Unfair share, uncertain futures

By Shalini Bhutani & Kanchi Kohli
20 Sep 2010

As the world finalises an International Regime on Access and Benefit Sharing (ABS), concerns in India remain regarding the efficacy of National Biodiversity Authority to ensure that the commercial entities share their benefits with the local communities and guarantee biodiversity conservation.

Institutional and legal mechanisms to conserve biodiversity are there,
but where is the will?
Around this time governments representing over 193 countries of the world are negotiating an International Regime (IR) on Access and Benefit Sharing (ABS) under the multilateral environmental agreement – Convention on Biological Diversity (CBD). The IR is meant to be finalised at the CBD's next Conference of Parties (COP) scheduled in October 2010 in Japan. In 1993, after this treaty came into force, each member country was to enact its own legislation towards conservation of biodiversity and the regulation of biological resources accessed from its territory.

India finalised its Biological Diversity (BD) Act in 2002 and its implementing Rules in 2004. These legislative dictats are meant to streamline procedures when non-Indians and corporate entities use any biological material for research or commercial activities. The intention is the distribution of wealth generated and a fair share of benefits guaranteed for local people when any local resources or traditional knowledge from their areas is so utilised. India's Guidelines for such 'benefit sharing' are still in draft form.

Since 2005, when the National Biodiversity Authority (NBA) was set up in Chennai, it has worked to implement the BD Act. It has granted approval to over 325 applications seeking access to India's biological material. The requests for access from applicants mostly government institutions and private enterprises have varied from research, commercial utilisation, IPRs as well as third party transfer of the material. The approval procedure mandates consultation with a Biodiversity Management Committee (BMC) to be constituted at village and urban ward levels. The law also requires the consultation to be followed up with the finalisation of an agreement laying down conditions for use and the terms of benefit sharing.

In one such instance in 2007, the NBA entered into two agreements with PepsiCo India Holdings Private Limited. Some facts need to be mentioned here. PepsiCo is a US multinational company and its Chair and CEO is also the head of the US-India Business Council. And till date the US is not a party to the CBD. These were 'benefit sharing' agreements, one for commercial access and the other for third party transfer of Kappaphycus alvarezii, a particular type of sea weed to Malaysia. The company paid INR 37.26 lakhs to the NBA for a type of dry sea weed (Kappaphycus alvarezii) accessed around the Gulf of Munnar area in the southern Indian State of Tamil Nadu. PepsiCo signed a yearlong agreement with the NBA to export this to Indonesia, Malaysia and the Philippines for commercial utilisation in the food and cosmetics industry.

When this approval took place, the State of Tamil Nadu neither had any local BMC nor the required Tamil Nadu State Biodiversity Board. This remained the situation till December 2007 when the agreement was signed. Thus there was no means by which mandatory consultations were held with the local communities – the potential “benefit-claimers”, as defined in the law. Till date none of these structures have come into place. However, as per due procedure laid out in the legislation, the NBA would have got a sum equalling 5% of benefits claimed as 'administrative costs'.
In reply to a Right to Information application, in July 2010 the NBA admitted that the money received from Pepsi is “yet to be ploughed back to the benefit claimers”. The delay is explained by the fact that guidelines for utilisation of such monies deposited in the National Biodiversity Fund are yet to be finalised.

But there is more to this story. In 2004, following the Tsunami tragedy, the Asian Development Bank (ADB) offered 'Tsunami Assistance' to India. One element of this was micro-enterprises which entailed setting up self-help groups with forward and backward market linkages. In the planned implementation, over 200 micro enterprises were conceived of and multiple women’s groups were federated into societies. They were to focus on the production of commercial activities for e.g. sea food products, dairy products, etc, including sea weed products. In the latter half of 2005 the Tamil Nadu Government issued Government Orders granting subsidies for sea weed cultivation to 19 special village Panchayats across 5 districts in the State.
It is yet again visible how international financial institutions by the nature of projects they propose, pave the way for the entry and operation of large corporations. All this in the name of rehabilitation and livelihood support for affected communities. The ADB part loan part grant to India thus actually aided PepsiCo sea weed cultivation plans, ensuring the company contract growers! PepsiCo also facilitated bank loans to the coastal communities through the State Bank of India. PepsiCo has been doing sea weed farming in TN since 1999. In 2000 the license for the particular kind of cultivation was obtained by the company from India's Centre for Salt and Marine Chemicals Research Institute (CSMCRI).

