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Governing Biodiversity Conservation and Sustainable Livelihoods in the Warna River Basin, India: An analysis of Law, Policy, Institutions and Actors. LiveDiverse Milestone 9.2 Report

Authors:
  • Stockholm International Water Institute; Uppsala University; The Hague Institute for Global Justice
Technical Report

Governing Biodiversity Conservation and Sustainable Livelihoods in the Warna River Basin, India: An analysis of Law, Policy, Institutions and Actors. LiveDiverse Milestone 9.2 Report

1
Sustainable Livelihoods and Biodiversity in Developing Countries
Governing Biodiversity
Conservation and Sustainable
Livelihoods in the Warna River
Basin, India
- An analysis of Law, Policy,
Institutions and Actors-
LiveDiverse Milestone 9.2 Report
October 2011
Andrew Allan and Yumiko Yasuda
University of Dundee
Email: a.a.allan@dundee.ac.uk
y.yasuda@dundee.ac.uk
Seventh Framework
Programme (FP7/2007-
2013) under grant
agreement No. 211392
2
Acknowledgement
The authors would like to acknowledge the insights of a range of experts that
were consulted in the development of this report, including governmental
officials, non-governmental organizations, international organizations, and local
residents. The authors would like to especially thank Prof. Geoffrey Gooch, Mr. K.
J. Joy, Mr. Suhas Paranjape, and Ms. Suchita Jain, for their feedback and
suggestions which they have provided to this report:
The research leading to these results has received funding from the European
Community's Seventh Framework Programme [FP7/2007-2013] under grant
agreement n° 211392
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Table of Contents
1. Introduction - Obstacles to law and policy implementation in the Warna
basin ...................................................................................................................................................... 5
2 Legal context of mining in Maharashtra ..................................................................... 5
.2.1 Legal position with respect to environmental and social protection ......... 7
2.2 Degree of protection afforded to the environment: ............................................ 7
2.3 Economic regulation with respect to the environment: ................................... 9
2.4 Forests: ............................................................................................................................... 11
2.5 Standard of rehabilitation: .......................................................................................... 13
2.6 Degree of protection afforded to local / affected population ....................... 15
2.7 Legislative ambiguity ..................................................................................................... 17
3. Sugar cane ................................................................................................................................ 19
3.1 Sugar cane in Maharashtra ........................................................................................ 19
3.2 Potential influence of the demand for renewable energy? .......................... 20
4. Observations from field trips and interviews .............................................................. 23
5. Chandoli National Park - Actor Network Analysis ...................................................... 27
5.1 Chandoli National Park: Introduction ..................................................................... 27
5.2 Biodiversity Conservation and actors .................................................................... 28
5.3 Local livelihoods and actors ....................................................................................... 31
5.4 Other factors influencing the Chandoli National park and related actors34
5.5 Actor Network Analysis of Chandoli National Park ......................................... 36
5.6 Interaction between law, policy, actors and institutions ................................ 40
5.7 Actor Network Analysis - Conclusions .................................................................. 42
6. Conclusions – Warna Basin .............................................................................................. 44
4
Abbreviations:
EAC Environmental Appraisal Committee
EIA Environmental Impact Assessment
EIAN Environmental Impact Assessment Notification 2006
S.O.1533(E),[14/09/06]
EPA Environment (Protection) Act, no.29 of 1986
ESA Ecologically Sensitive Area
GoI Government of India
IBM Indian Bureau of Mines
ICMM International Council on Mining and Metals
MCDR Mineral Conservation and Development Regulations 1988
MEDA Maharashtra Energy Development Authority
MM Ministry of Mines
MMDRA Mines and Minerals (Development and Regulation) Act, no. [….]
of 1957
MoEF Ministry of Environment and Forests
NABARD
National Bank for Agricultural and Rural Development
NP National Park
SIA Social Impact Assessment
WS Wildlife Sanctuary
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1. Introduction - Obstacles to law and policy
implementation in the Warna basin
Following analysis of what we understand to be the existing legal and
institutional position relating to the balancing of livelihoods and the
environment, this section attempts to take this one step further. It will
evaluate the extent to which implementation of the legal and policy situations
takes place in practice, and will identify, where appropriate, the particular
circumstances and problems that prevent, hinder and restrict implementation.
In the first instance it should be noted that there are, as in many other
countries, significant differences between the views of environmental and
social regulators, and those of the principal economic actors in the Warna
basin. There are other difficulties however, and these will be set out generally
below.
The focus of the first parts of this chapter will be on two of the main economic
concerns in the area, both of which have major impacts on the livelihoods of
local people and on environmental protection: mining and cash crop
agriculture, especially sugar cane farming. The reason for this is due partly to
their importance currently, but also because there is a strong likelihood that
their incidence will increase in the short to medium term. The factors driving
the development of mining and the cultivation of sugar cane come from
outside the State, and are led in part by global concerns. The balancing of
livelihoods and biodiversity protection in Maharashtra and other parts of India
will take place more and more in the conflicting priorities of climate change
and global natural resource consumption.
Following this assessment, the chapter will go on to examine the respective
relationships between the principal actors in the area. Note, however, that the
actor network analysis will relate primarily to the Chandoli National Park. The
legal analysis, conversely, will focus on the larger Warna River basin and
relevant State and Union legislation. This latter examination will include the
Chandoli park, but will focus on issues broader than those related to the
governance of protected areas.
2 Legal context of mining in Maharashtra
Although Maharashtra is not one of India’s pre-eminent mining states
(Bhushan, 2008, page 2), bauxite mining is increasingly important in the area
around the Western Ghats in the southern part of the state. The potential
impacts of mining are widely acknowledged and particular problems are
recognised in India with respect to the damage caused to Scheduled Tribes
(Oscarsson 2010) and to local ecology, especially forests (Valgholikar et al,
2003). Both Union and State governments are familiar with the difficulties
6
involved in balancing the economic and strategic benefits of mineral
extraction against the inevitable resettlement programmes and environmental
devastation resulting from mining, and clarification of this balance has been
the focus of increasing government activity in recent years. Following the
controversial work of the Hoda committee, which reported its conclusions in
2006 (Planning Commission, 2006), the National Minerals Policy was
redeveloped in 2008, a draft State Policy model appeared in 2010, and the
1957 Mines and Minerals (Development and Regulation) Act has been
undergoing protracted and extensive revision (although the final version has
yet to be completed).
While the 2008 Policy acknowledges the links between mining, forestry and
the environment, it stresses the need for economic development, which in its
view demands that mining be made a priority. A draft Sustainable
Development Framework has been prepared (Ministry of Mines, 2010),
following a commitment made in the 2008 policy to ensure that mining activity
takes place along with suitable measures for restoration of the ecological
balance and for the greater involvement of indigenous populations. The final
agreed version is not yet available. The consequences of mining for local
populations have been emphasised in the context of the Samatha judgement
(Samatha v. State of Andhra Pradesh 1997(8) SCC 191) and the Ministry of
the Environment’s decision to stop development of a bauxite mine in Orissa
by Vedanta in August 2010 (based on Saxena et al (2010)).
In addition to the relevant parts of the legislation outlined in ch.4.3, mining in
Maharashtra is largely governed by the following national legislation:
Mines Act 1952
1
Mines and Minerals (Development and Regulation) Act 1957
Mineral Concession Rules 1960
Forest (Conservation) Act 1980
Forest (Conservation) Rules 1981
Environment (Protection) Act 1986
Environment (Protection) Rules 1986
Mineral Conservation and Development Rules 1988
Environmental Impact Assessment Notification 2006
National Green Tribunal Act 2010
Further binding rules and guidelines exist at State and Union level, and will
be referred to below where appropriate. The principal government authorities
involved include the Ministry of Mines (and the Indian Bureau of Mines), the
State Environmental Impact Assessment Authorities, Pollution Control Boards,
and the Ministry of the Environment and Forests. Institutional responsibilities
are complex, especially given the different levels of permits required at the
various spatial levels.
This part will address three key elements in the Warna context of the
interface between the regulation of mining, socio-economic considerations of
1
This particular Act will not be discussed in this report as it relates primarily to labour regulation and
safety in mines.
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local people, and protection of the environment. These include the wider legal
position with respect to environmental and social protection
2.1 Legal position with respect to environmental and social
protection
A number of tools are used worldwide to reduce the short and long
term impacts of mineral extraction on the local environment and
population. With respect to the environment, permit regimes normally
demand that mines must have closure plans in place, and
environmental remediation and rehabilitation requirements determine
the condition in which the extractors must leave the land when the
minerals run out. Performance bonds are often used by regulators to
reinforce these obligations, the idea being that it becomes more
expensive for mining companies to default on their responsibilities (and
hence lose the performance bond) than to adhere to them (and to get it
back), Depending on the level of funds required, this should also
ensure that in the event of a company failing to discharge its
rehabilitation responsibilities, the authorities will have sufficient funds
in the bond to cover the costs of remediation and thereby avoid having
to use public funds (ICMM, 2005).
Environmental Impact Assessments allow regulators to assess the
potential risk to the environment of individual mines, and enable them
to set restrictive conditions appropriate for the local context, and rights
of inspection access may be granted to the authorities to ensure
compliance.
Used effectively and in appropriate contexts, international experience
demonstrates that these tools can help to balance social and
environmental needs against the problems caused by mineral
extraction, although subject to a number of caveats. Even if levels of
compliance are high, to what extent can such methods protect areas
that are as critical as the Western Ghats, where rehabilitation of
ecology and biodiversity is impossible within realistic timeframes? The
2008 Policy’s statement that “[t]he guiding principle shall be that a
miner shall leave the mining area in better ecological shape than he
found it(National Minerals Policy, para.7.10) is unrealistic even with
the best compliance. All of the tools mentioned above exist in the
armoury of the Indian regulators, but questions arise as to the quality
of the weaponry and the extent to which they can be effectively applied
in practice.
2.2 Degree of protection afforded to the environment:
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Before prospecting or mining is carried out, a number of administrative
processes must be completed for the various relevant agencies by the
mineral extractor. These might be expected to include forest clearance
applications (see para. 9.2.2.4 below), pollution control certification
(whether for air or for water) and environmental impact assessments.
Pollution control has been addressed elsewhere in this project.
2
This
section will therefore restrict itself to addressing questions related to
forest clearance, but not before it has briefly examined EIAs in the
context of mining.
The Environment (Protection) Act 1986, and its associated Rules and
Notifications regulate the impact of polluting or ecologically damaging
activities on the environment. Prior environmental clearance is
required for certain activities under the Environmental Impact
Assessment Notification of 2006 (made under the EPA 1986), although
the steps required for clearance will depend largely on the extent of the
proposed activity. Mining projects over an area of 50ha or more require
Central approval (category A), with those relating to an area of
between 5 and 50ha needing State approval (category B). Category B
projects are further split into B1 and B2: projects that are deemed not
to require an EIA by the Environmental Assessment Committee under
rule 7 are categorised as B2.
3
Small mines of less than 5 ha do not
require environmental clearance (Environmental Impact Assessment
Notification 2006, rule 2) – it has been suggested that this is due to the
importance of artisanal mining for local employment and the relatively
small area covered by them cumulatively (Ministry of Mines 2010), but
presumably it is also related to administrative capacity, given the high
proportion of mining licences that relate to smaller mines (Ministry of
Mines 2010).
4
The clear distinction between categories A and B is blurred slightly by
the General Condition to the Schedule of the Notification, which
provides that:
“[a]ny project or activity specified in Category ‘B’ will be
treated as Category A, if located in whole or in part within 10
km from the boundary of: (i) Protected Areas notified under
the Wild Life (Protection) Act, 1972, (ii) Critically Polluted
areas as notified by the Central Pollution Control Board from
2
In chapter 4.3.
3
Guidelines for the EAC on determining which projects are B1 and which B2 are promised in the EIA
Notification, rule 7, [but do not yet appear to have been developed].
4
Note, however that the statistics quoted in the Draft Sustainable Development Framework (page 19)
relate to mines of less than 10ha, rather than the 5ha threshold referred to in the EIA Notification. These
smaller mines cover only around 4% of the total licensed mining area (19), whereas large mines of over
500ha make up over 40% of that area despite there being only two or three licences for such mines (id.).
