With Green Tribunal, biodiversity appeal 'out of court'

On June 2, India’s Green Tribunal law saw the light of day. The country was supposed to make such a law after agreeing to the decisions of the United Nations Conference on Environment and Development at Rio in 1992. This requirement, backed with the Planning Commission’s recommendations, finally saw the tribunal’s birth despite several questions in parliament.

The law sets up a new forum — the National Green Tribunal (NGT) — to  redress and remedy environment-related matters. It is thereby intrinsically linked with the environment, water, forest, air and biodiversity legislations. For instance, there are some sections of the new legislation that specifically deal with the Biological Diversity (BD) Act, 2002. The import of these needs to be understood.

The BD Act was drafted to fulfil India’s commitments to the Convention on Biological Diversity (CBD), a 193-member treaty that was also signed in 1992. In line with the focus of the CBD, India’s biodiversity legislation has three main objectives, conservation of biodiversity, its sustainable use and ensuring equitable sharing of the benefits from use of India’s biological resources or related traditional knowledge. To achieve this, the BD Act has a three-tier institutional structure: a National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs) in every state and Biodiversity Management Committees (BMCs) at local village/urban levels. The Green Tribunal has been given appellate jurisdiction over orders and benefit-sharing decisions of the NBA and SBBs. The BD Act is being duly amended to that effect by the NGT Act, 2010.

The BD Act lays down clear procedures for those accessing biological resources and traditional knowledge in/from India. Thus an order by an NBA could be one for grant of approval for a person seeking patent on a local resource or one rejecting an application to transfer research results to a third person. Likewise, an SBB has the power to make orders prohibiting or restricting any activity that goes against the objectives of the BD Act. Another instance of that is, if and when, an SBB passes an order notifying an area in a state as a biodiversity heritage site. As in any regulatory regime, the BD Act provides for a  mechanism whereby common citizens, or those aggrieved by orders/decisions issued under the Act, can seek redress if there is dissatisfaction or violations of law per se. By another example, if the access to a medicinal plant or animal part or traditional know-how has been approved by the NBA without due procedure, the benefit claimer could go in appeal against the approval before a high court.

As far as benefit sharing goes, benefit claimers — farmers, livestock keepers, traditional healers, fisher folk, forest dwellers and local communities — could file a case in appeal against an NBA order directing a certain benefit-sharing arrangement, in a high court within a 30-day period, extendable to 60 days. The BD Act lists six types of benefit-sharing arrangements that the NBA can by order lay down as essential terms and conditions before granting approval for access to bio-resources or related knowledge. If, for example, a local community as benefit claimer or a foreign company as access seeker is aggrieved by any amount of money directed by NBA by way of benefit sharing, either may now go in appeal to the NGT.

Exclusiveness
Thus after the Green Tribunal what changes is that no appeals can be taken under the BD Act to the high court. This in effect repeals Section 52 of the BD Act, replacing it with a new Section 52A. Post-NGT any person aggrieved by the NBA or SBB must approach the NGT. Previously, any aggrieved person could challenge any order by the NBA or SBB before a high court. Appeals and petitions of this nature can now only be filed before the Green Tribunal.

There are few critical things to consider here. The appeal provision of the BD Act has hardly been utilised previously. Yet when the legislation first came into being, this provision was criticised since apex state-level courts are often inaccessible to communities who would be most impacted by access to a particular biological material in their areas. Now the appeals will have to be brought before the Green Tribunal, proposed to be set up in Bhopal. There can be other regional tribunals, but they may not be even at the limited close proximity as the high courts. It is hoped that more expeditious processing of biodiversity-related matters will be effected through the tribunal, having moved these matters away from an already over-burdened judicial system.

Moreover, it is not that the Green Tribunal is set up exclusively for redressal under the BD Act. So the expertise of its members will be critical. The issue of benefit sharing requires a far more nuanced and careful look way beyond mere books of law. Access and benefit sharing matters are not necessarily a purely legalistic or procedural. There are diverse ethical, ecological and social considerations that come into play. Civil society expects that the informality of tribunals versus formal courts will accommodate more real-life and livelihoods matters of biodiversity.

Any redressal mechanism can be made affective when people are able relate to it and find it easy to access. The new set-up does not seem to simplify things. How this new Green Tribunal fares, is yet to be seen. Meanwhile, by virtue of this new law there is now an express bar on jurisdiction of any civil court on biodiversity matters dealt by the tribunal. So, for seeking legal remedies under the BD Act against the NBA and SBBs, it is important to be aware that things are a-changing.