10th Pro Bono Enviro Moot Proposition

10 TH PRO BONO ENVIRO N ATIONAL MOOT COURT COMPETITION, 2016

MOOT PROPOSITION 1. The Republic of Dorado (“Dorado”) is the seventh largest country in the world. It is

a biodiversity hotspot, with varied ecosystems ranging from tropical forests to deserts. deserts. Th T he country was founded founded on socialist socialist pri nciples. nciples. Howe Ho wever, ver, durin d uringg the last two decades, decades, successive successive gover gover nments nments have have moved away away from socialist ideals, and ’s ( M andal Party ’s the country opened up its economy with the National Mandal ( “NMP” ) rise r ise

to power in 2012. With a population of 1.2 billion and a surface area area of 3.7 million kilometres, it is the world’s ninth largest economy. 2. Dorado is bounded by the Republic of Isqandar (“Isqandar”) to the East and the

State of Tanzik (“Tanzik”) to the West. Dorado and Isqandar share strained

relations from the time both the States attained their respective independence from the Yokers . While Tanzik is a developed nation with world’s third largest economy and the second largest armed force, Isqandar is still a developing nation under military rule. Tanzik and Isqandar share a cordial relationship with military aid being provided to Isqandar. sqandar. 3. Dorado’s semi-arid grasslands, broadly termed Gil’ead , once covered more than

15,00,000 hectares. It was a classic self-sustaining ecosystem supporting both a variety of native flora a nd fauna a nd settlements. settl ements. These grasslands were home to species such as the Great Bustard and the Lesser Florican. The native tribes in these regions who were traditionally nomadic pastoralists, also known as Tarda , depended on these grasslands for sustenance and for rearing a native species of cattle called the Kaval . The Tarda strongly believed in nature worship and worshipped worshipped the grasslan gras slands ds a s t heir God. Gil’ead contained water bodies that constitute constituted d t he main source of sur sur face face water for both the humans humans and t he animals inhabiting it. The wildlife, cattle, and pastoralists lived in harmony and equilibrium. 4. Due to anthropogenic pressure, the grasslands were converted. Industrial areas

and townships were developed and rivers were diverted to provide water for development. Presently not more than 1,50,000 sq. hectares of grassland MOOT COURT ASSOCIATION SCHOOL OF EXCELLENCE IN L AW


ecosystem survives, in small pockets, with the largest extent of contiguous Khyber (“Khyber”) grassland Varkia , being about 35,000 hectares in the District of Khyber (“Khyber”).

Environmentalists

and

scientific

researchers

were

concerned

about

the

introduction of invasive alien species of flora and fauna due to settlements and afforestation. There was a strong movement to protect these grasslands for their Fo rests intrinsic ecological value. As a result, the Ministry of E nvironment and Forests Fo rest and Climate C hange (“MoEF hange (“MoEF CC”), (“MoEF” ), now t he Ministry of E nvironment, Forest

notified 1,100 hectares of grasslands in the District District of Hutin (“Hutin”) as a ‘forest ’ under the Forest (Conservation) Act, 1980. 5. In 2013, the Doradian Government announced its ambitious plan to set up a

Uranium enrichment facility and defence-related research institute to develop indigenous fighter aircrafts and missiles. 6. Towards the end o f May, 2014, Gover nment authorities began b egan the t he construction of

huge walls in the grasslands of Khyber, enclosing the entire grassland and also dividing it into many parts. The Tarda were unofficially informed that they had to leave the grasslands within 8 months since several top-secret projects were to be established in that area. Protests by the local people did not yield any results. The construction of walls prevented entry of the natives and also hindered the movement of animals. The Government refused to divulge any information on the projects even under the cou ntry’s Right to Information Act, 2005 citing the protection of national security. There was a shroud of secrecy hovering over the activities being carried on in the District. 7. By December that year, 12 villages in the Khyber grasslands formed an action

council Radava Mehel to ventilate their grievances and protect their rights. As a result of their sustained struggle, the Government issued a statement that a Uranium enrichment and spent fuel storage facility, missile research, development and testing range, and aircraft testing range were to be constructed in the area but refused to make public any of the project reports including the environmental impact assessments. The Government announced a proposal to divert a river to