Therefore, not surprisingly, in its Agreement with the NBA, PepsiCo suggests that the local communities are already getting benefits from it on this sea weed cultivation programme. The company states that it provides training to the women, facilitates bank loans and guarantees a buy back from the SHGs.

There is no indication that the NBA questions this when determining the quantum of benefits to be shared. If the company can cite pre-NBA benefits, surely the NBA can point to the pre-NBA profits from sea weed export that the company has made! Since the agreement was signed by an authorised representative of the NBA, the logic of the company is accepted. Is this a fair share of the benefits as per CBD, leave aside the issue of biodiversity justice?

On the contrary there is obvious silence of the NBA, which is also meant to be the topmost biodiversity conservation body in the country, on the issue of bio-invasion by the non-native red weed in very close proximity to a Coastal Marine Reserve. In 2008, it was reported that the algae, Kappaphycus alvarezii, has invaded coral reefs in the marine reserve in the Bay of Bengal. “Experts are trying to establish who let the seaweed escape into the wild: a government lab, a multinational company, or careless farmers”, an article in Science Magazine said.

So the world may get an International Regime and a country may have its Access and Benefit Sharing (ABS) law, but there is no guarantee that agreements signed hereafter will be life-changing for local communities. Or that biodiversity conservation will be guaranteed either. The benefits to businesses will surely continue, now “legally”.

Crouching data, hidden forest

By Kanchi Kohli, Manju Menon and Vikal Samdariya
06 Aug 2010

The Ministry of Environment and Forests has taken steps towards transparency and inclusiveness in its conservation approaches, but the forest clearance process remains shrouded under mystery and should be open to public scrutiny.

The Ministry of Environment and Forests (MoEF) revamped its website in October 2009 in an attempt to present itself as a transparent ministry that proactively discloses its decisions and their basis. One cannot deny that the MoEF's website and its press releases are more prompt than ever before. But, does that actually mean one can take what is given to us as the truth?

Let us attempt to examine this in light of the figures that the MoEF has sought to disclose with regards to the forest clearances it has granted. As per the Forest Conservation Act, 1980, if any activity, industry or process requires the diversion of forest land for non-forest purpose, permission needs to be sought from the MoEF prior to the commencement of such an activity. Since 1980, this procedure has ensured that there exists a certain rhythm through which all those who seek to use forest land have a prescribed procedure that they must follow.

Grant of forest clearances is not a mere mechanical activity. Any such land use change proposed has implications on not just the ecological nature of the area in question. Most often, take over of forest land for an industry, mine, dam or even just plantations, has far reaching impacts on the lives and livelihoods of people who live on and off these areas.

So, where do we stand today with regards to the forest land that has been allotted for other kinds of use? If one looks at figures received through Right to Information (RTI), the MoEF claims that between 1980-2009, a total of 11,37,686.70 hectares of forest land has been ‘cleared’ for non-forest use. One fourth of these clearances (not in number of clearances to projects but in terms of the total area) came in the period of 2004-2009. This amounts to 3,55,160.62 hectares of forest land.

But these figures cannot be relied upon for any idea of what is really the state of forest land in the country. Statistics are put out every year in the annual reports of the MoEF, the State of Environment report, and there are heated discussions, debates and disagreements on the total forest cover of the country. However all of these are based on poorly collated data that is full of inconsistencies and errors.

A recent example of this came to light when Kalpavriksh filed two RTI applications seeking data on the diversion of forest land. The responses received in both show contradictory information. Data received from the first RTI reveals that during the 12 month period from April 2008 to April 2009, MoEF allowed diversion of 61,607.82 hectares of forest land (both in principle and final clearance). When compared with the information received under the second RTI which provides data of a 20 month period of total land diverted from April 2008 to December 2009, the figure is reduced to 43,635.66 hectares.

However, the many questions that arise from these discrepancies go beyond reconciling figures on paper? For a bureaucracy such as the MoEF or the Forest Departments of state governments, these may only be challenges of accounting. But these discrepancies in the methods of data entry and book keeping have real consequences for people living on or off forest lands. Numbers are always political. When the Ministry says the country's forest land has increased, what do we have to compare with? Which forest land has missed finding a place in their records, or has landed up as double entry?

For a Ministry that is committed to becoming transparent and inclusive in its conservation approaches, the forest clearance process begs amendments that will make it open to public scrutiny. It has remained firmly shut to the public so far and there is no space for public participation in the processes of cost-benefit analysis, valuation of forests and other steps that are involved in the grant of forest clearances. Not only will the quality of decision making become more democratic by allowing public participation, but the Ministry may perhaps find partners in ironing out its statistical flaws. Ironically, the only official mechanism to ‘see’ the unfolding of FCA processes is the RTI, which in the current case has not helped to find the answer!

