Tipaimukh Dam
Conflict over forestry sector development in Bangladesh
Written by Fazlous Satter Sunday, 23 May 2010 13:26
State aggression on the lives, livelihood options and access and control over forest resources of the forest community is a common feature in almost all the forest Protected Areas (PA) here in Bangladesh. Although most of these PA’s are inhabited by the indigenous forest community but state reluctance to their traditional customary and occupancy rights over land, forest and forest product has created forest conflicts for a long time. Rather than resolving the conflict state repression is also contributing in the process of escalating violence and ultimately that caused massive human insecurities.
State aggression on the lives, livelihood options
The conflict with state and the forest community in particularly with the indigenous peoples is nothing new but goes back to colonial annexation of CHT in 1860 by the British imperial ruler. Shortly after colonial annexation the state began to exploit the forest products of this region and jurisdiction over large part of the CHT had been taken away from the Chiefs and given to the department of forest. In 1870’s the Head of the Department of Forest proposed that the whole Mugh and Chakma population should be removed from their native hills to protect the forest. In 1871 almost entire area was declared as government forest. In 1871-72 the first experiments with teak plantation were carried out. In 1874-75 two forest reserves were demarcated, followed by 5 more up to 1883. Thus in twelve years one-third of entire CHT area was taken away from use of cultivators and put under forest department. This conflicting and alien type of attitude still prevails among the state mechanism of our country, especially within the Department of forest.
Uprooting the Custodian of Forest in the Name of Eco-tourism
Although the international community considered the forest community, especially the indigenous peoples as the custodian of biodiversity but yet it is to practically recognize by the state, in particularly by the department of forest. The said department is always hostile to these peoples and as a result their getting victims of regular state repression that includes threat, harassment and finally continuous threat of eviction and intimidation.
As Fazlous Satter mentioned in his research report titled “ Eco-Park & Eco-Tourism in Protected Areas: An Assault on Life, Livelihood and Human Dignity” that the establishment of so-called Eco-Park or inserting eco-tourism as component of all most each and every forestry sector project in particularly in Protected Area given the forest conflicts a new dimension as its full implementation is depend on the uprooting of the local indigenous and other forest community and also depriving them from their means of subsistence livelihood and rights to land as well as practice of traditional and customary law and practices. At present in Bangladesh there are 19 protected areas and 5 Eco-Park and others are named as National Park, Wildlife Sanctuary, Game Reserve and Safari Park. Further more government recently undertakes three more Eco-Park project. But if we go through the each and every project profile we will found that the main objective is same that is developing the infrastructure and facilities for future corporate tourism by ignoring the both national and international laws, standard and practices.
The first controversy with the idea of so-called Eco-Park started in 1999 when the government of that time undertaken a project titled Modhupur national Park development project which includes a component called “Creation of recreational facilities” with a total budget973.50-lakh taka. Modhupur National Park Development Project, commonly known as the Modhupur E-co Park Project is the latest assault on the Mandi Peoples’ land rights as well as life and livelihood including freedom of movement, right to preservation of distinct cultural tradition and identity as indigenous peoples. Basically this project is an implementation attempt of controversial Modhupur National Park Project in a different name.
Another big assaults on the indigenous peoples of Bangladesh; especially for the forest community was occurred on January 17th, 2001 when Prime Minister of that time Sheikh Hasina inaugurated the Sitakunda Botanica Garden & Eco-Park.The park was the first of its kind in the country has been set up on 1,996 acres of land with a panoramic view on the foot of Chandranath Hills, 35 km off the port city and uprooted more than 11 indigenous Tripura families without paying any compensation.
In this program she said apart from Sintakunda Eco-Park, the government has been setting up Bangabandhu Sheikh Mujib Safari Park at Dulahazra in Cox’s Bazar, another Eco-Park at Madhabkunda and Muroichhari, Alutila, Kuakata, Chimbuk, Madhutila, and resort in the Gazani forest in Sherpur. The Prime Minister said her government has formulated a nature conservation management plan for 13 reserved forests. These are – three sanctuaries in the eastern, western and southern parts of the Sundarbans, Bhawal National Park, Madhupur National Park, Himchhari National Park, Teknaf Game Reserve, Rema-Kelenga sanctuary in Habiganj, Hajarikhil sanctuary in Chittagong, Char Kuri-Mukri sanctuary in Bhola, Nijhum Dweep sanctuary in Noakhali and Companiganj wetland in Sylhet.
