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  1. 1. Biological Diversity in Jammu and Kashmir- Legal Conservation and Concerns Professor Mohammad Ayub, School of Law, University of Kashmir
  2. 2. Biological Diversity in J&K-Legal Conservation and Concerns  The State of Jammu and Kashmir is known for its beauty and biological resources. A plethora of State- enacted laws regulate multiple components of biological resources, creating a wide range of authorities who operate in their respective jurisdictions to the exclusion of each other. Conservation of resources is an indirect or incidental concern in some of these laws, while optimum utilization of resources to generate revenue is the main object hidden between the lines of the statutes.
  3. 3. Biological Diversity Act,2002 A comprehensive law for conservation, sustainable use and benefit sharing of biological resources has been legislated by the Parliament of India in the shape of Biological Diversity Act, 2002, which is also applicable to
  4. 4. Biological Diversity and Resources-the Legal Definitions Biological Diversity- The variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of ecosystems
  5. 5. Definitions Biological resources" under section 2 (c) of the Act mean "plants, animals and micro-organisms or parts thereof, their genetic material and by- products (excluding value added products) with actual or potential use or value the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of ecosystems e but does not include human genetic material.”
  6. 6. Benefit claimers The term "benefit claimers" means the conservers of biological resources, their by- products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application. Bio-survey and bio-utilization means "survey or collection of species, sub- species, genes, components and extracts of biological resource for any purpose and includes characterization, inventorization and
  7. 7. Commercial Utilization The term "commercial utilization" is of paramount significance under the Act which means "end user of biological resources for commercial utilization, such as drugs, industrial enzymes, food flavors, fragrance, cosmetics, emulsifiers, oleoresins, colors, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee- keeping
  8. 8. State Biodiversity Board Establishment of SSB Sec 21 Object: advise state government on •. Conservation •. Sustainable use •Equitable Benefit • Regulate ( in country use) • Grant of approvals for commercial Utilization • Bio Survey • Bio Utilization of Biological Resources • Citizens/ Bodies Corporate / Associations or organizations registered in India to give prior intimation before any use. •Local Communities / People including growers and cultivators, Vaids and Hakims Practising indigenous medicines- exempted
  9. 9. J&K Biodiversity Rules 2015- SRO200 1. Composition of Board chairperson ( to hold office up to 65 years) Ex-officio members:- Administrative Secretaries of State 1. Forest Department. 2. Agriculture Production Department and 3. Pr. Chief Conservator of Forests 4. Chief Wildlife Warden 5. Director State Forest Research Institute (Member Secretary) Non-official members (3 years term) Every member to have one vote with a casting or double vote by chairperson in case of tie. Head Office: in the Office of Director State Forest Research Institute Meetings: At least twice a year Quorum: Five members Provision for Expert Committee
  10. 10. Biodiversity Management Committees 1. Constitution: Every Local Body is to constitute a BMC. Composition of BMCs-chairperson and Six members =1/3 to be women 18% from SCs/STs Local MLA/MLC /Member of the Parliament to be special invitees. 2. Function. i) Promotion conservation Sustainable Use Documentation of Biodiversity ii) Preservation of Habitats Conservation of Land Races, Folk Varieties and Cultivators ,
  11. 11. BMCs Members to be drawn from Herbalists Agriculturalists Non-timber forest produce Cultivators /traders fisher folk Representatives of user associations/community workers Academicians Any other person/organization on whom local body trusts to contribute to BMCs significantly All persons to be local residents of local body who are registered in voter lists. Every BMC to have Six special invitees to be nominated by local body who shall be from :
  12. 12. Functions of BMCs Prepare Peoples Biodiversity Register Compile information on :- 1. Local Bio -resources 2. Associated knowledge-medicinal or other use 3. Ensure protection of knowledge recorded in the register 4. Regulate Access to knowledge through prior informed consent 5. Advise NBA/SBB on granting approvals to resources 6. Maintain data about local Hakims/Vaids and practitioners Using bio resources 7. Maintain register relating to grant of access to resources and knowledge and details of collection fee imposed.
