CONTENTS
1. Introduction- General Introduction……………….…………………2
Conflict Regarding Marine Resources………………..3 2. Chapter 1- Marine Resource Management…………………………..5 3. Chapter 2- International Conventions………………………………..7
4. Chapte Chapterr 3- Indian Indian Positi Position on a) Policies………………………………………………..10 b) Legislations and Notifications………………………..12 c) Indian Judiciary………………………………………14 5. Conclusion…………………………………………………………..17 6. Bibliography…………………………………………………………19 7. List of Cases…………………………………………………………21
INTRODUCTION
With 8118 km. of coastline including the Bay Island of Andaman & Nicobar and the atoll island group of Lakshadweep, 2.02 million sq. km. of Exclusive Economic Zone (EEZ) includ including ing 0.5 millio million n sq. km. of contin continent ental al shelf shelf and 3937 fishing fishing villag villages, es, India India harbou harbours rs a vast vast exte extent nt of Coas Coastt and and mari marine ne habit habitat at..1 The Indian Indian coastl coastline ine suppor supports ts numero numerous us of its its human human populat population ion,, which which consti constitut tutes es of fishin fishing g commun communiti ities, es, being being dependent on the rich exploitable coastal and marine resources. India contributes to be the 7th largest marine fishing nation in the world.2 Indian fishery also supports several ancillary ancillary activities activities such as boat building, processing processing plants plants etc. All these features features make this an important sector from the economic and social viewpoint.
However However,, the global global marine marine fisher fisheries ies,, especi especiall ally y the coasta coastall sector sector,, has been been under under constant threat in the recent years basically due to depleting resources, land and sea based pollution and upheaval in the climatic conditions. This has invited the concern of the environmentalists, administrators and the judiciary.
But at the same time coastal resource protection and preservation projects and campaigns lead to tension between the diverse interest groups that control and use coastal resources. Conflicts arise between the Union and the states; traditional fishermen and owners of mech mechani anized zed traw trawle lers rs;; the the shri shrimp mp indu indust stry ry and fise fiserf rfol olk; k; and and town town plan planner nerss and environmentalists.3
More so in developed and developing countries, such conflicts are mainly over the access to and use of natural resources. Especially in developing countries, where people have 1
www.dahd.nic.in
2
www.wii.gov.in www.wii.gov.in
3
Shyam Divan & Armin Rosencranz, Environmental Law and Policy in India, 2 nd Edn., p. 474. Oxford
University Press, New Delhi, 2002.
2
different socio-cultural backgrounds and different economic incentives, these conflicts acquire a graver and more complicated momentum.4 This dismal situation has resulted in the flocking of the poor and vulnerable people to the coastal areas in search of livelihoods based on natural resources.
Giving a brief introduction to the topic the researcher shall now move on to discuss the conflicts and regulations in the fisheries of the Coromandel Coast.
Conflict regarding marine resources The social pattern around the Coromandel Coast, the every-day life story of the two fishing communities, namely the artisanal fishermen and the mechanized boat fishermen, and the Fisheries Department, their attempts at structuring inshore fishing, their interactions with regard to a common pool resource and the frictions that arise between them are explored in a lively research work done by Maarten Bavinck in his book titled Marine Resource Management: Conflict and Regulation in the Fisheries of the Coromandel Coast . A brief history of the conflicts that arose in the region is as follows: 5
A study on the inshore fisheries along the Coromandel Coast of Tamil Nadu shows that there exist three distinct social groups, namely the artisanal fishermen, the mechanized boat fishermen called trawlers and the government officers from the Fisheries Department.
In pre-independence era it was only the traditional artisanal fisherfolk who controlled and used the fish resources in the coastal waters. Fishing was carried out employing rowing and sailing boats and the catch was consumed mostly in neighbouring coastal communities. However, after independence, the Government came forward to give a 4
Maarten Bavinck, Marine Resource Management: Conflict and Regulation in the Fisheries of the
Coromandel Coast, p.10. 5
Ibid, see generally, p. 24-26.