Second victim was the indigenous Khasi and Mandi peoples of Madhabkunda and Muroichhari. On April 15, 2001 the Minister for Environment and Forests, Mrs. Syeda Sajeda Chowdhury, laid the foundation stone for the Eco-Park at Mahdhabkunda. Two separate ceremonies were held, one at Mahdhabkunda and one at Muroicharai. The minister spoke at the first site, to which the indigenous people were not invited.
Authoritarian development
In Bangladesh the concept of protected area management and tourism promotion is so backdated that it does not match with any international standard. Although beside modern protected area management, planning process for developing eco-tourism facilities is now based on effective partnership, collaboration and co-management and community based approaches with the stakeholders, especially with local community. The fundamental criterion of this partnerships are the recognition to the rights to land whether it is based on general law or customary land practices (especially for indigenous and ethnic minority), respect to the religious and cultural practices, respect to the peoples rights to self-determination over development process, natural resources and the subsistence way of living. The rights to self-determination over development process includes rights to determining the development priority, effective participation in the planning, monitoring and evaluation and finally in the management. Based on both entitlements over the environment and natural resources and also on the land ownership whether it is community or individual this modern approach ensures the democratic processes that include gender sensitivity, cultural sensitivity, benefit sharing, property rights intellectual and genetic resources and finally the participation of the citizen groups.
But in our country rather than acknowledging the role of forest community as custodian of biodiversity, they’re being treated as the alien or enemy of conservation. As result before undertaking any project in the protected areas including that undertaken in the name of so-called Eco-Park or eco-tourism, no prior consultation was done with the concerned communities. Even the issue was not discussed with the community leaders or the representatives of the local government. Nowhere concerned peoples were discussed regarding the project planning. Even in most of the cases socio-economic and environmental impact assessment was also not done. Concerned of the women also were not addressed anywhere.
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Note: This article is a part of research report of this author titled “Study on the Conflicts & emergencies resulting from development activities along with elite capturing, non-participatory management of natural resources” conducted with the Action Aid Bangladesh as an Independent Research Consultant.
The author may be contacted at following emails: This e-mail address is being protected from spambots, you need JavaScript enabled to view it , This e-mail address is being protected from spambots, you need JavaScript enabled to view it
TIPAIMUKH DAM & INTERNATINAL LAWS
LAST_UPDATED2 Written by Fazlous Satter Monday, 24 August 2009 06:57
TIPAIMUKH DAM & INTERNATINAL
LAWS
FAZLOUS SATTER
EXECUTIVE DIRECTOR
CENTRE FOR HUMAN RIGHTS, DEVELOPMENT & HUMAN SECURITY (CHRDHS)
Email: This e-mail address is being protected from spambots, you need JavaScript enabled to view it , This e-mail address is being protected from spambots, you need JavaScript enabled to view it
The paper was presented in a seminar titled ‘Tipaimukh Mega Dam Project: Looking into the International River Laws, Environmental & Human Security Perspective’
held on July 28th 2009 at BRAC INN Auditorium, Dhaka.
Organized by the Centre for Human Rights, Development & Human Security (CHRDHS)
Over 45 000 times in the last century, people took the decision to build a dam. Dams were built to provide water for irrigated agriculture, domestic or industrial use, to generate hydropower or help control floods. But dams also altered and diverted river flows, affecting existing rights and access to water, and resulting in significant impacts on livelihoods and the environment. Decisions to build dams are being contested increasingly as human knowledge and experience expand, as we develop new technologies, and as decision-making becomes more open, inclusive and transparent.
