Author: cprindia

The National Green Tribunal (NGT) has emerged as an important player in Indian environmental regulation. It has issued orders on a variety of issues–ranging from pollution to deforestation to waste management. It recently directed the Delhi government to de-register all diesel vehicles more than 10 years old–a decision being opposed by many stakeholders, including the Central Government.

In the interview below, environmental lawyer and CPR faculty Shibani Ghosh talks about the National Green Tribunal and it’s functioning. Shibani practices before the National Green Tribunal and has written on various issues of domestic environmental law and governance. She is currently editing a book on key principles of Indian environmental law.

Can you tell us about why and how was the NGT established?

The need to set up special environmental courts was highlighted by the Supreme Court of India in a series of judgments, the first one being in 1986 in the Oleum Gas Leak case, and by the Law Commission of India in its 186^th report in 2003. The Court was of the opinion that environmental cases raised issues, which required technical knowledge and expertise, speedy disposal, and continuous monitoring, and therefore these cases should decided by special courts with necessary expertise and technical assistance.

The Parliament passed the National Environmental Tribunal Act, 1995 but it was never implemented. Subsequently, the National Environment Appellate Authority Act, 1997 was enacted under which the National Environment Appellate Authority was set up. There were several problems in the functioning of the Authority, including its limited mandate and key vacancies that the government did not fill. The Authority functioned till October 2010 and was replaced by the National Green Tribunal.

The National Green Tribunal was set up under the National Green Tribunal Act, 2010 (NGT Act). The objective of the NGT Act is to provide effective and expeditious disposal of cases relating to the protection of the environment. Even though the Act came into force on 2 June 2010, the first hearing of the Tribunal was held only in May 2011. The Tribunal suffered from serious ‘teething troubles’. Despite being a body constituted by an Act of Parliament, the Supreme Court had to intervene to ensure necessary administrative arrangements were made by various branches of the government for the Tribunal to become functional.

How does the Tribunal function?

The members of the Tribunal are a mix of persons with a legal/judicial background and those with knowledge and expertise in environmental issues or with administrative experience. There is a principal bench of the Tribunal in New Delhi and four regional benches in Bhopal, Kolkata, Pune and Chennai. These are ‘co-equal benches’ i.e. the principal bench is not ‘higher’ in a judicial hierarchy than the other benches. Each bench has a specified geographical jurisdiction. For instance, cases arising from Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Pondicherry, and Lakshadweep have to be filed in the Southern bench in Chennai. Occasionally ‘circuit benches’ are also constituted. These are specially constituted benches, which visit a particular city for a few days to hear cases relating to that state.

The Tribunal has original (to be the first judicial forum to hear a case) and appellate (review a regulatory authority’s decision) jurisdiction with regard to the implementation of seven environmental laws. These are the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the Biological Diversity Act, 2002. The notable exception is the Wildlife (Protection) Act, 1972 which is not included. A significant number of cases that may arise under the Wildlife (Protection) Act are criminal cases–and the Tribunal has no jurisdiction over criminal cases.

The Tribunal has original jurisdiction over all civil cases raising a substantial question relating to environment and which arise out of the implementation of the seven laws. This makes the Tribunal a crucial avenue for grievance redressal for persons who wish to highlight environmental issues which have serious implications but are not linked to a single government decision.

For instance, cases relating to the widespread pollution in the River Ganga and Yamuna, increasing air pollution in the National Capital Region, and illegal mining activities in different parts of the country have all been brought before the Tribunal under its original jurisdiction.

While exercising its appellate jurisdiction, the Tribunal decides cases in which a regulatory approval or consent granted (or rejected) by the relevant government agency is being challenged. These approvals or consents are those issued under the seven laws. For example, environmental clearances under the EIA Notification 2006, forest clearances under the Forest (Conservation) Act, and consents issued by the State Pollution Control Boards under the Water Act and the Air Act are included.

Who can approach the NGT?