3
boost up the fisheries development. Government support led to mechanized craft, development of refrigeration and canning fascilities and the promotion of marine product exports.
Thus the traditional fishing community, which had a different set of rules for themselves which governed access to and appropriation of fish resources, found it difficult to adjust to the new capital and resource intensive fishery culture. They were even more affected when a newly established community of trawlers fishermen entered the fisheries sector. Problems arose between the two communities, and mainly because the trawler fishermen came to exploit the same sea spaces that the older fishing populations did, though according to the newly developed mechanized processes.
The convergence of artisanal fishermen and the technologically better mechanized fishermen, on inshore fishing grounds gave rise to conflicts. The conflict between the two fishing community led to strikes, protest marches and violent clashes. The government of Tamil Nadu is the most recent entrant to this field. It has intervened to resolve this tussle between the two fishing community by bringing in legislation to curb the unrestrained behavior of mechanized boat fishing by creating separate fishing zones. The differences are accommodated, but without actual cohesion or focus.
Thus we see that apart from various other reasons, the open access nature of the coastal resources has resulted in conflicts, which are hard to resolve because they involve a plethora of issues and numerous claimants. The researcher now shall discuss how the overfishing in the near shore waters and other issues like marine resource depletion, marine pollution and degradation of the marine environment are resolved by proper management.
4
CHAPTER 1
Marine Resource Management
Indian subcontinent is precariously placed because it enjoys an important position as one of the biodiversity rich country in the world. It is diverse in marine resources. With the rapid growth of human population near the coasts, the use of marine environment for different purposes has been greatly multiplied.
Besides being a staple food for most of the population, it employs men and women folk of the country, be it marine fishing or seafood production. The marine environment including the adjacent coastal areas supports productive and protective habitats and activities such as agriculture and aquaculture, and also industries. With mangroves, coral reefs and sand dunes, tourism has emerged as a major economic activity in coastal states. Also activities like exploration and exploitation of living and nonliving resources, dumping up of the domestic, industrial and agricultural wastes and developmental activities for settlement and recreation purposes are carried out.
The use of marine environment in India has been greatly multiplied during the past few decades. There has been an indiscriminate and mindless harvest of living resources like fish, shellfish, corals, seaweeds and mangroves from the sea.6 With all this, the marine environment is facing a number of pressures, arising out of the needs of people, and the multiple uses that coastal and marine areas can be put to. These pressures contribute to the depletion of marine resources and degradation of the marine environment. Further, addition of industrial and domestic wastes, nutrients, pesticide residues from agro- fields, wastes from aquafarms, release of oil slicks from tanker accidents and leakages, entry of toxic metals through land drainage and atmospheric fallouts, radionuclides and use of seawater as coolant in nuclear power plants and thermal discharges have imposed many 6
www.nio.org
5
visible changes in the physical, chemical and biological attributes in marine environment, more so in coastal embayments.7 All these polluting attributes coupled with overexploitation of natural stock have seriously questioned the sustainability of marine resources which include fishes, crustaceans, molluscs, seaweeds, corals and mangroves.
In the absence of good management, the degradation problems of coastal ecosystems and water pollution will considerably threaten the sustainable use of marine living resources. Therefore, for the protection of marine biosphere from the hazards of pollution at local, regional and global scales, management of resources is strongly urged upon to ensure the sustainability of marine living resources.
Thus sustainable use of marine living resources is a concern. Marine living resources provide food and livelihood to coastal communities. Therefore use of new technology and good regulatory measures are necessary to conserve, manage and sustainably utilize the invaluable marine wealth, without losing its relevance to the food and livelihood security of the coastal communities which totally depend on this.
The need of the day is to preserve the ecologically sensitive areas, develop and increase the potential of marine living resources, ensure effective monitoring and enforcement with respect to fishing activities, improve the living standards of coastal communities.8 To address the potential for degradation of the marine environment from a wide range of activities it calls for the adoption of a precautionary and anticipatory approach to development planning.9
7
Ibid.
8
www.envfor.nic.in
9
Ibid.