The revelations by the MoEF does not render much confidence by which one can make a full claim about the state of the forest land that has been continually diverted.

more interesting reads@http://www.d-sector.org/article-det.asp?id=1331

Real estate SEZs flourish courtesy MoEF

By Kanchi Kohli
13 May 2010

The ministry of environment and forests has diluted and ignored its own rules and regulations to favour real estate developers in the SEZs.

The Ministry of Commerce and Industry claims that the existence of Special Economic Zones (SEZs) is not new to India, which, they say, has the history of setting up its first Export Processing Zone (EPZ) in Kandla, Gujarat way back in 1965. But, from April 2000 with the announcement of the SEZ policy, the Government of India set into motion a new trade promotion model to attract larger foreign investments in India. Subsequently, the SEZ Act came into being in 2005 and its Rules in 2006.

In practice this new age SEZ model is critically different from the erstwhile EPZs. SEZs of today are integrated zones which allow for construction of educational, residential and leisure facilities along with trade development areas. These areas are also open to private developers who through single window clearance, enhanced tax benefits and fewer procedural "hurdles" have set themselves to work their way towards an institutionalised land grab.

The SEZ Act is in operation with five critical objectives, generation of additional economic activity; promotion of exports of both goods and services; promotion of investment from domestic and foreign sources; creation of employment opportunities in the trade realm; and development of infrastructure support to facilitate all of the above.

Since its enactment, both Indian and foreign investors have sought to benefit by bringing contiguous tracts of land up to 5000 hectares under various kinds of SEZs, be it petrochemical, information technology, or multi-product. As of 1st May 2010, 580 SEZs have received formal approval and another 150 have in-principle approvals. But all this has not been without a backlash from affected communities and people's movements. Their struggle has been for continuing of access, rights and land use that has been sought to be compromised by the pushing through of SEZs in India.

Despite widespread criticism and people's struggles around SEZs, this lucrative option for 'global trade wallahs' is continued to be pushed around in India. While the promotion of exports of goods and services, employment generation and infrastructure remain important, the most enticing aspect of an SEZ for investors is the availability of numerous tax benefits. Any project once accorded an SEZ status gets tax exemptions related to import procurement, income tax, central and service tax and so on. This has made the SEZ model attractive not only for goods and services sector, but also for construction companies and real estate giants.

For most urban Indians, signposts, advertisements and propaganda for new and upcoming constructions promoted by real estate companies have become routine. Vast amounts of cultivated or wild land uses have been 'converted' through huge financial transactions. Big investors, after having bought the land, convert it into commercial or residential areas. It would not be an exaggeration to say that this urban built up mindset continues to spread its extent.

While we digest this overaching reality, it is also important to note how SEZ and real estate projects have come to play themselves out within India's environment regulation. The Environment Impact Assessment (EIA) notification, 2006 deals with SEZ and construction projects separately. SEZs are listed as Item 7(c) requiring environmental clearance only after following the full procedure of public hearing and preparation of EIA reports. While this is true for the entire SEZ, the individual units within the SEZs are exempted if they are for the same purpose for which the SEZ was first granted approval.

Real Estate and construction projects are listed as Items 8 (a) and 8 (b) in Appendix I of the EIA notification. Item 8 (a) is for building and construction project > 20,000 sq. mtrs and < 1,50,000 sq. mtrs built up area. 8 (b) is township and area development projects covering an area of > 50 ha and/or a built up area of > 1,50,000 sq.mtrs.

The EIA notification also distinguishes between Category A and Category B projects, with the first requiring approval from the central government and the second at the state level. These have their own screening, scoping and public consultation requirements which have to be followed before appraisal for approval. Building and township related projects enjoy a special status under the EIA notification. Termed as B1 they don't require to carry out an EIA or a public consultation, and only need to submit a specially designed form.

This privilege was a result of substantial push and lobbying by real estate developers at the time the EIA notification was being revamped. In their response to the Ministry of Environment and Forests (MoEF), many large and small developers had argued that their operations were not as polluting or environmentally degrading as other industrial units. In fact it has been argued in a comment to the MoEF that the real estate industry does not cause any damage to the environment since the "occupants emit only human breath and human solid waste is treated."

