Report of the Western Ghats Ecology Expert Panel - Part II : Actionable points for the WGEA : 3. Towards Multi-centred Governance in the Western Ghats

Opinion
       12/12/2018
                1602.

Sub : Report of the Western Ghats Ecology Expert Panel - Part II : Actionable points for the WGEA : 3. Towards Multi-centred Governance in the Western Ghats

Ref :  3. Towards Multi-centred Governance in the Western Ghats
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3. Towards Multi-centred Governance in the Western Ghats : -

Governance for the Western Ghats requires us to work with complexity. This necessitates designing institutions that involve multiple levels and multiple actors – state and non-state, and across many levels for the support of new norms and sustainability practices. In other words, we need many centres for decision-making and at many scales, which enable thinking across knowledge domains, social relationships, and competing interests.

Excessive centralization of regulatory control does not, and has not worked well. Patchy enforcement and inadequate monitoring and often an incomplete understanding of environmental regulations has resulted in poor environmental outcomes as we have already observed. In the case of decentralized institutions, not only is there inadequate regulatory capacity, but often the blurring of interests between the regulators and the regulated creates unsatisfactory results in terms of environmental and social outcomes. This then requires us to work in a more participatory fashion, and with other forms of governance, processes and norms beyond just legal rules with a view to achieve the outcomes that we desire.
To deal with complexity we need resilient institutions that are able to adapt to changes and pressures around them. It is in this context that we would like to suggest that we strengthen resource and environmental federalism in the Western Ghats, and move towards more polycentric forms of governance, and many centres of decision-making, which will enable more innovative responses, learning, cooperation and better adaptation to ecosystem pressures and changes. We believe that the key focus of the WGEA should be to ‚facilitate the development of institutions that bring out the best in humans‛(Ostrom 2009). To cite Ostrom (2009) again, ‚building trust in one another and developing institutional rules that are well matched to the ecological systems being used are of central importance for solving social dilemmas‛ (p 24).

This section of the Panel Report will focus on issues of governance and then propose specific measures in the trajectory towards multi-centred governance with a view to achieving greater social harmony. It also discusses the special role of education in promoting a more thoughtful conservation and development in the Western Ghats. The section concludes with suggestions on how people, communities and companies can be incentivised to conserve the biodiversity of the Western Ghats.

3.1. Governance Deficits :-

In the course of the Panel’s work, it became evident that a number of issues relating to governance needed attention. Many of these were also reported by authors who contributed papers to support the work of the WGEEP. In this section, we highlight some key areas that need attention.

Environmental Impact Assessment (EIA) and Environmental Clearance (EC) process

The EIA process which is so central to protect the ecosystems in the Western Ghats was found to be defective at several points (WGEEP observations; WGEEP commissioned papers by R Dutta and R Sreedhar, 2010, Equations, 2010 and N Alvares, 2010; M Gadgil, Field Report. 4th to 11th October, 2010)

1. These relate to the poor quality of EIA reports and the process of public hearings. Not only were EIAs seen at times to be fraudulent, but it is found that the minutes of public hearings are also manipulated. We have seen and heard of cases where the EIA consultant did not visit the village or did not conduct appropriate surveys and impact studies.

2. Given that EIA reports are not to be trusted, the role of the Environmental Appraisal Committee (EAC) for the sector becomes that much more important. The Composition of the Environmental Appraisal Committee (EAC) is considered inadequate since it does not always have representation from the region in which the project is to be located.. Many problems emerge because the EAC does not have a sense of the place and also knowledge of what other activities may be stressing the region when the new project is being proposed. Since EAC deliberations take place in Delhi, without, most often, a visit to the project site, local-level pressures and concerns are not always understood. Consequently the EIA report is often defective and the public hearing minutes are manipulated Given this, reliance on faulty EIA reports makes a mockery of the whole regulatory process.

3. States, such as Goa, felt that EC 2006 notification reduced the SPCB to post offices; little state/local input was provided into the EC process. However, at other places, it was felt that the SPCB acted against the interests of the local people by misleading the EAC of the MoEF.

4. The perception of the State government is that its views or the State Pollution Control Board’s views do not find place in the whole procedure and process post-2006 except in the ‚consent to establish‛ which in any case happens only after the MoEF has given its clearance. States do have a veto under the ‚consent to establish‛ requirement but that needs to be exercised better. It was felt that pressure to consent is high post-EC when the stakes are high.

5. Environmental Clearances are given to individual projects so the Cumulative Impacts of Projects are ignored

6. Despite a poor history of compliance the promoter is granted clearance for new projects

7. Exclusion of projects from the EIA process: The 2006 notification left out many projects from the requirement of obtaining Environmental Clearance on grounds of scale and to simplify the process. However many of these have serious impacts on the Western Ghats. For example, hydro projects below 25 MW, wind farms, tourism projects, townships etc. The problem becomes really serious when one considers that some of these are coming in close proximity resulting in cumulative impacts. Furthermore, many of these projects have been thought to be exempt from environmental clearances because they are considered ‚green‛ technologies, e.g. wind farms. ‚Green‛ projects and so-called ‚small-scale projects‛ must require an EIA and a Cumulative Environmental Impact Assessment wherever applicable.

