Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

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

A Government representative stated that this was the third time this Committee had discussed this case. As regarded paragraph 3 of the Committee of Experts observation referring to the statement of the International Federatin of Plantation, Agricultural and Allied Workers (IFPAAW) that there was a series of development projects already undertaken in India which would involve the displacement of between 2 and 3 million tribal people altogether, and that inadequate provision had been made for their relocation and rehabilitation, the Government representative maintained that the IFPAAW's statement was too general. Even the estimation of the member or persons likely to be displaced did not seem to be based on authentic information. If the IFPAAW could provide full details for all projects and state precisely how the Convention had been violated, the Government would furnish the corresponding information in its next report.

Concerning paragraph 9 of the observation, where the Committee of Experts stated that the costs of the project were apparently particularly heavily on the tribal people and suggested that the costs needed to be reduced or compensated in the proper application of the relevant provisions of the Convention, the speaker said that the Government was committed to bear all the costs of rehabilitation and to compensate the loss of land and other property. Therefore no cost should ultimately fall on the tribal people. Moreover, the Government had offered to rehabilitate the affected tribal people in the command area of the project so that they could share the benefits of the project to the maximum extent. Furthermore, the development and inprovement of tribals was given a high priority in the central and state development plans. For the country as a whole, seven per cent of the total plan allocation was earmarked exclusively for the tribals every year. Similarly, state governments were required to earmark, exclusively for the tribal populations, a percentage of funds which was equal to the percentage of tribal populations in that state. Also, tribals were not excluded from the benefit of remaining plan funds. Thus it could never happen that non-tribals benefited in Indian development plans and projects, to the detriment of tribals.

In paragraphs 11 to 16 of the observation (interpretation of the term "traditional occupation" as used in Article 11 of the Convention), the Committee of Experts stated that traditional occupation, whether or not it had been recognised as authorised, did create rights under the Convention. The speaker stated in that respect that his Government was fully committed to honour the rights of tribals arising out of traditional occupation. However, the question remained: what was a "traditional occupation"? The Committee of Experts itself stated that this was an imprecise term, but considered that it clearly conveyed the idea that the lands over which these groups' land rights should be recognised were those whose use had become part of their way of life. The question still remained: since when? That was why the Committee of Experts had been unable to give any categorical opinion as to how much time would have to elapse before occupation could be called "traditional". This term, and also the general question of land rights, had generated much debate during the discussions on the revision of this Convention. Even when the Convention had been adopted, it had been recognised that there would be wide variance in the characteristics of the countries. Hence, Article 28 laid down that "the nature and the scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country". The fact that such a provision had been retained in the revised 1989 Convention indicated that difficulties of the type discussed still existed. The speaker assured this Committee that, notwithstanding the differing interpretations of the term "traditional occupation", the letter and the spirit in Article 11 of the Convention were being followed. Most Indian states which had substantial tribal populations had enacted laws recognising rights of ownership and possession of tribals over the lands they traditionally occupied. These laws also restrained transfer of land from tribals to non-tribals; lands involved in illegal transfers from tribals to non-tribals were restored to their original holders. Land records not only mention de facto possession but also land use. Customary rights, like grazing and hunting, were also protected. Hence, it was not correct to say that tribals who had traditionally occupied lands were being displaced. If specific instances were given of cases where tribals who had traditionally occupied land had been displaced, the state governments concerned would no doubt investigate them; and if the complaints were substantiated, remedial action would certainly be taken. A line had to be drawn somewhere between traditional occupation and unauthorised occupation following identification of lands as government lands.

In paragraphs 17 to 24 of the observation dealing with Article 12 of the Convention, the Committee of Experts concluded that "it is evident that the Government has made considerable efforts to resolve an extremely difficult situation". However, the Committee of Experts went on to state that it was not evident from the information available whether the Government had fully succeeded in providing appropriate compensation in accordance with Article 12 of the Convention. The Committee of Experts had also stated that it was not apparent from the information available how much land was required for resettlement as compared with the amount already available. The speaker stated in these respects that the resettlement and rehabilitation policy of the state governments, particularly that of the government of Gujarat, had generally been accepted as one of the most liberal and innovative policies in the world. The policies of the three state governments concerned had been handed over to the Office, in case any member of the present Committee wanted to see them. Referring to the extent of the problem and how it was addressed in the three states, the speaker submitted the following figures: in Gujarat 19 villages regrouping 3,222 families were affected; 7,000 hectares of land were required. In addition, Gujarat had ageed to resettle the willing oustees from the states of Maharastra and Madhya Pradesh. There was no problem of availability of land in this case. In the state of Maharastra: 33 villages regrouping 1,665 families were affected; 2,700 hectares of land were required for 1,369 families which had opted to resettle in Maharastra only. Efforts were being made to utilise forest land for their resettlement. The remaining 296 families had agreed to resettle in Gujarat and in fact 179 families had already resettled there; the land for the remaining 117 families had been identified. In the state of Madhya Pradesh: 193 villages regrouping 14, 994 families were affected; 8,854 families would be completely affected and 6, 140 partially affected; 15,080 hectares of land were required, of which 2,083 hectares were required in Madhya Pradesh itself and 13,000 hectares in Gujarat. As already mentioned, there was no problem of land in Gujarat and, in fact, the officials of the Madhya Pradesh government had already approved 222 hectares of arable land and another 2,904 hectares of private land. Another 549 hectares had also been seen and accepted by Madhya Pradesh oustees. In addition, joint inspection of lands in Gujarat was in progress. In Madhya Pradesh itself, the state government had identified 1,489 hectares of land of resettlement. The requirement of an additional 594 hectares would be no problem. Moreover, as many as 118 villages would not be submerged before 1998.

