAAW stated that the lands provided in compensation should be similar to those from which the tribals are being displaced, so the tribals should have proximity and access to forest lands. However, IFPAAW points out, a policy statement of 8 September 1987 issued by the Ministry of Environment and Forests states that "No forest land will be used for the rehabilitation of oustees," while the World Bank has stated in a letter of 28 June 1988 that "forest for forest" compensation is not always appropriate or realistic. In addition, says IFPAAW, there is already a problem finding enough agricultural land to compensate the oustees, and forest land is in even shorter supply. It indicates further that pressure is being put on oustees in Madhya Pradesh to accept compensation in money rather than in land if they do not choose to be resettled in Gujarat.

20. As concerns the situation in each state, IFPAAW notes that under the December 1987 Resolution, each oustee family from Gujarat is to be granted land and other rehabilitation benefits; and in June 1988 these provisions were extended to oustees from Maharastra and Madhya Pradesh who choose to settle in Gujarat. (IFPAAW also states that most of the tribal oustees do not wish to settle in Gujarat, and have the right not to do so under the Narmada Water Disputes Tribunal Award of 1979.) However, it states that the Gujarat Government has acquired only 20 per cent of the land needed to resettle the oustees from Gujarat itself; prices are rising; and acquisition of further lands will in itself cause more evictions. In Maharastra, planning for resettlement is underdeveloped; finding land has proven difficult, and the Government has decided not to release Forest Department land. On the other hand, an August 1987 resolution followed the example of Gujurat in deciding to make ex gratia payments to "encroachers". In Madhya Pradesh, where the majority of the displaced tribals live, IFPAAW states that arrangements are very rudimentary and almost no action has been taken.

21. The Government has indicated in its comments that all the oustees are entitled to compensation for land owned or "encroached" by them for agricultural or non-agricultural purposes. It is the policy of the Government not to allot forest land for rehabilitation, but when oustees insist on resettlement in forest areas such requests are considered symapathetically. The tribals are being provided special facilities for rehabilitation not made available to other oustees. Availability of land in Gujarat is not a problem, and a good deal of land is already being acquired. As for Maharastra, 269 families of oustees are willing to accept settlement in Gujarat, and 179 already have their land. It is not correct to say that planning for resettlement is undeveloped in this state; as 1,358 families have decided to remain in Maharastra the Government is "duty bound" to provide them with alternative lands. In Madhya Pradesh, where the majority of those to be displaced live, an initial policy was adopted in 1986; and after consultations with the central Government and the World Bank a detailed policy was issued on 18 May 1989. Of the 193 villages in this state which will be affected in varying degrees by submergence, oustees from 92 of them will be resettled in Madhya Pradesh close to their present lands. In 77 villages, oustees are willing to go to Gujarat provided they are given appropriate land. Some land has already been approved by the oustees, and the Government of Gujarat is making every effort to find additional suitable land.

22. The letter of 2 February 1990 from the World Bank indicates that the situation with respect to resettlement and rehabilitation is improving, as a Bank mission found in December 1989. More than 1,000 oustees have been allotted land in Gujarat, the planning and implementation mechanisms seem to be working very well and additional land for resettlement, including relatively large quantities of irrigable land, is coming on to the market. In Madhya Pradesh, the Bank indicates that the situation is also improving, though much remains to be done. Although the "initial submergence date" has been set back to 1994-1995, detailed planning has taken place in the first villages to be affected, village leaders have visited Gujarat and some villages have decided to move there. The situation in Maharastra is troublesome in that forest land is needed for the initial resettlement. Government clearance is being sought for this. The Bank indicates that progress is being made, and that it continues to work closely with state and project authorities to try to ensure that it continues.

23. The Committee has examined the detailed information supplied by IFPAAW and by the Government on the compensation being offered to the displaced tribals, as well as the information supplied by the World Bank. It is evident that the Government has made considerable efforts to resolve an extremely difficult situation; it is not evident from the information available whether it has fully succeeded in providing appropriate compensation in accordance with Article 12 of the Convention, for all the families and villages which are losing their lands as a consequence of this project. The Committee would affirm that the words "lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development" would create a presumption that displaced tribals should receive agricultural lands for lost agricultural lands, and forest lands for lost forest lands. The Committee recalls that this provision goes on to provide for alternatives if the groups concerned prefer, so that there is room for discussion of the appropriate form of compensation.

24. The Committee therefore requests the Government to continue to communicate detailed information on the further progress achieved in providing land and other compensation to the displaced tribals. It notes the Government's statement, in its January 1990 communication, that "It is expected that by March 1991 the entire rehabilitation of total project-affected 3,322 families would be completed as per liberalised norms. The Government of India firmly believes that there has been no violation of Convention No. 107 and that the Project, when complete, would help the tribals to improve their standard of living." It is not apparent from the information available how much land is required for resettlement as compared with the amount already available, and the Committee would be grateful for information in this respect.

25. The Committee feels bound to repeat the concern which it expressed in its previous comments as to whether it will prove possible to provide the same kind of compensation in the future as is planned in the present case, when many times more tribals - up to 1 million according to the information it has received - are scheduled to be displaced from their homes. Given the problems encountered in this relatively small-scale project, the Committee considers that it may be very difficult to provide protection to the tribal populations in conformity with the Convention if the full-scale project is undertaken in the same conditions.

26. Mortality of displaced tribals. IFPAAW has stated in its communication of 23 October 1989 that "Studies in the few communities of tribals who have already been resettled show a four-fold increase in mortalities." The Government has stated in its communication of January 1990 that this report has been studied by the Government of Maharastra, and that the mortality rate is normal for poor tribals though higher than the national average. The Government has stated that the Government of Gujarat has taken steps to provide health care to resettled oustees. The Committee requests the Government to keep it informed of the progress achieved in this respect, and in particular of the action taken by the Government of Madhya Pradesh and Maharastra.

27. Environmental questions. The Government has stated that minimising the adverse effect on the ecosystem due to the implementation of the Project has been one of the main objectives of the planning process; and that, among other things, afforestation projects have been planned. Please provide copies of any environmental arrangement studies which may have been carried out in this respect.

28. The Committee recalls that it had also raised a number of questions on the application of the Convention generally, in a request addressed directly to the Government in 1988. As the Government has communicated information only on the effects of the Sardar Sarovar Project in its most recent report, the Committee is repeating its previous direct request, and hopes that the Government will provide detailed information in this respect for its next session.