6
CHAPTER 2
International Conventions Concerns over the degradation of coastal ecosystems and water pollution in the international fora have given rise to conventions and procedures in order to maintain sustainability in marine environment.
India is a signatory to various International instruments and conventions related to the marine environment, notable of which are the United Nations Convention on the Law of the Sea (UNCLOS), CBD, Antarctica treaty, Convention on the Conservation of Antarctic Marine Living Resources, Intergovernmental Oceanographic Commission (IOC), United Nations Conference on Environment & Development etc. and therefore, has an obligation to develop proper conservation and management of the marine habitat and its management.
The researcher shall briefly discuss the aims and objectives of these international conventions with respect to protection and preservation of the marine environment and also the role of India in this regard.10
Law of the Sea
India is a signatory to the United Nations Convention on the Law of the Sea (UNCLOS) adopted on 30th April 1982. Besides other things the Convention makes provision for protection and preservation of the marine environment, scientific research, exploration and exploitation of the resources of the deep seabed etc.
10
For this purpose, the researcher has referred to the website www.dod.nic.in. The researcher has also
referred to www.isforum.org and www.undp.org.in.
7
Antarctic Treaty & the Convention on the Conservation of Antarctic Marine Living Resources
India joined the Antarctic Treaty and the Convention on the Conservation of Antarctic Marine Living Resources, in 1983 and 1985 respectively and is a signatory to the Madrid Protocol on Environmental Protection to the Antarctic Treaty adopted in October 1991. India's scientific endeavours in Antarctica have enabled it to secure consultative status in the Antarctic Treaty System.
Intergovernmental Oceanographic Commission (IOC)
The Intergovernmental Oceanographic Commission (IOC), established within the United Nations Education, Scientific and Cultural Organisation (UNESCO), plays an important role in ocean sciences and services in regard to current developments such as planning and implementation of global climate research programmes as well as protection of the marine environment.
The 17th session of the Assembly of IOC was held in Paris from 25 February to 11 March 1993. This session of the Assembly was significant in that there was wide acclamation of the role of IOC as the leading UN body dealing with ocean services, marine research and training, education and mutual assistance. IOC's lead role in the post UNCED period was reaffirmed. Also India' s re-election to membership of the Executive Council and its participation and active support to the scientific programmes of IOC not only enhanced its visibility within the IOC but demonstrated its growing interest in the oceans and marine sciences.
Global Ocean Observation System (GOOS)
Chapter 17 of Agenda 21 of the United Nations Conference on Environment & Development, 1992, (UNCED) calls upon the Intergovernmental Oceanographic
8
Commission (IOC) of UNESCO, to set up a Global Ocean Observing System (GOOS) with the support and participation of member States.
The Development Plan prepared by IOC as a follow up of 1992 UNCED Conference, dealt with five modules of GOOS representing user interests: 1.
Monitoring of the coastal zone environment and its changes.
2.
Climate monitoring, assessment and prediction.
3.
Marine meteorological and oceanographic operational services.
4.
Assessment and prediction of the health of the ocean
5.
Monitoring and assessment of marine living resources.
Agenda 21 of Rio Summit
Chapter 17 of Agenda 21 adopted at the Earth Summit in Rio-de-Janeiro in 1992 states the rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of marine and coastal area management and development.
Agenda 21 seeks to promote protection of marine environment through sustainable use and conservation of marine living resources of high seas and the coastal areas. For this purpose Agenda 21 urges governments to ensure effective monitoring and enforcement with respect to fishing activities, protecting and restoring endangered marine species, preserving habitats and other ecologically sensitive areas.
The marine and coastal environment is vulnerable to the uncertainties of climate change which may cause significant damage to the coast and inhabitants of nearby areas. With a view to develop a good response strategy and reduce uncertainties, Agenda 21 also seek to collect data systematically on various marine environmental parameters. Also Agenda 21 promotes scientific research on and systematic observation of the marine environment. It promotes strengthening of international and regional cooperation and coordination to meet the goals of environment protection and preservation.