  13. 13. Functions of BMCs (contd..) Determine terms of Access and levy of Charges- Major portion of levy collected /cultivated from private land to be paid to the owner/cultivator/knowledge holder(s) Balance to be deposited in BM fund Levy for material collected from Govt. land to be deposited in BM Fund.
  14. 14. Grounds of Restriction or prohibition on activities related to access to biological resource 1. Endangered Taxa or taxa that are likely to become threatened due to access. 2. Endemic or rare species 3. Results in adverse effect on the livelihoods, culture or indigenous knowledge of the local people 4. May result in adverse environmental impact –difficult to control or mitigate. 5. May cause genetic erosion or effect the ecosystem 6. Access to resources may be against state /national interests or against any related international agreement to which India is a party.
  15. 15. Biodiversity Heritage Sites (BHS) Areas of significant biodiversity value to be set up as BHS by the Board. Board to frame guidelines for selection, management and other aspects of BHS
  16. 16. Biodiversity-the Legal concerns 1.The Biological Diversity Act is in addition to and not in derogation of other laws relating to forests and wildlife- Sec 59 the Kuth Act 1921. The State Forest Act,1930,the Wildlife (Protection) Act, 1978,the Game Preservation Act1942,the Kahcharai Act,1954
  17. 17. 2.Document and integrate customary laws and practices relevant to biodiversity into statutory laws, providing it a more substantial role “The Hakims have a considerable knowledge of herbs, and their herb-collectors are the shepherds, who spend the summer on the high mountains where most valued plants are found…. Such simples as the Hakim does not obtain from the shepherds are brought from the druggists…. Besides the professional Hakims there are many ‘wise women’ in the villages who have considerable knowledge of the properties of herbs, and it is remarkable fact that nearly every peasant seems to know something about the medicinal powers of plants” W.R Lawrence-The Valley of Kashmir p.21
  18. 18. Symbiotic Relationship of people and the wild plants in Kashmir  It would be wearisome to enumerate the various herbs which the Kashmir's eat as vegetables in the springs and summer-thistles,nettles,the wild chicory , the dandelions in fact every plant which is not poisonous goes into cooking- pot, and even the stalk of the walnut catkin is not despised. In the hills a dainty dish of the wild asparagus can be easily obtained , and the wild rhubarb cooked in honey has its charms. When one hears of the old saints of Kashmir who lived on the wild wapal hak(Dipsacus Inermis) and the herbs of the forest , one need not Picture an emaciated ascetic, for a man could live and live well on natures products in Kashmir- WR Lawrence-The Valley of Kashmir p.347
  19. 19. Forest and Forest Rights W.R Lawrence-The Valley of Kashmir p.p.427- 28 “I have pointed out in Assessment Reports that the land revenue taken from the villages really includes rights enjoyed from time immemorial in the forests whish surround the valley. Up to the present the agricultural classes have been allowed timber for their houses and farm implements, and fuel free of charge. I would urge most strongly that no restriction should be placed upon these old rights of user in the forests. If, hereafter, forest conservancy does impair those rights, it will be necessary to reconsider the rates put upon the land by me, for I would never have taken so high a revenue had I known that timber and fuel would be charged for by the State. Any drastic measures which would tend to curtail the privileges hitherto enjoyed in the forests may lead to serious difficulties...In a small country like Kashmir the right policy is to encourage cultivation and I believe that if the whole of the village area, which includes all land up to the slopes of the mountains and the borders of the forests, were brought under cultivation, grass, timber, and fuel sufficient for agricultural requirements could be supplied without injury to the State forest