The Report of the World Commission on Dams-2000
Sharing the International Rivers
• 263 international river systems (covers 45% + earth’s land surface and supports 40% + world population)• 145 countries have some share in international river system (92 of them have 50%+ of their territories in these basins)• 21 countries receive 50% + of their surface freshwater supply from upstream countries (Egypt 97%, Sudan 77%).• Bangladesh & India share 54 common international rivers.
International Law Association, Helsinki Rules on the Uses of the Waters of International Rivers and Comments (1966) (‘Helsinki Rules’)
Every group of international legal experts to consider the customary international law of internationally shared water resources has embraced the rule of equitable utilization in one form or another. These groups have no official standing as lawgivers, but their opinions carry special weight because of the stature of the members who worked on these projects, and because the approval of the end result carries the imprimatur of a large and diverse body of experts. Foremost among these groups is the International Law Association, a highly regarded non-governmental organization of legal experts founded in 1873. The International Law Association completed the best-known study of the customary international law of transboundary water resources in 1966—the Helsinki Rules on the Uses of International Rivers (ILA 1966). The Helsinki Rules have heavily influenced state practice as well as the efforts of other international associations examining the law of internationally shared fresh waters.
The statement of the principle of equitable utilization in arts IV to VII of the Helsinki Rules, above n 1, is as follows:
Article IV
Each Basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.
Article V
I What is a reasonable and equitable share within the meaning of Article IV is to be determined in the light of all the relevant factors in each particular case.II Relevant factors which are to be considered include, but are not limited to:1. The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State;2. The hydrology of the basin, including in particular the contribution of water by each basin State;3. The climate affecting the basin;4. The past utilization of the waters of the basin, including in particular existing utilization;5. The economic and social needs of each basin State;6. The population dependent on the waters of the basin in each basin State;7. The comparative costs of alternative means of satisfying the economic and social needs of each basin State;8. The availability of other resources;9. The avoidance of unnecessary waste in the utilization of waters of the basin;10. The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and11. The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.
Article VI
A use of category of uses is not entitled to any inherent preference over any other use or category of uses.
Article VII
A basin State may not be denied the present reasonable use of the waters of an international drainage basin to reserve for a co-basin State a future use of such waters.
The Berlin Rules on Water Resources
At its meeting in Edinburgh in January 1996, the Water Resources Law Committee of the International Law Association voted to compile and review the entire body of its and its predecessor committees’ work from the Helsinki Rules of 1966 through various supplementary rules approved by the Association through 1996. The Committee and the Association confirmed this decision at the biennial conference of the Association in August 1996, appropriately in Helsinki. I agreed to undertake the initial step, a consolidated compilation of the various rules approved by the Association. Based upon this consolidated draft, the Committee decided, at a meeting in Rome in June 1997, to attempt to revise the Helsinki Rules and their supplemental rules in light of the contemporary customary international law.
The Berlin Rules set forth a clear, cogent, and coherent summary of the relevant customary international law, incorporating the experience of the nearly four decades since the Helsinki Rules were adopted. The Berlin Rules take into account the development of important bodies of international environmental law, international human rights law, and the humanitarian law relating to the war and armed conflict, as well as the adoption by the General Assembly of the UN Convention. The Berlin Rules include within their scope both national and international waters to the extent that customary international law speaks to those waters.
The new paradigm found in the Berlin Rules has gained acceptance in customary international over the last 30 years or so without being fully identified or articulated before. This paradigm includes of five general principles that apply to States in the management of all waters, wholly national or domestic waters as well as internationally shared waters:
1. Participatory water management (arts. 4, 17-21, 30, 69-71);
2. Conjunctive management (arts. 5, 37);
3. Integrated management (arts. 6, 22-24, 37-41);
4. Sustainability (arts. 7, 10(1), 12(2), 13(2)(h), 22, 23(1), 29, 35(2)(c), 38, 40, 54(1), 58(3), 62, 64(1)); and
5. Minimization of environmental harm (arts. 8, 13(2)(i), 22-35, 38-41).
Additionally, the Berlin Rules posit three further rules relating to water in a strictly international or transboundary context:
6. Cooperation (arts. 9(2), 10, 11, 32-35, 42, 56-67);
7. Equitable utilization (arts. 12-15, 42); and
8. Avoidance of transboundary harm (arts. 16, 42).
This new paradigm—a coherent, comprehensive, and comprehensive vision of the current state of the relevant customary international law—should lawyers, water managements, and other decision makers well.
