United Nations Declaration on the Rights of Indigenous Peoples

United Nations Declaration on the Rights of Indigenous Peoples, 1994

Article 32

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

Article 33

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

 Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

As in the previous year we also reiterate our great satisfaction for the wise and salutary act of Government of India for having signed the UN Declaration on the Rights of the Indigenous Peoples in 2007.

However, we feel highly discomfited in spirit to state before you a painful fact that we at ground level are still deprived and face systematic discrimination and exclusion from political and economic power. The indigenous peoples  believe that the implementation of a human rights-based approach to development should take into account issues of equality and sustainability, and endorse the fundamental concept of development to take place in sync with a community’s culture and identity.

Under the circumstances, we would like on this outstanding occasion of international and national significance to highlight only the most significant of our multiple concerns for your kind perusal and judicious intervention.

SPECIFIC RECOMMENDATIONS

1.        As per Para 2 of 5th Schedule to  the Constitution, the State Government or for that matter the Governor, as the head of the State directly holds the executive power over the Schedule Areas situated in the concerned State. So a Special Tribal Cell dealing with the Scheduled Areas and Scheduled Tribes is put in place in the office of the Governor as a single window mechanism for dealing with the tribal issues.

2.        As per Para 3 of the 5th Schedule to the Constitution the Governor is required to dispatch an Annual Report and also  a report to the President of India as and when required by the latter concerning the administration of the Schedule Areas. But it’s a matter of great regret that neither the STs nor the  public at large are in the know of such reports if any being sent to the President of India ever since the proclamation of the Constitution. It’s therefore earnestly urged that the Governor should himself ensure timely preparation and dispatch of such constitutionally mandatory reports dealing with all aspects of administration in Scheduled Areas and also for their wide scale circulation in official language of the State among the STs in particular and public in general.

3.        Immediate and effective implementation of Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act 2013 in the State of Odisha.

4.        Updating the lists of the Scheduled Tribes under the Article 342 of the Constitution and revision of the boundaries of 5th Scheduled areas as per para 6 and 7 of 5th Schedule. Besides the State Tribes Advisory Council and Governor should recommend to the President of India for covering certain tribes as , Kanda Dora, Saora, Odia Kandha and other adivasi communities in the lists of the STs under  Article 342 of the constitution .

5.    The Government of India should invite public opnion / suggestions on the Draft National Tribal Policy prepared by the Ministry of Tribal Affairs, Government Of India in the the year 2006 and thereon finalize the policy before its adoption.

6.        The existing state laws related to land reforms like Orissa Government Land Settlement Act 1962, Orissa Survey and Settlement Act 1958, Orissa Prevention of Land Encroachment Act 1972 and even Orissa Scheduled Areas (Transfer of Immovable Property) Regulation 2 of 1956 along with the Schemes like Mo Jami Mo Diha’ and ‘Vasundhara’ are in  dire need of a drastic and comprehensive amendment so as to empower the Panchayats and Gram Sabha in all matters related to land reforms as required under the Item-2 in the 11th Schedule to the Constitution and PESA Act 1996.

7.        All matters relating to land acquisition and R and R must be administered with the Free, Prior and informed consent of the people at Gram Sabha  levels in tune with the letter and spirit of   PESA Act 1996, Samatha Judgment by Supreme Court 1997, FRA 2006, Supreme Court Judgment on Niyamagiri 2013 and Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act 2013.

8.        The existing Odisha Gram Panchayat (Minor Forest Produce Administration) Rules 2002 is ultra virus the FRA 2006 and the Gram Sabha is the ultimate authority of the right over forest produces as per Section 6 of Forest Rights Act 2006. This calls for a drastic amendment of existing Orissa MFP Rules in tune with the FRA 2006, which included all items like Kendu Leaf, Bamboo and Sal Seeds under the definition of MFP.

9.         In view of the firm provision made in FRA 2006 that the Gram Sabha and Forest Rights Committee are to act as the competent authorities in the matter of all the forest rights, the so called Joint Forest Management Resolution 2011 announced arbitrarily by the Forest and Environment Department that entrusts substantial powers of control to the Forest officials is simply ultra vires. The Government of Odisha ought to stop its skewed and prejudicial implementation of FRA which is evident from the utter neglect by the SDLC, DLC and SLMC towards the community rights over forest land and forest resources and also recognition of forest rights of the Other Traditional Forest Dwellers.

