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By Shawahiq Siddiqui Construction of the Mundra Port and SEZ has had serious repercussions on the environment and on the livelihoods of 10,000 fisher folk. The National Environment Appellate Authority recently directed the state government to protect traditional fishing rights, but said nothing about violations made prior to the environmental clearance
On July 20, 2009, the National Environment Appellate Authority (NEAA), announced its decision in the matter of Manjalia Ahmad Ishaq and others vs Union of India and others, concerning the grant of post-facto environmental clearance, large-scale environmental violations and denial of the right to livelihood to 10,000 fisher folk along the Mundra coast in Gujarat. The decision is being celebrated by many citizens’ groups because it directs the Gujarat government to ensure that traditional fishing in the region is not affected by development activities on Mundra port. The order is therefore being seen as one that restores the rights of fishermen along the Mundra coast. I have certain reservations about the judgment as it refrains from issuing any direction on past environmental violations. The case and important aspects of the judgment are examined below. The case The Mundra Port and Special Economic Zone Limited (MPSEZL), the respondent company in the case, was carrying out construction activities for a Water Front Development Project (WFDP) in a mangrove-rich area along the Mundra coast without obtaining environmental clearance (EC). The company has been responsible for the destruction of the entire ecology of the region, including thousands of hectares of mangrove that served as spawning grounds for fish. This led to low fish catch and livelihood insecurity. Several creeks including Baradimata creek, Kotdi creek, Navinal creek and Bocha creek were filled up, blocking fishing routes used by fishermen for hundreds of years. Traditional fishing harbours, known as bandars, that are used by fishing communities for eight to ten months in the year were also destroyed. As a result, over 10,000 fishermen dependent on the local mangrove ecosystem, creeks, bandars and coast lost their livelihoods. Eleven fishing harbours in 12 villages have been directly affected by the WFDP. The blocking of natural drainage in Mundra taluka, diversion of water from the Kevdi river into the Bhukhi, contamination of groundwater due to a desalination plant and other serious violations have caused irreparable damage to the environment and ecological security of the region. In January 2009, the Ministry of Environment and Forests (MoEF), Government of India (the main respondent in the case), accorded environmental clearance to the WFDP without examining already existing environmental violations by the applicant company, and without verifying the fact that 60% of construction had already been carried out prior to the grant of clearance. The MoEF also failed to acknowledge that the expert appraisal committee that recommended the project for clearance had not looked into the environment and livelihood concerns raised by the fishing community at a public hearing. In response, the fishing community launched several agitations against the grant of clearance to the WFDP. It demanded that the state government take measures to ensure the protection of livelihood of affected fishermen. In February 2009 the fishing community approached the NEAA, which passed its order on July 20. Below are some disturbing aspects of the order: Misplaced directions The NEAA has diverged from the main issue. The major grievance of the fisher folk (appellants in the case) was that the Mundra Port and Special Economic Zone had already carried out major construction in the area prior to environmental clearance, and had destroyed the area’s ecology, leading to loss of mangroves, filling up of creeks, diversion of river water, dredging, and groundwater contamination. Further, the appellants claimed that the central and state governments were liable for negligence in protecting the environment and non-application of mind in granting post-facto environmental clearance. What was sought was a direction implicating the earlier violations and the restoration of people’s rights by quashing the environmental clearance. Instead, the NEAA upheld the validity of the post-facto environmental clearance and directed the applicants to approach other forums to challenge violations prior to the grant of environmental clearance. The Authority also refrained from issuing directions for the opening up of filled creeks and restoration of the area’s lost ecology. An important imperative of the judgment is that the NEAA’s directions to the Gujarat government will have prospective implications (if any) on traditional fishing rights in the Mundra area and will certainly not restore infringements on the right to livelihood and environmental safety that have already taken place due to the filling up of creeks and destruction of mangroves. Misunderstanding ‘aggrieved’ The NEAA has directed the appellants to move to another ‘appropriate’ forum to challenge environmental violations prior to the grant of environmental clearance, and has denied the quashing of environmental clearance. The basis for this direction is contained in the Authority’s understanding of Section 11 of the National Environment Appellate Authority Act, 1997, which provides that any person ‘aggrieved’ by the grant of environmental clearance may refer an appeal to the NEAA within a specified period and format. According to the NEAA’s construal of this section, ‘grievance’ refers to discrepancies of a technical nature in the clearance. Which means that the Expert Appraisal Committee (EAC) and the Ministry of Environment and Forests (MoEF), while granting environmental clearance, did not consider any material concerns raised at the public hearing before the grant of environmental clearance. It says construction done prior to the grant of clearance is not a ‘grievance’ of the nature that the Authority has a mandate to look into. It may be submitted here that correct interpretation of ‘grievance’, under Section 11 of the National Environment Appellate Authority Act, 1997, taking into consideration the object and intent of the Act, is that the Authority is mandated and empowered to adjudicate upon any and every aspect that the EAC and the MoEF have failed to look into prior to the grant of clearance. Illegal construction and devastation of the local ecology, prior to the grant of environmental clearance, is very much a material concern that the NEAA should have taken into consideration, instead of making such a narrow interpretation of Section 11. In fact, the NEAA has limited its own powers by arriving at such a misplaced construal of the powers vested in it under Section 11 of the NEAA Act, 1997. Administrative response to the NEAA order There is enough evidence to show that the extent of environmental violations that have occurred in the Mundra area could not have happened without the administrative support of the MPSEZL. There are serious complaints on record, made by local people, but the developers were let off. When asked about implementation of the order passed by the NEAA, the principal secretary, forest and environment department, Gujarat, responded: “There is nothing new in the NEAA’s order. Environmental clearance given to the WFDP is on the pre-condition of no loss of livelihood through traditional fishing as well as total mangrove preservation.” (The Indian Express, July 28, 2009) It is evidently clear that the forest department, government of Gujarat, has no serious plans for implementing the order. Is there a way forward? In a situation where there are several cases already pending against the MPSEZL in different courts, including the Supreme Court, it is difficult to prove the same point of law that has been disallowed by the Appellate Authority by misconstruing the statute. Whatever the limitation is, the outcome of the NEAA order is that it certifies that environmental clearance granted by the MoEF to the MPSEZL is correct in law, and that the Authority has considered all the material concerns of people likely to be affected by the project. The NEAA’s order must be challenged essentially on two grounds. The first: its approach in pronouncing this judgment and the limitation exercised by it in not considering the post-facto nature of the environmental clearance. The second should be to highlight the evidence, showing that the material concerns of people likely to be affected by the project were substantially ignored. The NEAA has failed to take the evidence on record into consideration and has pronounced a judgment that is not only bad in law but sets a wrong precedent for those violating the environmental laws of the country. (Shawahiq Siddiqui is a lawyer with the Supreme Court of India and associate lawyer, Enviro Legal Defence Firm, NOIDA. He was one of the counsel for the appellants, the fisher folk) Infochange News & Features, August 2009
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