Convention on Wetland of International Importance Especially as Waterfowl Habitat done at Ramsar on 2nd February, 1971
The Contracting Parties, Recognizing the interdependence of man and his environment; Considering the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl; Being convinced that wetlands constitute a resource of great economic, cultural, scientific and recreational value, the loss of which would be irreparable; Desiring to stem the progressive encroachment on and loss of wetlands now and in the future; Being confident that the conservation of wetlands and their flora and fauna can be ensured by combining far-sighted national policies with co-ordinated international action; Have agreed as follows:
Article 1
1. For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters.
Article 5
The Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. They shall at the same time endeavour to co-ordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna.
Convention on the Law of the Non-navigational Uses of
International Watercourses 1997
Article 5:Equitable and reasonable utilization and participation
1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.
2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.
Article 6:Factors relevant to equitable and reasonable utilization
1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:
(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;
(b) The social and economic needs of the watercourse States concerned;
(c) The population dependent on the watercourse in each Watercourse State;
(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourseStates;
(e) Existing and potential uses of the watercourse;
(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;
(g) The availability of alternatives, of comparable value, to a particular planned or existing use.
2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.
3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.
Article 7:Obligation not to cause significant harm
1.Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States. 2. Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
Article 8:General obligation to cooperate
1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.2. In determining the manner of such cooperation, watercourse States may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions.
Article 9:Regular exchange of data and information
1.Pursuant to article 8, watercourse States shall on a regular basis exchange readily available data and information on the condition of the watercourse, in particular that of a hydrological, meteorological, hydrogeological and ecological nature and related to the water quality as well as related forecasts.
2. If a watercourse State is requested by another watercourse State to provide data or information that is not readily available, it shall employ its best efforts to comply with the request but may condition its compliance upon payment by the requesting State of the reasonable costs of collecting and, where appropriate, processing such data or information.
3. Watercourse States shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilization by the other watercourse States to which it is communicated.
Article 11:Information concerning planned measuresWatercourse States shall exchange information and consult each other and, if necessary, negotiate on the possible effects of planned measures on the condition of an international watercourse.
Article 12:Notification concerning planned measures with possible adverse effects
Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.
Article 18:Procedures in the absence of notification
1. If a watercourse State has reasonable grounds to believe that another watercourse State is planning measures that may have a significant adverse effect upon it, the former State may request the latter to apply the provisions of article 12. The request shall be accompanied by a documented explanation setting forth its grounds.
2. In the event that the State planning the measures nevertheless finds that it is not under an obligation to provide a notification under article 12, it shall so inform the other State, providing a documented explanation setting forth the reasons for such finding. If this finding does not satisfy the other State, the two States shall, at the request of that other State, promptly enter into consultations and negotiations in the manner indicated in paragraphs 1 and 2 of article 17.
3.During the course of the consultations and negotiations, the State planning the measures shall, if so requested by the other State at the time it requests the initiation of consultations and negotiations, refrain from implementing or permitting the implementation of those measures for a period of six months unless otherwise agreed.
Dams and Development: A New Framework for Decision-MakingThe Report of the World Commission on Dams-2000
Step 1:The sponsoring agency prepares terms of reference for the overall process and a stakeholder analysis, and establishes an information centre. Representative stakeholder groups are contacted, and the general public is informed through print and electronic media.
Step 2:A stakeholder forum is formed and representatives of stakeholder groups identified subject to public review and comment. A multi-disciplinary planning team is formed to support the process and assembles an initial inventory of options.
Step 3:Public comment is invited on the options inventory including proposals for additional options to be considered. The stakeholder forum confirms the comprehensiveness and adequacy of the options inventory. Where necessary, additional steps are taken to expand the inventory.
