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Ali Reja Osmani Faculty, Karimganj Law College Karimganj, Assam, India.

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Presentation on theme: "Ali Reja Osmani Faculty, Karimganj Law College Karimganj, Assam, India."— Presentation transcript:

1 Ali Reja Osmani Faculty, Karimganj Law College Karimganj, Assam, India

2 Overview “....... it is not the technical arguments that makes Tipaimukh a threat but the political process that followed it. In fact the dam is tri-partite affair involving the Indian state, the Bangladeshi people and the Manipuris of the North East India. In this case, the Indian government has not received consent from the two protesting people affected by the dam. Over time as protests and resentment have built up, many feel that the dam is really part of a bigger plan of a circle of dams of which Tipaimukh is the first.”

3 Overview # Countries have different priorities for their development, but in the process of development countries have to find out that whose priorities are more sustainable, because development without sustainability has no meaning in reality. Millennium Development Goal No.1 (UNDP) Eradicate Extreme Poverty and Hunger Millennium Development Goal No.7 (UNDP) “Ensure Environmental Sustainability” #The proposed project has led to controversy between India and Bangladesh over water rights as well as controversy within the indigenous people of Manipur, who are to be displaced by the reservoir. Because displacement due to development projects also often restricts indigenous people from availing the benefit of “Ecosystem Services”

4 Overview.....Continued PRIMARY OBJECTIVE (understand and construe authors own opinion) Genesis of the Project Prevailing situation of the HEP Project Recent Development Initiatives taken by Riparian States METHODOLOGY (Mostly employs policy analysis of the Project) Government of India Reports National-International Treaties and Agreements Relevant Books, Journal Articles, News Articles etc.

5 Evolution & Current Position of Tipaimukh HEP …Conti The 1500 MW Tipaimukh Project. Located in Tipaimukh village near Manipur-Mizoram border, 500 meters downstream from the confluence of the Barak and Tuivai River in Churachandpur district of Manipur. The dam will be 390m long and 162.8m high rock-filled dam with central impervious core, with 6 units of 250 MW each surface powerhouse with Vertical Shaft Francis Turbine.

6 Applicable Legal Framework The need for a project of such a nature arose due to the fact that the entire Barak Valley had always been hit by recurrent floods causing ravages, human sufferings and miseries. Controlling floods by way of a suitable storage reservoir was in the agenda as early as 1929-30, due to the occurrence of repeated floods in the Valley. Since 1954 the Central Water Commission (CWC) conducted detailed investigations for multipurpose reservoir to find out a long term solution to the problem. For selecting suitable site for integrated development, comprehending hydropower generation, irrigation, navigation etc. CWC investigated three sites for storage reservoir: 1) First site selected at Mainadhar for an earthen dam, but abandoned in 1964 due to unfavourable geological conditions. 2) Second site selected at Naraindhar, but found not suitable due to submergence of large area of cultivable land in Manipur and partial flood control in downstream. 3) Third site selected at Bhuvandhar, but rejected due to soft friable and clayey foundation and submergence of large area of cultivable land and villages in Manipur. However in 1974 the CWC identified Tipaimukh as the most favourable site, which fulfils all the techno-socio-economic aspect of such project

7 Applicable Legal Framework Indo-Bangladeshi Treaty of Friendship, Cooperation and Peace (Article -4) Joint River Commission (19 th March 1974) Bothe the Countries discussed regarding the barrage on the very first meeting of JRC in June 1974. The situation was same till 1982, unless it was found to have some negative impact. However with security problems in the North Eastern Region, inter-state differences and internal controversies over submergence and displacement in Manipur, the progress was stalled and India’s interest shifted to Ganges & Teesta. Almost after 3 decades in 2005 Tipaimukh Project become a topic of discussion again when India proposed the construction of the Tipaimukh Project.

8 Applicable Legal Framework Over the years many things started CHANGING Global development against DAMs highlighted Social & Environmental concern. Report of the World Commission on Dams, 2000 emphasized upon peoples’ participation in decision regarding construction of DAM. Contributions from Academia & Institution issues like ecological, hydrological and social costs of large dams. Tipaimukh was also not an exception to those developments taking around it.