These figures highlight the relative importance of the Swati Minerals mine at Udgiri because it is in fact
one of the largest mines in India. Note also that the Mineral Concession Rules 1960 set the minimum area
for a mining lease as 1, 2 or 4ha depending on the circumstances (rule 22D), but the draft of the revised
Mines and Minerals Development and Regulation Act of 3 June 2010 sets the basic minimum area for a
mining lease for so-called major minerals (i.e. those listed in the First Schedule part C) at 10ha (s.6(2) and
(4)).
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time to time, (iii) Notified Eco-sensitive areas, (iv) inter-State
boundaries and international boundaries” (emphasis added).
Consequently, proximity to protected areas under the Wild Life
(Protection) Act will increase EIA oversight, and in instances where
proposed mining sites are in similar proximity to protected forest areas
under the Forest Act 1927, the latter regime will also apply. In these
cases, the Forest (Conservation) Act and associated Rules will govern
(see below).
Environmental clearance can last up to thirty years for a mine (EIA
notification rule 9),
5
but reports are due on compliance with the
clearance conditions every six months (rule 10). Although these
reports are explicitly stated to be public documents (rule 10(ii)), even
the latest are not available on the Ministry’s website as required. [see
below for further points on reporting quality].
Prior environmental clearance applications are assessed by the
Environmental Appraisal Committee (at State or Central level as
appropriate for the category of project the composition of the
Committee is set out in Appendix VI of the EIA Notification), with the
final decision being made by the relevant Environmental Impact
Assessment Authority.
6
It is not obliged to follow the advice of the EAC
(rule 8(iii)).
Finally, it is possible for the Central Government, in consultation with
State authorities, to order premature termination of a mining lease.
Under s.4A of the Mines and Minerals (Development and Regulation)
Act 1957, such action can be taken in a number of circumstances,
most notably here if it is expedient in the interests of preservation of
the natural environment….[or] prevention of pollutionor in such other
circumstances as the Central Government sees fit. This right is subject
to the lease holder’s right to respond (s.4A(3)). No more detailed
criteria have been set for such closure. This is a remarkably wide-
ranging penalty, and in the absence of any detailed criteria with
respect to how the justifying circumstances are to be interpreted, or to
the degree of flexibility permitted to the leaseholder in its right to
respond, could be either excessively draconian or lenient.
2.3 Economic regulation with respect to the environment:
In addition to the numerous permits required (e.g. under the Forest
(Conservation) Act, the EIA Notification, the Environment (Protection)
Act, the Water (prevention and control of pollution) Act 1974, and the
5
The new draft Mines and Minerals Development and Regulation Act provides that mining leases may
not be more than 30 years also, but may not be for less than 20 years (3 June 2010 version, s.7(4)). This
maximum is in line with practice in South Africa, for example (Mineral and Petroleum Development Act,
no.28 of 2002, s.23(6).
6
Except where the decision of the EIA Authority has not been communicated within the timescales set by
the Notification – rule 8(iii) – in which case, the EAC decision will stand.
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Mineral Concession Rules), regulators rely to some extent on financial
leverage over miners, through what is now called Environmental
Financial Assurance (EFA) (ICMM, 2005). This EFA is intended to
cover the costs of full environmental rehabilitation of the mine site once
the mine is closed. In India, the EFA manifests itself in the form of
assurance payments taken from the holders of mining rights.
In the first instance, prospectors must pay a security deposit of 2,500
rupees per square kilometre prospected (Mineral Concession Rules,
rule 20) – this figure is only 20 rupees per km
2
with respect to
reconnaissance (ibid., rule 7B). Rule 23F of the Mineral Conservation
and Development Rules demands R25,000 (with respect to category
minerals) or R15,000 (category B minerals – note that these categories
do not in way coincide with those set out in the EIA Notification 2006)
per hectare as financial assurance from mining leaseholders
(R18,750,000 (around €300,000) or R11,250,000 respectively for a
750ha mine as would be the case with respect to the SWATI site at
Udgiri). In the current draft of the Mines and Minerals Development
and Regulation Act, the security deposit is increased for mining leases,
to 100,000 rupees per hectare of the lease area (s.24(1)(n)). Under
this proposed regime, the total payable as security for a 750ha site
would be 75 million rupees (just over £1 million).
The level at which the EFA is set requires a difficult balancing of
environmental remediation considerations against imposing restrictions
on the investment climate and capital availability (International Council
on Mining and Metals, 2005). It is also, in theory at least, closely linked
to the standard of remediation required (see below). The ICMM’s
survey of existing practice globally suggests that it is relatively unusual
for the EFA to be calculated using a rate based on area affected.
Ordinarily, the amounts needed correspond to a proportion (anything
from 5% to 100%) of estimated remediation costs, with an effort being
made at the EIA stage to quantify potential rehabilitation costs. India’s
system does not make any connection between potential rehabilitation
costs and the EFA, and ignores not only the mining methods adopted,
but also local circumstances and the longer term consequences of
mining. Although even rough calculation of the costs of remediation is
notoriously imprecise, it seems likely to this author at least that the
equivalent of €300,000 will be only a very tiny fraction of the actual
costs of environmental remediation of a 750ha bauxite strip mine to the
standard required by the National Minerals Policy in an ecologically
critical area.
Under the existing regime in India (i.e. pending finalisation of the
revisions to the MMDRA), the financial assurance will be forfeit if the
regional controller of mines does not believe that the mine closure plan
has been complied with in relation to the rehabilitation work required
(rule 23F). This highlights the inextricable link between EFA and mine
closure plans, as financial assurance in whatever form will normally
only be returned to the guarantor after the environmental conditions
11
required by the mine closure plan have been met. In India, two mine
closure plans are required as part of the leaseholder’s mining plan
(Mineral Conservation and Development Rules, rule 23B): one for
progressive implementation, and the other for final closure (id., rule
23A). These plans are to be assessed by the regional controller of
mines as part of the application process for a new or renewed mining
lease, and must be reviewed by the mining rights holder every 5 years
(rule 23B(3)). There is a clear correlation between these closure plans
and the financial assurance: if the reviews of the progressive closure
plans are not carried out sedulously, or the standards to which they
aspire are inadequate, the potential for the final closure plan to be
insufficient or unsatisfactorily implemented must be high.
Consequently, the importance of the financial assurance given will be
augmented, emphasising the gap between what is needed and what is
in the pot.
It is not clear how long mineral extractors may have to wait before the
regional controller of mines may determine that the closure plan
requirements have been carried out to sufficient level as to justify
reimbursing the EFA. In addition, the closure plan will contain provision
for ensuring economic considerations once the income from mining
has gone from the local area will appraisal of the success or
otherwise of these efforts be made after the same period as for the
environmental elements? This could have a major impact on the way
that closure plans are drafted and the means to be used to achieve its
approved ends. Annual reports must be submitted with respect to the
protective or rehabilitative efforts that have been carried out under
closure plan (MCDR rule 23E(2)), but the penalties for infringing this
rule are unclear the MCDR applies imprisonment or a fine of
R50,000 if any of its rules are breached, but this does not allow for
gradations in severity of breach.
The institutional aspect to the mine closure process is also instructive.
The decision as to whether or not a mining company has fulfilled the
rehabilitation standards required lies with the regional controller of
mines. The fact that appraisal of environmental quality standards is
being done within the Ministry of Mines is akin to the fox being asked
to look after the chickens. The proposed coordination of relevant
authorities in the revisions to the MMDRA are encouraging in that
regard (Draft MMDRA, s.82 et seq.), especially in relation to greater
State coordination in the application of the [currently draft] sustainable
development framework to mine closure plans (id., s.83(2)).
2.4 Forests:
The Forest (Conservation) Act of 1980, and its associated Rules from
the following year directly address the question of the use of forest
12
land for non-forest purposes. Fundamentally, without Central
government approval, State governments may not authorise orders
that ‘de-reserve’ reserved forests; allow forests to be used for non-
forest purposes; assign forest land to non-government controlled
organisations; or clear forests simply for the purposes of
reafforestation. (s.2).
Central Government may, under s.3, set up a Committee that will
advise on such authorisations, using the procedure set out in the
Forest (Conservation) Rules 2003 (superseding the earlier Rules from
1981). Membership of this committee consists principally of forest
officials (3 members), “eminent experts in forestry and allied disciplines”
(not affiliated with the Ministry of the Environment and Forestry 3
members again) and one representative from the Minister of
Agriculture. The quorum is three (rule 5) The Committee’s remit
excludes proposals requesting clearance of less than 40ha, which are
instead dealt with by the relevant regional Chief Conservator of
Forests alone (Rule 6(5), and Rule 7(1)). Although the Committee’s
conclusions do not have to be accepted by the government (rule 6), it
“shall have due regard” to a number of a number of factors in its
decision (rule 7(2)) and may make recommendations on minimising
environmental impact (rule 5(3)). The legislation apportions no
hierarchy over these factors, and their mode of application is
somewhat unclear, but they include the following:
Whether the forests land proposed to be used for non-forest
purpose forms part of a nature reserve, national park wildlife
sanctuary, biosphere reserve of forms part of the habitat of any
endangered or threatened species of flora and fauna or of an
area lying in severely eroded catchment;
Whether the use of any forest land is for agricultural purpose or
for the rehabilitation or persons displaced from their residences
by reason of any river valley or any hydro-electric project;
Whether the State Government or the other authority has certified
that it has considered all other alternatives and that no other
alternatives in the circumstances are feasible and that the
required area is the minimum needed for the purpose; and
Whether the State Government or the other authority undertakes
to provide at its cost for the acquisition of land of an equivalent
area and afforestation thereof” (rule 7(2)).
The clear implication from this list is that the fact that the area of forest
that is proposed to be cleared is part of a reserve, or is inhabited by
endangered species, is but one factor there is no veto here. If the
State government has determined that no alternative exists, but that an
equivalent area is available for afforestation elsewhere, the Committee
and ultimate decision-making body would have little basis for arguing
that an application for forest clearance in a reserved area be rejected.
It also appears that this list of considerations is only applicable to
proposals that are considered by the Committee. Smaller projects
relating to areas of less than 40ha are dealt with by the Chief
13
Conservator of Forests under Rule 6, but the Conservator is not bound
by the Rule 7 factors these are relevant only to projects that the
Central Government has referred to the Committee (Rule 7).
It has been suggested even in the Ministry of Mines’ Draft Sustainable
Development Framework (Ministry of Mines 2010) that mining projects
in protected areas should be rejected outright (Bhushan, 2008) and
that no-go areas be established, but this seems unlikely given the
policy priorities and the drive for economic development in India. It also
appears that the listed factors is not a subset of all relevant factors, of
which there may be many e.g. proportion of reserved area that is to
be cleared; where would the equivalent area for planting be; what
standards would be applied to afforestation (are the trees indigenous
to the area, how many must be planted etc). The position under the
Forest (Conservation) Act is complicated somewhat from the miners’
perspective by the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act of 2006 (the “Forest
(Rights) Act”), which makes it more difficult to change the use of forest
land (Forest (Rights) Act, s.4(7) – see below).
2.5 Standard of rehabilitation:
The National Minerals Policy provides that “the latest internationally
acceptable norms and modern afforestation practices shall form
integral part of mine development strategy in every instance(National
Minerals Policy 2008, para.7.10), with remediation to take place
contemporaneously with mining activity as far as possible. The
Guidelines issued by the Indian Bureau of Mines (IBM) with respect to
mine closure plans demand that such plans
must aim at leaving the area in such a way that rehabilitation
does not become a burden to the society after mining
operation is over ...[and] must also aim to create a self-
sustained ecosystem” (para.3, emphasis added).
More specifically, there are two broad standards in place in existing
legislation:
equivalent planting outside the mining area;
7
and
planting double the number of trees felled.
8
7
Under the Forest (Conservation) Rules of 1981, it may be possible for the Committee responsible for
advising government on tree clearing applications to approve such an application if an equivalent site has
been identified for replanting (at the government’s expense – rule 5(2)).
8
The Minerals Conservation and Development Rules further provide that holders of mining leases must
“undertake the phased restoration, reclamation and rehabilitation of lands affected by prospecting or
mining operations” and complete these before abandonment (rule 34). This must be carried “in such a
manner so as to cause least damage to the flora of the area” (rule 41). At least twice the number of trees destroyed
14
The Mineral Concession Rules also require that prospectors and
lessees “restore, to the extent possible, other flora destroyed by
prospecting operations(emphasis added) (Mining Concession Rules
1960, rules 14 and 27).
