By Rohit Prajapati and Krishnakant*
The Japanese Government’s investment agency, the Japan International Cooperation Agency (JICA) is signatory to the Memorandum of Understanding (MoU) with the Indian Government for the Mumbai-Ahmedabad High-Speed Rail Project (MAHSR), popularly known as the ‘Bullet Train Project’. There are two sets of government norms that the ‘Bullet Train Project’ has to adhere to: one, as per the Indian laws and second, as per the JICA Guideline of the Japanese Government.
The JICA Guidelines, April 2010, make clear the principles and procedures, repeatedly stressing on environmental and social impacts, which must be followed for ensuring assistance in the form of technical cooperation, loan, or grant aid for projects that are applicable to the MAHSR – the Bullet Train Project. While the final responsibility for environmental and social considerations for projects lies with the project proponents, host country governments including local governments, borrowers, etc., JICA recognizes certain crucial baselines principles and lays out a set of definite guidelines for environmental and social considerations that need to be followed for execution of projects like the ‘Bullet Train Project’. If during the execution JICA finds that relevant environmental and social impacts have not been considered in letter or spirit, it will withdraw loan aid, grant aid, or technical support to the project.
There has been much debate about how the Bullet Train Project violates the Indian Constitution, laws, and due processes. At the same time, the JICA Guidelines for investing in international projects are also being violated as much, if not more. And, to no one’s surprise, these violations are by the Indian Government and its agencies responsible for carrying out the MAHSR. The violations are in public domain and known to almost everyone who cares to know. The concerned authorities might have some “explanations” and “excuses” to offer, but they cannot deny certain facts and ground realities.
It is also pertinent to note that the Japan’s Official Development Assistance (ODA) Charter, August 2003 assures fairness and attention to environmental and social impacts while contributing to sustainable development in developing countries.
When a project like Bullet Train for India is proposed, Government of India and its concerned authorities are bound as signatories to implement the following guidelines, policies, principles, and procedures of JICA and ODA of Government of Japan to ensure that it meets or addresses social, economic, and environmental concerns and core principles in letter and spirit before it can get or continue to receive loan, technical cooperation, or grant aid.
JICA Policy
At the onset, the JICA guidelines state: “Japan’s ODA Charter states that in formulating and implementing assistance policies, Japan will take steps to assure fairness. This will be achieved by giving consideration to the conditions of the socially vulnerable and to the gap between rich and poor, as well as the gaps among various regions in developing countries.”In absence of such considerations, can JICA offer other sustainable and financially viable options to the Bullet Train? For example, retrofitting and upgrading the existing rail system, since rail transit is a necessity. It is therefore vital to revisit the project proposal submitted to JICA by MAHSR that justifies the need for a Bullet Train Project over other inter regional and multi-modal transit options. If such a need study exists, then has it been put in the public domain and discussed with the stakeholders? The Bullet Train venture has been promoted inspite of existing reports calling for the strengthening and upgrading the existing rail system, which have been postponed due to lack of resources.
The JICA Guidelines for Environmental and Social Considerations, April 2010, explicitly state the significance of environmental and social considerations in extending its support and aid towards any project in a developing country. At various stages in the process, right from inception to implementation, the guidelines clearly and repeatedly suggest ways and means to communicate, incorporate, and mitigate environmental and social considerations and impacts. In doing so, JICA endeavors to ensure transparency, predictability, and accountability in its support for examination of environmental and social considerations. JICA has a policy of actively supporting the enhancement of environmental and social considerations in developing countries, to achieve its goal JICA provides support to the project proponents in a number of ways to help them abide by its set guidelines. However, it is clear that there are discrepancies, deviations, and violations observed during the Bullet Train Project planning and decision making process. The following is sections and points highlight and give details of the same.
Advisory Committee for Environmental and Social Considerations
JICA Guidelines commit to the establishment of an Advisory Committee for Environmental and Social Considerations as an independent body comprising of external experts having the necessary knowledge to provide advice regarding support for and examinations of the environmental and social considerations of cooperation projects. JICA reports to this committee and seeks advice as needed for the environmental and social monitoring of the project. Meetings of the Advisory committee are open to the public and minutes of each meeting are duly prepared and disclosed to public.There has not been an announcement of such an advisory body in the public domain. If this body exists, then the details of the members, their expertise and deliberations are also not available for reference by the stakeholders. No information regarding the meetings is available on the websites nor have the minutes been made public.
