Kanchi Kohli communities and legal action – Page 3

Environmental Impact Assessment: The problem with public hearings

A stage with five chairs was set up some distance from an area where the crowd could assemble. A bamboo barricade demarcated the ‘official’ and ‘public’ spaces. Anyone from this crowd could address the five dignitaries who would preside over the events of the next few hours using a microphone set up near the barricade on the side of the public. Police functionaries surrounded this tented arrangement and a clerk was parked at an adjoining table on the official side. People could approach him through a fenced route and hand over their documents and other submissions.

Soon, men of stature filled the chairs on the stage. The member of legislative assembly (“MLA”) of the region and the District Magistrate (“DM”) sat next to each other. Two men, who seemed to be ones with a sense of purpose, joined them. One of them wore a well-creased shirt and another carried a bulky set of reports and maps. These two also looked the most stressed. Finally, there was a representative from the state pollution control board, who wore a very visible “been there, done that” expression.

After the DM opened the proceedings, the MLA took the mike. He declared that the proposed hydropower project was not just a progressive step for the economic development of the people of his constituency; it also allowed them to participate in a national drive for energy generation. He declared in no uncertain terms that he is an ally of the proponent of the project, who would be explaining their project design to all present at this public hearing.

Soon after, two trucks arrived, filled with people who walked straight to the clerk. With thumb impressions and signatures, they not only marked their presence but also recorded their approval for a large dam and powerhouse to be built around their homes, fields, and forests. This happened even before the man in the creased shirt had initiated an explanation of how much land the project would acquire, how much forest would be cut, and whether the homes and livelihoods of people will be displaced.

A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel

But eventually, their presentation did get underway. It was followed by objections and suggestions from around fifty people. Some raised issues of displacement, others said they did receive documents in time, and many others were concerned about the cultural pollution that would be caused by an influx of labour. After about four hours, the DM called the meeting to a close, without reading out the minutes of what had transpired, something he was required to do.

This story is familiar to anyone who has attended a public hearing under the Environment Impact Assessment Notification, 2006 (“the EIA notification”). Public hearings such as this one are a mandatory third step of the procedure for dams, mines, industries, and ports to receive environment clearance. It is part of a larger process of public consultation , which includes both written submissions and such face-to-face deliberation with the authorities, project proponents, and consultants.

Violations of procedure

The public hearing I have described was ridden with violations of the legal procedure required by Appendix IV of the EIA notification. Community-based organisations, legal researchers, lawyers, and activists have been pointing out these concerns ever since this process was first introduced by an amendment to the 1994 EIA notification in 1997. Today, public hearings are to be conducted “in a systematic, time bound and transparent manner ensuring widest possible public participation” (Section 1 of Appendix IV). Barricading the public hearing space, the MLA making opening remarks in favour of the project, and the presence of police are all intimidating to say the least and clearly deter people from openly speaking their mind. There are also, as I have stated above, clear violations of the legal procedure.

The MLA sitting on the dais, for instance, violates the requirement in Section 4 of Appendix IV that the panel of the public hearing will comprise only of the DM or their representative along with someone from the Pollution Control Board. The MLA’s presence therefore, is reason enough for the illegality of the public hearing.

Another problem with the events described above is that people indicated their consent for the project even before the project authorities had presented a description of the project and a summary of the EIA report. It was as if none of the people who arrived in the trucks were even interested in understanding the impact of the project. It will not surprise those who know how public hearings are conducted across the country that they had been possibly “brought in” to record their attendance in favour of the project. The DM allowed people to sign their consent and leave without really engaging with the project proponents, consultants, or government representatives, which is what the spirit of the public hearing and the procedure laid out in Appendix IV require.