Even though the promoters of these projects had sought a complete exemption, the amendments had led to a partial reprieve, but one that makes the process of building and construction project clearances miniscule as compared to others projects. Once the ball was set rolling, the MoEF put in to place other intriguing exemptions not in word of law but through practice.

Today there is a unique understanding within the MoEF for the clearances to real estate or construction projects which also enjoy an SEZ status. Information on this was revealed through a response to a Right to Information (RTI) Application. The applicant had asked as to how many SEZs had been granted approval by the MoEF and how many of them were exempt from the requirement of the mandatory public consultation. The background to this was a reading into the minutes of the meetings of the Expert Appraisal Committee (EAC) dealing with SEZ projects where it was said that a particular project was considered by the committee and exempted from public hearing.

The response from the MoEF dated 24th December 2009 is intriguing. The total number of SEZs granted environmental clearance by the MoEF as of December 2009 was 28. Quite interestingly half of these (14 projects) were from the state of Tamil Nadu. Karnataka state is second with having granted approval to 6 SEZs.

The response further adds that while no proposal covered under Item 7(c) has been granted exemption, there are some SEZs which have been considered under Item 8 (a) and 8 (b). What this implies is that building, construction and township projects have managed to circumvent the EIA notification in such a way that despite being SEZs, they are treated differently by the environmental regulation. Ironically, the procedural requirement for SEZs as per the EIA notification is much more lengthy and stringent than for construction and township projects.

So, before we even begin to fathom this, the real estate giants and construction companies have figured this one out in their favour. Of course, with a little help from our Ministry of Environment and Forests.

What a stupid idea, sirji!!

By Kanchi Kohli
26 Feb 2010

As mobile service provider companies twist environment activism into commercial opportunity, earnestness is getting replaced by absurdity.

I am a click happy person these days and doing my bit for the environment too! You see mobile phone companies, their service providers and advertisers have helped me become a responsible citizen of this country. It's a great idea, Sirji! The more one uses one's mobile phone for talking to people, sending them short and long messages, the less we use paper, right? The source of paper is trees located in forests or maybe plantations, and it is my fetish now to contribute to saving trees on this planet.

What more! I am joined in this cause by several celebrities. Along with promoting their films and products, many of them are flying across the country to tell people in towns and cities on how the use of mobile phones can make the old fashioned letter writing redundant. All those papers used for pages and pages of expression, can be replaced through short, fast and quick messaging, they say. Send as many messages, it does not cost you the earth.

Don't tell me you haven't seen all those brilliant advertisements and propaganda for the last four months. Go quick and get a glimpse. And if you're one like me, convinced by eco friendly mobile stories around, welcome aboard the hogwash bandwagon!

Mobile phone technology works on batteries, charged by electricity, right? Secondary school text books tell us that electricity is generated through sources like coal, hydro or nuclear related technologies. Coal lying underneath India's richest forest tracts has to be extracted through mining if thermal power is to be produced. Each year several hectares of forests are wiped off officially to produce the power we need for our electronic gadgetry. Hydro power is no innocent ally, with river basins in the Himalayas and other ecologically fragile region under tremendous stress due to construction. So the more cell phone, the more electricity to charge, the more batteries to discard and the less forest for us to breath.

And what does mobile phone comprise of? Creating a cell phone requires a desired combination of plastic, chemicals and metal depending on the range and type of equipment our fingers may desire. It is not rocket science to know that most of these are non-biodegradable materials. So when I think I am being eco friendly purchasing my qwerty key pad phone, I am only succumbing to a gadget which is adding to the pollution load around me. No benevolent act this, sirji!

Now in this big bad world, what is better, you'd ask? Consumerism or reverse consumerism, where companies allow us to be less ecologically destructive through creating blogs, recycling, watching eco-friendly advertisements and so much more. The latter I guess, as it allows me to keep my heart and phone in the right place by believing that all the trees I save through my SMS clicks are standing intact. There are also options to feel less guilty and send one's old cell phone into a recycle bin provided by leading phone companies. They have to be reliable so I don't need to verify where they might dump my junk, as I continue to succumb to my techie desires. After all, it is all supposed to be...in the well.

So, as I drive to watch a film on global warming being screened in a shopping mall built on a wetland I tell myself that if the world's not getting green, the colour of money surely is!

New guidelines for biodiversity conservation

By Kanchi Kohli
20 Jan 2010

National Biodiversity Authority has come up with a set of guidelines for the declaration of Biodiversity Heritage Sites across the country. But the existing laws limit the scope for expanding the role of local community in biodiversity conservation.