Disclosure of Information
The Guidelines clearly state that adequate information needs to be provided by the project proponents in order for JICA to assess impacts on the environment and local communities. JICA not only assists project proponents to help with this disclosure but JICA itself also discloses information on environmental and social considerations in collaboration with project proponents, in order to ensure accountability and to promote the participation of various stakeholders. The main project proponent, the National High Speed Rail Corporation Limited (NHSRCL), a joint venture of Government of India, bears the ultimate responsibility of the environmental and social considerations of the project and must disclose all information about the same to JICA as well as to all the stakeholders in public domain.The response by JICA to the reports prepared by the project proponents is not available in the public domain. Hence, there is no transparency in the process of planning and decision-making.
The Environmental and Social Impact Assessment reports of 2010 do not address majority of these factors. Surprisingly, in the Joint Feasibility Study for Mumbai Ahmedabad High Speed Railway Corridor, July 2015, prepared by JICA and Ministry of Railway, Government of India, four chapters, namely, Chapter 12 – Project Cost of the High-speed Railway System, Chapter 13 – Project Implementation Plan, Chapter – 14 Project Scheme Financial Option, and Chapter 15 – Economic and Financial Analysis, are missing for reasons best known to them.
Though JICA begins reviewing the project through information disclosed by the project proponents, when necessary it consults with the proponents to conduct field surveys and such and also applies a Strategic Environmental Assessment (SEA) while working out the Preparatory Survey. All final drafts are duly disclosed on its website promptly after completion. Specifically for category A projects, whenever JICA concludes Preparatory Surveys, the final reports and equivalent documents are disclosed on its website. These are not made public.
As per the Guidelines, alternatives to the MAHSR – Bullet Train Project are also to be presented, but details of the same are not available, at least, in public domain either in any of JICA’s or Government of India’s public document.
Project proponents are supposed to disclose all information well in advance of the meetings with local stakeholders in cooperation with JICA. To achieve this, JICA supports project proponents in the preparation of documents in an official or widely used language and in a form understandable by local people. In response to third party requests, JICA ensures fair disclosure by providing all information related to environmental and social considerations.
In stark contrast to the JICA mandate, the Joint Feasibility Study for Mumbai Ahmedabad High Speed Railway Corridor, July 2015, report remains unavailable in Gujarati and Marathi, the primary languages of the affected stakeholders, even on the JICA website.
Additionally, the subsequent impacts of projects, as well as impacts associated with indivisible projects, will also need to be assessed with regard to environmental and social considerations, so far as it is rational. The life cycle impacts of a project period are also to be considered.
This information and consideration is not available in public domain.
Terms of Reference
The principal violators are the Government of India (GoI), Government of Maharashtra (GoM), Government of Gujarat (GoG), National High Speed Rail Corporation Limited (NHSRCL), and Mumbai – Ahmedabad High Speed Rail Corporation Limited (MAHSRCL) who deliberately or otherwise are neither adhering to the Indian constitution and laws nor the JICA Guidelines. Government of India (GoI) has created a special vehicle National High Speed Rail Corporation Limited (NHSRCL) for the Bullet Train Project, but the Terms of Reference are not made public. Interestingly, the Ministry of Environment, Forest and Climate Change (MoEF&CC) which is intrinsic to all the environment and public consultation process and impact assessments universally for all industrial – investment projects is completely missing from the entire public consultation processes being held in the project affected region in the states of Gujarat and Maharashtra.Categorisation
Once adequate information is available, JICA classifies projects into four categories according to the significance and extent of environmental and social impacts taking into account an outline of the project, scale, site condition, etc. The guidelines also assert that JICA can change the category after screening and in cases where the category has not been clearly specified at the Master Plan stage, the categorization will be based on the likely significant impacts on all the considerations – environmental, social, derivative, and cumulative.The Bullet Train Project is classified as ‘Category A’ project as it is likely to have significant adverse social, economic, and environmental impacts since it passes through severely and critically polluted, ecologically sensitive, and socio-economically vulnerable areas. For Category A, projects like the Bullet Train, the project proponents must submit, in addition to the preparatory survey, Environment Impact Assessment (EIA) and Social Impact Assessment (SIA) reports. The Environment Impact Assessment and Social Impact Assessment Report (SIA) submitted are for the year 2010. In the same area, various projects like Delhi-Mumbai Industrial Corridor (DMIC), Western Dedicated Freight Corridor (WDFC), and Express Highways are coming up. The cumulative impacts of all the projects together must be considered while determining the category of the Bullet Train Project.