Step 4:The stakeholder forum decides on the criteria for screening the options and criteria for coarse and fine ranking of options are established with input from the planning team.
Step 5:Options are screened by the planning team according to the agreed criteria; results are presented to representatives of the stakeholder group for approval and subsequently announced for wider public review or comment.
Step 6: Sequential steps of coarse and fine ranking of options (where the number of options islarge) are prepared by the planning team and submitted to the representatives of the stakeholder forum at each stage. The list of options at each stage is made public and an adequate period for comment is provided between each stage. Public hearings may be held at each stage if appropriate.
Step 7:The final selection of options that would form the basis for detailed planning is presented to agencies, communities, or groups responsible for the detailed planning. These steps lead to preparation of a limited set of diverse development plans comprising a range of options emerging from the screening process. The multi-criteria exercise may be repeated to evaluate these alternative plans and select a preferred development plan.
Procedures for Shared Rivers
A basin-wide perspective is promoted for open discussion of the issues, negotiation on sharing the benefits, and the mitigation of any adverse impacts. The procedures for equitable and reasonable utilisation, no significant harm, prior notification, impact assessment, and dispute resolution will build on provisions of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses and other international agreements. Such provisions are also relevant to rivers within a country shared between a number of sub-national entities.
Prior notification
States considering options that may have a significant impact on other riparian States should notify those States at various stages and establish an effective channel of communication between all potentially affected parties. Notification should occur:
◄ at an early stage of planning, as part of the strategic impact assessment, and should allow potentially affected riparian States at least three months to identify relevant issues for inclusion in subsequent preparatory studies and impact assessments;
◄ during the scoping stage of impact assessments, to allow agreement on mechanisms for sharing technical data and information, and for participation in project-related impact assessments – potentially affected riparian States should respond within three months of the notification;
◄ prior to selecting an option on a shared river as part of a preferred development plan – potentially affected riparian states should receive adequate technical information about the proposed project and the results of any impact assessments, and should respond in writing within six months of the notification with their findings and response to the proposed project; and
◄ as required to cover any additional data and information that is available and necessary for an accurate evaluation by any potentially affected riparian States. In the event that properly notified riparian States do not respond in a reasonable and timely manner, the notifying State would proceed with planning and development, subject to its observance of the relevant international law principles and the Commission’s strategic priorities and policy principles. In the event that a State fails to notify another riparian State which could potentially suffer significant harm by the proposed action, the potentially affected State should be able to request and receive information, make their views known, including proposing modifications, and be part of a negotiatedsettlement before any action to construct the dam is taken. If this opportunity is denied, remedies should be available through the International Court of Justice (ICJ), or other appropriate mechanisms.
1996 Treaty on Sharing of the Ganges WaterARTICLE-1X
Guided by the principles of equity, fairness and no harm to either party both the Governments agree to conclude water sharing Treaties/Agreements with regards to other common rivers.
The judgment of the International Court of Justice (ICJ)
The judgment of the International Court of Justice (‘ICJ’) in the Gabèíkovo- Nagymaros Project also supports the proposition that equitable utilisation is the basic governing principle of customary international water law. The facts of the dispute are relatively straightforward. In 1997 Hungary and Slovakia appeared before the ICJ in a dispute over the Danube River. Despite several attempts at peaceful settlement, the parties could not find a solution to issues involving the construction of a dam at Gabèíkovo-Nagymaros. Hungary refused to proceed with the project agreed to in an earlier bilateral agreement11 on the grounds that the work would cause damage not foreseen at the time of the conclusion of the agreement. Slovakia reacted by diverting the Danube and implementing a ‘provisional solution’ aimed at providing for itself the benefits anticipated under the Nagymaros works. In their arguments before the ICJ, each side took opposing views on the principles of international law applicable to the development of the Danube. Hungary alleged that Slovakia had violated the rules of equitable utilisation and ‘no-harm’ by diverting the Danube and implementing a ‘provisional solution’.12 The ICJ rejected the no harm principle and ruled in favour of Slovakia. In the process, the ICJ reinforced the proposition that the principle of equitable utilisation continues to be the dominant principle of international water law.
