sustainable development – the myLaw.net blog

How we used the law to reclaim the inter-tidal area at Bavdi Bander

The Kutch district in Gujarat, one of the largest in India, has a coastline of 405 kilometers and inter-tidal area of about 200 kilometers. For generations, communities in the district have engaged in agriculture, pottery, animal husbandry, weaving, fishing, and salt production. The last two occupations directly depend on the sea and the shoreline and have always co-existed in designated parts of the inter-tidal belt.

In recent years however, commercial expansion, especially of salt production, has contested for the space otherwise occupied by small and artisanal fisherfolk. The “bunding” and “drawl” of water for large saltpans has also had an impact on the livelihoods of fisherfolk who seasonally cultivate prawns.

Conflict at the fishing harbour

One such instance came to light in the case of Bavdi bander, a fishing harbour in the Mundra block of the district. Neelkanth, a large salt production company, procured a lease for salt production on the bander. It then started to bund, by reclaiming the sea using stones and soil, more than one kilometer of the inter-tidal area to create saltpans to divert and collect seawater for the production of salt.

Exactly where Neelkanth had carried this out, a fishing community would spend 7 to 8 months every year, fishing with small boats or on foot (known as pagadiya fishing). They used the tidal area for parking their boats but once the bund was built, they had to keep their boats far in to the sea and further away from the coast line and so faced difficulties in the transfer of the fish catch from the boats on to the harbour where it would be sorted and dried before being sold. This was not all. The construction of the bunds also destroyed approximately 20 hectares of mangroves.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

The biggest revelation of all unfortunately, came to light only after the impact of bunding had already played out. Neelkanth did not have the clearance required under the Coastal Regulation Zone (CRZ) Notification, 2011.

It came to light by accident. On January 22, 2013, a committee constituted by the Ministry of Environment and Forest was visiting the area. Set up on September 14, 2012 to review the violations of the Adani Port and the Special Economic Zone located 45 kilometres away from the Bavdi bander, its members also decided to visit the bander to investigate claims about compensatory mangrove plantations in the area. Representatives of the Gujarat Coastal Zone Management Authority (GCZMA), local fish traders, and representatives of the Machimar Adhikar Sangharsh Samiti (a fishing union of the area) also accompanied the committee members.

They saw the large bunds that had been built into the sea. The people living at Bavdi bander complained that the bunding created obstacles to the natural flow of the sea water during periods of high and low tide. They also aired their difficulties related to the parking of their boats and how all this was severely affecting their livelihood. On the committee’s recommendations, the Principal Secretary of the Department of Environment of Forests in the Government of Gujarat issued a show cause notice on February 27, 2013. But the action ended there and the bunding continued unabated.

A different kind of salt satyagraha

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

In need of a remedy, some fisherfolk from the area approached the High Court of Gujarat. It took several hearings and over 18 months for a final judgment to emerge from the Court only on August 27, 2015. The District Collector had told the Court on April 10 that the lease for the salt pan had not been renewed. If any bunding activity did happen therefore, the District Collector could take action.

While the case was pending in court, there were some developments at the harbour and Neelkanth had continued its activities unabated. Some time in late 2014, the people of Bavdi, not clear about how the case would proceed, approached the Centre for Policy Research-Namati Environment Justice Program, which had been working in Kutch to understand the impact on livelihood caused by problems related to non-compliance with the law in coastal areas.

Bharat Patel and I work with the programme and we realised that the people of Bavdi knew that even though an illegality had occurred, which was affecting their livelihood, they had not received a remedy. While recording the nature of the problem, we also came to know that the owner of the Neelkanth salt company was trying to secure another permission on the same land, this time in the name of one of his relatives.

With some help from us, they came to know from the website of the Gujarat Costal Zone Management Authority (“GCZMA”) that this was indeed the case. The minutes of a GCZMA meeting held on April 10 this year record that Neelkanth had applied for CRZ clearance in the name of Vasta Govind Chavda. This was for the same area where the bunding had been done, for which the show cause had been issued and a court case was pending.