Application of these standards of ecological restoration poses a
number of problems. Firstly, the location of the equivalent planting is
potentially important, especially in the context of such a critical area as
the Western Ghats. There are no requirements that any new
plantations would have to be contiguous to the existing forested area,
for example, and this would cause major problems for the Sahyadri
Tiger Reserve, as the territory covered by one tiger is so extensive and
demands continuous expanses of forest for its survival. The fact that
rule 7(2) of the Forest (Conservation) Rules requires that the
government bear the cost of acquiring the new land is likely to lead to
governments using the very cheapest land for afforestation.
Requiring mining concerns to plant double the number of trees they fell
sounds like a fair way to ensure the reinstatement of the pre-existing
ecology, but the simplicity of its attraction hides some problems. The
most obvious question is how to calculate the number of trees that
existed in the first place. Under the 1988 Mineral Conservation and
Development Rules 1988, prospecting schemes must include
baseline information of prevailing environmental conditions before the
beginning of prospecting operations (rule 4), and this might
conceivably incorporate estimates regarding forest density. Assuming
quantitative agreement can be reached on this figure between
applicant and regulatory authority, the qualitative aspect needs to be
addressed i.e. what types of trees should be planted, and in what
proportion. One of the key features of biodiversity hotspots like the
Western Ghats is the sheer variety of flora in a given area.
It is clear therefore that application of these standards presents
obstacles to the achievement of the objectives of the National Minerals
Policy and of the IBM mine closure guidelines viz. to leave the area
in better ecological shape than it was, and to create self-sustaining
ecosystems. The standards simply lack the level of detail required if an
ecosystem is to be re-established in anything like the form it had taken
prior to the interrupting activity. The overwhelming focus on trees is
also problematic. In order to build up the biomass that can sustain the
environment to the standard required, other, more pioneering, flora
may be more critical. Current legislative provisions in the Mining
as a result of the prospecting/mining activities must be planted (rule 41(2)), and the lessee must “look
after them during [the] lease period”.
The two standards are combined in rule 14 of the Mineral Concession Rules 1960, where one of the
conditions under which prospecting licences are issued includes the holder of the licence taking immediate
measures
for planting in the same area or any other area selected by the Central or State
Government
not less than twice the number of trees destroyed by reasons of any prospecting operations” (emphasis
added).
15
Concession Rules require replacement of flora destroyed to the extent
possible, but this both allows mining companies a high degree of
flexibility with respect to the effort required, and ignores the
fundamental fact that the order in which flora is reintroduced is also of
critical importance.
2.6 Degree of protection afforded to local / affected population
This section has thus far focused on the effectiveness of
environmental protection in connection with mining. These
considerations may be very different from the needs of the local
populations, and Indian legislation makes some effort in addressing
those needs. The following discussion will differentiate between the
economic and cultural considerations relevant to local groups, and the
extent to which local views are reflected in the progressive
development of mining sites.
With respect to consultation for projects with potentially significant
impacts on the environment (Category A and B1 in the parlance of the
Environmental Impact Assessment Notification), public consultations
must ordinarily take place with those “local affected persons and
others who have plausible stakes in the environmental impacts” of the
activity or project (Environmental Impact Assessment Notification 2006,
rule 7, III). There are two parts to public consultation (consultations not
being necessary in some instances): firstly, a public hearing to be
organized by the local Pollution Control Board at the site itself, or in
close proximity for local affected persons (EIAN rule 7(ii), with detailed
requirements in Appendix IV). Secondly, written responses must be
sought from ‘plausible’ stakeholders. The requirement for a local
meeting may be dispensed with in certain circumstances, for instance
where the organizing authority deems that it is not possible to conduct
the hearing in a way that “will enable the views of the concerned local
persons to be freely expressed” (7(v)). In the event that a meeting
does take place, the applicant should submit its revised EIA application
and environmental management plan, addressing the concerns
expressed at the meeting (rule 7.stage 3.(vii)).
The emphasis in appendix IV of the EIAN 2006 is on getting the draft
EIA summary and plan to the local people affected, although details as
regards where the project must be advertised and the quality of the
communication are not as good as they might be. The plans must be
available in hard and soft copy, with locations advertised and 30 days
notice given before the meeting will take place. There is no
requirement for provision of a non-technical summary, however, as is
normal in the European Union for example
9
There are no criteria in the
9
Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects
on the environment, 85/337/EEC, Official Journal NO. L 175 , 05/07/1985 P. 0040 – 0048, art.5.
16
Notification suggesting that local people might have a veto over the
project going ahead the project proponent must answer the
questions raised at the meeting, in the revised version of the EIA
Report, but the appraisal by the Committee, if that is appropriate, will
revolve around environmental safeguards it would appear.
In addition, the Forest (Rights) Act 2006 gives additional protection to
Scheduled Tribes and traditional forest dwellers in instances where
mining is proposed for a critical wildlife habitat supporting such
populations. Where forest rights have been recognized, however, and
the resettlement of the forest dwellers is proposed under s.4,
resettlement is feasible as long as certain safeguards have been
adhered to. Schedules Tribes categorically do not have an immutable
right under the Forest (rights) Act to remain untouched.
As regards the safeguarding of local economic and cultural
considerations, a number of provisions apply. Holders of mining rights
are obliged under the terms of their leases to favour Scheduled Tribe
members and those who have been displaced by the mine with
respect to employment (Mineral Concession Rules 1960, rule 27(p)).
Mine closure plans should then describe the socio-economic
consequences of mine closure for the area, including details of the
number of local people employed at the mine, possible impact on
secondary sources of livelihood dependent upon the mine, and any
compensation payable to mine employees (Indian Bureau of Mines,
Guidelines for Mine Closure Plans, para.5).
Although there is nothing very new in the 2008 National Mineral Policy
with respect to managing the socio-economic impacts of mine closures
(National Mineral Policy 2008, para.7.12), it attaches high priority to
the socio-economic development of the areas proximate to mines,
focusing on the use of public funds for infrastructure with respect to
health, education, provision of drinking water and roads (National
Mineral Policy, para.7.7). The implication is that with large-scale
investment in mineral extraction, there should be correlative efforts to
ensure that regional social and economic development proceeds
apace. The same policy also outlines plans for the application of Social
Impact Assessments in relation to the displacement of people to make
way for mines (para.7.11). It is noteworthy, however, that these SIAs
“will be undertaken to ensure that suitable Relief and Rehabilitation
packages are evolved” (id.). There is a strong implication from this,
and from the socio-economic infrastructure priorities mentioned in 7.7
that efforts will be concentrated on social protection after the decision
to allow mining has been taken, rather than on the protection of
communities from being displaced by new mines. In its treatment of
tribal groups and ‘weaker sections’, the policy clearly focuses on
economic considerations: a mechanism will be evolved which would
actually improve the living standards of the affected population and
ensure for them a sustainable income above the poverty line
(para.7.11).
17
Royalties are paid by mining leaseholders. With respect to bauxite, for
instance, the level of royalty currently is around 80 rupees per tonne of
bauxite extracted although this varies according to the alumina content
and the worldwide aluminium price.
10
This appears low, given that the
current spot price of one tonne of aluminium is around US$ 2440, but
in fact it is similar to the comparable rates in Australia and Jamaica,
two of the world’s largest bauxite producers. The proposed MMDRA (in
a version that has been approved by the Group of Ministers but is not
available publicly) provides that mining companies pay a sum to those
resettled as a result of mining equal to the entire royalty paid in the
previous year (see for example S.A. Aiyar, Mining royalty gives tribals
a better deal”, Times of India, 10 July 2011) with respect to minerals
other than coal.
It is also potentially possible for the Central Government to require the
withdrawal of a mining licence under s.4A of the Mines and Mineral
(Development and Regulation) Act, as the grounds for termination are
wide enough to permit the government to do so for such….purposes
as [it] may deem fit (s.4A(1)). This could conceivably include wider
social reasons than are currently explicit in the legislation.
2.7 Legislative ambiguity
In addition to the problems outlined above, one further problem
threatens the objective balancing of environment and economic factors.
This is the tendency in the mining legislation to favour mining concerns
by default when time restrictions imposed on regulatory agencies are
breached. For example, rule 11 of the Mineral Concession Rules 1960
provides that an application for the renewal of a prospecting licence
shall be deemed to have been renewed for a period not exceeding the
period prescribed for renewal of prospecting licence under sub-section
(2) of section 7 of the Act, or the period for which an application is
made, whichever is less” if the authorities fail to dispose of it on time.
Similarly, with respect to the renewal of mining licences under rule 24A,
if the IBM does not provide a report within three months commenting
on whether or not renewal would be “in the interest of mineral
development”, it is assumed that it the IBM is in favour of renewal.
Applications for the renewal of mining licences that are not disposed of
timeously are extended until such point as the State Government does
anything about them (rule 24A(6)). This practice is also unfortunately
evident in the latest version of the Mines and Minerals Development
and Regulation Act (s.28(3) and (4), for example).
10
According to the Ministry of Mines Notification G.S.R.574(E) of 13
th
August 2009 (amending the
Mines and Minerals (Development and Regulation) Act 1957), the royalty rate for bauxite is 0.5% of the
London Metal Exchange Aluminium metal price ‘chargeable on the contained aluminium metal in ore
produced for those despatched for use in alumina and aluminium metal extraction; and 25% of sale price
on ad valorem basis for those despatched for use other than alumina and aluminium metal extraction and
export”.
18
Interestingly, such default extensions are not restricted to India alone –
in South Africa, for instance, mining rights are presumed to continue
beyond their face expiration dates where an application for renewal
has been submitted (Mineral and Petroleum Development Act, 2002,
s.24(5)), until such point as a decision has been taken either way by
the relevant authority.
These rather generous provisions are potentially exacerbated by the
provisions of s.31 of the Mines and Minerals (Development and
Regulation) Act, which allows mining leases and renewals to be
granted under conditions different to those in legislation made under
s.13 of that Act. No qualifications are attached to this broad power, and
it could therefore open the door to the circumvention (or of course,
tightening) of the rules governing mineral licences without reference to
any underlying requirements as to protection of environmental or social
conditions. Reasons must be stated for the special case, but there is
no right of challenge apparent, and the grounds for opposing such an
action are uncertain as no standards are provided for.
The question of default extensions are in fact currently causing
problems for the Ministry of Mines. In a letter dated 15
th
December
2009 from Gaurav Kumar, deputy secretary of ministry of mines
(no.7/111/2009-M.IV), the writer noted that because of slow processing
of new concessions and renewals for e.g. forest clearances by state
governments “leases are allowed to operate under deemed extensions.
Needless to say these circumstances provide perverse incentives for
illegal mining of various kinds”. As a consequence of this, the Ministry
began seeking quarterly reports from states on the processing of such
renewals, but the repeated letters on the Ministry of Mines’ website
11
complaining about the lack of response from States, suggest that it
does not appear to have been receiving updates from many States.
Maharashtra, coincidentally, is one of the worst offenders, having
provided only one report since the original request from Mr. Kumar.
This could indicate any one or combination of a number of problems –
that the deadlines imposed in the legislation are not compatible with
the resources available to deal with the administration (because the
Ministry is woefully understaffed or because the periods allowed are
unrealistic in any case?); that States are not compiling the reports as
required (due to an unwillingness to show in detail where they are
failing, because the frequency required is too onerous or they lack the
consolidated data themselves, or perhaps because they fear the
scrutiny and transparency?). On the other hand, it might also suggest
that the State agencies are not afraid of the Central Ministry’s
demands, possibly because they feel the Centre’s powers of
enforcement over them are weak, a point which could be vindicated by
the repeated letters and their rather incongruous publication on the
Ministry’s website.
11
Http://mines.nic.in, last visited 10 August 2011.
19
Incidentally, a search for the status of reconnaissance prospecting and
mining permits on the Ministry of Mines website on 2 August 2011
(searching for ‘bauxite’ in ‘Maharashtra’), revealed only one application
from Swati minerals for bauxite in Udaigiri (sic) for 776.55 ha. It also
reveals that the application was received on 24 April 1996, but rejected
/ returned on 27 February 1997. Mining of bauxite is very clearly
happening at Udgiri, and the mining area of the application matches
very closely with the area of the mine itself, but for whatever reason,
the details of the permit are missing from the database.