According to the NGT Act, an aggrieved person can file a case before the Tribunal, and could be an individual, a company, a firm, an association of persons (like an NGO), even if not registered or incorporated, a trustee, a local authority (like a municipal corporation), or a government body (like the State Pollution Control Board). The person need not be directly affected by the project or development in question, but could be any person who is interested in protecting and preserving the environment. There is a time period within which the case has to be brought before the Tribunal, which varies according to the type of case.

What kind of decisions can the NGT deliver, and what is the timeline?

The Tribunal has the power to cancel an approval or consent granted. It can also issue a stop work notice or an interim stay order. It can direct the constitution of a committee of experts to carry out fact finding or monitor the implementation of its orders; and direct concerned government agencies to take affirmative action to prevent or mitigate environmental damage. It can also direct the demolition of unauthorized construction. The Tribunal also has jurisdiction to order payment of compensation to victims of environmental damage or an environmental restoration fine to a government agency for restitution of damaged environment.

The NGT Act requires the Tribunal to hear cases as expeditiously as possible and endeavour to decide the case within six months from the date on which the case is filed. Despite this indicative timeline, it often takes longer as all parties have to be heard and allowed to present necessary evidence, and sometimes, the Tribunal initiates special investigations into facts, which may take up additional time.

Is the verdict of the NGT binding?

The decision of the NGT is binding on the parties, unless they approach the Supreme Court in appeal and the NGT’s order is either stayed or reversed. Failure to comply with the orders of the Tribunal could lead to a fine or imprisonment of the person responsible.

You can read more about Shibani Ghosh’s work on the National Green Tribunal below:

• Climate Litigation in India: gaining traction?
• Access to Information as Ruled by the Indian Environmental Tribunal
• Environmental litigation in India

In situations marked by grave injustice, fear, loss and confusion, affected communities articulate their grievances and seek out institutions to address them through remedies that are meaningful to them. The process of seeking remedies by affected communities helps not only to politicise questions of democratic decision making and land governance but also improves land and project governance outcomes. They take on the role of asking questions, monitoring and seeking accountability in a hostile environment of risk of intimidation and criminalisation. People affected by land use change seek a variety of remedies for the impacts they face. While some of these are towards short-term relief and one time payments/aid, others are towards long-term participation in projects. Some seek complete closure/suspension of projects, others are towards remedying the harms caused by ongoing projects or putting in systems in place to prevent further damage to their environment and livelihoods.

Using the above categorisations, this blog discusses key remedies that have been sought in the countries of India, Indonesia and Myanmar.

One-time assistance: compensation and better relocation

i. Compensations are sought by the affected people in return for the land acquired, and/or livelihood lost, as a one-time payment prior to the setting up of the project. In case of the Thilawa Special Economic Zone (SEZ) in Myanmar, while its first phase has started, communities’ expectation from the project have changed: initially they were refusing to relocate, then they switched to seeking better relocation facilities, now the group is preparing and organising itself to run a community driven organisational grievance mechanism. Simultaneously the farmers who know they would be relocated for the second phase are thinking how much compensation would they demand and strategising and organising on this expectation.

Compensations are also sought when project operations directly or accidentally damage water resources and/or farms or reportedly cause health impacts. The challenge arises when the affected people seek compensations from either the administration or the company. In the Uttara Kannada district of Karnataka, the construction of a National Highway is presently underway. Following a series of complaints and meetings with the Pollution Control authorities, the company operating a stone crusher for the project in Bogribail village, paid compensation to affected farmer families in December 2016. The affected people felt that this was far from adequate as the stone crusher continued to emit dust and damage their farmlands.

Despite the routine use of compensation as a way to remedy impacts borne by communities, it has been observed that across the countries, communities have little or no information how the compensation is to be calculated, how to assess if what they are getting/demanding is fair.

ii. Relocations are ideally provided prior to project start but the quality of relocation sites continue to be a festering issue for communities even after projects start operations. The case of Thilawa from Myanmar offered an interesting example. The Thilawa Social Development Group (TSDG) formed by the farmers who had to vacate their land for the first phase of the project made a visit to the relocation site for Dawei SEZ and saw the difference between what they were being offered and what Dawei evacuees were getting. They made a demand with the Japan International Cooperation Agency (JICA) for better compensation and improved basic amenities at the relocation site. While JICA increased the compensation to the farmers, not much improvement was seen in their living conditions.