10.     In view of the transfer of power in respect of issue of certificate in respect of caste, marriage, birth and death from the Gram Sabha to different governmental authorities, the common people are getting harassed a lot.  Going by the Section 4(a) and (d) of PESA Act 1996, the Gram Sabha or respective community Chiefs (Jati Mukhya) in Scheduled Areas in Odisha should be authorized to issue certificates of caste, marriage, birth and death and residence of its inhabitants.

11.      A drastic revision of the extent and boundaries of the  Schedules Areas in Odisha is required as per Paras 6 and 7 of 5th Schedule to the Constitution so as to incorporate the areas of preponderant ST population that remain left out as of now.

12.     The Government should take the move for updating the lists of the Schedule Tribes as required under the Article 342 of the Constitution. Besides the State Tribes Advisory Council and Governor should recommend to the President of India for covering certain (Adibasi) Tribes for inclusion of the same.

13.      In view of the fact that the Right to Education Act 2009 recognizes the right of every child to elementary education in his / her mother tongue which is so far denied to the children in the Scheduled tribes, the Government of Odisha should immediately ensure its implementation.

14.     None of the three principal Panachayt laws (Gram Panchayat Act, Panchayat Samiti Act and Zilla Parishad Act) in Odisaha are compliant to the 73rd rd Constitution Amendment Act 1992 (now Part IX of the Constitution) or to the PESA Act 1996, because such Panchayat laws have bestowed substantial powers of control and domination over the Gram Sabha and Panchayats in all areas scheduled or not across the State.  It is the crying need of the hour that Odisha should replace these three laws by a single consolidated Panachayat law like other states and in conformity to the letter and spirit of the Part IX of the Constitution and PESA Act 1996.

15.      All the developmental activities under the Tribal Sub- Plan should be planned and administered by the Gram Sabha in the Scheduled areas as per the Section 4(m-vii) of PESA Act 1996.

16.     Provision of entitlement and services in regard to indigenous people should be in conformity with the culture and practice of the indigenous communities as envisaged in the section 4 (d)of PESA act 1996 and  5th Schedule of the constitution. An exhaustive inventory of the tribal languages and dialects need to be built up and the entire gamut of oral traditions of every Adibasi / tribe be given a written form in the scripts of different Indian languages.

17. As per Section 4(m-i) of PESA Act 1996 the Government shouldn’t allow the trade and commerce in any foreign or so-called country liquor in the Scheduled Areas and leave the whole matter relating to prohibition or regulation of intoxicants to Gram Sabha.

18.     Last but not the least, the Autonomous District Councils (ADCs) working in 6th  Scheduled Areas, which enjoy  extensive administrative, legislative and judicial powers,  and which is also referred in Section 4(O) of PESA Act 1996 as a model for the 5th Schedule Areas should be set up in the Scheduled Areas of Odisha. .

General Recommendations:

The Indigenous peoples Forum Odisha, here by recommends the following –

1.    Promoting non-discrimination and inclusion of indigenous peoples in the design, implementation and evaluation of national and State processes regarding laws, policies, resources, programmes and  all developmental projects;

2.    Promoting non-discrimination and inclusion of indigenous peoples in the design, implementation and evaluation of national and State processes regarding laws, policies, resources, programmes and  all developmental projects;

3.    Promoting full and effective participation of indigenous peoples in decisions making process, which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.

4.    Redefining development policies that depart from a vision of equity and that are culturally appropriate, including respect for the community, cultural and linguistic diversity of indigenous peoples.

5.    Adopting targeted policies, programmes, projects and budgets for the development of indigenous peoples, including concrete benchmarks, and particular emphasis on indigenous women, children and youth.

6.    Developing strong monitoring mechanisms and enhancing accountability at the National, State and District level, regarding the implementation of legal, policy and operational frameworks for the protection of indigenous peoples and the improvement of their lives as per their need and demand.

The Human Development Framework of Indigenous Peoples’ be, with Self-determined Development or Development with Culture and Identity is very vital be the road map for all development agencies and governments.