Opportunity to review the draft EIA report

A public hearing underway for the Nalway sponge iron plant. Photo credit: Kanchi Kohli

Among the fifty people who opposed the project, one had highlighted the problem that the project documents were not available the public hearing. The EIA notification (Section 2.2 of Appendix IV) requires that both hard and soft copies of the draft EIA report have to be available at designated locations – the offices of the DM, the Zila Parishad or the Municipal Corporation, the District Industries Office, and the regional office of the Ministry of Environment and Forests – thirty days before the public hearing takes place. A summary of the EIA has to be made available, both in English and in the local language of the place where the project is being set up.

This brings us to a fundamental flaw in the design of the public hearing process after 2006 when the EIA notification was amended. During this one-time event, people only have access to a draft EIA report. In the minds of regulators and project proponents therefore, the responses from people are to be used merely to finalise the EIA document. The only relevant comments are those that can be filtered into the final document, or are technical enough for the expert committee to take on board. Based on that they can ask project authorities for additional studies or clarifications.

Restricting the opposition to projects

By restricting itself to ascertaining the “concerns of locally affected people” and those with a “plausible stake in the environmental aspects of the project” (Section III (ii) of the EIA notification), the presiding panel restricts the speaking of anyone who is not local. NGOs, scientists, and activists are often told to make written submissions only. People have of course found creative ways to deal with this problem, with the local community backing them as representatives on technical and legal aspects. Often however, it is up to the DM whether to allow such an intervention or not.

Often, concerns that go beyond being purely “environmental”, go out of the window. When the project comes for appraisal to the MoEF, the reasons that the Minster may record for granting the approval would include the strategic, political, and energy needs of the country. The law however, lands up restricting people’s voices on these very issues.

Public hearings remain one of the most talked about spaces for law in discussions on environment and development. Despite their limitations and despite often being sham events, public hearings make the project authority visible to the community affected by the project. There have been demands that there be more than one hearing, one before the EIA is finalised, and one after. Policy researchers and activists have also demanded that the public hearings be given more teeth. Today, even complete opposition to a project at a public hearing is not decisive. That power lies, with a bunch of technical experts for their recommendation and finally with the minister himself.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.

Are my forests going to be cut?

Recently, I received a query from Madhya Pradesh about whether a mining company was allowed to lop off branches and demarcate trees in a forest area. Such queries are common in many parts of the country where forest land is sought for “non-forest use” like industries, dams, roads, mines, and ports.

Confusion reigns, both among community organisers and affected people, about where the buck really stops, especially on what constitutes a “final” diversion of forest land and how the legality of some particular activity on forest land can be questioned. Legal aid practitioners (both formal and voluntary), affected people, and government agencies need to come out of this lack of clarity, illustrated in this case from Madhya Pradesh. The villagers, who had organised themselves into a sangharsh samiti (struggle committee) and had been resisting coal mining operations in the area, had seen the representatives of a mining conglomerate enter the Sal forests typical of this area. When asked by the villagers if they had permission to lop branches off and demarcate trees, these representatives reportedly responded that they had the approval of the Divisional Forest Officer (“DFO”) to enter the forest for such work. They also said that they had recently received permission from the Ministry of Environment and Forests (“MoEF”) to divert the forest land. The villagers should also be aware that it was only a matter of time before the company would be allowed to start mining activity.

On the other hand, local social activists had informed the protesting villagers that the MoEF’s approval was not enough for any mining company to start operations. With this information in hand, the villagers asked the companywallahs whether they had the permission in writing to enter the forest, and they were not able to provide any.

Laws applicable to diversion of forest land for non-forest use

The Indian Forest Act, 1927 (“IFA”), its corresponding state laws, and the Forest Conservation Act, 1980 (“FCA”) apply to the issue of diversion of forest land for non-forest use. In the Indian constitutional scheme, both the Union government and the state governments can make law on the subject of forests.