Continued participation in project through financial stakes and benefit sharing

In Indonesia, it has been observed that in many cases of land conflicts, farmers opposing land takeover by plantation companies are offered plasma agreements as ‘fair’ remedy for their concerns. However, beyond the stipulation that the companies are expected to reserve 20% of their total plantation area for smallholders and provide them technical assistance in oil palm cultivation, plasma agreements are not governed by much. Usually a farmer cooperative enters into an agreement with the company. The farmers give a minimum of ten hectares of land for plasma to the company, become a part of the cooperative and receive share certificates for two hectares of plantation each. In most cases, cooperatives come to be managed by the office bearers of the village or others with might or money. Although on paper the cooperative has the autonomy to develop and manage plasma, in practice, decisions regarding land allocations, recruitment of labour and sales price of the palm fruits are made by the company.

Another example of taking part in the development activity is of Korba Bhuvistapit Company Limited from India. In the Korba coal-mining region in Chhattisgarh, over 2400 families who have been displaced but have not been provided jobs have come together to form this producer company. The main objective of the company is to demonstrate that communities can undertake activities including transportation, plantation and renewable energy and to maintain moral pressure on South Eastern Coalfields Limited (SECL) to provide opportunities for ancillary activities to the displaced members.

Partial or full closure of project

People affected by land use change also approach different institutions or use a variety of strategies that are clearly directed towards closing down the construction or operations of an existing project. This is often the case in two instances: first, when a project has recently initiated construction activity, and there appear to be possibilities of holding back land use change; and second, when several attempts at seeking compensations, employment or restoration of damage have failed and/or the project continues to impact the health/livelihoods of communities living in the nearby areas.

i. Project suspension: One of the landmark cases from India where few villages affected by the proposed land use change by a steel plant and port consistently demanded that the project’s construction activity not be initiated was the POSCO steel plant and port in Jagatsinghpur, Odisha. Every time the project authorities would initiate activities, there would be strong local protests and barricading disallowing the construction activity. Challenging the project approvals in court with the help of national NGOs and lawyers was the other strategy so as to hold back land use change.

Sometimes these demands for suspension of projects arise due to the non-participatory manner in which decisions are made. In case of Tarpein I and II dams in Kachin State of Myanmar, the Kachin Independence Organisation (KIO) deployed soldiers around the two dams and suspended their construction work when the Chinese authorities of China Datang Corporation (CDC) company refused to pay taxes to KIO. KIO also complained that local residents were not given any role in decision-making on these projects.

ii. Revocation of permits has been sought in cases of environmental degradation caused by mining in Jambi province of Indonesia. Pursuing this remedy, the communities along with other efforts, reported the cases to the Anti-corruption commission (KPK) in the hope that it would investigate the issue and eventually order suspension of their permits. As part of its investigation, the anti-corruption commission visited these mining sites. However, only one project has seen closure.

In case of the sulphuric acid factory near Letpadaung mine in Sagaing Region in Myanmar, the villagers demanded complete closure/relocation of the factory due to the dangers associated with toxic fumes emitted by it. While some cases see a change in people’s demands for remedies over time, in Myanmar, hydro and thermal power projects have been in suspension for a long time perhaps due to persistent demands.