9
CHAPTER 3
Indian Position For the protection, preservation and management of coastal waters and maritime zones the Central Government has formulated exclusive jurisdiction and the state governments have jurisdiction over the development of fishery and other living resources in the territorial waters adjoining the states.
Among many departments under the Government11, the Ministry of Environment and Forests is the nodal ministry with major responsibility for protecting marine environment, including management of resources in the coastal water and implementation of legislative measures. Department of Ocean Development deals with the scientific monitoring of the marine environment and management of resources in the high seas. Development of fisheries, aquaculture and fish processing comes under the Ministry of Agriculture
a) Policies12
The past three decades have witnessed rapid initiatives by the government and private agencies in the marine fisheries sector of the country. Policy initiatives are required not only for making marine fisheries sustainable and responsible, but also globally competitive so that Indian producers stand to gain in international markets. The Ministry of Agriculture, since the past few years, had been paying due attention to the development of deep-sea fishery in the country on the realization that most of the deep sea fishery resources are beyond the conventional fishing limit and fishing capability of the indigenous craft can be gainfully exploited only if the upgraded and sophisticated vessels of adequate size and capabilities are utilized. Hence major developments in harvesting and processing technology were brought about. 11
See generally www.envfor.nic.in
12
See generally www.dahd.nic.in
10
The Government addressed this issue in its Charter Policy of 1981 and a revised Charter Policy of 1986. In view of these policies big businesses and companies entered the fishery sector. In 1986 about 97 companies were permitted to operate 311 foreign fishing vessels. This facilitated greater inflow of foreign exchange through export of fish caught by these vessels. Further through the 1991 policy, the Government also allowed joint venture, test fishing and leasing. But soon the Deep Sea Fishing Policy came to be criticised by various fishermen groups. Some of them also resorted to agitation stating that their operational area is being encroached upon by the larger vessels operating under charter, joint venture, lease etc. due to the over-exploitation of resources, traditional fisherfolk were threatened of depleting returns.
Therefore, the government appointed a committee to review the deep sea fishing policy, which submitted its report in 1996. As per this the Government rescinded all the earlier policies on deep-sea fishing. Also a few Committees were subsequently constituted in order to gather data on the availability of the fishing craft, status of marine fishing resources etc. so that based upon the said information fishing policies of the government be revised from time to time.
The Government in the present policies, seeks to bring the traditional and coastal fishermen also in to the focus together with stakeholders in the deep-sea sector so as to achieve harmonized development of marine fishery both in the territorial and extra territorial waters of our country. Therefore policy objectives of the Government now includes to augment fish production for both domestic and export markets, to ensure socio-economic security of the artisanal fishermen whose livelihood solely depends on this vocation and to ensure sustainable development of marine fisheries with due concern for ecological integrity and bio–diversity.13
13
See also www.tn.gov.in
11
b) Legislations and Notifications
India’s marine resources are primarily threatened by terrestrial sources of pollution, which are regulated under the Water (Prevention and Control of Pollution) Act, 1974, and the Environment (Protection) Act, 1986. The legislative framework for controlling marine pollution is also provided by Coastal Regulation Zone Notification (CRZ)
Coastal Regulation Zone Notification (CRZ)14
This Notification was made under Section 3(1) and section 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986 declaring coastal stretches as Coastal Regulation Zone (CRZ) and regulating activities in the CRZ.
In response to a series of Supreme Court orders rebuking the casual approach of the state to coastal protection, the Ministry of Environment and Forests (MoEF) has constituted national and state level authorities to protect the coast.15 In February, 1991, the Union MoEF framed regulations under the Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1986, to preserve coastal zone extending over a strip of land upto 500m from the High Tide Line (HTL) along the entire Indian coast. These regulations are popularly known as the CRZ Regulations and are monitored and enforced by the MoEF, the State and Union Territory administrations or any other authorities specifically designated for this purpose.16
Under the CRZ notification development along coastal stretches of the country is severely restricted. Furthermore it also requires coastal States and Union Territories to prepare approved Coastal Zone Management Plans identifying and classifying the CRZ
14
See Bibhu Prasad Tripathy, S.A. Karthik, B. Deepa & M.K. Ramesh, Cases and Materials Concerning
the Coastal Environment , p. 51-65. 15
Supra note 3, p. 478.