9 Applicable Legal Framework However there are instances of which undoubtedly clarify that both countries has shown great interest in solving the issue bilaterally: # 2009, all-party Parliamentary delegation visited India to survey the proposed site # 2011, Foreign Affairs Adviser to the Prime Minister of Bangladesh visited India in 3 rd December to discuss their concerns # 10 member group of journalist, lead by External Affairs Publicity Wing, Bangladesh came to visit the site # 2011, INDO-BANGLADESH FRAMEWORK AGREEMENT ON COOPERATION FOR DEVELOPMENT India and Bangladesh expressed their desire in promoting trans-border cooperation in the management of shared water resources, hydropower potentials and eco-systems. # 2012, first Indo-Bangla Joint Sub-Group meeting, India handed over a Five Volume Detailed Project Report (DPR) and after a detailed discussion also finalised the Terms of Reference with a view to facilitating conduct of the joint study of the possible impacts of the proposed project on the downstream areas of Bangladesh. India also assured Bangladesh to provide any additional and supplementary data and information required for the study

10 Applicable Legal Framework Ganges Water Treaty (Article -9) Unilateral use of Joint River is prohibited. The Rio Declaration of 1992, on Environment and Development (Rio Declaration, 1992) talks about the principle of prior notification in the following words: “State shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.” The Article 12 of the Convention on The Law of the Non-Navigational Uses of International Watercourses, also known as UN Watercourse Convention (UNWC) says as follows (Rieu-Clark, Moynihan & Magsi, 2012: 139): “Before a watercourse state implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse state, it shall provide those states with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified states to evaluate the possible effects of the planned measures.”

11 Applicable Legal Framework Principles so far evolved from different Theories and Doctrines 1. Theory of Absolute Territorial Sovereignty 2. Theory of Absolute Territorial Integrity 3. Theory of Limited Territorial Sovereignty Principles governing Transboundary Water Resource Management 1. Principles of Equitable and Reasonable Utilization 2. Obligation not to cause Significant Harm 3. Principles of Notification, Consultation and Negotiation 4. Principles of Cooperation and Information Exchange 5. Peaceful Settlement of Disputes Despite the fact that between India and Bangladesh there is no specific Agreement exist on River Barak, the general rule of prior notification has reached the status of a customary international law legal obligation being applicable regardless of the fact whether a special agreement between the state initiating and the potentially affected state exist or not. However, it is noteworthy to mention here that, subject to compliance with the procedural obligations of the UNWC, states do not necessarily have a veto power over the development of an international water course.

12 Applicable Legal Framework POSITION IN BABGLADESH Farakka & Teesta India constructed the Farakka Dam and Barrage on the western border of Bangladesh and the Teesta Dam and Barrage on the northern border of Bangladesh. The Farakka Barrage has been taking heavy toll on Bangladesh for almost four decades and the countries entire north-western part is under constant threat of desertification. Tipaimukh Project Damming the river Barak may have serious impact over free flowing Surma and Kushyara rivers and could disrupt agriculture, irrigation, drinking water supply, navigation etc. It could also reduce recharge of ground water during the lean season, affecting all dug wells and shallow tube wells. Bangladesh receives nearly 7% to 8% of its waters from river Barak through mazy tributaries and distributaries of Surma and Kushyara, which are supporting agriculture, irrigation, navigation, drinking water supply, fisheries, wildlife etc. in the entire Sylhet division and also in the peripheral areas of Dhaka division. In addition to this there are millions of people, who are engaged in fishing, agriculture etc. and many industries that are also dependent on the river Barak, directly or indirectly.