The Bullet Train Project’s public consultations have been undertaken in the year 2018. As per international and even national norms and in the interest of just and fair environment and social outcomes, consultations should be based upon the most recent studies and reports. If this is not done, the project will not be just illegal but also unscientific because such consultations were conducted based on eight-year-old reports of 2010. These reports have to be based on more recent and due assessment processes since the Bullet Train’s route is passing through severely and critically polluted clusters of Gujarat as well as some ecologically most critical and socio-economically vulnerable areas, both in the states of Gujarat and Maharashtra.
Environmental Impact Assessment and Social Impact Assessment
JICA clearly states that the impacts, assessed with regard to environmental and social considerations, include impacts on human health and safety, as well as on the natural environment, that are transmitted through air, water, soil, waste, accidents, water usage, climate change, ecosystems, fauna and flora, including trans-boundary or global scale impacts. These also include social impacts, including migration of population and involuntary resettlement, local economy such as employment and livelihood, utilization of land and local resources, social capital such as social and decision-making institutions and processes, existing social infrastructures and services, vulnerable social groups such as poor and indigenous peoples, equality of benefits and losses, equality in the development process, gender, children’s rights, cultural heritage, local conflicts of interest, infectious diseases such as HIV/AIDS, and working conditions including occupational safety. The subsequent and cumulative impacts along with the project lifecycle impacts should also be considered.The EIA and SIA reports of 2010 lack any of the impacts and considerations regarding health, safety and quality of life of not just the human beings as well as for the health of the natural ecosystems. It is also pertinent to note that since 2010, many other initiatives and projects like the WDFC, DMIC, Vadodara – Mumbai Expressway have been undertaken by the Government at National, State and Local level. The influences of these projects have not been taken into account in the 2010 EIA and SIA and, therefore, these should be redone.
In the EIA and SIA consultation processes, not only people’s participation is missing in a proper and real sense but the authorities have also not considered the crucial report of (i) Gujarat Ecology Commission – ‘State Environmental Action Programme Industrial Pollution, Phase III – Sectoral Report, Volume I dated April 2002, (ii) Order dated 07.05.2004 of the Supreme Court in Writ Petition (Civil) No. 695/1995 pursuant to the Supreme Court Monitoring Committee’s report, (iii) ‘Comprehensive Environmental Assessment of Industrial Clusters’ of Central Pollution Control Board, of 2009, 2011 and 2013, (iv) various crucial important investigations report of Central Pollution Control Board and Gujarat Pollution Control Board, and (v) various High Court and Supreme Court’s order regarding current statues of environment degradation of the area. These reports and orders of the courts record and reflect the severely degrading state of the environment for the majority of the Bullet Train Project area.
JICA conducts environmental and social surveys at EIA level for Category A projects and prepares draft of mitigation measures, monitoring plan, and an institutional arrangement. At every stage when project proponents consult local stakeholders during and after the information disclosure, JICA monitors the process and incorporates the feedback of these consultations into its survey results. It also analyzes alternatives including ‘without project’ scenarios. Over the course of the project, JICA closely monitors items that have significant environmental impacts in order to keep a check on the proponent’s claims of including and addressing environmental and social considerations. The project proponents are required to supply necessary information for monitoring by appropriate means, including in writing. JICA conducts its own investigations when necessary. Once the draft reports are prepared, they are discussed with the project proponents and consultations with local stakeholders are carried out as well. Once it is concluded that the proponents have met the environmental and social consideration guidelines, JICA prepares and submits the final reports to the proponents. The results of the monitoring process are disclosed on the website, including in local languages, to the extent they can be made public.
 |
| Newspaper announcements for consultations in Navsari district |
Consultation with Local Stakeholders
The prime project proponent, the Government of India, needs to work with JICA to create agreeable frameworks for consultation with stakeholders. To assure fair participation, project proponents are required to publicize consultations in advance and pay special attention to the people who are severely and directly going to be affected by this project. For projects with adverse impacts like in the case of the Bullet Train, JICA insists on consultation with local stakeholders at an early stage to discuss their views on the project, their development needs, and environmental and social impacts of the proposal as well as analysis of alternatives. It also encourages that minutes of each meeting are prepared for perusal by the stakeholders. To ensure democratic decision-making, JICA insists local stakeholder participation and encourages project proponents to disclose information well in advance when they have meetings. JICA offers support in preparation of disclosure information in a form and language understandable by local stakeholders. Additionally, JICA also discloses information on its website in Japanese, English, and local languages.Almost all stakeholder consultations, both environment and social, were announced on a very short notice for the public and the concerned stakeholders for them to participate at all, let alone effectively. The advance notice period has varied from 24 hours (1 day) to few weeks. There is no coherent approach towards the announcement of stakeholder consultations. At times, they were announced for district level and conducted for taluka levels. There was no clarification as to whether the stakeholders invited to the consultation should represent social concerns or environmental concerns or both. In fact, it became apparent that the confusion was caused intentionally. Two different public advertisements were published by NHRSCL for the same venue and same timing, but for different purposes. The epitome of the disorder was that even the concerned authorities conducting the consultations were not clear as to under which Indian law and provisions the consultations were conducted!