Repatriation of land

This demand is made when a project has withdrawn from an area, and the affected people would like the land back to restore livelihoods, e.g. POSCO in Jagatsinghpur. After the private company has withdrawn from the project, the state government is seeking to build a wall around the land to protect it from ‘encroachments’. The villagers are demanding that the land be restored to all the forest dwellers whose rights are yet to be recognised under the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.  More recently, the demand for this remedy has also been fuelled by the existence of a new legal clause as part of the 2013 Land Acquisition Law

Sometimes, after repatriation of land reverting to the original land use is not possible. In such cases communities pursue possibilities of owning the altered land use activities for their livelihood. This remedy can be a follow up to closure of a project and return of their land. In the case of PT Rejeki Alam Semesta Raya (RASR), active in Kapuas regency of Central Kalimantan in Indonesia, farmers of Sei Ahas village were pursuing the return of their land right from the beginning of the conflict in 2007. The lands were collectively held rubber plantations, which were turned into oil palm plantations by the company. While the group of farmers that demanded the return of their land shrank over the years as many accepted plasma agreement after their initial opposition, a group of 20 farmers continued with their initial demand. The farmers want the company to rescind its claim on the land and plantation so they can harvest the oil palm.

Restoration

This remedy is usually observed in cases of environmental degradation or damage to land caused by dumping of waste or extraction due to mining operations.  This remedy could be followed by closure/suspension of a project or a commitment by the project not to contaminate the land/water again. For instance, in several parts of India where sand mining has led to erosion or salinity ingress, people have sought that the activity be stopped and the area be restored.

In the case of activities of BNJM-KGLR in East Barito in Central Kalimantan, Indonesia, the villagers sought the restoration of the river that was heavily silted due to dumping of mine refuse by the company, to its original condition. The farmers also sought compensation for the damage they incurred in the past when the mud from the river ended up on their rubber plantations and left their crops dead. When asked if farmers would be in agreement if the company continued to pay for damages in the future while continuing to pollute the river, many didn’t reply in the affirmative. The villagers of Lalap and Bentont villages wanted the company to restore the river and abide by environmental laws in future.

Proactive measures as remedies

The demand for closure of a plant is often a big challenge for the affected people who are directly dependent on the plant for livelihoods. In such cases the remedies sought are towards making sure that the operations do minimum/no damage. They may want an assurance that the project would not be expanded in future, or compliance record of the project would be part of any future project decisions or policy changes such as communities are granted effective role in project monitoring. Realising that the land use change is unavoidable, they may even want to own the changed land use activity. This can be viewed as a proactive measure on part of communities to offer an alternative to private/government owned projects.

In India, villagers in Tamnar block of Raigarh district of Chhattisgarh registered their own firm and called it Gare Tap Upkram Producer Company. The idea behind establishing the firm was to mine the coal themselves rather than surrendering their land to industrialists. More than 500 villagers from 12 adjoining villages of Gare had pledged nearly 700 acres of land to the producer company. As they deliberated further on the issue of mining, the villagers decided against mining altogether and instead proposed setting up of production of alternate energy so that the land is not devastated by mining. The Gare Tap Upkram Producer Company has subsequently approached the Environics Trust, a national NGO, and requested it to conduct a study on the feasibility and willingness of the inhabitants of Gare in adopting alternate sources of energy, predominantly in solar and biogas energy.

In case of the Tigyit coalmine in Shan state of Myanmar, although the residents made peace with the operation of the mine, which has been operating in the area for nearly 20 years, their demand is that the project not be expanded. The residents spent their energies in resisting a thermal power plant to be cited next to the mine and were successful in suspending the plant. They opine that if the thermal power plant doesn’t run, the mine would not be given an expansion by the government. However, after being shut for two years, talks for the resumption of the thermal power plant are on and the villagers are bracing themselves to resist it again. As of end of 2017, test runs on the plant were being conducted and the government maintained that the plant will not be allowed if it is found to be linked with harmful impacts on health and livelihoods of the residents of Tigyit village in Shan state.

There are several remedies or outcomes that the affected communities succeed at getting. The study, Understanding Land Conversion, Social Impacts and Legal Remedies in Asia, through the country reports and the case studies, demonstrates that although these are mostly only limited successes, they surely are positive stories of collective agency and change. Albeit small, communities who struggle to get them view these as important victories.

This is the third blog based on the study carried out by the CPR-Namati Environmental Justice Program, supported by a grant from the International Development Research Centre, Ottawa, Canada.