From the minutes, the fisherfolk realised that the GCZMA had asked the proponents to submit a revised application so that their CRZ clearance can proceed. We saw this as an opportunity and decided to petition the GCZMA to not grant this approval because an illegality had already occurred and because the matter was pending before the Gujarat High Court.

Before they submitted the application to the authority, they discussed the importance of backing their claim with evidence. They had to prove that the place for which CRZ clearance was being sought already had an illegal salt pan and that the matter was sub judice. They relied on Google Maps to plot the area, backed it up with photographs, and also copies of notices that had already been issued to Neelkanth. Only when they had this in hand did the representatives of the affected community draft a letter to the GCZMA demanding that approval be denied. It also explained the relation between Neelkanth and Vatsa Govind. This letter was sent to the Chairman and members of the GCZMA on April 8.

At its very next meeting, on May 15, the GCZMA took a decision that favoured the fishing community. Vatsa Govind’s proposal was rejected because the area in question was rich in biodiversity with dense mangrove patches and sand dunes. The company therefore, had to submit a fresh application for a CRZ clearance for a different area.

Meanwhile, the sea has reclaimed the bund that was created illegally. With the saltpan lying vacant, the tidal water has gradually brought back the boats, the fish catch, and the spirit of the people.

Vimal Kalavadiya works with the CPR-Namati Environment Justice Program. This article has been written with inputs from Bharat Patel who is also associated with the programme.

Precaution discarded, Kasturirangan report does not recognise importance of Western Ghats

In April 2013, the Kasturirangan Committee constituted by the Ministry of Environment and Forests (“MoEF”) submitted its report on the Western Ghats, sparking much political debate about the fate of this mountain range, which runs parallel to the western coast of India, almost contiguously from the lower reaches of Gujarat to the tip of the Indian peninsula. A unique geological and ecological marvel home to the greatest concentration of biodiversity in the world, hosting about 325 globally threatened species in an area roughly forty-three times the state of Goa, they are a UNESCO World Heritage Site and a key component in regulating the south-west monsoon cycle that forms the basis of the subcontinent’s rainfed agriculture. Not only do they provide a natural barrier to the rain-laden winds, the topography of the Ghats has, over millennia, become the natural habitat for thousands of species of flora and fauna that live in delicately balanced ecosystems throughout the ranges. As the Kasturirangan Committee report accepts, only concerted efforts to study it over decades will provide a full appreciation of the value of this exceptional phenomenon.

Given that it spans the six states of Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu, it is vital that state governments and the Union government work with each other to preserve this unique ecosystem. Remember, that since the protection of wildlife and the regulation of forests are subjects in Entries 17A and 17B of the Concurrent List of Schedule VII of the Constitution of India (“Constitution”), the Union and the State governments have to co-ordinate conservation efforts.

In August 2011, the Western Ghats Ecology Expert Panel, (“WGEEP”), headed by Madhav Gadgil, had submitted to the MoEF, a report (“the Gadgil Committee Report”) containing recommendations for the preservation of the Western Ghats. It recommended the formation of a Western Ghats Ecology Authority under Section 3(3) of the Environment Protection Act, 1986 (“EPA”) to exercise greater control over environmentally damaging activities in the Western Ghats as well as to oversee conservation efforts in the region.

The WGEEP had been required to “demarcate ecologically sensitive zones and suggest measures to conserve, protect and rejuvenate the ecology of Western Ghats region.” Based on the feedback of the different stakeholders and the recommendations of the Gadgil Committee Report, the MoEF constituted a High Level Working Group to provide suggestions for “an all-round and holistic approach for sustainable and equitable development while keeping in focus the preservation and conservation of ecological systems in Western Ghats.” The HLWG was headed by Dr. K. Kasturirangan and it came out with the Kasturirangan Committee Report.

What is the debate all about?

