To
Smt Alka Tiwari
Secretary
National Commission for Scheduled Tribes (NCST)
Subject:- Great Nicobar Island- A “Mega Infrastructure Project cleared by Ministry of Environment without prior clearance by NCST
Dear Smt Tiwari,
I wish to submit the following concerns about this project to Hon’ble NCST for their consideration.
The Ministry of Environment, Forests & Climate Change (MEFCC) accorded statutory Environment Clearance (EC) vide 10/17/2021-IA-III dated 4-11-2022 for an “Integrated development of International Container Transhipment Terminal (ICTT) 14.2 Million TEU along with Greenfield International Airport (4000 Peak Hour) Passengers” to be set up in 16610 ha in Great Nicobar Islands by M/s Andaman and Nicobar Islands Integrated Development Corporation Ltd. I have enclosed a copy of the relevant order for your ready reference along with an “in-principle” clearance for diversion of 130.75 sq km (13075 ha) of forest land for the project. These clearances have been issued under the Forest (Conservation) Act, 1980 (FCA) and the Environment (Protection) Act of 1986 (EPA).
Considering that the total area of the island is 92100 ha, this implies more than 14% of the island area being appropriated for the project. In particular, the total area of the “Tribal Reserve” statutorily notified in Great Nicobar is 75,100 ha, and the project is going to impact the reserve in an irreversible manner.
I am aware of the visits of the NCST to the Andaman & Nicobar Islands from time to time to hold discussions with the A&N authorities on the steps being taken to maintain the well-being of the local tribal communities and safeguard their culture and other interests. Primarily, as NCST has also documented, there are two tribal communities on the island, namely, Shom Pens [notified as a Particularly Vulnerable Tribal Group (PVTG)], and Nicobarese, who have faced serious intrusions from outsiders into their areas. The NCST has exhorted the government, time and again, to ensure that every possible measure should be taken to prevent the same.
I may mention that the Shom Pens are not adequately studied yet, since they are largely confined to their forest habitat. The Shom Pen habitat in Great Nicobar island is an important biological hotspot. The Anthropological Survey of India (AnSI) has attempted a conceptual framework for laying out a comprehensive policy for promoting the well-being of the Shom Pens and it needs to be further followed up.
(https://ncst.nic.in/sites/default/files/2017/Seminar/Amit_Delhi_Presentation_on_Shompen_NCST_Seminar_June_2018.pdf). The mega project in question will preempt any attempt to translate the ideas of AnSI into tangible action, to the detriment of the interests of the tribe.
Anadaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956 overrides all other laws:
As far as the statutory safeguards applicable to the islands are concerned, the Anadaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956 (PAT56) governs the same. This was a Regulation promulgated under Article 240 of the Constitution. Regulation 11 of this reads as follows:
“The provisions of this Regulation and of any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, or in any usage or agreement, or in any decree or order of any court or other authority”
This implies that the 1956 Regulation has an overriding effect over the laws applicable elsewhere. Strictly, laws such as the Mines & Minerals (Development & Regulation) Act, 1957 (MMDRA), Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986 are not automatically applicable to A&N Islands, where PAT is in force and Regulation 11 provides it an overriding effect.
It is therefore prima facie violative of PAT56 for MEFCC to have summarily issued clearances for this project, either under the EPA and FCA. Had the MEFCC consulted the NCST and the Union Ministry of Tribal Affairs beforehand, they would have appreciated the legal implications adequately.
The A&N administration issued the A & N Islands Minor Minerals Rules in 2007 under MMDRA, which are prima facie non-compliant with Regulation 11 of PAT56. Under these Rules, apparently, the local administration has been issuing mining and quarrying licenses, which are not valid in view of this.
Both the MEFCC and the Union Ministry of Mines, under pressure from project developers and mining firms, have apparently ignored the special status of the A&N Islands under Article 240 and the implications of Regulation 11 of PAT56, while unilaterally issuing clearances. In my view, the EC and forest clearances issued by MEFCC for the mega infrastructure project in Great Nicobar island suffer from this legal infirmity and are inavalid from this point of view, as they effectively violate the rights of the tribal communities there and the project cleared intrudes into their habitats, culture and their ecology.
There is a more compelling reason for questioning the unilateral approvals by the MEFCC in this case.