In case of Environmental Consultations, the Supplementary EIA copies are kept for public viewing at different places which are 100s of Kms away at offices of NHRSCL. The nearest place being the District Collector office. In many cases, this is about 30 Kms away. The supplementary EIA copies are being conspicuously made available only to certain chosen individuals. At the same time, in some districts, there is no mention of the EIA or a copy made available to the public. The reports are available in English language, while most of the stakeholder participants can neither read nor understand English. The reports and documents should have been made available in the local languages, Gujarati and Marathi, for the public to be able to represent and participate effectively. Farmers (who are mostly illiterate or semi-literate) were not allowed to raise questions/queries. Environmental activists/experts were deliberately shunned out of the consultation venue with use of police force. This is open violation of basic human rights of the people and also as per Section 2.5 of the JICA guidelines – Concern about Social Environment and Human Rights. For the organisers the stakeholders were mere spectators attending the consultation. Even farmers organisations and other social/environment groups are kept out of the process. Elected representatives who can potentially raise uncomfortable queries regarding the project were manhandled and taken away by force before the start of consultations. The Surat consultation is one such example. The queries raised during the consultations were very casually addressed and there is no written response to the written submissions or oral queries raised at the consultations. The minutes of the consultations and the video documentation are also not made public. These are essential for a transparent and accountable process.
As if all this was not enough, some of the public announcement for the stakeholder consultations for the districts of Navsari and Valsad (both in the state of Gujarat), published invitation in local newspapers specifically mentioning that ‘unauthorised people would not be allowed at the consultation’. We fail to understand what criteria are prescribed under JICA guidelines or even Government of India’s policies to segregate attending stakeholders as “authorised” and “unauthorised”. Even Supreme Court of India had clearly stated that all citizens, including those not directly affected by a project, should be allowed to participate in environmental public hearings. Therefore, not allowing some citizens to speak at public hearings would be also a violation of the Supreme Court order.
From the manner in which the stakeholder consultations were conducted, it appears that these are just paper arrangements; that is, bureaucratic paper work or attempts to divert and delay the consultations, with no serious concern for the people and the environment. It seems that, in the case of these consultations for the proposed MAHSR project, participation, transparency, respect for basic human rights of people, and such are just words to throw around and mislead. Trampling of basic human rights through police force seems to be a part and parcel of the conducting of stakeholder consultations. It is to be noted that at several places, due to the apprehensions of affected people arising out of the high-handed and opaque functioning for the consultation, the atmosphere was vitiated and the consultations had to be postponed or rescheduled.
There are claims by the concerned authorities that the consultations of 2018 comprise the second round of consultations. They claim that the first consultation was conducted but details of first consultation are not available in the public domain and people at large are not aware about such consultations at all. The people only know of the consultations that were held from April 2018 onwards. Therefore, the MAHSR authorities should make clear the details, if any, of the first consultation, the dates when it was held, the participants, the outcomes, suggestions, and reports.
It is also quite surprising that during EIA-SIA hearing, we found no Indian official taking any notes. This is almost unprecedented in any of EIA-SIA public consultations being held for any development project.
Concern about Social Environment and Human Rights
JICA necessitates the inclusion of social and institutional conditions of the host country and actual site conditions while examining environmental and social factors likely to be impacted through the project. JICA also upholds internationally established human rights standards and pays special attention to the human rights of vulnerable social groups including women, indigenous peoples, persons with disabilities and minorities during the decision-making process.In most places, police were deployed in large numbers during the EIA and SIA public hearings and, at places, activists and local participants were detained creating an atmosphere of terror. The intimidation through use of police in guise of maintaining law and order has acted as a deterrent in ensuring meaningful public dialogue and clearly indicates that authorities and instruments of Government of India intend to browbeat any dissent or relevant queries.
