Transcript Limitations of Conservation and Pollution Control related Laws and

S. Rizwana Hasan
Advocate, Supreme Court of Bangladesh
&
Chief Executive, BELA
Context
 Bangladesh inherited a colonial legal structure that promoted
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feudal ownership concept and allocation with absolute rent fixing
and receiving authority (forestry, fisheries)
The feudal system was abolished in 1950 and the ‘estates’ were
acquired by the State
The concept of ‘ownership’ remained unfettered; resources that
are not privately owned are vested and managed by the
government agencies
Public agencies became feudal over the management of public
resources devoid of public
Management system continues to be “use-oriented” to harness
maximum economic benefit
Colonial laws and institutions yet form the central components in
the management of environmental resources
Pollution control laws are more recent enactments
Laws and Policies
Laws:
 At present, there are about 210 laws relating to environment
 This however, does not suggest a long tradition of environmental law making
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were the objectives “conservation oriented” or “environment oriented”
 There are areas where substantive laws are yet to be promulgated
 Environmental justice principles (precautionary principle, Polluter Pays Principle,
Sustainable Development, have no express recognition in domestic laws)
 Nevertheless, the conceptual and functional interpretation of the existing laws can
provide a readily available statutory system to promote an equitable environmental
order
And the judiciary has a major role to play there
Policies:
 There are about 60 policies, strategies and action plans pertinent to environmental
administration
 Policies being recent documents contain more progressive notions
 Policies, however, are mere administrative documents, ad hoc and are not
enforceable
The Environment Conservation Act, 1995
Requires protection of eco-systems (norms, values,
principles missing)
Seeks to regulate industrial, vehicular and noise
pollution and pollution of air, water, soil
(monitoring mechanism is largely project based)
Standards under the Environment Conservation
Rules, 1997 have been set to check pollution of Air
Water, Sound, Odor
Provisions relating conservation and
pollution control
 Declaration of ecological critical area (ECA)
 Directions for controlling damages to eco-system
 Prohibition against unauthorized filling up of wetland,
razing of hills, emission of excessive pollutants
 Regulation of industrial operation by issuance of
environmental clearance (EIA prerequisite for 164 industries)
Provisions relating conservation and
pollution control
 Sections 4 (3)
A direction issued under this section may provide for the
closure, prohibition or regulation of any industry, initiative
or process and the person shall be bound to comply with
such direction
 Section 8 (2)
The Director General may adopt any measures including
public hearing for settling an application
 Section 12 (4) EIA rule to elaborate the process of public
consultation
Tanneries are still polluting…
The only river flowing through the capital has
been declared biologically dead
EIAs for major projects are being approved
without any public consultation
Not a single public hearing under section 8 (2) has
taken place …nor have the rules been framed
Promises to protect urban wetlands have not been kept
Salinity has intruded into 100 rivers and affecting over 6,200 hectares of
farmland (equivalent to 7,140 football fields) on an average annually
Source: Soil Resource and Development Institute
17% of agricultural land is used
for shrimp cultivation for export
Faulty Forest Laws & Policies
Forest related regulations
Preamble of the Forest Act, 1927
Missing responsibilities of the forest department
No rules yet framed under section 28 to introduce village forest
Instead section 28a prescribed social forestry where the government retains
the power to form the beneficiary groups
 Inclusiveness denied: Not a single plot has been allotted for practicing
social forestry under the revised rules of 2008 that promote community
based forest management
 Newly enacted Wildlife (Preservation and Safety) Act, 2012 has introduced
an untested method of co-management where again the government retains
the power to form committees and define their roles
 Forest Policy-Declaration 10….proposes to bring all forest land, not needed
for environmental protection or protection of biodiversity, under
commercial profit driven management
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Total Forest Coverage has shrunk
from 16% in 1970 to 6% in 2006
Under the newly enacted Wildlife Law of 2012Old wine in new bottle: FD has proposed to manage 8 different types of protected
areas –
Sanctuary, national parks, community conservation area, safari park, eco-park, botanical garden,
special biodiversity conservation area, …..,
Declaration 20 of the Forest Policy terms calls the forest dwellers encroachers
The new wildlife law proposes to protect the professional, traditional rights and rights of livelihood
of the boatmen and fishermen if any wetland is declared a protected area
It, however, says nothing about protecting the rights of the forest dwellers if a forest is
declared a PA
Wetland Protection- Act No. 36 of 2000- enacted for protecting the wetlands-of the
urban areas
Water Act, 2013
National River Protection Commission Act, 2013
Culture of Impunity: Money Talks
Where there is a will, there is a way…
 Lack of political commitment
 Institutional weaknesses (capacity-commitment-merging of
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identity)
Lack of mechanism for impartial assessment
Limited scope for people’s involvement in decision-making
Culture of Impunity
Non-accountability/mala fide of the implementing agencies
Absence of bylaws
Non-recognition of traditional rights and practices
Balance may not always deliver Justice
 Eroding Confidence in the system
 Judiciary has kept the hopes alive…
 Upheld environmental rights of the common people (led to
formation of environment courts)
 Wetlands have been declared to be restored (money can’t do
it all)
 National River Protection Commission (rivers are to be freed)
 Government directed to regulate powerful industries as that
of ship breaking, shrimp farming
 Persistent polluters have been directed to close down units
 Tanneries to relocate
 Impunity … under consideration