Other blogs in the series can be accessed below:

• Understanding the Impacts of Land Use Change
• Understanding the Strategies used to address the impacts of Land Use Change
• Detailed Studies of cases of Land Use Change Conflicts: Part I
• Detailed Studies of cases of Land Use Change Conflicts: Part II

People facing/likely to face the negative impacts of land use change may not communicate their grievances immediately. When these impacts are communicated to the project entity or the media or the government and collective action is taken towards addressing the impacts, they become cases of conflicts. The strategies that communities deploy during the course of a conflict could range from a single one-time action for a single remedy to engaging with multiple strategies for one or different remedies.  For instance, an affected community may choose to go to court to seek directions for increasing compensations or addressing pollution harms. Another group of affected people may approach one government agency for addressing water contamination and/or take to the streets to resist additional acquisition of land and/or engage the media to create awareness about the loss of livelihoods. These can take place all at the same time or at different stages of the conflict and the project. Below is a tabular synthesis of key strategies used in the 75 cases of conflicts, as reported in the media, analysed for each of the study countries- India, Indonesia and Myanmar.

* T: Total number of cases in which a particular remedy has been used; S: Used singly; C: Used in combination

The above analysis makes it clear that most often communities deploy multiple strategies. Presented below are examples of how these strategies have been used in the three countries. The examples demonstrate that there are only a few instances when a strategy can be linked with a clear success. Most often they stop short at certain interim outcomes such as an inquiry or an investigation or they start to head towards a specific outcome only to be turned around at a later stage.

Protests

India: The proposed amendments to the new 2013 Land Acquisition Act in December 2014 led to a nationwide farmers’ protest in India. In August 2015, in light of protests and ahead of the Bihar state elections, the government of India held back the proposed amendments and referred the matter to a Joint Parliamentary Committee (JPC).

Myanmar: In Shan State in 2016, 100 farmers from Ye Pu village in Taunggyi planted on 2,000 acres of confiscated land. Between 2010 and 2015, despite the land being confiscated the farmers were allowed to plant on the land on a payment of 10,000 Kyats per acre. In May 2016, the farmers were asked to sign documents transferring the land to the army. These 100 farmers didn’t sign the document and continued planting. The army filed a lawsuit against them for trespassing.

Litigation

Indonesia: Responding to a civil suit, the Bandung administrative court decided in April 2017 that expansion plans for the Cirebon coal-fired power plant in West Java were in violation of the local spatial planning law. The court ordered the project’s environmental license to be revoked.

India: A case against the Parsa East Ketan Besan (PEKB) coal mine was filed before the National Green Tribunal, the special court for environmental cases, and a judgment suspending the forest diversion approval was given. This was challenged by the operating company before the Supreme Court, where the court allowed mining to continue even as the environment ministry was to review its recommendation. The matter has been subjudice since 2014.

Administrative complaints and appeals

Indonesia: In the case of BNJM coalmine in East Barito in Central Kalimantan, the local environment agency on request from communities, collected samples from the river being polluted by the mine refuse. However, this was done after the community of Lalap and Bentont villages had filed multiple complaints with photographs and media reports on the siltation of the river. In this case, strong evidence of the violation of environment laws helped in getting the government to take action.

India: In the case of the proposal to construct the Tadadi port in Uttara Kannada district of Karnataka, local villagers and environmentalists primarily engaged with the District Collector and the regulatory institutions to influence the decision on whether the port should be granted approval. Although the environment ministry’s expert committee recommended approval in December 2016, the project had not been issued a formal clearance letter and has not initiated construction activity.

International Redress

Myanmar: Thilawa is one of the few projects from the delta region in which international redress has been tried. The Thilawa Social Development Group (TSDG) contacted the Japan International Cooperation Agency (JICA) seeking rehabilitation and relocation facilities as per its guidelines. In response, JICA increased the compensation and improved facilities at the relocation site. Although the relocation site still falls short on many of JICA’s own prescriptions, the efforts resulted in certain corrections.

Indonesia: An example of seeking international redress is the case of Batang Thermal Power Plant. In December 2016, the community approached the Japan Bank for International Cooperation (JBIC), the key financer with a petition against the plant. In response, the JBIC visited the site and met with the community but claimed that there was no evidence supporting people’s complaints.

