- In 2002, India enacted a landmark law, the Biological Diversity Act, to focus on conservation of biological diversity and ensure fair and equitable sharing of benefits arising out of the utilisation of biological resources and associated knowledge.
- But for more than 15 years since its enactment, its implementation remained dismal. In 2016, a case was filed in the National Green Tribunal to ensure its proper implementation and since then there have been a series of orders leading to significant movement in the case.
- Due to the NGT order, there has been a significant improvement in the formation of Biodiversity Management Committees and People’s Biodiversity Registers which are important for the implementation of the Act, writes Mridhu Tandon, an associate analyst with Legal Initiative for Forest and Environment, in this commentary.
In the entire list of environmental laws in India, perhaps no legislation is as underutilised as the Biological Diversity Act, 2002. A law that provides for local control over biodiversity; recognises and protects traditional knowledge; provides for the creation of biodiversity heritage sites and mandates impact assessments for ecologically destructive projects, is today rarely understood and applied by environmental groups. Recently, there have been noteworthy developments which may significantly change the country’s current biodiversity management regime.
The Biological Diversity Act (BDA), 2002 was promulgated to give effect to the Convention on Biological Diversity (CBD). It is built on objectives for conservation of biological diversity, its sustainable use and to ensure fair and equitable sharing of benefits arising out of the utilisation of biological resources and associated knowledge.
For its implementation, the Act calls for a three-tier structure consisting of a National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level and Biodiversity Management Committees (BMCs) at local body levels. The primary responsibility of the BMCs is to document the local biodiversity and associated knowledge in the form of People’s Biodiversity Registers (PBR).
In 2018, Uttarakhand High Court in a landmark judgment held that “Biological resources are definitely the property of a nation where they are geographically located, but these are also the property, in a manner of speaking, of the indigenous and local communities who have conserved it through centuries.” The judgment said that “Indigenous and local communities, who either grow ‘biological resources’, or have traditional knowledge of these resources, are the beneficiaries under the Act.”
In July 2016, a petition was filed by Pune-based activist Chandra Bhal Singh before the National Green Tribunal (NGT) for effective implementation of the BDA 2002. At the time of filing the petition, out of 270, 573 local bodies across the country, only 9,700 had a BMC; thereby implying compliance at a mere 3.58 percent.
In terms of PBRs, 1,388 out of 9,700 BMCs had managed to complete the same; which means compliance of 14.31 percent. Given the tardy progress made by India’s cornerstone biodiversity legislation even after 13 years of its being in force, the petitioner sought the intervention of the NGT to ensure compliance with the Act.
NGT order was a catalyst in the implementation of biological diversity act
While NGT passed multiple orders directing the Indian government’s Ministry of Environment, Forest and Climate Change (MoEFCC), the NBA and the SBBs to ensure compliance; the first significant order was passed in August 2018. The green tribunal directed compliance in the constitution of BMCs and preparation of PBRs within six months and directed the MoEFCC and the NBA to monitor the same.
Subsequently, in August 2019, the NGT noted that as on July 31, 2019, there were 155, 838 BMCs and 6,868 PBRs. Comparing these numbers with status as on the date of filing the petition, implies that the number of BMCs rose by 1,506.56 percent and PBRs grew by 394.81 percent. It directed 100 percent compliance in the constitution of BMCs and preparation of PBRs by January 31, 2020. It emphasised that in case of defaults, the states will be fined Rs. 10 lakhs (Rs. one million) per month each from February 1, 2020. It had also directed the union environment ministry and the NBA to ensure continuous monitoring.
Now, recently, the NGT in its latest order in March 2020, took note of the final compliance report and observed that as on January 31, 2020, the BMC compliance stood at 90 percent and PBRs stood at 39.12 percent.
Highlighting non-compliance, the Tribunal said “The Act was enforced in 2002. The Rules came into force in 2004. Any further delay is not conducive to the rule of law.”
“The States cannot be allowed to plead incompetence or inability of carrying out the mandate of law, undermining the public interest. We may note that in absence of PBRs, regulation for the conservation of biodiversity is affected,” noted the NGT while directing the defaulting states to pay compensation in terms of its previous order from February 1, 2020.
PBRs are the answer to fraud impact assessments
The creation of the PBRs is the most important provision of the BDA 2002. As defined by ecologist Madhav Gadgil, the PBRs attempt to record people’s knowledge and perceptions of the status, uses, history, on-going changes and forces driving these changes in the biological diversity resources in their own localities.
However, even after 17 years of the Act being in force, 60 percent of PBRs are yet to be prepared. These registers can act as an effective counter to the Environment Impact Assessment (EIA) Reports which is to be prepared before commissioning so-called ‘development’ projects such as mining, dam, thermal power plants, ports, airports, etc.
While these projects severely impact life-sustaining ecosystems; their EIAs are particularly weaker in the sections of biodiversity, leaving many pertinent issues out of consideration.
For example, the EIA for the Nyamjang Chhu hydropower project did not mention that the project site was actually the wintering site of the black-necked crane, a species held sacred by the local Monpa tribe and protected under India’s Wildlife (Protection) Act, 1972. It was only with the bird’s arrival after three years in December 2015 that the community could produce incontrovertible photographic evidence in front of the NGT.
In another example, the tribal community from Himachal’s Kinnaur district are struggling to save the last remaining pine nuts (chilgoza), a species endemic to the area and under threat from the proposed Kashang Integrated Hydropower project. Neither the EIA nor the forest department documented the significant role of chilgoza in providing livelihood security to the locals. Similarly, the EIA for greenfield international airport proposed at Mopa plateau (Pernem taluka in North Goa), did not mention the presence of vital ecological features such as forest, wetlands, ecologically sensitive areas, flora and fauna of Western Ghats.
While EIAs are prepared by the consultant hired and paid by the project proponent; a PBR prepared by the committees requires extensive and intensive consultation with local people. The PBRs, therefore, can play a critical role in demonstrating the true ecological costs associated with a project and save biodiversity-rich areas from getting sacrificed due to biased assessments.
From less than 10,000 committees in 2016 to close to 250,000 in 2020, the NGT’s interventions mark a significant step forward in the implementation of the Act after it came into force in 2003.
According to environmental lawyer Ritwick Dutta, who represented the petitioner before the NGT, “one can confidently state that nowhere in the world, has the judiciary worked so effectively in ensuring that the provisions of the CBD are implemented.”
While considerable progress has been made, Dutta has a word of caution, “we must not forget that if enacting a law is the first step; getting a judicial decision is only the second step towards compliance and not the final; the ultimate goal will be achieved when the BMC’s become viable and effective units for conservation and sustainable use of biodiversity; when companies that extract biological resources are sharing the benefits with the local community and when the biological resources are conserved from unrestricted and unsustainable exploitation.”
Nonetheless, the NGT orders, in this case, are a shining example of how the courts can play an important role in bringing back to life a dormant and a largely forgotten legislation.
The author is an associate analyst with the Legal Initiative for Forest and Environment (LIFE) and has been focusing on the implementation of the Biological Diversity Act 2002.
Banner image: Nearly a quarter of India’s land is under forests and many of those forests are rich in biodiversity. Photo by Abhinava1998/Wikimedia Commons.