S. Rizwana Hasan Advocate, Supreme Court of Bangladesh & Chief Executive, BELA

1. Limitations of Conservation and Pollution Control related Laws and Policies Bangladesh Perspective S. RizwanaHasan Advocate, Supreme Court of Bangladesh & Chief Executive, BELA

2. Context • Bangladesh inherited a colonial legal structure that promoted feudal ownership concept and allocation with absolute rent fixing and receiving authority (forestry, fisheries) • The feudal system was abolished in 1950 and the ‘estates’ were acquired by the State • The concept of ‘ownership’ remained unfettered; resources that are not privately owned are vested and managed by the government agencies • Public agencies became feudal over the management of public resources devoid of public • Management system continues to be “use-oriented” to harness maximum economic benefit • Colonial laws and institutions yet form the central components in the management of environmental resources • Pollution control laws are more recent enactments

3. Laws and Policies Laws: • At present, there are about 210 laws relating to environment  • This however, does not suggest a long tradition of environmental law making NOR were the objectives “conservation oriented” or “environment oriented”  • There are areas where substantive laws are yet to be promulgated • Environmental justice principles (precautionary principle, Polluter Pays Principle, Sustainable Development, have no express recognition in domestic laws) • Nevertheless, the conceptual and functional interpretation of the existing laws can provide a readily available statutory system to promote an equitable environmental order And the judiciary has a major role to play there Policies: • There are about 60 policies, strategies and action plans pertinent to environmental administration • Policies being recent documents contain more progressive notions   • Policies, however, are mere administrative documents, ad hoc and are not enforceable

4. The Environment Conservation Act, 1995 Requires protection of eco-systems (norms, values, principles missing) Seeks to regulate industrial, vehicular and noise pollution and pollution of air, water, soil (monitoring mechanism is largely project based) Standards under the Environment Conservation Rules, 1997 have been set to check pollution of Air Water, Sound, Odor

5. Provisions relating conservation and pollution control • Declaration of ecological critical area (ECA) • Directions for controlling damages to eco-system • Prohibition against unauthorized filling up of wetland, razing of hills, emission of excessive pollutants • Regulation of industrial operation by issuance of environmental clearance (EIA prerequisite for 164 industries)

6. Provisions relating conservation and pollution control • Sections 4 (3) A direction issued under this section may provide for the closure, prohibition or regulation of any industry, initiative or process and the person shall be bound to comply with such direction • Section 8 (2) The Director General may adopt any measures including public hearing for settling an application • Section 12 (4) EIA rule to elaborate the process of public consultation

7. Tanneries are still polluting… The only river flowing through the capital has been declared biologically dead

8. EIAs for major projects are being approved without any public consultation Not a single public hearing under section 8 (2) has taken place …nor have the rules been framed

9. Promises to protect urban wetlands have not been kept

10. Salinity has intruded into 100 rivers and affecting over 6,200 hectares of farmland (equivalent to 7,140 football fields) on an average annually Source: Soil Resource and Development Institute 17% of agricultural land is used for shrimp cultivation for export

11. Faulty Forest Laws & Policies Forest related regulations • Preamble of the Forest Act, 1927 • Missing responsibilities of the forest department • No rules yet framed under section 28 to introduce village forest • Instead section 28a prescribed social forestry where the government retains the power to form the beneficiary groups • Inclusiveness denied: Not a single plot has been allotted for practicing social forestry under the revised rules of 2008 that promote community based forest management • Newly enacted Wildlife (Preservation and Safety) Act, 2012 has introduced an untested method of co-management where again the government retains the power to form committees and define their roles • Forest Policy-Declaration 10….proposes to bring all forest land, not needed for environmental protection or protection of biodiversity, under commercial profit driven management

12. Social Forestry in Sal Forest

13. Total Forest Coverage has shrunk from 16% in 1970 to 6% in 2006

14. Under the newly enacted Wildlife Law of 2012- Old wine in new bottle: FD has proposed to manage 8 different types of protected areas – Sanctuary, national parks, community conservation area, safari park, eco-park, botanical garden, special biodiversity conservation area, ….., Declaration 20 of the Forest Policy terms calls the forest dwellers encroachers The new wildlife law proposes to protect the professional, traditional rights and rights of livelihood of the boatmen and fishermen if any wetland is declared a protected area It, however, says nothing about protecting the rights of the forest dwellers if a forest is declared a PA Wetland Protection- Act No. 36 of 2000- enacted for protecting the wetlands-of the urban areas Water Act, 2013 National River Protection Commission Act, 2013

15. Culture of Impunity: Money Talks

16. Where there is a will, there is a way… • Lack of political commitment • Institutional weaknesses (capacity-commitment-merging of identity) • Lack of mechanism for impartial assessment • Limited scope for people’s involvement in decision-making • Culture of Impunity • Non-accountability/mala fide of the implementing agencies • Absence of bylaws • Non-recognition of traditional rights and practices Balance may not always deliver Justice

17. Eroding Confidence in the system • Judiciary has kept the hopes alive… • Upheld environmental rights of the common people (led to formation of environment courts) • Wetlands have been declared to be restored (money can’t do it all) • National River Protection Commission (rivers are to be freed) • Government directed to regulate powerful industries as that of ship breaking, shrimp farming • Persistent polluters have been directed to close down units • Tanneries to relocate • Impunity … under consideration