Media campaigns/reporting

Indonesia: Media reporting has always been seen in combination with more than one strategy. Because of constant media scrutiny of Batang Thermal Power Plant and Jakarta Bay Reclamation Project along with the protests against the two, the work on the projects has been slow.

India: This has been an important strategy for affected people, especially when they are working with national and international NGOs and researchers. Two prominent examples of this are visible in the strategies used to address conflicts in the Vedanta bauxite mine in Niyamgiri, Odisha and the actions against setting up of the coal mine in Mahan, Madhya Pradesh. Local struggles were supported by national and international media reporting and public campaigns seeking support against setting up of these projects.

Myanmar: Both the local and international media have kept the issue of land confiscations alive. Big cases such as the Letpadaung mine and Myitsone dam and campaigns against the thermal power projects have been on the radar of the media. Media has been key in influencing certain court cases as well.

While these are only a few strategies, affected communities combine these with several other strategies. Political advocacy, participation in administrative procedure such as public hearings, approaching the project owner, are other ways to seek redress. The study, Understanding Land Conversion, Social Impacts and Legal Remedies in Asia, through the country reports, provides an extensive account of how and when each of the strategies has been used. Through the case studies it tries to explore the question of why certain strategies are chosen and how factors such as stage of the conflict, desired remedies, communities’ capacity and agency and political and policy developments influence this choice.

This is the second blog based on the study carried out by the CPR-Namati Environmental Justice Program, and supported by a grant from IDRC, Canada.

The other pieces in the series can be accessed below:

• Understanding the Impacts of Land Use Change
• Understanding the Outcomes and Remedies sought for impacts of Land Use Change
• Detailed Studies of cases of Land Use Change Conflicts: Part I
• Detailed Studies of cases of Land Use Change Conflicts: Part II

The current government’s steady push on digitising governance follows decades of such interventions. A new Accountability India series chronicles the experiences of former senior bureaucrat TR Raghunanandan on what it has taken to implement a system-wide change, and where the gaps have been.

• In ‘Wither, e-Governance’, Raghunanandan asks the crucial question of whether innovations in e-Governance will indeed make the government more responsive and accountable to the people.
• In the second part of the series, he talks about the introduction of desktop computers in government offices and how the transition began with only some officials understanding the full potential of this new technology in increasing efficiency. In ‘Spreading Spreadsheets’, he goes on to recount the value of spreadsheets in removing red tape and easy access to data. Yet, nearly three decades later, the large majority of people in the government have not taken to such innovative tools.
• In ‘MISRA – and the era of cute acronyms’, Raghunanandan recounts his experience of reforming land records in Karnataka using MISRA, an interface he and his team created. At the time, reporting protocols of land administration had begun to fail. Less attention paid to the daily tasks of land record maintenance, coupled with staff shortages and the expansion of welfare responsibilities, was beginning to weaken the land records system. The resultant confusion and uncertainties about land ownership had the potential to derail the entire economic base for the rural economy. As a solution, Raghunandan and team established a computer-aided system that would completely replace the manual system that was in place.
• In another experience, he discusses his stint with the tobacco board and how the computer operator was key to the integrity of the system which set quotas and imposed upper limits on what a farmer could sell. It took very little time for computer operators to hack the software. Then, for a price, farmers who exceeded quotas would be able to sell their extra tobacco.
• Thus, while establishing good e-Governance infrastructure is essential, the human capital that goes in maintenance and implementation cannot be overlooked. As Raghunanandan points out in his next blog ‘’Grasp’ing the Zilla Parishad’, the champions of e-Governance move on even before the systems they develop are entrenched in government processes.
• He closes the series with a thought provoking look on the dichotomy in the government’s enthusiasm for e-Governance in ‘Attitudes that block e-governance’. He asks if the government is a lot more cautious when it comes to transparent service delivery while this is not the case when making transactions from the citizens to government (such as tax paying) easier.