Prior consultation with the NCST not held:
Neither Niti Ayog which visualised this project nor the MEFCC which recently approved the project from the environment point of view, has apparently held any prior consultation with the NCST, as required under Article 338A(9), which reads as follows:
“The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes”
In addition, under Article 338A, the NCST has also the authority “to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under [the] Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State”
In the normal course, since the project ostensibly envisages the overall development of Great Nicobar Island, Niti Ayog ought to have held a comprehensive consultation with the NCST and formulated its schemes in line with the NCST’s considered views. I have enclosed here, for NCST’s ready reference, a copy of Niti Ayog’s “Holistic Development of Great Nicobar Island at Andaman & Nicobar Islands Pre-Feasibility Report”. It is ironic that this report made no mention of any prior consultation with the NCST, though it does refer to the tribals in the island and the areas notified as “Tribal Reserves”.
To enable the NCST to appreciate the likely impact of this mega infra project on the lives of the tribals, I have enclosed here a copy of the Environment Impact Assessment (EIA) report (https://www.andaman.gov.in/admin-pannel/whatsnew/1-1519-Combined%20EIA.pdf) formed the basis for the EC issued by MEFCC.
According to the EIA report (page C1-5), the total extent of forests in Nicobar Island is 86584 ha, and the total extent of the Tribal Reserve (notified under PAT56) is 75100 ha, which shows that the Tribal Reserve more or less overlaps the forest area. The tribals and the forests in Great Nicobar have a symbiotic relationship, and if such a delicately balanced relationship is to be disturbed, as the project in question would lead to, it could pose a threat to their interests and well-being.
Out of the total Tribal Reserve area, 8410 ha of the Tribal Reserve (more than 11%) are being de-notified by the A&N administration to accommodate the project. To what extent the project would intrude into the buffer areas notified around the Tribal Reserve finds no mention at all in the EIA report. Buffers are a safeguard to minimise the contact between the tribal communities and the outsiders. Of late, driven by commercial interests, outsiders have been making attempts to intrude into the tribal reserve and disturb the tribals, despite the regulations in force to prevent such intrusions.
These areas of the A&N islands have also been notified as “restricted areas”, the entry into which for outsiders is prohibited.
Considering that the project involves an investment of around Rs 75,000 Crores, it would lead to a huge influx of outsiders, whose presence would impact the Tribal Reserve and hurt the interests of the local tribal groups. According to one estimate (https://scroll.in/article/1038263/planned-destruction-of-adivasi-culture-and-lives-experts-raise-alarm-over-great-nicobar-project), “the project seeks to increase the population of the ecologically-sensitive island from the current 8,000 to more than 3.5 lakh in the next three decades. This is an increase of over 4000%. It is only marginally less than the entire population of the Andaman and Nicobar islands, which was 3.8 lakh as per the 2011 Census“. Great Nicobar island with a UNESCO recognised large Biosphere of an extent of 73279 ha and a Tribal Reserve of 75100 ha cannot obviously carry such a population load without affecting the biosphere and without affecting the tribal communities.
In the normal course, Niti Ayog and MEFCC ought to have consulted the Anthropological Survey of India (AnSI) to understand the implications of the project for the local tribal communities but no such consultation has apparently been attempted.
My letters dated 15-11-2022 & 26-11-2022 addressed to MEFCC:
I have expressed the above cited concerns in my letters dated 15-11-2022& 26-11-2022 addressed to the union Minister for Environment, copies of which I have enclosed here. My appeals to the MEFCC have not elicited any meaningful response.
I am particularly concerned that MEFCC has not cared to hold a prior consultation with the NCST and sought the Commission’s considered views.
On many important matters concerning the tribals, of late, I find that the concerned Ministries have not been consulting the NCST.
For example, when MEFCC had unilaterally amended the Forest (Conservation) Rules in June this year, NCST had to address a letter No. NCST-04/0mon/4/2022-RMDC dated 26-9-2022 expressing their concerns about the likely implications of the amendment for the tribals, asking the MEFCC to keep the Rules in abeyance.
In this specific case of the Mega Infrastructure project being set up in Great Nicobar island, considering the legal infirmities involved and keeping in view the irreversible adverse impacts that the project will have on the lives of the local tribals, their habitat, culture and their existence, I appeal to the NCST to intervene in this matter urgently and ask the MEFCC to keep the project in abeyance, so that the NCST may have an opportunity to study the impact, in consultation with anthropologists familiar with the tribals of the island, and others and provide its considered views.
Regards,
Yours sincerely,
E A S Sarma
Former Secretary to Government of India
Former Commissioner (Tribal Welfare), erstwhile undivided State of Andhra Pradesh
Visakhapatnam