MOOT COURT ASSOCIATION SCHOOL OF EXCELLENCE IN L AW


flow through the grasslands and to plant 3,00,000 trees on these lands. Further, the the Gover Gover nment promised to provide employment employment to all the people in the t he region depending on their qualifications. 8. Environmental organisations, tribal rights activists, and wildlife activists at both

national and international levels strongly condemned the project when the proposal was announced. They alleged that it would result in the destruction of the fragile grassland ecosystem which serves as the last surviving habitat for endangered grassland species protected under law and that it would also deprive the Tarda of their rights. Actio n Network, an NGO which functioned in over 25 countries 9. Environmental Action

globally, including Isqandar, began working with Radava Mehel and organised protests protests against the activities that were being carried carried o n. They heavily heavily denounced denounced the Government’s project for proceeding proceeding without con co nsulting sulting a nd hearing the local public. The Government refused to engage in any dialogue with the protestors and openly criticised the struggle as one orchestrated by the NGO backed by foreign interests. 10. In February, 2015 the locals found a herd of 15 Blackbucks and 1 male Great

Bustard dead in the grasslands. Local newspapers published rumours that the animals were killed during bomb testing conducted by the Government. The following month, village panchayats of the 12 affected villages, on the recommendation of Radava Mehel, passed resolutions against the conversion of the grasslands and its destruction. They also passed a resolution to approach the Courts of law to protect their traditional and other rights and preserve their environment. 11. Later in May, 2015, it was published in newspapers that the Government had not

obtained the necessary environmental clearances for the project. To this the Government replied that the required clearance under the Environment Impact Environmental Impact Impact Assessment Notification of 2006 was obtai o btaine ned d from t he State Environmental Assessment Authority (“SEIAA”) Authority (“SEIAA”) for the Uranium enrichment and spent fuel storage MOOT COURT ASSOCIATION SCHOOL OF EXCELLENCE IN L AW


project in January, 2015 and that it could not be published as it was a matter concerning national security. 12. Four months later, Mr. Tharik Ghulam, a resident of Khyber, filed an application

under Section 14 of the National Green Tribunal Act, 2010 before the Southern Zonal Bench on the grounds that the constructions made in the grasslands were illegal and without permissions mandated by law, especially the environmental sanctions, and that the Khyber residents’ way of life had been destroyed by the construction of walls and denial of access to the grasslands. Further, he also claimed that they were entitled to protection under the Scheduled Tribes and Other Other Traditiona Traditionall Forest Dwellers (Recognition (Recognition of Forest Rights) Act, 2006. 2006. The Hon’ble National Green Tribunal admitted the application and issued notice. 13. Aggrieved Aggr ieved by the conversio conversion n of Gil’ead and the projects to be set up by the

Government at the site, Environmental Action Network also filed an application under under Section Section 14 of the t he Natio Natio nal nal Green Tribunal Tribunal Act, 2010 in i n October, October, 2015. 2015. The NGO pleaded tha t hatt the grasslands grasslands were were fragile fast-disa fast-disappearing ppearing critical critical ecosystems ecosystems and and as a whol w holee ought to be protected. The group claimed t hat the grasslands grasslands were were deemed to be forests and were therefore protected under the Forest (Conservation) Act, 1980. Further, they also claimed that the Government had illegally commenced the construction activity in violation of the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air Prevention and Control of Pollution) Act, 1981, the Biodiversity Act, 2002 and the Forest (Conservation) Act, 1980 and t hat t he environmental environme ntal clearance allegedly obtained from SEIAA was void. 14. The Government objected to t he maintainability maintai nability o f t he case o n the grounds grou nds of

locus standi and limitation and further argued that the Tribunal lacked the

jurisdiction to adjudicate the applications filed by both the applicants. The Hon’ble Tribunal directed that all preliminary objections would be considered

along with the merits of the matter.



15. Both the matters have have been posted for final hearing hearing before before a Five-Judge Bench of

the National Green Tribunal on 04.12.2016. N OTE: i.

The political politi cal str ucture, ucture, l egal system sy stem and a nd legislatio n of o f the t he Republic Rep ublic of Dorado are in pari materia with with that of the Republic of India.

ii.

The Republic o f Dorado has sig ned ned but not ratified ratifi ed the international i nternational co nventio nventions ns and and treaties ratified ratified by the Republic of India India a nd to which th t he Republic of India India is a Party.

iii.

The contentions contention s are merely m erely illustrative. Parties may cons co nstr truct uct their o wn issues and present arguments for the same which may enable the NGT to render a final and binding decision.


10th Pro Bono Enviro Moot Proposition

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