13 People in Bangladesh protesting against the Tipaimukh Project

14 Applicable Legal Framework POSITION IN MANIPUR In Manipur the concern over the construction of the proposed dam are basically based on three aspects: a) the direct physical aspect of displacement, loss of biodiversity, loss of economic activities of the indigenous people, social and environmental impact etc. b) procedural lapses i.e. absence of holistic impact assessment, constrains of developmental and environmental regulations, weak enforcement mechanisms and lack of people oriented accountability norms c) ambiguous benefits of the project towards the indigenous people and to the people of Manipur at large. The India Government’s plan to construct more than 169 dams in the North Eastern Region and name the region as ‘India’s Power House’ has been met with stiff opposition from the region. There are numerous social organization in Manipur, Mizoram and Assam are protesting together against the proposed dam such as: # Action Committee Against Tipaimukh Dam Project (ACTIP) # Citizens Concern for Dams and Development (CCDD) # North East Dialogue Forum (NEDF) # Sinlung Indigenous People Human Rights Organisation (SIPHRO) # Committee on Land and Natural Resources (COLNER) etc

15 Indigenous people in Manipur protesting against the Tipaimukh Project

16 Environmental and Forest Clearances of the Project Any project of this nature and dimension requires two kinds of clearances such as, Environmental Clearance and Forest Clearance. The proposal for environmental clearance of Tipaimukh Project has been accorded on 24 th October 2008 by MoEF in accordance with the provisions of EIA, subject to strict compliance of certain terms and conditions, which shall remain valid for a period of 10 years from the date of issue of the clearance letter for commencement of construction work. The MoEF received proposals for prior approval of the Central Government under Section 2 of the Forest (Conservation) Act 1980, for forest clearance from the State Governments of Manipur and Mizoram for 22,777.50 ha and 1551.60 ha of forest land respectively for non forest purpose, all together 24329.10 ha. Both proposals were being dealt separately by MoEF.

17 Environmental and Forest Clearances of the Project MANIPUR proposed diversion forest land in Manipur alone contains more than 78 lakh trees and around 27 thousand bamboo culms. The proposed forest land harbours several endangered species of flora and fauna. The Principal Chief Conservator of Forests, Manipur has observed in his report that ‘‘no compensatory measure would help in mitigating the adverse impact caused by loss of such large forest tracts on the habitat, flora, fauna, biodiversity, micro- climate and environment unless additional Non-forest areas in affected districts or adjoining districts are taken up for compensatory afforestation”. The Chief Conservator of Forests (Central), North Eastern Regional Office, Shillong in the site inspection report of 02 nd May 2008 commented that in his opinion “such a diversion proposal involving a huge stretch of critically important forests & wildlife habitat in a state where compensatory measures may not prove to be effective due to problems in effective monitoring and enforcement, such diversion may not be advisable”. The area of forest land proposed for diversion is perhaps one of the largest ever for a single project. The per-megawatt requirement of forest land (16 hectares of forest land per megawatt) for the above project of 1500 MW installed capacity is much higher than the average per- megawatt forest land for the 497 projects (approx. 1 hectare per MW of installed capacity after excluding the forest land diverted for Sardar Sarovar Project) for which approval under the FC Act has been accorded so far.

18 Environmental and Forest Clearances of the Project MANIPUR The project requires 24,329 ha of forest land which is more than one-fifth of the total 1,18,184 ha of forest land diverted for execution of 497 hydroelectric project in the entire country since the FC Act came into force. The forest land required for the project is more than 100 times the average rate of diversion forest land of (238 ha per project) for 497 hydroelectric project for which approval under the FC Act has been accorded by the MoEF. Requirement of 24,329 ha of forest land for the project is the second largest for a single hydroelectric project for which approval under the FC Act has been sought, so far. The forest land required for the project is almost two-third of the average annual rate of diversion of forest land for non-forest purpose (35,890 ha per annum) during the 32.50 years of the existence of the FC Act. As per the information provided by the Ministry of External Affairs the project is a very sensitive issue in Bangladesh. The project involves displacement of 557 families having a population of around 2027 Scheduled Tribes spreading over 12 villages. The project is likely to generate employment opportunities for 826 individuals and therefore it appears that employment opportunities likely to be created by the project is not commensurate with the loss of land and natural resources, which are otherwise the main source of livelihood for the tribal population of the state. Based on all the above facts and notes the FAC strongly recommended not to accord the diversion of the propose forest land for the project and also recommended that in case the user agency i.e. NHPC desires, they may explore feasibility to construct smaller dams, involving diversion of smaller forest area commensurate with their power generation capacity.

19 Environmental and Forest Clearances of the Project MIZORAM The FAC after examining the proposal in its meeting held on 13-14 August 2014 concluded that since the proposal for clearance of 22,777.50 ha of forest land in Manipur part of the project has not been granted, which constitutes the major part of the project, therefore the proposal seeking diversion of 1,551.60 ha of forest land may not be recommended for approval.

