The Legal Realism of the Access and Utilization of Forest Land by the Tribals in India Vis-A-Vis Australia.

Abstract

This paper examines two landmark legal frameworks India’s Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) and Australia’s Native Title Act 1993 (NTA) which aim to restore land rights to indigenous forest-dwelling communities. The FRA was enacted to “undo the historical injustice” done to tribal communities by formally recognizing and vesting their customary forest rights. Likewise, the NTA followed the Mabo decision (1992) to acknowledge Aboriginal and Torres Strait Islander peoples’ native title under common law. Both statutes enshrine the principle of self-determination and seek to secure livelihoods, culture and dignity for indigenous peoples, but their implementation has diverged. In India, FRA empowers Gram Sabhas (village councils) to adjudicate claims and grants a bundle of individual and community rights. In Australia, native title is recognized through federal court determinations and Indigenous Land Use Agreements; claimants must prove continuous traditional connection since sovereignty, and rights remain non‑exclusive and subject to prior interests. This comparative study uses doctrinal analysis of statutes and case law, review of implementation data and field studies, and illustrative case examples to assess how effectively these regimes realize the right to life and dignity of forest-dwelling peoples. The analysis finds that although both frameworks have achieved important legal in practice India’s FRA is still largely unimplemented in most areas, and Australia’s native title system remains burdened by stringent proof requirements. Administrative bottlenecks, contested conservations laws, and entrenched interests have hampered both regimes.