3. Sugar cane
In addition to the pressures on biodiversity and local livelihoods from mining,
other problems may be caused as a result of factors driving farmers to plant
more sugar cane. These external factors emanate from the rather unlikely
source of the Clean Development Mechanism (CDM) under the UN
Framework Convention on Climate Change (1992). This is because the
generation of energy is a bi-product of the sugar industry, and this has
become something of a beacon in India, with broad support across diverse
constituencies (see for example (Dutta 2009); (Energy 2009)). If this type of
generation is to increase in line with expectations and beyond, there may be
major impacts on water quality and quantity, and on the biodiversity in the
basin through encroachment on protected habitats by sugar cane cultivation.
These consequences are not adequately addressed in the CDM context, and
the absence of a strict legal regime with respect to environmental protection
and water management is likely to exacerbate them.
3.1 Sugar cane in Maharashtra
Sugar cane cultivation in the upper and mid Warna basin has
increased over the past few years, with sugar cane as a cash crop
displacing traditional subsistence agriculture (Kurane 2010). The bulk
of the cane in Maharashtra is used for the refining of sugar.
Maharashtra is largest sugar producing state in India, producing
almost 30% more than the next biggest producer, Uttar Pradesh
(USDA Foreign Agricultural Service, 2011), with 196 sugar factories in
2007 (Maharashtra State Co-operative Sugar Factories Federation
website sugar statistics, at
http://www.mahasugarfed.org/sugar_statistics.htm - combined totals of
private and cooperative sugar factories
12
) and 526,000 ha of land
under sugar cane cultivation in 2004 (Department of Food and Public
12
Maharashtra Energy Development Agency quotes a figure of 202 factories (www.mahaurja.com).
20
Distribution, Directorate of Sugar, “Sugarcane Agriculture”, Table 3.1
at http://fcamin.nic.in/).
The large number of sugar refineries, and the local jaggery (or gur)
production, provide ready buyers for this cash crop, and this, combined
with a number of other critical factors, makes sugar cane an attractive
crop for farmers. These other factors include the availability of
improved irrigation techniques, better funding opportunities from the
National Bank for Agriculture and Rural Development (NABARD) (Nair
2011), and the fact that in periods of drought, sugar cane will not
simply die off. This means that dry periods may reduce the yield of the
cane, but not destroy the entire crop (Silva 2008). In addition, although
sugar cane cultivation demands relatively high quantities of water –
each unit of cane produced requires 250 times as much water (Gerber-
Leenes 2009; Kostka 2009), farmers do not pay for any water they
need to use, whether sourced from groundwater or from surface water.
Sugar is subject to Statutory Minimum Price controls (11
th
Five Year
Plan, para.7.1.303) so farmers are guaranteed a certain level of
income), even although this price may not allow a high margin of profit
(Kostka 2009). Consumptive water use is also largely unregulated,
except in relation to large irrigation projects, and for farmers working
on relatively small-holdings typically less than 1 ha (Kostka 2009),
this lowers both the cost and bureaucracy of diverting water to irrigate
their cane crops. In the upper Warna basin, farmers can expect to
produce between 30 and 40 tonnes of cane per hectare. This
compares unfavourably with the Indian average of 70 tonnes/ha and
the Maharashtra mean of 57 tonnes/ha (Kostka 2009), and in fact may
even be lower.
3.2 Potential influence of the demand for renewable energy?
Aside from issues relating to the encroachment of sugar cane cropping
in forested areas and the reduction in the cultivation of traditional
subsistence crops, the reason this particular crop is important is
because of its potential to generate electricity. The sugar refining
process produces two principal by-products that are useful in other
industries molasses and bagasse. The bagasse, that is the milled
cane husks, can be used in the production of textiles (Chiparus 2003),
but can also be used as a fuel. In sugar refineries and jaggery factories,
something approaching a closed system can be established whereby
the raw material that fuels the process is itself a product of that
process, without the need for another external fuel. We were told at the
interview with the Chief Engineer of one major sugar plant in the case
study area that while roughly 135kg of bagasse is produced from the
milling of 1000kg of raw cane, only 50% of this is needed to generate
sufficient power to run the boilers needed for the process of refining
the sugar. The other 50% can be used for textiles or, more saliently
here, for the generation of electricity from renewable biomass. These
figures are not exactly matched in the literature, however, with Restuti
21
and Michaelowa quoting a figure of 320kg of bagasse per tonne of
cane (Dewi Restuti 2007), with only 30% of the bagasse produced
from milling being needed to power the refinery (id.). In any case, this
means that between 50-70% of the bagasse resulting from the milling
process is available for what is termed co-generation (or more
commonly, cogen), the combination of using the bagasse to produce
both heat for the refinery and electricity for the grid (Dutta 2009).
In 2010, installed capacity for bagasse cogen in India was 1411MW
(Ghosh 2011), with the potential thought to be in the region of
5000MW (Ministry of New and Renewable Energy 2011).
13
The figures
for Maharasthra alone, in 2008, are around 231.5MW in installed
capacity according to the MEDA, which also projects that the
production potential for the state is 1250 MW (MEDA), although this
potential peak is not expected to be reached for another 20 years. One
tonne of sugar cane will produce anything between 10-20kWh (Dewi
Restuti 2007) and 50-70kWh, or more, in a very high efficiency plant
(Tyler McNish 2009).
In theory, one of the beauties of the bagasse cogeneration process is
that it does not generally demand that sugar refineries mill any more
cane than they currently are (Tyler McNish 2009). It is not clear at this
point how valid the assumptions that underpin this prediction actually
are. There are a number of factors that influence variation in cane
cultivation activity, the price of sugar being the main one. The
Government of India is keen to increase its renewable energy capacity,
and has introduced capital incentives for sugar factories to develop
cogen capacity, along with a favourable ‘cost-plus’ tariff for the rate at
which electricity distributors will buy the energy generated by bagasse
cogenerators.
The tariff for the sale of electricity to the grid provides the incentive for
sugar refineries to install cogen facilities, along with favourable
financial terms (including sales tax holidays, rapid depreciation and
infrastructure import duty relaxation) and preferential lending for capital
investment from the Indian Renewable Energy Development Agency
Ltd (http://www.ireda.gov.in/), and the respective Ministries of New and
Renewable Energy, and Food [sourced from
www.teflas.com/presentations/Vinay_Kumar-NFCSF.ppt]. With respect
to the case study area, the tariff is set by the Maharashtra Electricity
Regulatory Commission under powers vested in it by ss. 61 and 62 of
the Electricity Act 2003. The current tariff level was set in 2005 (MERC
Case No. 123 of 2008, para.64) and sits at 4.79 rupees/KW/h (see
also MERC Tariff order dated 8 August, 2005 in case no.37 of 2003),
based on cost of generation plus 16%.
14
13
Note that this estimate for potential capacity is rising – Maharashtra’s Energy Development Agency
cites an earlier figure of 3500MW potential (www.mahaurja.com).
14
The Maharashtra Energy Development Agency apparently intends to generate
10% of the state’s power from renewables by 2015
22
How the market will develop is of course uncertain, because there are
existing buyers for the bagasse and those markets will be altered
where cogeneration demands for bagasse restrict its availability for
other uses. It may also be that the presumption that no further cane
cultivation is needed if projections are to be met is based on some
questionable expectations. For instance, the figures assume that the
efficiency of the boilers at these factories will be high and that cane
yield will also be high. Where boilers are of lower efficiency, the
quantity of bagasse needed to produce the energy will increase, and
this will be compounded in situations where the calorific value of the
bagasse itself is low. In situations such as these, which appear
relevant to this part of Maharashtra, the area needed to produce the
cane would increase rapidly, and that land would have to come from
somewhere, putting forests at risk potentially. Kostka et al assume that
the political sensitivity associated with growing biofuels will combine
with the relatively low price of sugar in India to limit the spread of cane
cultivation (Kostka 2009), but this author wonders if the level of
acceptability of sugar cane farming, and the power of the sugar lobby,
in Maharashtra could have the opposite effect.
It is important to note that the issues described here relate to the
generation of electricity from biomass (and more specifically from
residue biomass (Bluemel 2006-2007), and do not refer to the quite
separate issue of the use of sugar cane as a biofuel source. The two
do overlap to some extent however.
The point is that bagasse cogeneration is regarded as being of
potentially major importance for Maharashtra and for India as a whole
by almost the entire spectrum of observers. Its attractiveness is
enhanced by a number of factors unique to Maharashtra, including the
fact that the current energy generation mix in India would mean that a
bagasse power project located in Indian would receive twice as many
carbon offset credits as an equivalently-sized project located in Brazil”
(Tyler McNish 2009). Furthermore, the cost of investment in bagasse
cogen in the state is actually the cheapest of all the renewable options
(at 35 million rupees per MW the same as for other biomass
investment costs, but less than wind, and less than half of small hydro)
(Mayabhate 2006). The economic weakness of sugar refineries also
plays a role (Chan 2009) along with the power of the sugar lobby in the
state.
The impact of bagasse cogeneration projects in India’s involvement in
the Clean Development Mechanism (CDM) has been significant. The
CDM process under the UNFCCC seeks to pair funding from
developed nations to individual projects in the developing world that on
a net basis can reduce the carbon emissions of the former. For an
Indian project to be considered for such investment by the global
Executive Board of the CDM, it must first be approved by the National
(http://www.dnaindia.com/mumbai/report_power-starved-maharashtra-
banks-on-renewable-energy_1363970).
23
Clean Development Mechanism Authority in India. The CDM is
primarily focused on the reduction of greenhouse gas emissions, but
also addresses the broader question of the sustainability of the
projects it approves. In 2009, India had registered 36 bagasse power
projects with the CDM Executive Board, with 60 pending (the highest
number out of any country) (Tyler McNish 2009). In order for
prospective CDM projects to gain approval from the National CDM
Authority in India, the promoters must demonstrate the ‘financial
additionality’ of the project, along with its sustainability with respect to
water quantity and quality, among other things. The extent to which
this assessment is properly addressed by the promoters, evaluated by
the NCDMA, and policed by the relevant enforcement authorities, will
be of critical importance in whether or not bagasse cogeneration in
Maharashtra, and more generally, the CDM process as a whole in
India, will work in a way that effectively protects both water quantity
and quality, and local biodiversity. If the CDM authorities fail to take
account of the poor monitoring capacity, limited scope of enforcement
powers and lack of financial and human resources of the local, state
and national authorities in relation to water and biodiversity, they risk
imposing additional burdens on those agencies and on the local
environment that institutions are unable to meet. Bagasse
cogeneration could be highly beneficial for India and for local
populations through income generation and electricity availability, but
will require institutional capacity commensurate with its potential
impact on the environment.
Further details relating to the institutional capacity to address the
environmental problems caused by intensive sugar cane farming are
set out in the following section.
4. Observations from field trips and interviews
The following observations are based on field trips to the Kolhapur district
and Chandoli National Park in December 2009 and October 2010.
The capacity, staffing and financial resources of the government authorities
that are variously responsible, whether directly or indirectly, for the protection
of the environment, are complicated and almost inevitably inadequate for the
task at hand. There are problems associated with institutional coordination,
and the comparative levels of power of the regulatory authorities on the one
hand and the government authorities relating to sectoral users such as
industry and agriculture on the other. This section will not address the
separate question of the appropriateness of the legal powers, management
responsibilities and institutional function conferred on relevant authorities as
these have been largely addressed in ch.4.3), but will instead focus on
resource issues.
24
As noted in part 9.2.1 above, the Pollution Control Board within the District
Collector’s office holds responsibility for the monitoring of environmental
impact assessment conditions and pollution control permits. It may therefore
visit sites with EIA approval, such as mines, unannounced, in order to check
compliance with respect to any conditions that have been imposed.
Unfortunately however, the lack of financial resources available to the
respective DPCB limits their capacity to do so, and they must therefore rely
on the mining company to organise transport to and from the mine site. While
there is a limit to the amount of temporary improvements that may be made
to a mine with short notice, the fact that the DPCBs are beholden to the
mining companies must compromise the utility of these ‘unannounced’ visits
dust levels along access roads may be reduced with water spraying, and
official ‘steered’ away from possibly contentious areas. Such problems may
also, of course, be indicative of an institutional unwillingness to apply the law
to its fullest extent, a problem that is clearly augmented by corruption.
Corruption is the largely unmentioned and largely unquantifiable aspect of the
environmental management regime that we were unable to properly address
when visiting sites. India ranks 87
th
out of 178 in the Transparency
International Corruption Perceptions Index 2010 (www.transparency.org), and
anecdotal reports that we heard when travelling in the basin suggested that
corruption is rampant in the area.