  20. 20. The Forest Act ,the Wild life Protection Act, the Kuth Act : Less conservation and more alienation  Acts not based on any scientific and detailed understanding of the actual human requirements and the carrying capacity of an area  Highly penal in character-storing every ounce of resource and counting them as cricket bats i.e. minor forest produce  Enough use of penal provisions-from 41826 criminal cases in 1982,case load pendency had risen to 1,27870 in 2000 in forest and other different courts
  21. 21. Application of deterrent theory to other medicinal plants- SRO -336 of Agriculture Deptt,13/5/1972  Morin Artemisia maritima  Poshkar Inula racemosa  Belladonna Atropa belladonna  Jalla Kaffal Atropa accuminata  Patis Aconitum heterophyllum  Resha Khtami Lavetra Kashmiriana  Surajan Talakh Colechicum luteum (corms)  Bazar Bang Hyoscyamus niger  Bankakri Podophyllum emodi  Krench Lobidwala dioscorea deltiodea
  22. 22. Present status of core group of medicinal plants- IUCN Camp workshop 1997 Lucknow  Atis or patis Root CR Shingli Mingli Root CR Meticher kund Fruit DD  Gaozaban Herb CR Ephedra Herb Vu  Thetwan Herb NE Sehet Band Herb Vu  Seski morin Herb E Sheethkar Bulb CR  Brand or Jalla Kaffal Herb/Root CR Krendal Root E  Daruharidra or Rasaunt Root E Poshkar Root CR  Pashen Bed Root E Sazmul/Resha Khatmi Root E  Surajan Talakh Herb E Lang Tang Herb Vu  Datur Herb LC Least concerned –not threatened  Ktki Root E Bankakri Root CR  Rhubarb Root E Kuth Root CR Himalayan yew Bark/shoot E Mushkibala Root Vu
  23. 23. 3. Review of the property rights and the state land laws The Transfer of Property Act, 1882, recognizes that things attached to earth constitute immovable property. It also recognizes that 'benefits arising from land' is an interest in the land and, therefore, immovable property. But would benefits arising from land include benefits arising from use of genetic material components in the biological resources found in the land? This question is yet to be answered. Similarly the Act does not give any significance to 'growing crops and grass' and excludes them from the definition of immovable property in its section
  24. 24. State Land Laws need an overhaul The prominent laws that need a review in the sphere of property and land laws include the Transfer of Property Act, 1882, the State Land Acquisition Act, the Land Revenue Act, Alienation of Land Act, 1938, the Requisitioning and Acquisition of Immovable Property Act, 1968, and The Land Grants Act. Though the state Government has recently undertaken review of some land laws of the Statethe purpose of such review is limited to ensure that prime agricultural land is not utilized in an unbridled manner to meet the housing requirements in the State, the purpose of such review need to be broad-based, so as to safeguard unique biodiversity of the State, whether associated with prime agricultural or other land.
  25. 25. 4. Review of agro-biodiversity related laws. a.Agrarian Reforms Act, 1976; b. Agricultural Produce Marketing (Regulation) Act, 1997 and the Rules of 2003 framed there-under; c. Aid to Agriculturalists & Land Improvement Act, 1936 and Aid to Agriculturalists (Fertilizers Loan) Rules, 1965; Agriculturalist Relief Act, 1926; d. J&K Utilization of Lands Act, 1953 and the J&K Land Improvement Schemes Act, 1972; e. The Jammu & Kashmir Prohibition on Conversion of Land and Alienation of Orchards Act, 1975, and f. The Jammu and Kashmir Vegetable Seeds Act, 1952 A.D.
  26. 26. 5.Review of laws regulating preservation of specified trees and their derivatives The Jammu and Kashmir Preservation of Specified Trees Act, 1969 A.D. The Jammu and Kashmir Mulberry Protection Act, 1949 (along with the J&K Mulberry Protection (Amendment) Act The J&K Fruit Nurseries (Licensing) Act, 1987,
  27. 27. 6.Strengthen implementation of the laws and provide redressal mechanism at the grass root level in due course of time need would arise for a permanent bench of the Green Tribunal to be located in or, in proximity to, the State of Jammu and Kashmir. Besides, minor disputes between the local communities, benefit claimers and the Biodiversity Management Committees are bound to occur, which demand summary type of inexpensive disposal through techniques of ADR like arbitration, mediation and settlement through Lok Adalats without involving long- drawn procedural intricacies of an adversarial system of justice.