International Human Rights Laws that has relevant articles in relation to this issue in various way
◄ILO Convention-107 (Article-11-13)
◄ ILO Convention-169(Article 13-18)
◄ICCPR (Article-1 & 27)
◄ESCR (Article-1)
◄RTD
THANK YOU VERY MUCH28th July, 2009
Laws and Legal Principles relating to Transboundary Water Sharing
Written by Fazlous Satter Monday, 24 August 2009 06:53
Laws and Legal Principles relating to Transboundary Water Sharing Syeda Rizwana HasanAdvocate, Supreme Court
&
Chief Executive, BELA
The paper was presented in a seminar titled ‘Tipaimukh Mega Dam Project: Looking into the International River Laws, Environmental & Human Security Perspective’ held on July 28th 2009 at BRAC INN Auditorium, Dhaka. Organized by the Centre for Human Rights, Development & Human Security (CHRDHS)Laws and Legal Principles relating to Transboundary Water Sharing
A. Laws, Treaties and Agreements setting legal principles (quality and quantity), institutionsNotable Ones:
1. UN Convention on the Law of the Non-navigational Uses of International Water-course, 1997 – Framework Convention-Needs 35 ratification
2. Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March, 1992)
Preamble and Objectives
Article 1 and 2 of the UN Charter ;
International co-operation, good neighbourliness;
Rio Declaration and Ageda 21;Utilization, development, conservation, management and protection ;
Optimal and sustainable utilization for present and future generations.
PART II General Principles (Articles 5-10)
Equitable and Reasonable Utilization and Participation and Factors Relevant (Articles 5, 6)-
Optimal and sustainable utilization, right to utilize-duty to cooperate, consideration of the interests of the waterstates concerned, adequate protection of the watercourseFactors
Geographic, hydrographic, hydrological, climatic, ecological factors
Socio-economic needs
Populations Dependant in each State
Effects of the use on other watercourse
Availability of alternatives of comparable values
Existing and potential use
Conservation, protection etc.
All these factors to be considered together and conclusion to be reached on the basis of the whole
PART III Planned Measures (Articles 11-19)
Inform, consult, negotiate, if necessary (Article 11)
Notification to be timely, to contain technical data, information, EIA- to allow understanding of possible effects (Article 12)
Consultation and negotiations to respect the rights and legitimate interests of states
PART IV Protection, Preservation and Management
Protection etc, individually/jointly (Article 20);
Pollution of an international water course defined (Article 21);
No Alien/new species (Article 22) ;
Requires prevention and mitigation of harmful conditions-siltation etc.(Article 27).
2. European Convention (Adopted 17 March, 1992)
Defines Transboundary waters (Artilce 1 (1)), Transbounday impact (Article 1(2));
Endorses the Principles of Precaution, Polluter Pays, Intergenerational Trust;
More focused on Pollution Control;
Emphasises on bilateral and multilateral involvement;3. Other Important Regional Treaties
Endorsing the Principles of No Harm, Notification, Prevention of Pollution, Conservation of Rivers- 1944 Treaty between Mexico and USA over Colodaro Basin, further developed in 1973 (a major shift from the first treaty signed in 1904) operation of facilities not to cause “material damage”
- 1963 Act on the Niger Basin “cooperation of any project is likely to have an appreciable effect”
- 1964 Convention and Statute for the Chad Basin- Lake Chad Basin Commission to be notified of all projects
- 1977 Kagera Basin Agreement - Organization for the Management and Development of the Kagera Basin
- The Indus Waters Treaty, 1960- notification
- The Amazonian Cooperation Treaty, 1978- both socio-economic development as well as conservation of environment
- Convention for the Protection of the Rhine, 1976-chemical pollution
- The Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (between Cambodia, Laos, Thailand and Vietnam), 1995 - The Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, 1987 B. Evolution and Validity of the Legal Notions, Principles and Maxims1. Absolute Territorial SovereigntyProponent- US Attorney General Judson Harmon (1895), Dispute between US and Mexico over the waters of Rio Grande
Under the rules, principles, precedents of international law, no obligation on US to let flow waters of the river to MexicoSole case: 7 AJIL (1913), page. 653, dispute between Hungary-Austria
Tribunal concluded that international law till then did not develop to the point where upper riparian was obliged to refrain from conduct interfering with the use of river by downstream State. Interest of lower riparian would be considered fairly by the upper riparian as a matter of comity, but not as a matter of legal right.
