Sunday, December 3, 2023

Setting the boundaries

Protests have erupted across Kerala after the state government made public a satellite survey report on areas that are to fall within the proposed buffer zone around 22 wildlife sanctuaries and parks in line with the Supreme Court directions. The protests are against what they say is the government’s “hasty” satellite survey of forest areas.

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By Dr Swati Jindal Garg

The vital role that forests and wildlife play in the human lives cannot be overemphasized. We all depend upon them for our survival and even though forests cover one third of our planet’s land mass, it seems that they are not large enough to counter the adverse impact of all human activity that is being thrust upon earth. 

The protests in Kerala erupted after a satellite survey report on areas that are to fall within the proposed one-kilometre buffer zone around 22 wildlife sanctuaries and parks in India. The Kerala government, in a move to pacify the public, decided to publish the buffer zone map as protests intensified in the state over the government’s allegedly “hasty” satellite survey of forest areas.

The decision to publish the map of the affected areas near wildlife sanctuaries and forest lands, submitted for approval of the Union government, was taken at a high-level meeting convened by Chief Minister Pinarayi Vijayan on December 20 and was in line with the Supreme Court directions passed in a recent judgment wherein it tackled the issue of buffer zones and directed that every protected forest, national park and wildlife sanctuary across the country should have a mandatory eco-sensitive zone (ESZ) of a minimum of one kilometre starting from their demarcated boundaries. The said direction also conforms to the environment ministry guidelines that show that the purpose of declaring ESZs around national parks, forests and wildlife sanctuaries is to create some kind of a “shock absorber” for the protected areas. These zones would act as a transition zone from areas of high protection to those involving lesser protection.

In a 60-page judgment, the three-judge Supreme Court bench of Justices L Nageswara Rao, BR Gavai and Aniruddha Bose highlighted how the nation’s natural resources have been for years ravaged by mining and other activities and also observed that the government should not confine its role to that of a “facilitator” of economic activities for the immediate upliftment of the fortunes of the state. Going a step further, the apex court advocated the cause of sustainable development by saying that the state also has to act as a trustee for the benefit of the general public in relation to the natural resources so that sustainable development could be achieved in the long term. “Such a role of the State is more relevant today, than, possibly, at any point of time in history with the threat of climate catastrophe resulting from global warming looming large,” Justice Bose wrote for the bench.

The judgment was delivered after deliberations over a petition that was filed for the protection of forest lands in the Nilgiris district of Tamil Nadu. The Court later on, enlarged the scope of the writ petition so as to protect such natural resources throughout the country. 

It was also held by the Court that in case any national park or protected forest already has a buffer zone extending beyond one kilometre, the same would prevail and not be reduced to one kilometre. In case, the question of the extent of buffer zone was pending a statutory decision, the Court’s direction to maintain the one kilometre safety zone would be applicable until a final decision is arrived at under the law.

The Court also directed that “mining within the national parks and wildlife sanctuaries shall not be permitted” and held the principal chief conservator of forests and home secretaries of states responsible for the compliance of the judgment.

The latest decision by the apex court nullifies the area specific ESZ boundary limit around the protected areas that was previously announced by the Court itself and would now apply to all those states and UTs where the minimum extent of the ESZ is not prescribed. Until now, there was no mandatory rule on maintaining the ESZ around the protected areas in India. The subject “forest” for which the regulations are prescribed forms a part of the Concurrent List of the Constitution and hence both the centre and the states can make decisions regarding the same. 

Some of the states have clarified that notifications that forbid entry into the buffer zones are not favoured by the local communities residing on the border areas while some others have stated that creating the buffer zones affect the revenue that the state earns from mining and quarrying activities. The Supreme Court had to step in to clarify the issue and concluded that while development is necessary, it should not be done at the expense of forest degradation. 

