Great Nicobar Island- A “Mega Infrastructure Project” cleared by Ministry of Environment without prior consultation with the NCST

To

Smt Alka Tiwari

Secretary

NCST

Subject:- Great Nicobar Island- A “Mega Infrastructure Project cleared by Ministry of Environment without prior clearance by NCST

Dear Smt Tiwari,

I had earlier addressed the National Commission for the Scheduled Tribes (NCST) vide my letter dated 27-11-2022 (readily accessible Here ) and requested for NCST’s intervention under Article 338A(9) of the Constitution to safeguard the interests of the 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, keeping in view the far-reaching adverse implications of the “Mega Infrastructure Project cleared by Ministry of Environment without prior clearance by NCST”.

As I had mentioned in my earlier letter, the Shom Pens have not been 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.

As far as the statutory safeguards applicable to the islands are concerned, the Andaman 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 (FCA), 1980 and the Environment (Protection) Act, 1986 are not automatically applied to A&N Islands, where PAT is in force and Regulation 11 provides it with 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 or the FCA. Had the MEFCC consulted the NCST and the Union Ministry of Tribal Affairs beforehand, it would have appreciated the legal implications adequately.

Neither Niti Ayog which visualised this project in the first instance nor the MEFCC which approved the project from the environmental point of view, has 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”

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.

On a petition filed by an NGO before the National Green Tribunal (NGT), the Tribunal pronounced an order on 3-4-2023 (Appeal Nos. 29 to 31/2022/EZ) the observations, “There are some unanswered deficiencies pointed out by the appellants which need to be addressed,…..Tribal rights and their rehabilitation has to be ensured“. The NGT for this purpose has constituted a committee to be headed by the MEFCC with representation from different concerned agencies. As per the wording of the NGT order, there appears to be no representation from the Ministry of Tribal Affairs nor any representation from the Anthropological Survey of India who have made a preliminary study of the tribal groups in the islands.

In this specific case of this mega 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.

While national security and economic development are no doubt of paramount importance, there are overriding Constitutional mandates that need to be complied with. It is of particular importance in this case that the Shom Pens and the Nicobarese groups, who are the original residents of the islands and who have a legitimate right to their habitat and existence, were deprived of an opportunity to express their views at any time during the processing of the project proposal, an opportunity that is available in similar cases elsewhere in the country. The local Tribal Councils should have been consulted by the island administration and the MEFCC, as required in the Environment (Protection) Act and the regulations provided under it, which strictly ought to have been suitably modified under Section 11 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation to suit the interests of the local tribals.

I believe that since the small number of Shom Pens and the Nicobarese and their Tribal Councils are not allowed to have a say in appraising the project, there is no other alternative than for the NCST to intervene on their behalf.

I will be grateful if the NCST formally intervenes in the matter before further irreversible commitments are made on the project by the concerned authorities.

Regards,

Yours sincerely,

E A S Sarma
Former Secretary to Government of India
Former Commissioner (Tribal Welfare), erstwhile undivided State of Andhra Pradesh
Visakhapatnam

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