3.2. Poor level of Compliance and Monitoring for projects : -

 Conditions of Environmental Clearance are not observed. Many mines, for example, who are mining beyond the tonnage are permitted to continue with impunity.

 There is not enough capacity at SPCB-level to monitor projects.

 There is also inadequate understanding and monitoring of the impact of gases (SO2 and NOx) on plantations and forests.

3.3. Poor implementation of PESA and Forest Rights Act :-
PESA

In 1996, the Indian Parliament passed the Panchayats (Extension to Scheduled Areas) Act or PESA, with the political class acknowledging the dire need to protect the rights and resources of the communities in Schedule V areas, by recognizing and upholding their right to self-governance (Choudhary, C. & Dandekar, A. 2010). The law, according to Dileep Singh Bhuria, the Chairman of the committee that worked on it, could ‚mark the beginning of a new era in the history of tribal people...‛

3.4. How was this act a departure? PESA recognized the gram sabha (a habitation was the natural unit of the community, and its adult members constitute the gram sabha, as against the elected gram panchayat) to be pre-eminent. The gram sabha was recognized as being competent to act on a range of powers, including : -

 the power to prevent alienation of land in the Scheduled Areas and to take appropriate action

 to restore any unlawfully alienated land of a Scheduled Tribe

 the ownership of minor forest produce

 the power to enforce prohibition, or to regulate or restrict the sale and consumption of any intoxicant

 the power to exercise control over money lending to the Scheduled Tribes

 the power to exercise control over institutions and functionaries in all social sectors

 the power to control local plans, and resources for such plans including tribal sub-plans

 the power of prior recommendation in granting prospecting licenses or mining leases for minor minerals as well as for grant of concessions for the exploitation of minor minerals by auction

 the right to be consulted on matters of land acquisition

 the power to issue utilisation certificates for government works undertaken in their village

PESA thus constructs tribal self-governance around certain key features. The first feature through Sec. 4 (b) fundamentally departs from colonial praxis by affirming that an organic self-governing community rather than an administrative unit like a village is the basic unit of self-governance.

PESA also recognizes a habitation to be a natural unit of the community, whose adult members constitute the gram sabha. In Sec. 4 (d) and 4 (m)(ii), communities are declared competent to safeguard and preserve their culture and tradition, exercise command over natural resources, enjoy ownership of minor forest produce and adjudicate their disputes. Under Sec. 4 (m) (vi), the village assembly is empowered to monitor all state institutions within its jurisdiction, e.g. schools, health centres etc, with the functionaries under its control.

Sec. 4 (i), (j), (k) & (l) mark a departure from colonial laws like the Land Acquisition Act, Forest and Mining Acts, and ordain that communities must be consulted on acquisition of, or access to land and land-based resources. They also affirm that the tribal community has the capability and competence to adjudicate on, and act in its wisdom to put an end to all exploitative relations including land alienation, money lending, market relations and alcohol trade. This establishes the supremacy of the gram sabha, whose power cannot be usurped by a superior body.

Thus PESA is a unique legislation, often described as a Constitution within the Constitution, which attempts to bring together in a single frame two totally different worlds – the simple system of tribal communities governed by their respective customs and traditions, and the formal system of the State governed exclusively by laws. The second important aspect of PESA is that it spells out a general frame of reference for governance in the Scheduled Areas. It envisages a number of options that may be exercised in each case by the concerned authorities depending on the local situation. It is presumed that the alternative chosen will not violate the general spirit of PESA. In the words of a key figure involved in the grassroots movement for the passing of the legislation, ‚PESA moved from development delivery to empowerment; from implementation to planning; from circumscribed involvement to conscious participation (Prabhu, 2004).‛

However, in the decade-and-a half since it was passed, the promise of PESA tragically remains mostly unrealised. The legislative and executive work, which state governments were meant to undertake, still remain incomplete. Further, as the above reading of the law shows, PESA envisaged a radical shift in the balance of power – from the state apparatus and from the economic and political elite to the community. However, a community can exercise this wide range of powers meaningfully only when they have access to adequate information and capabilities, in alliance with other arms of the state. All this has been given inadequate attention. The entire effort of all organs of government ought to have been directed towards building up the necessary capabilities such that the ‘constitutional/statutory’ competence mandated in communities gets fullest attention. This does not seem to have happened, with the forestry establishment playing a notably obstructive role. On the other hand legal and administrative subterfuge has relegated the provisions of PESA to a set of unfulfilled aspirations and the agenda of self-governance remains postponed.

NEXT : 3.5. Forest Rights Act :-

To be continued ..

JAIHIND

VANDE MATARAM