India's Biological Diversity (BD) Act came into existence in 2002 after the Parliament ratified it. Amongst other things, it put forth a framework under which access to biological resources and related knowledge could henceforth be regulated. It also brought with it some broad provisions that mandated central and state governments to take measures towards the conservation and sustainable use of biological diversity (biodiversity, in short). Any access would also need to go hand in hand with determining equitable sharing of benefits.

One important conservation measure proposed in Section 37 of the Act gives powers to state governments to declare areas of biodiversity importance as Biodiversity Heritage Sites (BHS). These areas can be where there exist important species of seeds, livestock or wildlife. It could also be larger areas of mixed use land which reflect biodiverse ecosystems. The declaration of any BHS has to be in consultation with local bodies, which can include panchayats, district councils, urban wards or even the Biodiversity Management Committees (BMCs) as proposed to be set up under the BD Act.

The apex institution set up under the BD Act, namely the National Biodiversity Authority (NBA) has come up with a set of guidelines for the declaration of BHSs across the country. The guidelines were prepared by a NBA committee comprising government officials, scientists and NGOs. Since Section 37 gives final powers for identifying and declaring BHSs to state governments, these NBA guidelines are not binding but can present a suggestive process to state level authorities.

The guidelines try and peek out through the limitations of the BD Act and prod the state government (in this case State Biodiversity Boards, or SBBs) to rise above the limitations of the institutional power hierarchies. For instance, the guidelines allow for proposal for BHSs to emerge from community organisations and BMCs, allow for the possibilities of existing community conservation practices to be recognized as BHS and also propose that local bodies be consulted at every given step of planning and declaration.

However, since these guidelines seek their mandate from a parent legislation which gives minimalist powers to the village level institutions, i.e. BMCs, it is only able to create a limited space for participation of local communities. As per the BD Act, the BMCs are to be set up at the level of villages or urban wards. Very broadly the Act says that the BMCs have a role in conservation, but the 2004 Rules elaborate it differently. Once set up, it is mandatory for the BMCs to work as data providers for the preparation of People's Biodiversity Registers (PBRs). In the process envisaged by the NBA and its expert committee, the preparation of the PBRs will be “supported” and validated by scientific experts and the SBB. Where village communities are self empowered, they might be able to rise above the four walls defined by the law. Elsewhere, they would continue to churn out register after register and hand it over to whoever the Government of India would define as the custodians.

So it is not a surprise that declaration of BHSs, even in the NBA guidelines, does not have a provision for conservation to be community led. There is active and informed participation, but that does not mean the community will gain control. This is because:

The final power to decide whether an area can be declared a BHS lies with the SBB. This also includes determining the suitability of a study on the BHS.

Even if the BHS management plans are prepared by one or more BMCs, it is the SBBs that will recognise and facilitate its implementation. The power dynamics and hierarchies will continue to play a role in the determination of the management plans.

A state level monitoring committee with the Chairman of the SBB as the head will monitor the implementation of the BHSs. The guidelines don't clarify the course of action in case local communities already have strong local monitoring institutions.

Does this silence mean that these local structures will be “supervised” once BHSs are declared?

Ironically the declaration of the BHSs will also ensure that these areas get Rs.20 lakh as seed money from NBA, governed through the SBBs. This will also be the case where original motivations of conservation might not have been financial.

What the BHS guidelines suggest suitably is setting into place a process, by which the declaration of a heritage site will involve widespread debate and discussion before the final stamp of the state government. This is of course if a state government chooses to follow it. But integral to this process is setting up of a team to carry out a full study of the proposed BHS prior to its declaration. This team is to include a maximum of 12 members, with one member preferably from the local community/ies selected to head the team. Details of the team's composition are mentioned in the guidelines.

The guidelines also seek to address the concern with Section 37 (3) where after the declaration of a BHS, the State Governments shall frame schemes for compensating or rehabilitating any person or section of people economically affected by such notification. The BHS guidelines opine that creation of BHS shall not put any restriction on the prevailing practices and usages of the local communities, other than those voluntarily decided by them.

Even as these guidelines were being prepared, some state governments like Karnataka and Andhra Pradesh had already started declaring BHSs at local levels. Now the Karnataka SBB has adapted the NBA guidelines to include another element of a “Technical Support Group” which will help the local communities with documentation, conservation preparation of management plans. The SBB here will also have the power to set up monitoring committee(s) that will periodically review the BHS's existence.