The relative incapacity of enforcing institutions is further reflected in the
follow-up with respect to EIAs and mining permits. According to Swati
Minerals, the bauxite mine that we visited in Udgiri is being remediated in line
with legal requirements – we were told that they were planting between 5 and
10,000 trees annually to comply with conditions imposed by the Department
for the Environment and Forestry. Evidence from the mine, however, during
our previous visit a year earlier, suggested that the remediation efforts were
inadequate. The trees planted were neither indigenous nor as numerous as
stated. They were also planted in such a way as to virtually guarantee their
own demise, with minimal soil being used and saplings being planted in
polythene bags, isolated from the rock. It was very difficult to believe that the
remediation efforts were sufficient to meet the requirements of the licence,
and this in turn raises serious questions with respect to the level of
enforcement being applied by the relevant authorities. It also potentially
highlights the quality of the standard applied to mining concerns with respect
to environmental remediation – 5-10,000 trees may indeed be twice the
number felled, as required under the Minerals Conservation and
Development Rules (para.9.2.2.5 above), but was demonstrably inadequate
as a means to achieving self-sustaining environments.
Government officials in the office of the Conservator of Forests complained of
their powerlessness in the face of determined and well-resourced private
concerns who were able to challenge decisions through the entire hierarchy
of courts, simply because they lacked the funds to pay for rigorous legal
representation in this process. It may be that the recent Green Tribunal Act of
2010 will go some way towards countering the difficulties caused by
members of the judiciary having little or no sympathy with environmental
protection concerns, a problem voiced by a number of interviewees (e.g.
interview with Videh Uphadyay, Delhi, 21 October 2010).
25
As regards physical capacity, in addition to the complete absence of a quality
monitoring network on the Warna river, government authorities at State and
Union levels are undermanned in relation to the tasks they are responsible for.
For example, the Wildlife and Forestry wing of the Ministry of Environment
has 14,000 aging employees to police 69 million hectares (around 500ha
each) (Interview with Brij Mohan Singh Rathore, Joint Secretary of the
Ministry of the Environment and Forests, Delhi, 11 October, 2010).
Replacement of these older, more experienced, employees is difficult
because younger people do not want these jobs. The DPCBs in Maharasthra
are under-manned, and in Delhi, only 10 field officers are employed to assess
around 200,000 industrial concerns (interview with Videh Uphadyay, Delhi, 21
October 2010).
While fragmentation of responsibilities is recognised by the GoI as being
problematic (National Environment Policy, para.5.1), it is further exacerbated
by the lack of coordination and communication between relevant agencies.
While the interviews we conducted demonstrated a level of awareness that
the work of other agencies was relevant to the work of their individual
authority, this did not correspond with efforts to bring those agencies together
for a coordinated approach (interview with Kolhapur District Pollution Control
Board, October 2010). The legislation does not oblige coordinated or
integrated approaches, and lower level employees are likely to be reluctant to
initiate such approaches unless prompted from above. This is problematic
because the institutional framework is unlikely to be radically restructured. In
addition, coordinated action, with ‘mainstreamed’ duties with respect to social
and environmental protection, for example, will therefore need to be robustly
implemented if progress is to be made. Again, this has been recognised
elsewhere (Rathore 2007) – “the gross inadequacy of a sector or department
alone to provide a sustainable conservation umbrella to the full range of
biodiversity” (45).
In addition to the problems associated with horizontal institutional fracturing,
vertical coordination is also complicit. The Ministry of Environment and
Forestry splits control of the Environment as a whole, from wildlife and forests.
Vertically, Union control of the environment is residual, with primary
responsibility resting on States, although this causes problems in terms of the
effective imposition of national standards and targets on individual States
(interview with Brij Mohan Singh Rathore, Joint Secretary of the Ministry of
the Environment and Forests, Delhi, 11 October, 2010). State priorities tend
to limit the extent to which national targets can be imposed.
Management of water resources in particular is also hobbled by the sectoral
institutional splits, and by an overwhelming concentration on irrigation rather
than on the broader management of all uses. Water quality is managed by
the District Pollution Control Boards (DPCBs), water quantity (and by default,
flow) with respect to projects (i.e. irrigation projects) is managed by the
relevant Development Authorities i.e. the authorities responsible for
managing the irrigation projects. Comprehensive water quantity management
does not exist. Surface waters are managed only to the extent described
above, and while groundwaters are nominally controlled by the Groundwater
Survey, use of groundwater resources is otherwise effectively unregulated
26
except for some powers vested in panchayat bodies in relation to drinking
water from boreholes. The Maharashtra Water Resources Regulatory
Authority oversees major projects, but in fact does not control ecosystem
protection, groundwater, water quality or diffuse pollution. It relies on
compliance reports provided by officials embedded in irrigation and
hydropower projects (interview with Shri Sodal, Director, MWRRA, 13
October 2010), and is focused principally on drawing up the criteria to be
used by the State government in deriving the tariff for water use.
The DPCBs have no control over irrigation discharge or diffuse pollution. The
latter is becoming increasingly important as cane growers keep stands for
longer and longer, depleting soil nutrients more and more. The average
period of ratooning in Maharashtra is five years, compared with the more
normal 2 (Cheeseman, 2004, p6), with consequent demands for fertilisers
and reduction in cane yield (ibid.) Instead, the DPCBs control only industrial
pollution in practice, along with sewage treatment plants. This is largely
irrelevant on the Warna as not only are there are no sewage treatment plants
on the river, but there is only one quality monitoring station on the entire river,
and that is at the confluence with the Krishna River (interview with Amar
Dargule, Assistant District Officer, Kolhapur PCB, Kolhapur, 14 October
2010). The river is consequently the unmonitored sewer for those who live in
the Warna basin.
27
5. Chandoli National Park - Actor Network Analysis
5.1 Chandoli National Park: Introduction
Chandoli National Park (NP) is located in the North Sahyadri Range of
Western Ghats. It is located in Maharashtra state, and located at the
junction of four districts including Sangli, Kolhapur, Satara and
Ratnagiri. The protected area is 317.67 square kilometres (Gogate
2009). Approximately sixty percent of the area is classified as forest
area and reserved forest, and the remaining forty percent of the area
belongs to the irrigation department and private Malki lands
(Maharashtra State Forest Department undated). Most of the Chandoli
NP is covered with dense semi evergreen forest, with wide range of
flora (Maharashtra State Forest Department undated). Among many
tree species growing within the protected area, Narkya-Mappia foetida
(synonyms-Nothapodytes nimmoniana, Nothapodytes foetida) is
known to contain a compound called camptothecin, which is a curative
agent for breast cancer (SOPPECOM 2010). According to the
Maharashtra State Forest Department, the protected area shelters an
abundance of wildlife including tigers, India gaur, sambars, panthers,
sloth bears, barking deer and giant India squirrels (Maharashtra State
Forest Department undated).
The NP is located within the Warna river basin, and it forms a
catchment area for the Warna dam, which began construction in 1975.
When the dam construction was completed in 1985, the government of
Maharashtra established the surrounding catchment area as the
Chandoli Wildlife Sanctuary (WS) under the Wildlife Protection Act
1972. The Government of Maharashtra issued a notification of its
intention to declare the area as Chandoli NP in 2004 (Revenue and
Forest Department. Government of Maharashtra 2004; Press
Information Bureau: Government of India 2007; Kouwenhoven 2010).
Chandoli NP became part of the Sahyadri Tiger Reserve in 2010, with
an area of 741.22 square kilometres, which also includes the Koyna
Wildlife Sanctuary (National Tiger Conservation Authority: Government
of India 2010). The figure 1 shows geographic relationship among
Chandoli NP, Sahyadri Tiger Reserve, and Warna river basin. The
core zone area indicated on the map is the Chandoli NP.
28
Figure 1: Chandoli National Park, Warna River Basin, and Sahyadri Tiger
Reserve. Source: (SOPPECOM 2011)
5.2 Biodiversity Conservation and actors
The Indian constitution defines protection of forests and wildlife as the
responsibility of both national and state governments . The daily
management of the national parks, wildlife sanctuaries and reserves
are the responsibility of the district conservator of forests, which is part
of the state forest department (Gooch, Rieu-Clarke et al. 2010). In
case of Chandoli National Park, which falls within four districts, the
management responsibility was initially shared among four district
conservators. However in 1994, it became the sole responsibility of the
Kolhapur district conservator of forests (Kouwenhoven 2010).
While declaration and management of national parks and wildlife
sanctuaries are the responsibility of the state governments (Chapter IV,
Wildlife Protection Act, India), the central Ministry of Environment and
Forests (MOEF) is responsible for developing national plans, strategy
and programmes related to biodiversity conservation (Gooch, Rieu-
Clarke et al. 2010). The National Tiger Conservation Authority (NTCA)
is part of the MOEF, and it manages the project tiger scheme which
has been in operation since 1973. The NTCA approves the tiger
conservation plan which State governments develop, and it provides
technical and financial support to the state governments for their
management of tiger reserves
29
Various state and national level actors were involved in the
establishment of Chandoli WS and its promotion to a national park and
tiger reserve. According to the Conservator of Forest in Kolhapur
district which administers Chandoli National Park,
the idea of establishing Chandoli Wildlife Sanctuary was initiated by
the State Forest Department (Rao 2010). One of the policies which
influenced the establishment of the Chandoli WS was the National
Forest Policy of India 1952 which included a target of having at least
33% of the national land cover under forest (Joshi, Pant et al. 2011).
This policy influenced the provincial forest department’s effort to locate
land to designate as protected areas (Rao 2010). The policy was
amended in 1988 with an increased target of two thirds of the area in
the hills and mountain regions to be covered under forest (Department
of Environment Forests & Wildlife: Ministry of Environment and
Forests: Government of India 1988). Another factor which is
considered to have indirect influence is the civil society movement to
save Western Ghats, comprised of concerned scientists, academicians,
activist, artists, writers, musicians, politicians and grassroots workers
which emerged in 1980s. As part of this movement, a march was
organized where concerned citizens marched throughout Western
Ghats, in order to raise awareness and protest against development
which was seen to destruct nature in Western Ghats (Acharya 2008;
Kohli 2010; Pawar 2010; Save Western Ghats undated).
Another motivation for the establishment of the wildlife sanctuary was
to protect the watershed for the Warna dam. Protecting the upper
catchment of the dam is important in order to avoid heavy siltation and
to prolong the lifetime of the dam (Samant 2010; Trepp 2010). The
dam was designed to irrigate farms downstream, as well as to produce
16MW of electricity (Maharashtra Water Resources Department
undated). The dam currently provides water to Shahuwadi taluka
primarily (Collector Office Kolhapur 2009), where farmers grow mono-
culture cash crops, primarily sugarcane (Samant 2011). Sugarcane
became an important agro-industry over the past thirty to fourty years
in the region particularly in the middle to lower sections of the Warna
river. Its cooperative institutions have grown and formed important
social institutions such as, educational institutions and banks, in
addition to agro industrial set ups such as sugar factories (Gooch,
Rieu-Clarke et al. 2010). As illustrated in figure 1, the shape of
Chandoli NP reflects the catchment of the dam, however, if
biodiversity was the main criteria for determining the protected area, it
would have been a different shape (Samant 2010).
In 1998 and 1999, meetings were held among national level ministries,
local government bodies and conservationists who were keen to
promote Chandoli Wildlife Sanctuary as a tiger reserve. Among the
conservationists were the IUCN Cat Specialists Group members, and
Maharashtra Critical Tiger Habitat Expert Committee (Gogate 2010;
Kouwenhoven 2010). The meetings concluded to promote Chandoli
WS as a national park first, as a stepping stone towards declaring it as
30
a tiger reserve. According to the former Chief Wildlife Warden of the
Maharashtra State Forestry Department, another actor who had
potential influence over this decision was the Shiv Sena, which is a
political party with a roaring tiger as its symbolic icon (Gogate 2010).
Shiv Sena was part of the ruling coalition of Maharashtra from 1995 to
1999. At the time when the idea to upgrade Chandoli WS as a tiger
reserve emerged, the Minister of the MOEF was also from Shiv Sena
(Kouwenhoven 2010).