Laws Regulations and Standards of Reference
JICA confirms that the project complies with environmental and constitutional / social laws of the central and local governments of host countries. The project must also adhere to the government’s policies and plans on the environment and society. JICA necessitates that projects comply to a large extent with the World Banks’s Safeguard Policies and refer to the standards of international finance organizations, internationally recognized standards, treaties declarations, and such. JICA also emphasizes the importance of good governance of projects and encourages the proponents to raise the performance levels, where inferior local regulations exist.The MoEF&CC officials are found to be completely missing in all the public consultation processes, even as JICA officials are participating diligently. The complete absence of Indian officials from the MOEF&CC, despite required by the Indian laws is unprecedented and also very disturbing as it appears that it is absolving itself or is being made to absolve itself of its inherent mandatory duties, especially the ones required for such projects of massive and grim environmental and social impacts.
Decision – making by JICA
JICA takes into account outcomes of its environmental reviews when making conclusive decisions regarding proposals. In projects where the environmental and social considerations are not adequate, JICA insists that project proponents rectify their approach. If the proposal still does not comply with required standards, JICA will not undertake or support the project. For projects that necessitate enforcement of environmental and social considerations or rules, the project proponents must report to JICA on the measures and monitoring they undertake related to environmental and social considerations. Project proponents are required to hold discussions with local stakeholders regarding any problems related to environmental and social considerations and reach consensus.JICA can make changes to the agreement or suspend loan aid, grant aid, or technical cooperation in case the project proponents do not meet the guidelines set out or the project will have adverse impact on the environment because of the failure of the proponents to supply adequate and correct information during the review process. In cases where JICA concludes non-possibility of environmental and social considerations despite adequate measures, it will recommend the Ministry of Foreign Affairs of Japan (MOFA) to discontinue the project.
As all levels and kinds of the Indian authorities are violating all the basic norms, procedures, and requirements of the JICA Guidelines for Environmental and Social Considerations 2010, in letter and spirit, this attitude clearly invites necessary, appropriate, and prompt action from JICA.
In 2014, the Government of India introduced amendments to ‘The Right to fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013’ (a Central Act) diluting the stringent provisions of social impact assessment and consent clauses in the 2013 Act by the promulgation of the Land Acquisition Ordinance under Article 123 on the last day of December 2014. The provisions of the ordinance were sought to be kept alive by repeated promulgation on April 3 and May 30 of 2015. The Central Ordinance eventually lapsed on August 31, 2015. The stage then shifted to the states. Several states including Gujarat and Maharashtra then sought to implement the content of the Ordinance by routing it through their respective state legislatures. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, whereby the basic structure of the Original central Act has been unconstitutionally changed to give exemption to large categories of projects from consent provisions, Social Impact Assessment, Objections by affected citizens and participation of local bodies.
With the advent of the NDA government in 2014, the crisis in environment policies in India has reached unparalleled proportions and worsened by leaps and bounds7. There has since been a spate of changes in environmental laws in order to allow for urbanization, industrialization, and unfettered development to the detriment of the environment and, often, the local and regional public.
Ensuring Appropriate Implementation of and Compliance with Guideline
If there is an objection raised regarding noncompliance with the guidelines laid out by JICA, an independent body separate from the project execution departments will be formed that will review the case. JICA also verifies the status of the implementation of the guidelines and revisits its way of procedures within 5 years of their enforcement by way of hearings of the concerned people.Many objections have been raised by various stakeholder groups regarding the conduct of the stakeholder consultations. However, as far as the stakeholder groups are aware of the situation, no independent body to investigate or address the discrepancies or violations of JICA guidelines or Government of India’s laws and rules has been formed.
Overall, the stakeholder groups assert that the process conducted so far has failed to follow the JICA Guidelines for the Bullet Train Project in its true intent and spirit. The manner in which the project is conceptualised, proposed, and planned, it grossly contradicts the sustainable development promises and policies of the Japanese Government and Indian Constitution. Such a situation will bound to set wrong precedents at the national and international levels.
If serious issues and questions are not raised at this time in the process for this project, all the national or international human rights and environmental values, treaties, laws, and regulations will prove to be paper tigers only.
We owe an apology to the Earth – Air, Mountains, Hills, Valleys, Rivers, Ravines, Tributaries, Ponds, Lakes, Sea, Forests, Land, Farmlands, Wetlands, Grasslands, Deserts, Physical and Biodiversities … Entire Nature, Other Life on Earth and all farm produce for having failed to protect and nurture them from the effects of climate change, human greed and abuses, irreversible damage, contamination, and pollution. The present “Development Model” rests on the severe exploitation of Nature, and the have-nots whose voice isn’t heard. We need to redefine “Development” to be more holistic, comprehensive and inclusive.
—
*Environment Activists, Gujarat
Comments