Anyone who wants to use the forest, whether it is a government department, or a private agency, or an individual, needs the permission of the relevant forest department, and the DFO in particular, to divert the forest land. The DFOs needs to inspect the site, prepare a report based on a series of criteria, and forward their recommendation on whether the forest should be given away for non-forest use. Based on the DFO’s recommendation, the Principal Chief Conservator of Forests (“PCCF”) should forward the proposal to the MoEF. This practice of taking prior approval from the MoEF by the state government was institutionalised through the FCA in 1980, when the Union government felt that the country’s uncontrolled and unprecedented rates of deforestation required central regulation.

At the MoEF, for cases like this, a Forest Advisory Committee (“FAC”) reviews the proposal and gives its recommendations. During this process of review, the FAC can call upon experts, take additional site visits, and seek any amount of additional information. In this case, the FAC had (as documented here) already reviewed the proposal thrice and had refused permission on the grounds that diversion would cause the loss of forests of a very good quality and that the coal from mining coal in the area would only last for fourteen years.

PanchmarhiValleyMadhyaPradesh_DhanbadCoalMine — The Panchmarhi valley (left) in Madhya Pradesh and a coal mine in Dhanbad in Jharkhand.
Both images are from Wikimedia Commons. CC BY-SA 3.0 and CC BY 2.0 respectively.

After extensive political and bureaucratic lobbying however, this company received approval in two stages — first in October 2012 and then in February 2014. In accordance with the MoEF’s practice, they received the first (in-principle) approval with a wide list of conditions including the recognition of the rights of tribal and forest dwelling communities under another critical national law, ensuring land is made available for compensatory afforestation, and carrying out a whole range of studies related to the cumulative impact of the mines on water and other resources. The approval at the second stage came amidst even more controversy.

Through this period, the affected community and local activists protested against the fact that the due procedures of law had not been followed, especially those related to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”). Before the final diversion takes place, the process under the FRA, including taking the necessary permission from the Gram Sabha (village assembly), needs to be complete.

The villagers, now armed with the relevant legal provisions with some help from local and national activists and legal empowerment practitioners, complained to the District Collector and the Minister of Tribal Affairs. Tools such as the Right to Information Act, 2005 were important for them to be able to procure panchayat records and verify the signature of the villagers. The company had and government had claimed that the process under FRA was complete as villagers had signed on their claims at a gram sabha meeting. Information accessed using the RTI Act revealed that many of the signatures were forged. What the company had hoped would be behind them, is now an issue that remains unresolved and open to a formal enquiry.

With the final approval from the MoEF, the coal mining company had entered the area to initiate the lopping and demarcation work. They still did not have the approval of the state government. They had applied to the State Forest Department for diversion, but without the permission required from the state government under Section 2 of the FCA and the corresponding provisions of the IFA, they cannot move ahead, especially if the forest is a “Reserved Forest”. At the time of writing this article, there is no information in the public domain that the state government has given its approval. The state government is waiting for the release of compensatory afforestation land in Sagar district of Madhya Pradesh before giving its permission. At the same time, the District Collector, based on the complaints of the villagers, has set up an enquiry on the process under the FRA and has been quoted in the media saying that his enquiry will only be completed after the national elections of 2014.

Now, the villagers have also filed a complaint with the MoEF and the state forest department. In their letter, they have said that the activity carried out by the company’s representatives was in contravention of the law and that action should be taken. While they are yet to receive any formal reply, the complaint has deterred the company from carrying out any further activity.

It is only a matter of time before the land required for compensatory afforestation is found and the collector’s report is finalised. The legal action might then move from the administrative and regulatory arena to the wisdom of the judiciary. All the build up till now, will then be the evidence, which is critical in any such situation to prove and illegality. In some of the future articles in these series, we will delve upon the nature of evidence in environmental law and challenges in being able to collect it and present it before a regulatory agency or judicial forum.

Many similar cases involving the issue of diversion of forest land for non-forest use may be developing across the country. Understanding the law and practice of forest diversion and recording illegalities will be critical for all concerned. Each case will be peculiar and as practitioners, we will need to delve deeper and work with the affected community to build evidence around it. Even when it comes to the environment, the law is best invoked when backed up with proof.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.