Relocation of local residences is one of the major obstacles in
establishing protected areas (Kulkarni and Mehta 2010), particularly
national parks and tiger reserves which do not allow local people to
live within the borders and utilize its resources. Tiger reserves require
the establishment of core areas which do not allow any human
intervention . When Chandoli Wildlife Sanctuary was promoted to
Chandoli National Park, local residents were already in the process of
relocation, which did not create additional obstacles in the process for
promoting it to a national park and later, a tiger reserve. As the area is
prone to seismic activities and its remoteness was even enhanced
through Chandoli dam, policy maker at the time of decision-making
saw it as an opportunity to convert weakness into opportunity for
conservation (Gogate 2010). Promoting the area to a tiger reserve
meant more funding from central government to the area, which is one
of the motivations for higher protection (Gadgil 2010; Kothari 2010).
There are initiatives to conserve nature at a larger landscape level
which include the Chandoli NP. The Chandoli NP and Sahyadri tiger
reserve are both located within the Western Ghats, which, according to
Conservation International (CI), is one of the global biodiversity hot
spots (Conservation International 2007). CI defines biodiversity
hotspots as ‘region which contain at least 1500 species of vascular
plants as endemics, it has to have lost at least 70 percent of its original
habitat (Conservation International 2007).’ The Western Ghats cover
an area of 160,000 square kilometres which includes a stretch of
highlands 1,600 kilometres from the southern part of Gujarat state as
far as Sri Lanka (Conservation International 2007). The Indian
government has submitted its application to designate the Western
Ghats as a UNESCO World Heritage Site, which includes serial sites
within the area. The proposal is currently under evaluation by
UNESCO (DHNS 2010; Sudhi 2011; UNESCO World Heritage Centre
undated). In order to manage the natural heritage of the Western
Ghats, the MOEF established the Western Ghats Natural Heritage
Management Committee which consists of representatives of each
state within the Western Ghats (Ministry of Environment and Forest:
Government of India 2010).
Another on-going discussion at the landscape level protection is to
designate all or part of Western Ghats as an Ecologically Sensitive
Area (ESA), under the Environment (Protection) Act, 1986. The MOEF
31
has established the Western Ghats Ecology Expert Panel in 2010,
which is tasked to make a recommendation for the ESA and also to
recommend the modalities for the establishment of the Western Ghats
Ecology Authority (Ministry of Environment and Forests 2010). At the
time of writing this paper, the Expert panel is discussing the possible
idea of categorizing the Western Ghats in five categories, using criteria
which will be developed by the panel. The zoning may possibly impact
on on-going activities such as mining which takes place in proximity to
the ecologically sensitive zone (Sudhi 2011).
5.3 Local livelihoods and actors
Historically, the area where Chandoli NP is located has been
inhabited primarily by the Dhangar (shepherd) community. The area
is remote from development, and is also an earthquake prone area.
Originally, there were 32 villages within the boundary of the Chandoli
Wildlife Sanctuary, and all of them had rights over Malki land which is
a privately owned forest land by local residents, totalling 84.29 square
km. When the Warna dam was completed in 1985, eight villages
were submerged under the reservoir, and they were relocated and
rehabilitated. The Chandoli Wildlife Sanctuary was established in
1985, and in 1995, the Maharashtra state government made a
decision to relocate all the villages residing within the sanctuary. The
process of relocation began in 1997 (Salunke and Khot 2005). The
declaration of Chandoli National Park in 2004 included one additional
village, which is Amboli village in Kolhapur district (Kouwenhoven
2010). The relocation of some of the villages is still in progress (Joy
and Jain 2010; Pawar 2011).
The villagers who were relocated due to the Warna dam received
compensation from the government. The Maharashtra Resettlement
of Project Displaced Persons Act 1976 and the Maharashtra Project
Affected Person Rehabilitation Act, 1989 both applied only to the
relocation caused by irrigation projects (Asian Development Bank
2011; The Bombay High Court Judge's Library undated). When the
relocation of villagers affected by the establishment of Chandoli
Wildlife Sanctuary began in 1997, there was no applicable law for the
relocation of people caused by the establishment of protected areas.
The Maharashtra Project Affected Persons Rehabilitation Act 1999,
which also applies to projects other than irrigation projects, only came
into force in 2001 (Government of Maharashtra 2001). Prior to this
Act, the application of the law to displacement caused by non-
irrigation projects depended upon the discretion of the government
(Trepp 2010).
Villagers relocated due to the establishment of the Chandoli Wildlife
Sanctuary claimed they did not receive the compensation which they
had expected to receive from the government (Pethvadgaon elders
2010). Some of them even had to build their own houses at the
resettled location, and they did not receive the levels of compensation
32
which was given to the villagers relocated because of the Warna dam
(Patankar 2010). In 2000 and 2001, a mass protest was organized at
the Chandoli dam, which helped the villagers to receive
compensation for the construction of their houses (Patankar 2010).
Mass demonstrations have been organized every year since then, in
order to demand compensation from the government (Patil 2010).
While some compensations have been made after these protests,
villagers are not yet fully compensated for what they had lost to date
(Patil 2010; Pethvadgaon elders 2010).
These mass demonstrations were organized with support from
Maharashtra Raja Bharang Dharan va Prakalp Grashta Shedkari
Parished (referred to as Parished hereafter). Parishad is an
organization of dam affected farmers in the whole Maharashtra state.
The Chandoli Dam affected farmers as well as those affected by the
formation of the Chandoli Wildlife Sanctuary and National Park have
been working as part of the Parishad. Most of the leading activists in
the Parishad in the area, were part of a political group called the
Shramik Mukti Dal. In 2009, the Shramik Mukti Dal was split and most
of the activists in the Parishad joined a newly formed Shramik Mukti
Dal Democratic (Anonymous village elder 2010; Anonymous village
elder group 2010; Kouwenhoven 2010; Paranjape 2011).
The funding for rehabilitation of the people relocated due to the
establishment of protected areas comes from Wildlife Funds at the
MOEF, and the rehabilitation from the establishment of Tiger
Reserves is funded by the national government (Project Tiger 2005;
Gogate 2010; Kouwenhoven 2010). However, as of 2005, there was
not enough funds to rehabilitate all the people living in Tiger
Reserves throughout India (Project Tiger 2005). While the
rehabilitation of displaced people are funded by the MOEF, it was the
responsibility of the State Water Resources Department and its
district water resource department to rehabilitate villagers relocated
due to Warna dam and Chandoli WS (Kouwenhoven 2010; Samant
2011). In 2007, the Maharashtra state government issued a decision
to establish Maharashtra State Rehabilitation Authority, which is
responsible for taking decision in all matters related to the
rehabilitation of project affected persons. This decision also
established Rehabilitation Committee at each district and divisional
levels, with aim to accelerate the rehabilitation work. Three Grievance
Redressal Authorities are established in Pune, Aurangabad and
Nagpur, in order to help solve the problems (Government of
Maharashtra 2007). Creation of the Rehabilitation Authority facilitated
villagers’ and social rights groups’ negotiations with government, as
they no longer needed to approach different government departments
associated with the rehabilitation issues (Patankar 2010).
When villagers received notification in 1997 to relocate within a year,
there was no prior consultation with the villagers about the relocation.
Some of the villagers were not aware of their relocation prior to 1997,
while others requested to be relocated due to seismic activities
33
prevailing in the area and its remoteness which was exacerbated due
to the relocation of eight villages from the Warna Dam construction
(Salunke and Khot 2005; Gogate 2010; Kouwenhoven 2010; Narote
2010). The Wild Life Act 1972 which was used as a basis for
establishing the Chandoli Wildlife Sanctuary did not require prior
consultation to the local community of its intension to establish
protected area . The Act, however, requires any person who holds
land within the declared area, to provide a written claim to the district
Collector, with necessary details and amount of compensation (Article
21) and also requires the district Collector to investigate the existence
of rights that are not claimed (Article 22). Based on this requirement
of the Act, the district collector offices of four districts which Chandoli
WS was located within, made an investigation and reports of the land
ownership (Kouwenhoven 2010). Part of the national park is still
legally owned by the local people and the government is in the
process of purchasing the land and relocating people (Prakash 2010).
Gothane village is one of the few villages still located within the
Chandoli NP. According to one of the Gothane villagers, the village
recently proposed to have a wall between their land and the park, in
order to protect themselves from wildlife while allowing them to live
within the natural forest area. The idea was proposed to the
government, including district collectorate, irrigation department, and
to the chief minister of Maharashtra and the state department of
forest. However, the government has not agreed to this idea, as the
rest of the villages are already relocated out of the park (Prakash
2010). In addition, the forest department does not consider local
communities capable of managing the forest by themselves (Rao
2010).
As a way to support local livelihoods associated with the creation of
the protected area, the management plan of Chandoli Wildlife
Sanctuary proposes two activities: tourism and village eco-
development (Salunke and Khot 2005). Tourism however, is currently
very rare in the park, with estimated 2-3000 visitors per year, each
paying a 20 rupee entry fee. The park receives few international
visitors per year who tend to have specific reasons for visiting
(LiveDiverse 2010). The local community’s engagement towards
tourism in the park is currently limited although there is an interest
from the community (Gawade 2010). Village eco-development is a
type of Integrated Conservation and Development Programme
(ICDP) deployed by Indian government in 1990s, aiming at reducing
negative impacts of local community on biodiversity, and increase
their participation in conservation efforts (Gubbi 2006). As part of the
Maharashtra Forestry Project financed by the World Bank from 1992-
93, village eco-development was implemented for Mandur, Ukhlu,
and Sonawade villages, located at the fringes of Chandoli National
Park. These villages received support for plantations and soil
conservation works (Salunke and Khot 2005). The Chandoli Wildlife
Sanctuary Management Plan indicates its plan to implement similar
34
village eco-development activities in fourteen other villages until 2011
(Salunke and Khot 2005).
Communities in close vicinity of the national park face the potential of
human-wildlife conflict. As there is no fence in the boundary of the
park, wild animals can move freely, and often destroy crops planted
within the community. There are also incidences where cattle from a
village entered into the park and were killed by wild animals (Gawade
2010; LiveDiverse 2010). The Wild Life Act 1972 provides authority to
the Chief Wild Life Warden to permit the killing of certain wild animals
listed in the Act if they become danger to human life or its property.
However, some mammals such as tigers, are not included in this list
(Art. 21 (b)). According to one of the village elders in Khundalapur
village, located at the border of the park, villagers do not receive any
compensation for lost cattle inside the park as authorities tell them
domestic cattle should not have been in the national park (Gawade
2010).
5.4 Other factors influencing the Chandoli National park and
related actors
Chandoli National Park houses plant species such as Awala, Hirda,
and Narkaya, which are ingredients of medicines. Prior to the
designation of Chandoli WS, pharmaceutical companies have
collected these species as ingredient for medicine. The designation of
the sanctuary put pressure on the industry (Salunke and Khot 2005;
Lad and Samant 2010). Illegal harvesting of Narkaya trees still
continues to date, and according to the Conservator of Forest in
Kolhapur district who struggles to enforce the law against illegal
harvest, approximately 60,000 trees have been considered to be
removed from the park area. While any harvest of flora within the
national park is prohibited, cropping the tree as opposed to the whole
removal of the tree prolongs the lifetime of the tree, which is the local
authority’s preferred option (LiveDiverse 2010).
The Chandoli National Park and its adjoining area are geologically
high in minerals, particularly bauxite ore. At the outskirts of the
National Park, at Udgiri village, two private companies operate
bauxite extraction, which causes disturbance to the wild animals and
their habitats (Salunke and Khot 2005), as the blasting of rocks and
minerals generates noise, vibrations and dust. The air-borne dust
settles on tree leaves and plants, which affect their growth. Bauxite
mining in the area is conducted as open cast mining, and it changes
the surface topography drastically, causing alterations in surface
drainage pattern. The discharge of mine water causes water pollution
within the area. The increases in local population through temporary
immigrant labour force causes deforestation and land erosion in
surrounding area (Lad and Samant 2010). M.S Swati Minerals, which
35
is one of the companies operating in Udgiri village bordering the
Chandoli National park, currently has a proposal to expand its mining
area from its current production of 337,000 ton to 1.2 million tons
(Maharashtra Pollution Control Board 2010).
The threat to ecosystem from development pressure is a common
threat throughout the Western Ghats, particularly in the northern part
which has received less attention for conservation compared to its
southern part where protected areas are located relatively close to
each other (Institute of Environment Education and Research 2010).