The western region of India has traditionally had a high density of human population. In recent years, monoculture plantations (such as spices and bananas in the Kodagu region of Karnataka), poaching, and livestock grazing have added to the pressure on the land. Over the last two decades, mining and extraction of sand, in particular, have led to large-scale degradation in places like Goa, where the mining industry contributes a major chunk of the state’s revenues. This ever-increasing threat and the need for sustainable solutions prompted the Union government to institute the Gadgil and subsequently, the Kasturirangan committees. Both sets of recommendations have run into rough weather.

The Kasturirangan Committee report recognised that almost 60 per cent of the region of the Western Ghats is under human habitation, leaving only about 37 per cent of it – close to 60,000 square kilometres in area – under uninhabited forest cover. The report recommended that all such land be declared an Ecologically Sensitive Area (“ESA”) and that a prohibitory and regulatory regime be implemented in ESA regions including a complete ban on mining, quarrying, and sand mining. Obviously, this has attracted a lot of political debate and is now the subject of negotiations between the Union and the state governments that will be affected if this recommendation is to be legislated.

In a bid to strike a balance between conservation efforts and continued sustainable human development, the report also recommended incentivising green growth and proposes spurring growth of the inhabited regions of the Western Ghats through grant-in-aid projects funded by the Union Government. It envisaged increased expenditure by the Union government towards state debts in a way that will boost the productivity of forest-reliant livelihoods.

“This is a mechanism whereby part of the outstanding debt of a State is swapped for new constructive initiatives by it to protect its natural resources. A part of these payments be retained by the State Governments and a part be used to finance local conservation trust funds (as in several countries), which disburse grants to community projects for improving forest productivity and ensuring sustainable forest based livelihoods in ESAs.”

While the idea of sustainable economic development is a good one in theory, considering the amount of pressure that is already exerted on a fragile and fast-shrinking ecosystem, it may not be the most pragmatic approach. The report in fact follows through to propose two extreme and contrasting views. At one end of the spectrum are the strictly regulated and cloistered regions under the ESA category with zero-tolerance for any human activity. At the other end, the rest of the Western Ghats are under threat of turning into an open forestry industry, where almost every environmental resource is potentially tapped for its economic value.

In its report, the Gadgil Committee had recommended the stricter monitoring and implementation of the applicable environmental laws to maintain and possibly achieve, a greater level of conservation of the Western Ghats. Seeing how these would be difficult to achieve, the Kasturirangan Committee broke the area down into components. Madhav Gadgil’s open letter to Dr. Kasturirangan was scathing; he said the latter set of recommendations would result in “maintain[ing] oases of diversity in desert of ecological devastation”.

Precaution, sustainability

The precautionary principle, first articulated in Principle 15 of the Rio Declaration of 1991 (“Rio Declaration”), demands the exercise of caution in carrying out human activities, the effect of which on the environment are not clearly known at that time. This principle has been a part of Indian law since the Supreme Court emphasised the need for scientific inputs before decisions could be made regarding the environment in A.P. Pollution Control Board v. M.V. Nayadu. It recognises the need to protect the natural world for its intrinsic value and not just for its potential benefits for human civilisation. Our knowledge of the ecosystems and the ecology of the Western Ghats is quite limited and to base our long term decisions on our inadequate comprehension is not just an error but an example of bad governance. The principles of sustainable development, which were read into Indian law by the Court in the case of Vellore Citizens’ Welfare Forum v. Union of India, and which through the Rio Declaration, require nations to achieve developmental goals without irreversibly compromising the capacity of the environment to sustain present and future generations, are also at play.

Given the role of these concepts in Indian law, the Kasturirangan Committee failed to grasp the importance of the Western Ghats to the geography of the Indian subcontinent as well as the role they play in the lives of those who inhabit them. We need to do away with short-term solutions and focus on developing a better understanding of the region to achieve a more robust framework of laws and processes that will facilitate better conservation in the region.

(Suhasini Rao is part of the faculty at myLaw.net.)