The 12th meeting of the Indian Board for Wildlife was held on January 21, 2002, wherein the Wildlife Conservation Strategy 2002 was adopted, which stated that “lands falling within 10 kilometres of the boundaries of National Parks and Sanctuaries should be notified as eco-fragile zones under Section 3 (v) of the Environment Protection Act and Rule 5 of the Environment (Protection) Rules.” Subsequently, the additional director general of forest for wildlife, in a letter dated February 6, 2002, requested all chief wildlife wardens to identify such areas within 10 kilometres of the boundaries of national parks and sanctuaries and submit detailed proposals for their designation as eco-sensitive areas under the Environment Protection Act, 1986. Even at that time, some states had expressed their concerns regarding the applicability of the 10 kilometre range, saying that it was too wide. Taking into account these problems, the proposal was re-examined by the National Board for Wildlife in 2005 and it was decided that the delineation of ESZs would have to be site-specific and relate to regulation, rather than prohibition, of specific activities.

The demand for the declaration of buffer zones is not a new one. The Goa Foundation had also filed a public interest litigation before the Supreme Court regarding the declaration of ESZs and the Court had directed the ministry of environment and forests to provide all states and Union Territories a final opportunity to respond and that state governments submit their proposals to the ministry within a time-bound manner. It was also directed that all cases where environmental clearances were granted for activities within a 10-kilometre zone be referred to the National Board of Wildlife’s standing committee. However, even at that time, only a few states, including Haryana, Gujarat, Mizoram, Meghalaya, Assam and Goa, submitted proposals and several other states/Union Territories did not submit any such proposal.

In another case before the Supreme Court, relating to the construction of a park in Noida near the Okhla Bird Sanctuary, it was found that the state government of Uttar Pradesh had not declared ESZs around its protected areas because the government of India had not issued any guidelines in this regard.

In the light of the fact that most of the states were not willing to come forward in order to place the restrictions regarding these buffer zones, the much awaited decision of the Supreme Court is welcome. The Court has now directed that no permanent structure will be allowed within the ESZ and there is also a strict ban on mining within a national wildlife sanctuary or national park. In order to ensure compliance, the Court also directed the principal chief conservator of forests of each state and Union Territory to submit a report within a time-bound manner, providing a list of activities continuing in the ESZ of every national park or wildlife sanctuary.

Giving proof of the fact that no good thing is ever achieved without some opposition, the recent Supreme Court decision has also triggered new conflicts among policymakers, environmentalists and other stakeholders. While most are pleased with it, there are some who have also criticised it saying that such a regulation will delay development work, particularly the mining activities in and around the protected area which are a significant source of revenue for the state. Some human rights activists have also argued that such a rule is against the interests of some tribal populations that have since time immemorial, resided on the boundaries of forests and are totally dependent on them for its survival. 

The current pressure on protected areas caused by the intensification of mining and linear infrastructure in an unsustainable way has a wide range of environmental consequences, some of which are severe and irreversible. There is ample evidence to show that extensive mining operations have destroyed vast areas of vegetation and large-scale mining activities threaten at least 90 wildlife sanctuaries, national parks in India, and many other ecologically sensitive areas.

On the other hand, the steps taken by the Supreme Court can also be criticised on many counts, the primary one being that the limit of one kilometre is not a reasonable one as this fixed minimum limit for a sanctuary or national park with a few square kilometres should not be the same as the protected areas having an area of hundreds of square kilometres. Secondly, certain national parks and sanctuaries, such as Okhla Bird Sanctuary in Uttar Pradesh and Sanjay Gandhi National Park in Mumbai, located near urban areas, cannot rationally maintain the eco-sensitive boundary of one kilometre. A flexible and area-specific minimum limit boundary provision is required. The identification of the permanent boundary of the national park and sanctuaries is also extremely complex due to alteration in original boundaries over time, making the eco-sensitive boundary demarcation questionable hence the physiography of an area should also be considered for the ESZ notification. 

Another big problem with the Supreme Court judgment is that it has left the reserved forests high and dry with no directions regarding them. Just like every coin has a flip side, it needs to be understood that every decision made for the environment will have its ups and downs and there will never be that one decision that makes everyone happy. 

Even though the latest judgment by the apex court of the country can be said to be a step in the right direction, it is imperative that consensus among all relevant stakeholders on this ruling is obtained in order to make it more sustainable. 

—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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