20 Environmental and Forest Clearances of the Project The total submergence area for the Tipaimukh Project is around 29,150 ha, i.e. 27,550 ha in Manipur (forest land 21,952.64 ha and non-forest land 5597.36 ha) and 1,600 ha in Mizoram (forest land 1,489 ha and non-forest land 111 ha). The project also provides power sharing to Manipur and Mizoram respectively. For Manipur staggered free power 5% for 5 years, 10% for following 10 years and 15% for following 20 years and for Mizoram 1% free power throughout the life of the project. The environmental clearance required the user agency to conduct a study on the downstream impacts of the project in the state of Assam and a comprehensive study of the possible GHG emissions from the project should be carried out, as reservoirs in tropical countries are a major source of GHG emissions and the project involves a large submergence. However, these studies are yet to be conducted.

21 Conclusion & Recommendations That the Tipaimukh Multipurpose HEP is the brain child of both the countries. The idea behind the conception of the Project was to moderate floods and to protect Sylhet, Cachar and adjoining areas. But later on the differences emerged, both countries’ stands are justifiable, as Indo-Bangla concerns find place in the Millennium Development Goal. Although in the initial period, there was a deadlock in sharing the information with downstream Bangladesh as project remained static over decades. However, the status has been changed significantly and the recent developments are a great achievement for both the riparian nations. It seems that both nations will find some mutually acceptable way out to resolve the differences. There is another angle in to the debate, that the issue should not be viewed only from the perspective of Bangladesh. India is welfare state by it conception and it must respect the opinion of the indigenous people of North East Region. That in the rush of development, which is not all about deriving benefits only, the country has to face many challenges and these challenges are not always external. To fulfil the growing energy need of the country the indigenous people will be looser. Therefore India must try to settle the issues with the local people first and then go at the international level. Otherwise an unrest society will be greater threat to nation’s internal security and overall development. The greatest hurdle in front of the government will be ensuring the rights of forest dependent/dwelling communities entrusted under the Forest Rights Act and the forest itself under the Forest (Conservation) Act. The government has to ensure livelihood security to those communities through smooth functioning cross-sectorial programmes and ensuring less damage to the forest. Because, if the Government fails to consider these concerns in the race of becoming an economic super power the financial loss will be lesser than the loss of our heritage, culture and biodiversity, which is very well quoted by W. H. Auden as “A culture is no better than its woods”. The careful observation of the politico-economic scenario suggests that with all possibility India will hopefully secure the required consent of downstream Bangladesh for the Tipaimukh Project. Now the question arises as to, weather the government is desperate to go ahead with the project even at the cost of snatching the rights of indigenous people. There is no straight way answers available to be choose between a ‘Yes’ or ‘No’. It neither depends on the issues of ‘might’ over ‘right’ or ‘development’ over ‘destruction’, but on the circumstances to come. Although criticisms are being raised from all the corners, it will be too early to come to any conclusion.

22 Recommendations Apart from observing the norms and standards set by international treaties, agreements and state practices, upstream India could adopt these measures to solve the disputes mutually and also to gain the confidence of downstream Bangladesh: Provision for Power Sharing: India as an upstream nation could assure Bangladesh a reasonable share of power generated from the disputed Hydroelectric Power Project based on principle of equity. Assurance for Food security: At the event of any drought or any unforeseen event threatening the food security in Bangladesh, upstream India could assure for food security. Knowledge sharing and R&D for agriculture and pisciculture: Upstream India could extend R&D facilities and sharing of knowledge regarding developing high yielding crops, fisheries etc. Livelihood security support: Upstream India as a developed nation and being a super power in waiting could assist and facilitate less privileged Bangladesh through providing vocational training, skilled development training for alternative livelihood support. Infrastructure projects: Upstream India could take up development of infrastructural projects in less privileged downstream Bangladesh. Transboundary watercourse management agreement: A comprehensive transboundary watercourse treaty/agreement between riparian states, based on individual river basin, could resolve existing as well as any future differences of interest likely to arise.

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