Although the Wildlife Conservation Strategy (2002) requires 10km
around national parks and sanctuaries to be notified as eco-fragile
zones (Article 9, Government of India: Ministry of Environment and
Forests 2002), some of the Maharashtra Industrial Development
Corporation sites are located within 10km of national parks and
sanctuaries (Institute of Environment Education and Research 2010).
The Maharashtra Pollution Control Board (MPCB) which is part of the
state environment department, is responsible for implementing
legislation related to pollution control. The MPCB’s regional office in
Kolhapur is responsible for monitoring and enforcement of pollution
standard from mining operation which takes place within the district
(Maharashtra Pollution Control Board 2009). When the mining
company applies for permits of mining operation, the Unit for Impact
Assessment for Industry Infrastructure River Valley and Mining at the
MOEF reviews environmental impact assessment prior to permission
is given to the company (Gooch, Rieu-Clarke et al. 2010). The current
mining lease for the M S Swati Minerals runs until 2015, when the
assessment process needs to be conducted again for any renewal
(Swati Minerals 2010). The renewal and the mining activity may be
affected by the proposed designation of Western Ghats Ecological
Sensitive Area (Sudhi 2011), considering the proximity of the Udgiri
village mining site to the protected area.
Downhill from the Udgiri mining site lies Udgiri sacred grove
(LiveDiverse 2010). Sacred groves are a traditional way of forest
conservation, where local people protect the forest in association with
their traditional beliefs (Gadgil 1992). They can play an important role
in India’s biodiversity conservation along with protected areas. The
Udgiri sacred grove is affected by the mining activity, particularly the
long access road to the mine which passes through thick forest area
including the sacred grove (LiveDiverse 2010).
36
Figure 2: An Actor-Network map for the Chandoli National Park,
Maharashtra State, India
5.5 Actor Network Analysis of Chandoli National Park
As a way to analyze the biodiversity and livelihoods governance
which surrounds Chandoli National Park, this paper uses Actor
Network Theory (ANT) as a method for analysis. As discussed in the
introduction section, ANT allows to analyze relationship between
human and non-human (Latour 1997; Latour 2005) This approach is
useful in analyzing factors which affects governance surrounding
protected area, which is composed of an assemblage of non-humans
such as forest, animals, water, law, policy, and human actors such as
villagers, government officials. As a starting point of analysis, actor
network map was created which is illustrated in figure 2. It illustrates
key relationships among actors and actants related to the national
park.
Chandoli NP is part of a larger landscape level protection including
Sahyadri Tiger Reserve and Western Ghats. The relationship
between Chandoli NP and the larger landscape level protection is
reciprocal. Chandoli NP contributes to the Tiger Reserve through its
biodiversity protection within the park. The park benefits from the
37
Tiger Reserve as its status brings more funds for management of the
park. Chandoli NP also contributes to the Western Ghats Ecologically
Sensitive Area, composing one of its core areas, and also consists
one of the elements within the proposed Western Ghats UNESCO
World Heritage nomination sites (UNESCO World Heritage Centre
undated). The expected designation and zoning of Western Ghats
Ecologically Sensitive Area (ESA), has a potential to help protection
of Chandoli National Park from adjacent activities which negatively
influence the park’s biodiversity, such as mining (Sudhi 2011). In
general, this type of landscape level zoning supports protected area,
as one of the main threats to the protected area generally arises from
activities occurring at adjacent land use (Leverington, Hockings et al.
2008).
The potential usefulness of the landscape level zoning for
conservation partly depends on whether the law has ‘teeth’ in truly
protecting the landscape. ESAs to date has been based on the
Environment (Protection) Act 1986, which gives power to central
government to take measures to protect environment (Section 3). The
Wildlife Conservation Strategy (2002) indicates that ‘lands within
10km of the boundaries of National Parks and Sanctuaries should be
notified as eco-fragile zones (Wildlife Conservation Strategy2002)’.
Neither policy provides specific process nor criteria for designation of
ESAs, which may be one of the reasons why some of the lands
around protected areas are not designated as ESAs. The recent
guideline from the MOEF on declaration of eco-sensitive zones
around national parks and wildlife sanctuaries, attempts to establish
parameters for designating ESAs in India. The Annex I of the
guideline provides a list of prohibited, regulated and permitted
activities within ESAs (Government of India: Ministry of Environment
and Forests 2011). The adoption of this specific guideline may
facilitate further designation of ESAs.
National Park, Tiger Reserve, Ecologically Sensitive Area, and World
Heritage are all within the jurisdiction of the Ministry of Environment
and Forest (MOEF). The actor network map illustrates the
relationship between MOEF and institutions (organizations or groups,
in this case) that are tasked to either manage or advise the
management of different landscape and protected areas. These
institutions include: the Western Ghats Ecology Expert Panel; the
Western Ghats Natural Heritage Management Committee; the
National Tiger Conservation Authority; and the Maharashtra State
Forest Department. All of these institutions work in favour of
conservation, which is one of the objectives of MOEF. There is
another set of actors who work in favour of conservation. They are
pro-environmental actors such as IUCN Cat Specialists Group,
Maharashtra Critical Tiger Habitat Expert Committee, and other
environmentalists. These actors took part in the discussion of
promoting Chandoli WS to a Tiger Reserve. Their relationship with
MOEF and the Maharashtra State Forest Department that act on
38
behalf of Chandoli NP is reciprocal, as biodiversity conservation is the
common interests among actors.
It is interesting to note that these pro-environmental actors did not
have to face typical obstacles associated with the establishment of
protected areas. Many villagers did not oppose relocation when the
Chandoli WS was established, partly as they were not aware of the
real condition associated with rehabilitation, and partly as the law at
the time did not allow them to raise their opinions about relocation.
Some of them even requested to move out from the Chandoli NP
area, as the place became too remote after the initial 8 villages were
relocated due to the Warna dam, and frequent seismic activities were
seen as threatening to them. Most conflict arising from relocation
occurred only after the actual relocation took place, when villagers
learnt the poor rehabilitation conditions provided by the government.
By the time of promoting Chandoli WS to a national park, which
placed more stringent rules for natural resource use within the park,
the relocation process was already in process, which facilitated this
promotion.
The actor network analysis shows that the biodiversity resources
which are part of Chandoli NP, are a cause of conflict among actors
associated with these resources. For example, the existence of
Narkaya trees within the park, creates conflict relationships between
illegal harvesters and Kolhapur district conservator who manage the
forest. The wildlife which is part of the Chandoli NP affects villagers’
livelihoods negatively through destroying crops. The relationship
between wildlife and villagers are one way relationship bounded by
law. While Wild Life Act does not allow killing some of the animals
inside the park that affects human livelihoods , animals do not get any
punishment from destroying village crops. The law only protects
wildlife in this case, not the livelihoods of human beings.
In contrast, the natural resources extraction activity which is taking
place outside of the Chandoli NP, namely mining, negatively affects
the park’s biodiversity. The relationship in this case is contradictory.
While noise and dust pollution from mining activities which take place
at the border to the national park affects its flora and fauna, the law
only regulates dust pollution and not noise pollution
15
. However, this
15
Dust is considered as suspended particulate matters, which is subject to
regulation and monitoring, according to Indian national standards and
guidelines. Areas10km around the periphery of protected areas are considered
as sensitive areas, where stricter standard applies (1981). The Air (Prevention
and Control of Pollution) Act, 1981. 14 of 1981. India.
, Central Pollution Control Board (2003). Guidelines Ambient Air Quality
Monitoring
, (2009). National Ambient Air Quality Standards. Notification: No. B-
29016/20/90/PCI-L. Central Pollution Control Board. Tha Gazette of India No.
217.
39
relationship may change once criteria for zoning under Ecologically
Sensitive Area is defined that may restrict human activities near core
zone, which national park would be part of.
There are four types of villagers associated with Chandoli NP:
villagers relocated due to Warna dam; villagers relocated due to
protected area; villagers remaining inside the national park; and
villagers living within close vicinity to the national park. The villagers
remaining inside the national park and nearby villagers have a
negative relationship with biophysical actants of the Chandoli NP,
such as wildlife and seismic activities which occurs in the area.
Rehabilitated villagers have reciprocal relationship with social rights
organizations. With the support from social rights organizations,
villagers are able to organize themselves better to demand
compensation from the government. Social rights organizations
benefits from supporting affected villagers, as strengthening villagers
who are society’s working class leads towards achieving the overall
objectives of the social rights groups (Omvedt 1993). As most
villagers feel their livelihoods are not properly restored after the
relocation and they are still demanding the compensation from
relocation, they are in conflict with the state rehabilitation authority.
While the majority of the communities relocated due to the Chandoli
NP have negative views about the national park (Trepp 2010), the
park benefits the livelihoods of the downstream sugar cane farmers
through securing water supply for irrigation. The relationship is
reciprocal as sugar cane production depends on the supply of
irrigation which is partly sourced by Warna dam. On the other hand,
the establishment of Chandoli WS benefited from the needs for
watershed protection for Warna dam, which provides water to
downstream sugarcane farms, as it was used one of the justification
for the protection. In addition, the fact eight villages were already
relocated due to the construction of the dam facilitated the relocation
process when establishing Chandoli WS. Improving the livelihoods of
the downstream sugarcane producers was the cause of developing
Warna dam, which affected the livelihoods of community who
originally inhabited and utilized natural resources in Chandoli NP.
. In regards to the noise pollution, the Noise Pollution Control (Regulation
and Control) Rules 2000 and its subsequent amendments do not provide clear
guidance on the regulation related to noise pollution around protected areas
(2000). The Noise Pollution (Regulation and Control) Rules, 2000. Notification
S.O.123(E). Ministry of Environment and Forests.
, (2000). Ministry of Environment and Forests Notification. S.O. 1046(E).
, (2010). Ministry of Environment and Forests Notification. S.O. 50 (E).
.
40
5.6 Interaction between law, policy, actors and institutions
The analysis of actor network illustrates that the actor network of the
Chandoli NP works predominantly in favour of conservation. This
trend corresponds with law and policy which also support
conservation. The historical trend of the Indian government’s policy
related to protected area segregates local people from biodiversity
resources, and undermines local livelihoods that depends on
biodiversity (Gubbi 2006; Bhullar 2008; Kulkarni and Mehta 2010).
Forest governance in India stems from the forest law introduced
during the colonial time, which neglects local knowledge and
practices, and considers people as enemies of wildlife (Awate 2010;
Kothari 2010; Kumbhar 2010). As an example, the Wild Life Act of
1972, which is the legal instrument used to establish a Wildlife
Sanctuary, did not require the government to consult with local
people prior to the establishment of the protected area.
However, there is a shift in this trend, which recognizes the
community’s rights and aims to include them into natural resources
management. Wild Life Act 2002 was amended to allow local
community to use forest produce for bona fide needs of community
living within and around protected area (Paragraph 19,). The Act also
allows establishment of conservation reserve which is a government
owned area adjacent to national parks and sanctuaries, as well as
community reserve which is a private or community land not within
protected areas (Article 36.A and 36.C). The Act provides a structure
for community to be engaged in the management of both types of
reserves (Article 36.B and 36.D).
Similarly, the national forest policy 1988 sets a direction towards Joint
Forest Management, which allows community to jointly manage and
share benefits from forest management. Based on this policy,
Maharashtra state government has issued a decision on forest
management through the involvement of rural people (1992), which
primarily applies to degraded and barren forest land in rural area
(Maharashtra State Revenue and Forest Department 1992). There
are critics who claim that the ‘jointness’ is limited to minor matters
such as choice of species or how to patrol forests, and communities
still do not have opportunity for influencing bigger policies (Sundar
2000). In either case, the forest and reserve areas which allow
community’s engagement is limited to outside of national parks and
wildlife sanctuaries, and protected areas are still managed solely by
the state.
Another policy integrating local community’s rights to biodiversity is
the National Biodiversity Act, 2002 which establishes the National
Biodiversity Authority, the State Biodiversity Board, and the Local
Biodiversity Committee. The Local Biodiversity Committees are
established at panchayats and municipal levels, and they promote
conservation and sustainable use of biological diversity in respective
local area. The National Biodiversity Authority and the State
Biodiversity Board need to consult with the Local Biodiversity
41
Committee prior to the use of biological resources in specific local
area. The National Biodiversity Authority and the State Biodiversity
Board also need to provide funds to the Local Biodiversity Committee
to establish local biodiversity funds which should be used to support
local biodiversity conservation (Gooch, Rieu-Clarke et al. 2010). In
Maharashtra state, the Maharashtra Biological Diversity Rule
suggests to establish District Level Committee, as well as the Local
Biodiversity Committee at each panchayat level (Article 23). While
Local Biodiversity Committee has not been established for
communities around Chandoli NP (Joy and Jain 2010), if the Act is
properly implemented within communities in Chandoli NP, it should
be the vehicle for promoting co-management of biodiversity
resources.
