When on 23rd March the Ministry of Environment, Forest and Climate Change of Government of India released the draft Environmental Impact Assessment Notification of 2020, it caused a hue and cry among the environmental activists and several NGOs. The process of EIA was established in India in light of the Environment Protection Act, 1986 in which, the Industrial and other projects as listed in the Gazette of India needed to undergo an impact assessment by the authorities. Such a process was concocted so as for protection and improvement of the environment and prevention of hazards to human beings, flora, and fauna of the particular area where the industrial project was to be established. A salient feature of both the previous EIA notifications in the years 1994 and 2006 was that along with the protection of the environment they also upheld the indigenous rights of the locals and tribes.
However, the draft notification of 2020 categorically, is in evident incongruity to the Cultural integrity model of the indigenous rights which establishes indigenous people as a special case where there is an intersection of indigenous rights and the environment.
One of the fundamental principles in the issue of Indigenous rights as well as environmental law is that of the Principle of Participatory Governance. This principle involves public participation in issues of environmental importance. Wherein, the amendment proposed by Clause 14(c) of the notification is in sheer contradiction of this principle. This clause vaguely grants unwarranted discretion to the authorities in regard to public consultation as it was proposed in the 2006 notification. This clause also tries to overlook the Article 41 of the UN Declaration on Rights of Indigenous People, which ensures that there must be unqualified participation of the indigenous people on issues affecting them; as establishing, for say, a Thermal Power Plant (Exempted in the notification) in their locality is certainly going to affect the indigenous people.
Another attempt to insolence the Principle of Participatory Governance is clearly manifested in Clause 17(4) of the notification which provides that only restricted information would be made available for the public consultation; another blow that makes the whole process grossly opaque.
The most ignorant clause of indigenous rights is Clause 22 of the notification, which deals with the violation cases. It provides with the remediation plan and natural and community resource augmentation plan corresponding to the 1.5 times the ecological damage assessed and economic benefit derived due to violation in cases reported by the authority. This approach of dealing with the violation cases would not only fail to establish any deterrence but also would encourage the practice of pollute, pay, continue. This part of the draft notification seeks to dilute the nature, definitions, and punishments for a range of criminal offenses for environmental law violations which are provided in the original notification. This is a consequence of plain ignorance of the fact that the indigenous culture and heritage of the indigenous people is inseparable from the natural environment. While the monetary compensation in case of violation may recompense the economic losses, it unquestionably would fail to compensate for the losses incurred to the indigenous heritage. This way, it also would be interfering with the Cultural rights of the indigenous people.
It is quite palpable that while Article 32(3) of the UN Declaration on Rights of Indigenous People obliges the state with a duty to mitigate any adverse environmental impact upon the indigenous community, the above-mentioned amendments only worsen the prevailing situation.
While many activists and NGOs in India have expressed their serious reservations and concerns regarding the notification, fate of the indigenous communities lies in the hand of the Government and it must be protected; indigenous rights must be bolstered.
Photo by: Felipe Dana