16
Clause 4, CRZ Notification, 1991.
12
areas within their respective territories Coastal Zone Management Plans (CZMPs) for each state or region.17 All developments within the CRZ should confirm to the CZMPs. The opening clause defines the regulatory zone as “the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500m from the High Tide Line (HTL) and the land between the Low Tide Line (LTL)”. For the purposes of this notification, the High Tide Line means the line on the land upto which the highest water line reaches during the spring tide and shall be demarcated uniformly in all parts of the country by the demarcating authority so authorized by the Central Government in consultation with the Surveyor General of India.18
The CRZ Regulations prohibits certain designated activities in the coastal regulation zone. The following activities are declared as prohibited namely:19 (i) setting up of new industries and expansion of existing industries, except those directly related to water front or directly needing foreshore facilities; (ii) manufacture or handling or storage or disposal of hazardous substances; (iii) setting up and expansion of fish processing units; (iv) setting up and expansion of units/mechanism for disposal of waste and effluents; (v) discharge of untreated wastes and effluents; (vi) dumping of city or town waste for the purposes of land filling or otherwise; (vii) dumping of ash or any wastes from thermal power stations; (viii) land reclamation, bunding or disturbing the natural course of sea water with similar obstructions; (ix) mining of sand, rocks and other substrata materials; (x) harvesting of ground water; (xi) construction activities in ecologically sensitive areas; (xii) any construction activity between the LTL and HTL; (xiii) dressing or altering of sand dunes, hills, natural features including landscape charges for beautification, recreational and other such purpose. 17
Clause 3(3)(i), CRZ Notification, 1991.
18
As amended on 18th August, 1994.
19
See Clause 2 of CZR Notification, 1991.
13
The CRZ Regulations also provide for the regulation of permissible activities. Development Clearance may be granted only for activities which require water front and foreshore facilities such as construction activities related to Defence or ports, harbours and light houses, thermal power plants and all other activities with investment exceeding rupees five crores.20
c) Indian Judiciary
The CRZ Regulations are poorly drafted which leads to great degree of uncertainty.21 The Supreme Court and the High Courts have tried to do away with the ambiguity. One such instance came in the case of Indian Council for Enviro-Legal Action v. Union of India22 involving examination of the process of rule-making concerning the coast.
Circumstances that led to the Case
The CRZ Regulations were criticized by hoteliers who claimed that the Regulation would stifle beach tourism. Consequently, the MoEF constituted an expert committee headed by B.B. Vohra to examine whether the 1991 notification needed amendment. The Vohra Committee submitted its report on 31st December 1991 which led the MoEF to dilute the CRZ notification on 18th August 1994. According to the main Notification the nodevelopment zone for rivers, creeks and backwaters was 100m from the HTL. This was relaxed to 50m by the amending Notification.
The Indian Council for Enviro-Legal Action (ICELA), a voluntary organisation working for the cause of environment protection in India, led by M.C. Mehta assailed the relaxation of the norms. Thus a Public Interest Litigation was filed under Article 32 of the Constitution.
20
Clause 3(1) and 3(2), CRZ Notification, 1991.
21
Supra note 3, p. 478.
22
1996 (5) SCC 281.
14
Decision of the Court
The Supreme Court critically reviewed the factors responsible for the issuance of the original Notification and the rationale for the subsequent amendments to the same. The Court held that the amendment reducing the width of the Zone from 100m to 50m in respect of rivers, creeks and backwaters was contrary to the object of the Environment (Protection) Act and was thus illegal. However, the Court did not in clear words direct the restoration of the original 100m zone.
Strongly criticizing frequent changes effected in the law concerning the coastal environment, the apex court impressed upon the government the need for proper preparation and abundant precaution in fashioning rules and regulations and to implement the same with all seriousness.
S. Jagannath v. Union of India23, popularly known as the Shrimp Culture Case is
another important Supreme Court judgment on coastal ecology.