The Scheduled Tribes and other Traditional Forest Dwellers Act 2006
(Forest Rights Act, 2006), for the first time, provided rights to
community which traditionally utilized forest for their livelihoods. The
Act recognizes rights to hold individual or common forest land for
inhabitation or self-cultivation, access rights for collection of forest
produce, right to access biodiversity, and community right to
intellectual property and traditional knowledge (Article 3. ). However,
these rights do not necessarily apply within national parks and
sanctuaries (Article 4), which may be a reflection of resistance to this
Act by environmentalists (Bhullar 2008; Gadgil 2010).
The shift in user rights of forest product also reflects the trend to
acknowledge rights of people living in the forest. One interesting
example is the use of bamboo, which is typically considered as a
non-timber forest product (CIFOR undated). However, the Indian
Forest Act (1927) defines bamboo as tree (Article 3(7)), which allows
state governments to regulate its transport (Article 41 (1)). This has
meant that even if bamboo grew outside of state forests or protected
areas, its transport has been regulated by the state authorities, and
did not allow community to harvest and sell bamboo freely in markets
(Narain 2010). The Forest Rights Act, 2006 recognized bamboo as
minor forest produce, and it provided the right of ownership, access
to collect, use and dispose of minor forest produce by the scheduled
tribes and other traditional forest dwellers. (Article 3 (c); Article 2(i),).
According to the Centre for Science and Environment, an Indian
public interest research and advocacy organisation, even after the
adoption of the Forest Right Act, the forest department in
Maharashtra state had been refusing to issue transit pass book,
which is necessary to take bamboo out of villages and sell it in
markets. Finally in April 2011, the Maharashtra state forest
department has handed over the pass book to one of the village
leaders, a historic moment in Indian forest management (Centre for
Science and Environment 2011).
In summary, Indian law and policy which protects biodiversity and
natural resources is shifting from strict protection to integration of
people’s livelihoods. While this shift is taking place, law and policy
42
does not recognize local community as a partner for conservation in
strictly protected area, such as national parks and tiger reserves.
5.7 Actor Network Analysis - Conclusions
The analysis of actors, law and policy associated with Chandoli
National park revealed that the implementation of law and policy,
which supports biodiversity conservation, is facilitated by the
existence of actors who predominantly support conservation. The
historical trend of Indian law and policy which favoured biodiversity
conservation over people’s rights in forest areas, also facilitated
biodiversity conservation. On the other hand, policy and law which
supports livelihoods of local community came in too late for the
community which was affected by the establishment of Chandoli WS
and NP. Even if they were developed in time, as they do not allow
local community’s intervention for protected area, there is a limited
scope for community to benefit from biodiversity protection.
The analysis of actor network centred around Chandoli National Park
illustrates the existence of a larger network of actors which has
influence on Indian conservation agenda. The network includes
multiple levels of governmental and non-governmental actors
including local, national and international levels. This network of
actors, as illustrated in the case of Chandoli National Park, seemed to
have played an important role in designation of protected areas. In
contrast, the network of actors who support local livelihoods, tends to
be at local scale and fragmented as illustrated by the case of social
rights organizations for Chandoli Wildlife Sanctuary and Warna Dam.
When groups of similar interests are fragmented into a number of
smaller associations, it tends to provide negative impact on their
activities (Meissner 2004). The dichotomy and difference in the
strength of ‘assemblage’ which ties different networks together, may
be directly reflected to the power relationship between conservation
agenda versus people’s rights agenda in India. The actor-network
analysis surrounding Chandoli NP contrasts between how ‘push’
towards conservation agenda and livelihoods agenda reflects the
scale and strength of networks.
The analysis of Warna dam and establishment of Chandoli WS as
watershed for the dam, illustrates that biodiversity conservation and
development of water resources had mutual interests, and it resulted
in supporting livelihoods of the downstream farmers. This fact
illustrates that at a landscape level, the protection of biodiversity
within Chandoli NP and livelihoods had a win-win situation, however
with a sacrifice of livelihoods of local community within the national
park. While it was not the scope of this paper, biodiversity which is
downstream of the Warna dam may have been negatively affected
dues to changes in hydrological regime.
43
There were two initial ideas from the government on how to improve
community’s livelihoods along with conservation within Chandoli NP,
namely tourism development and eco-development. To date, none of
these schemes seemed to have worked to benefit local community. A
more recent development which allows local community to be
engaged in and benefit from protecting biodiversity is reflected in the
Biodiversity Act which allows local community to establish local
biodiversity committee, requiring state and national level authorities to
consult with this committee prior to accessing biological resources.
This scheme, however, does not seem to be implemented in the
community surrounding Chandoli NP. With recent adoption of Nagoya
protocol on access to genetic resources and the fair and equitable
sharing of benefits arising from their utilization to the Convention on
Biological Diversity (Nagoya Protocol), if India signs up to this
protocol, it is required to develop further mechanism for ensuring
benefit sharing from biological resources among communities (Article
52011). The future development of law and policy needs to ensure
their implementation by local actors. Nagoya protocol also requires
parties to develop capacity to effectively implement the protocol, and
it specifically mentions importance of capacity building at indigenous
and local communities (Article 22, ibid).
It is important to note that the implementation of law and policy which
protect biodiversity at larger landscape level, is a challenge which
faces Western Ghats. As discussed in this paper, the Western Ghats
region, particularly its northern part, faces development pressure
which threatens biodiversity including mining, industrial development,
and development of hydropower dams. Current law and policy which
provide basis for designating ecological sensitive area particularly
surrounding protected areas, provide neither clear process nor ‘teeth’
in ensuring protection of ESAs. The on-going discussion to designate
all of Western Ghats as ESA, as well as proposed UNESCO world
Heritage designation, along with new guideline published by the
MOEF on declaration of eco-sensitive zones, are expected to provide
opportunity for protecting this biodiversity-rich landscape.
In summary, law and policy on biodiversity and livelihoods currently in
place related to Chandoli NP historically favoured biodiversity
conservation over livelihoods. The system is still set up which does
not allow local population for co-managing strictly protected areas
such as national parks and tiger reserves. However, recent
emergence of law and policy which recognize local people’s rights for
natural resources and its traditional knowledge, have scope for
providing opportunities to create mechanisms which protect
biodiversity as well as local people’s livelihoods. The recent
development of international agreement on access to benefit sharing,
also gives opportunity for India to effectively protect its immense
biodiversity resources as well as local livelihoods. While development
of law and policy to accommodate this new direction is critical, proper
local application of existing law and policy, as well as building
capacity for local actors to properly implement these policies are
44
crucial for effectively protecting both biodiversity resources and local
livelihoods.
6. Conclusions – Warna Basin
From the above analysis, it will be clear that there are significant problems in
Maharashtra with respect to both content and implementation of the existing
law, whether relevant to livelihood protection or to the conservation of
biodiversity.
The Actor Network Analysis concludes that, broadly, the support for the
conservation of biodiversity is better entrenched in the legal and institutional
framework than the protection of local livelihoods. The main actors are
perceived to be both more focused on the conservation of biodiversity and
environmental quality and to have better links to national and global networks.
The analysis of implementation obstacles highlights some nuances to this
conclusion however.
While environmental protection and biodiversity conservation may be more
prominently apparent in legislation, it appears that these strengths are
undermined by qualitative problems that limit their effective application.
Activities at the smaller end of the scale escape much of the regulation
imposed on larger projects for example, small scale mining requires no
prior environmental clearance unless it sits within the 10km boundary of a
protected area. The evaluation of projects requiring the felling of less than
40ha of trees avoid close scrutiny or the application of the factors that may
limit the scope for felling permits. Statistically (Mines 2010), this means that
66% of licensed mines beyond this 10km buffer zone require neither full
forest felling permits nor prior environmental clearance. The irrigation of
sugar cane plantations, other than those linked directly to the construction of
the big dams, are unregulated. Cumulatively, it is impossible to gauge the
impact of these projects and activities on water quality in the Warna basin
because there is no monitoring network on the entire river and biodiversity
conservation is not assessed. The impact of these practices on groundwater
resources, those that many in the basin rely on for drinking water, is also
uncertain, although concern has been raised about the impact of fertilisers on
groundwater bodies in the area by the Groundwater Survey of India.
Part of the problem seems to be that although the Indian authorities are able
to draw upon similar enforcement tools to those available in more developed
countries, the standards that are encapsulated in the relevant legislation are
insufficient to allow effective implementation. The environmental financial
assurance scheme, for example, makes no attempt to connect the potential
damage from particular mining activities to the funds provided for
rehabilitation. This consequently leaves default liability for remediation with
the public purse, or instead may simply mean that environmental
rehabilitation is not funded and the land remains barren and useless to local
people for the long term future. It is also clear that even if the standards of
45
environmental recovery required by legislation were enforced diligently, the
re-establishment of self-sustaining ecosystems would still be unattainable in
the short to medium term because the quantitative focus on planting simply
trees neither reflects best practice nor provides the best basis for
environmental regeneration.
The legislation also fails in a number of other key respects. Decision-making
criteria, in relation for example to approval of tree-felling permits, are
insufficiently clear, exhaustive or definitive. This is partly a function of the
relationship between effective law and clear policy. Policy making in areas
related to the conservation of biodiversity, environmental protection and the
development of local livelihoods are mutually contradictory, despite the
appearance of many integrative statements in these documents. It is clear
that there is an awareness that these areas of policy development need to be
prepared in a way that brings otherwise mutually antipathetic interests
together, but in practice this coordination does not take place in any
meaningful way. This may be because of the lack of cross-sectoral
institutional coordination that is so pervasive, or through the absence of
regulatory organisations that have the power to oversee resource
management across the board e.g. the split between the ministry of the
environment and forestry, the lack of a comprehensive water resource
managing agency. In the latter case, the absence of such a body results in
the cumulative impact of intensive agriculture, for instance, on watercourses,
drinking water and aquatic ecosystems, being ignored from an institutional
perspective.
The interests of local people may also be detrimentally affected by what
might be described as excessively development-favouring provisions in
legislation that are not fairly balanced against the administrative capacity of
local enforcement agencies. Where turnaround time of administrative permits
is specified in legislation, regulated activities may be allowed to continue
despite their damaging effects. This is a difficult area, however, because
Indian public authorities have acknowledged problems with human and
financial resource availability. To bind corporate or public income generation
bodies to the capacity of government agencies would be to potentially
strangle economic development. A balance must be found that better permits
financial development in a way that serves local populations and
environmental concerns without imposing undue pressure on enforcement
capability. In turn, regulatory authorities must have powers and capacity
commensurate with their responsibilities, that can be used with the levels of
transparency required by existing sectoral legislation and the Right to
Information Act.
There is also a feeling in some of the legislation intended to protect the
interests of local people that the focus should be on the protection and
enhancement of their economic well-being witness, for example, the
concentration in the mining and forest protection legislation (with the notable
exception of the Forest (Rights) Act) on the quality of resettlement packages
from the point of view of income generation, irrespective of the opinions of
local people. As will be seen from the LiveDiverse report from Work Package
46
with respect to cultural and spiritual wellbeing, economic development is only
one part of the enhancement of local livelihoods.
The major economic actors in the Warna basin are in some senses regulated
in ways that bear little relation to the protection of the local environment or
populace. It is in encouraging that the recent advances in the mining and
forest legislation will allow scheduled tribes to derive greater income from
mineral extraction and potentially allow them greater security to stay in the
forest. Whether these safeguards will continue to be effective in the face of
increasing external pressures from the national and global levels is more
questionable. On balance, national policy favours rapid economic
development, believing that existing ecological and social conditions can be
replicated over the short to medium term. As has been shown, however, the
standards that are being used to achieve these replication objectives are not
fit for purpose. Without effective institutional coordination, clear policy signals
and transparent regulation, local people will continue to be ill-served by
regulation and the deterioration and reduction of critical ecosystems will be
prolonged.
47
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Thesis
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