As regards paragraphs 26 to 28 of the observation (mortality of displaced tribals; environmental questions), the speaker stated that the Government of India would keep the Committee of Experts informed about the action taken by state governments concerning health care of the resettled; it was his understanding that the information on general questions raised by the Committee of Experts in paragraph 28 of the observation would be incorporated in the periodic reports ont the Convention.

The speaker concluded that his Government was fully committed to the welfare of tribal people and that there were ample constitutional safeguards to protect and further their interests. The Indian Government would welcome any constructive suggestion and if complaints were found to be substantiated, remedial action would indeed be taken. The World Bank, which was closely monitoring the project in question, considered that the benefits of the Sardar Sarovar project were so large that they substantially outweighed the social and other costs involved: there were no reasons why the World Bank's assessment should be doubted in any way.

The Workers' members noted the goodwill and good intentions shown by the Government in its comprehensive report concerning this complex case. They noted, however that the Committee of Experts considered that the Government had not taken all the steps necessary to resettle the tribals, as required by Articles 11 and 12 of the Convention called for recognition of the right of ownership of traditionally occupied lands, the Government had taken the position that Government-owned lands which had been "encroached upon" were not traditionally occupied and therefore there was no obligation to resettle or compensate. Partial measures had been taken in the state of Gujarat but much less had been done by the states of Maharastra and Madhya Pradesh. On this basis the Committee of Experts had expressed concern at the situation of the some 60,000 tribals who were to be immediately displaced in the short term and some 1 million who were to follow. A solution still had to be found to this situation. A second issue involved the adequacy of lands available for resettlement: only one state had taken positive action in an effort to resettle the affected tribals. The magnitude of the problem was shown by the large number of persons involved. Based upon the well documented comments of the IFPAAW, the Workers' members expressed deep concern at the situation, despite the fact that some progress had occurred. The Workers' members called for continued intensive action by the Government.

The Employers' members considered that the sheer size of the population affected by the development scheme required the Government to make a massive effort to resolve the issues which had arisen. Although the Government had to assess the value of the project on an overall basis, the present Committee was required to seek, through dialogue, full information on what had bee done to apply the Convention. The Government had co-operated this year, as it had in the past, by providing complete information and the Employers' members hoped this would continue. The problems of ownership had met with different responses in different states: while a distinction could be made between traditional occupation and encroachment, the question was where should the line be drawn. Even the Committee of Experts had been ambiguous in this regard; and the present Committee could not give a definitive answer. Even if this question were answered, there was a doubt that sufficient resettlement lands existed. The Employers' members joined the Committee of Experts in asking the Government to continue to make all possible efforts to resolve these issues. Comprehensive, long-term measures needed to be considered. In addition to the equivalency of replacement lands, these solutions would need to take health issues into account. These measures would have to develop over time as the number of people to be displaced increased. The Committee would have to continue its review of developments in this case.

The Government representative noted the observations made by the Employers' and Workers' members. The Government had given full consideration to the costs and benefits of the development project and it was fully committed to ensuring that costs were fairly distributed and that both tribals and non-tribals were adequately compensated. The speaker explained that the controversy relating to traditional occupation versus the encroachers arose out of the Gujarat Government's commitment to rehabilitate even the encroachers. The Committee of Experts then expressed its concern that traditional occupants should not be called encroachers. The speaker explained that there was no question of the traditional occupants being called encroachers. However, a distinction had to be drawn between the former and the latter. Those who occupied the lands traditionally would be compensated; only those who recently occupied clearly demarcated government lands would be designated "encroachers" but would still be rehabilitated within the announced policy. Where issues arose on a case by case basis - if for instance, there was bona fide encroachment on clearly designated dormant lands - the Government was committed to settling them fairly, within the requirements of the Convention applying the traditional occupation test. With respect to the availability of resettlement lands, the speaker stressed that, as far as possible, lands would be provided for rehabilitation, also taking health care into account. The Government was aware that the progress of rehabilitation measures had been more in Gujarat than in the other States. The matter was being reviewed constantly.

The Workers' members stressed the need for uniformity in measures taken by the states affected by the project.

The Committee took due note of the detailed information supplied by the Government representative. It welcomed the Government's good intentions to achieve full conformity with the Convention and to give all the information requested. Recalling the concern it had always shown towards the rights of indigenous and tribal peoples, it hoped that the Government would do whatever was in its power on their behalf.