Guest post by Neha Miriam Kurian
More than eighteen years have passed since the Athirappilly Hydro Electric Project was granted sanction originally in 1998. Three times environmental clearance was granted; two times it was set aside by the High Court of Kerala on various grounds, inter alia that the public hearing was not conducted. The third time, the High Court disposed off the matter noting that the latest clearance dated 18.07.2007 had expired. But just like many other politically charged projects, the project refuses to die! In October last year, the Ministry of Environment and Forests breathed life into the expired clearance and granted an extension of another 5 years from 18.07.2012; again without a Public Hearing.
The Project Proponent, the Kerala State Electricity Board is now again promoting this 163 MW project which is estimated to sink 104 hectares of pristine rain forests, on the grounds that the environmental clearances had been set aside by the High Court two times on mere procedural issues. A Public Hearing, as envisaged under the Environment Impact Assessment Notification, 2006 is not merely a procedural issue. Further the Kadar tribes who are the ‘public’ in that area also have vested community rights in the area under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2006 (FRA), which enables them to reject the project if deemed fit. In their own right, the Kadars have also been consistently opposing the project from the beginning and have been agitating their rights through the High Court of Kerala. Even as the Ministry of Forests and Environment has shelved their 2014 circular to reduce the powers of the Gram Sabha under the FRA, after facing sharp criticism from the Ministry of Tribal Affairs, the clearance now granted to the Athirappilly project throws light on the manner in which the environmental clearance has now been extended illegally, ignoring the need for mandatory clearance from the Oorukoottam/ Gram Sabha under the Forest Rights Act.
Vested Community Forest Rights
The Athirappilly Hydro power project is proposed in one of the most eco-sensitive areas in the world, the Chalakkudy River Basin. The 80 km stretch of the Chalakkudy, upstream of the present project site already has 6 dams and is declared by the UNEP as one among the 8 ‘Hottest Hot Spots’ of the world, because of its high presence of endemic species alongwith a 70-75% habitat loss. Nine settlements of the primitive Kadar tribes referred to as Oorukoottams reside in this region, the Vazhachal forest division. Of these, there are communities which are currently residing both 400 m downstream of the Athirappilly waterfalls as well as within the submergence zone. The Kadars are one of the oldest of our indigenous populations and mainly live off the land as hunter-gatherers; study reports show that 89% of the Kadars in this area live off this ecosystem, collecting non- timber forest products and selling them mainly to the Ayurveda industry.
In May 2014 the Kadars living in the Vazhachal area were granted recognition under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2006 as a Particularly Vulnerable Tribal Group. The Gram Sabhas were granted Community Forest Rights titles over an approximate area of 40,000 hectares in the Vazhachal division. Such forest rights include the right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use. An extension of this right includes the condition that any diversion of forest land in such area can be allowed by the Central Government only if it is recommended by the Gram Sabha. But let alone such recommendation, not even a public hearing to consider the views of the Kadars has ever been conducted for the Athirappilly project.
It is also most significant to note that the Environmental Clearances granted to the Athirappilly Project was struck down by the Kerala High Court first two times on the very ground that a public hearing as per the Environmental Notification, 2006, had not been conducted. The third time when the clearance was granted in 2007, the incumbent environment minister Jairam Ramesh issued a show cause notice to the project proponent raising many issues, including the rights of the Kadar tribes, under the FRA. The project was thereafter referred to the Western Ghats Ecology Expert Panel under Dr. Madhav Gadgil. The only committee which conducted detailed consultations with various stakeholders including the primitive Kadar tribes, it rejected the project in toto, stating it would cause irreparable damage to the biodiversity as well as the Kadars. It concluded that the project would not only lead to displacement of the 2 Kadar settlements falling within the project site but also the other 7 which are dependent upon the River. The Kasturirangan committee appointed thereafter, however did not address the issues of Kadars. But it did raise serious apprehensions about the viability of the project and the availability of water, considering that the River was already heavily dammed. It recommended a re-evaluation of the ecological flow of the river, to enable the governments to make a reasoned decision about the feasibility of the project. However months later, without an environmental impact study or even a re-evaluation as suggested, the Expert Appraisal Committee of the MoEF granted an ‘extension’ of the expired clearance, stating without any apparent reason that no Kadars would be affected by the project.
“The beauty of the falls”
The Athirappilly Hydro Power Project, if implemented will cause unprecedented damage to one of the richest ecosystems of the world as well as a group of people who have committed themselves to protect it. This has been studied and concluded by none other than government appointed expert bodies, both the Gadgil and the Kasturirangan Committees. Further the FRA is a landmark legislation in that it recognized the need for protection of our indigenous populations as an intrinsic part of protection of our forests. Through the forces of democracy it sought to empower them in a system which till then had been alien to them.
The KSEB and now the Kerala government is promoting the project stating the project is ‘green’ and that there is enough water to maintain the ‘beauty of the waterfall’. This speaks volumes about the skewered understanding we have of riverine ecology. Studies and reports all over the world show how major hydro power projects have entirely changed the structure of the river, reducing the downstream to mere trickles and how entire stretches of River have often become dead, incapable of supporting life. A river like the Chalakkudy is a living, organic, dynamic being which supports millions of organisms, majority of them not even discovered by man, in an ecosystem that is self-sustaining. Furthermore it supports one of our most vulnerable ancient populations. By ignoring the livelihoods of the Kadar tribes and more importantly the ecosystem, and by mobilising public sentiment on the ‘beauty of the waterfall’ alone, the Project Proponent and the Government is looking at the issue through an anthropocentric prism and inducing us also to do the same.
Other aspects also offer a bone of contention, such as the generation potential of the project, as well as the legality of an environmental clearance that was revived some three years after its validity had expired. However finally it all comes down to the question whether we need a project which admittedly will cause much irreparable damage. Once lost, this mind blowing ecosystem cannot be recreated. This is exactly what the precautionary principle, accepted as law of the land begs us to acknowledge. It remains to be seen what may happen as a result of the current Writ Petition filed by the Kadars pending before the Hon’ble High Court. But with the present State Government also endorsing the project, it currently looks like this project may have many more lives to live.
Neha Miriam Kurian, a former NUALSian is an Advocate who practices before the National Green Tribunal. The article has been prepared by her on the basis of inputs from Dr. Latha Anantha, River Research Centre, Thrissur.