  28. 28. 7. STRENGTHEN THE EIA MOEF EIA Notification of September,2006  Extend the procedure to all projects with a likely adverse impact on biodiversity, increase public participation, involve experts to aid the public in fully understanding the long term impacts and make the informed and free consent of local affected communities mandatory, penalize fraudulent practices.Ignorant and socio-economically weak and underprivileged communities can hardly understand the prospective value of their resources, which the project proponents, too often excessively intoxicated with commercialism, can easily grab from them. It is, therefore, highly desirable to launch programmes of education and awareness and extend support services to the communities in all EIA procedures.
  29. 29. 8. Reconcile state and central laws and policies Standards under Environment Protection Rules,1986- State to adopt its own standards ,more stringent than the Central Standards The Panchayati Raj Act,1989 The Ladhak Hill Development Council Act,1997
  30. 30. 9. Lake Biodiversity: the administrative jungle and the mechanism of protective (mis) management 1. Tourism Department; 2. Forest Department; 3. Soil Conservation Department; 4. Wildlife Department; 5. Department of Fisheries; 6. Department of Environment and Remote Sensing; 7. Department of Irrigation; 8. Urban Environmental Engineering Department; 9. Public Health Engineering Department; 10. Department of Parks and Gardens; 11. Municipal Corporation, Srinagar 12. State Pollution Control Board and prospectively the State Biodiversity Board. And 13 . The LAWDA
  31. 31. Where is Lake Biodiversity? i. Conservation or prevention and control of pollution or polluting activities, or ii. Regulation of trade, tourist and economic activities, or iii. Prevention of encroachments and/or regulation of construction activities
  32. 32. The laws for conservation/prevention and control of pollution and polluting activities are: i. The Canal and Drainage Act; ii. The Easements Act; iii. The Irrigation Act, 1978; iv. The Jammu and Kashmir Water Supply Act, 1963; v. The Jammu and Kashmir Non-Biodegradable Material (Management, Handling and Disposal) Act 2007; vi. The Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986; vii. Animal Contagious Diseases (Control) Act, 2006 (1949 AD); viii. The Cattle Trespass Act, 1920; ix. The Wildlife (Protection) Act, 1978; x. The Municipal Act, 2000 (A.D.) and prospectively; and xi. The Biological Diversity Act, 2002.
  33. 33. The laws for the regulation of tourist, trade and other economic activities by different departments. i. The Jammu and Kashmir Registration of Tourist Trade Act, 1978; ii. The J&K Hotel (Amenities and services) tariff taxation Act, 1980; iii. The Jammu and Kashmir Professions Trades, Callings and Employments Tax Act, 1981; iv. Camping and Mooring Sites Act, 2004 (1947 A.D.); v. Ferry Boats Control Act, 1971; vi. The J&K State Fisheries Act, 1960 (1903A.D.), and vii. The J&K Water-Nuts (Singhara) Rules, 2007 (1950 A.D.).
  34. 34. The laws for exercising control over constructions and encroachments The Land Revenue Act, Samvat 1996 (1939A; ii. The J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988; iii. The J&K Control of Building Operations Act 1988 as amended by the J&K Control of Building Operations Act 1997; and iv. The Land Acquisition Act, Samvat 1990.
  35. 35. Cumulative Effect Lack of coordination and need for integrated approach in regulation Failure to view the lake environment as a whole A plethora of laws, with multiple enforcement agencies there-under create a complicated web of fragmented control. Besides the jungle of administrative bodies, each body is invested with vast number of powers and procedures. There is possibility of overlapping controls where a single process or incident could be regulated by more than one body, using different enforcement powers. In many cases there could be situations of 'too many cooks spoiling the broth
  36. 36. Long live Dal Lake- ? When each Department controls separate sector, there can be a reluctance to deal with a problem on a unified basis. Administratively, the existence of multiple bodies with overlapping responsibilities creates tremendous logistical difficulties; misunderstandings creep up, and interdepartmental communication has its own problems, which all lead to inefficient control ultimately undermining the authority of the law. This is one of the main reasons why the State High Court has been constrained to assume the responsibilities of looking after the Dal Lake vide its Division Bench order dated 24th of March 2009. The need for an integrated and coordinated approach to address the desired physical, biological, ecological and engineering measures, both in the catchment as well as within the lake basin itself has been felt by several experts in the past
  37. 37. Thank you