Facts of the Case
Shrimps farms along the coast were causing severe environmental degradation- depletion of drinking water supplies, destruction of mangroves, damage of wetlands and violation of the rights of traditional fisherfolk. Also an expansion of such industries were sought to be achieved by replacing the environmentally benign traditional mode of culture by semiintensive and intensive methods. Consequently, S. Jagannath, who worked for the upliftment of the weaker section of society, filed a Public Interest Litigation under Article 32 of the Constitution.
While on one hand the Shrimp Culture Industries contended that shrimp farming earned foreign exchange for the country from the export of marine products; on the other hand
23
AIR 1997 SC 811.
15
the petitioner alleged that the intensive modes of shrimp farming brought serious threat to environment and ecology.
Decision of the Court
The Supreme Court issued an interim injunction prohibiting the setting up of new shrimp farms. Also the apex court directed that there shall be an environmental impact assessment before permission is granted to install commercial shrimp farms.
CONCLUSION
16
Having discussed about the problems of marine resource depletion, marine pollution and degradation of marine environment, the researcher shall now conclude the research by giving a few suggestions with respect to solving these problems.
Most of the severe environmental degradation is found on common property resources, which includes oceans, seas, etc. These common resources are free for all and thus belong to no one. The users of these resources have no incentives for conservation and sustainable use. This inevitably leads to over-exploitation and degradation of these resources. This is known as the ‘tragedy of commons’.
Thus we see that absence of incentive and motivation to protect and preserve the resources is a stumbling block in their sustainable management. Environmental management and protection should not be the concern of the overburdened State agencies only. Nor can it be left to sporadic judicial interventions. Accordingly every individual share the responsibility of protecting and preserving environment. Environment management works when it is done with the active participation of the community as a whole.
There is an urgent need for increasing the awareness and knowledge on environmental issues, of the general public, community leaders, administrators and policy makers. The best safeguard against environmental degradation is an informed population and grassroots-level organizations of the local communities. Widespread network of Non Government Organizations (NGOs) and Community Based Organizations (CBOs) can be the watchdog against environmental ravages and also environmental fundamentalism that looks suspiciously at all forms of development. Also all major government departments must consider the environmental implications while taking policy decisions rather than treating environment as a separate sector.
The Government needs to formulate a comprehensive water policy with clear guidelines and frameworks. Also there is a need for a comprehensive review of policies regarding
17
use of other scarce marine resources from the point of view of promoting sound local management of these resources.
BIBLIOGRAPHY
18
Primary Sources
1. Water (Prevention and Control of Pollution) Act, 1974. 2. Environment (Protection) Act, 1986. 3. Coastal Regulation Zone Notification, 1991.
Secondary Sources
1. Maarten Bavinck, Marine Resource Management: Conflict and Regulation in the Fisheries of the Coromandel Coast , Sage Publications, New Delhi, 2001.
2. Shyam Divan & Armin Rosencranz, Environmental Law and Policy in India, 2nd Edn., Oxford University Press, New Delhi, 2002. 3. Bibhu Prasad Tripathy, S.A. Karthik, B. Deepa & M.K. Ramesh, Cases and Materials Concerning the Coastal Environment , Centre For Environmental
Education, Research and Advocacy (CEERA), NLSIU, Banglore, 1999. 4.
C.A. Fleming, Coastal Management: Putting Policy into Practice, Thomas Telford, New York, 1996.
5. Kumar & Kakrani, Water Environment and Pollution, Agrobios (India), Jodhpur, 2000. 6. R.K. Sinha, Marine & Water Environment , Indian Publishers Distributors, Delhi, 1999.
Electronic Sources
19
1. www.wii.gov.in 2. www.nio.org 3. www.envfor.nic.in 4. www.dod.nic.in 5. www.isforum.org 6. www.undp.org.in 7. www.nahd.nic.in 8. www.tn.gov.in 9. www.conservationandsociety.org 10. www.trinet.in
LIST OF CASES
1. Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281.
20
2. S. Jagannath v. Union of India, AIR 1997 SC 811.
21