US Making a Shift
By 1944, US abandoned this principle. The 1944 Treaty between the two countries over the sharing of water of the rivers Rio Grande, Colorado and Tijuana marked significant departure;Preamble: Fixing and delimiting the rights of the two countries over the rivers desirable to obtain the most complete and satisfactory utilization thereof;Majority Report of the Foreign Committee of the US Senate: Rights and obligations of the two countries over international streams are mutual and reciprocal;Secretary of States commenting on the Harmon’s notion while addressing disputes with Canada over Columbia river, “hardly the kind of legal doctrine that can be seriously urges in these times.”
India always had shifting position: See UNGAOR, 23rd session, 1682nd Mtg, page 19, UNGAOR, 23rd session, 1692, Mtg, page 25, UNGAOR, 31st session, Special Political Committee, 21st Mtg, pages 2-3, India’s position on the 1997 UN and China’s proposal on Brahmaputra
2. Absolute Territorial Integrity
-Natural Flow theory
-Every state must allow rivers over which it does not exercise unrestricted territorial sovereignty ... to follow their natural course; it may not divert the water to the detriment of one or more of the other States with rights to the river, interrupt, artificially increase or diminish its flow... Max Huber
-Lower riparians invoking this theory: Egypt in 1925 before the Nile Commission, also in Dakar in 1981 at the Interregional meeting of International River Organization.
-Pakistan in the Indus Water Dispute
-Bangladesh in dispute over Ganges: UNGAOR, 31st Session, Special Political Committee, 20th Mtg, pages 3-4
-“Bangladesh was entitled to the natural flow of the Ganges in order to satisfy existing human and ecological needs that could not be met in any other way ... The new use of the water by India contrasted with the existing multiple and interconnecting beneficial use to which it was put by Bangladesh.”
-Often criticized as “wasteful” since no development is allowed
3. Limited Territorial Sovereignty
Every riparian state has the right to use the water of an international river flowing on its territory, on condition that such utilization in no way prejudices the rights and interest of the co-riparian states.
Reciprocal rights and obligations
Sovereign rights are relative/qualified because of enjoyment of similar rights by other co-riparians
Accepted principle of general international law – no state can use its territory to the detriment of another’s territorial rights and interest
4. No Harm Rule
Latin Maxim:
• sic utere tuo ut Alienum non leadus (sic utere tuo-meaning use your own property in such a way that you do not injure other people’s)
• prohibetur ne quis faciat in suo guod mocere possit alieno (it is forbidden for anyone to do or make on his own land what may injure another)
• sic enim debere quem meliorem agrum suum facere ne vicini deteriorem faciat (everyone ought to improve his land as not to injure his neighbours)
• Pragmatic concept of sovereignty refined by the obvious fact of community and neighborhood
• - Legally definable interest in the form of equitable rights and interests
• An infraction of that may be characterized as injury
• Injury may be caused by reducing quantity, alerting the quality or changing the timing of flow or a combination of these
• Can be inflicted upon water use, environment, aquatic life, ecology
• Causal link between the water use and injury
• Offending State acting beyond equitable entitlement
5. Equitable Apportionment
Please refer to the factors prescribed in the UN Convention, 1997 (Article 6)
“What amounts to a reasonable and equitable share is a question to be determined in the light of all relevant factors in each particular case”6. Participation
Decisions on the Basis of ‘Rights and Risks’/Participation
Whose rights are being affected?
Who is likely to bear the costs?
C. Regional Experience: South Asia and Beyond1. South Asia
a. The Indus Waters Treaty, 1960b. Establishment of the JRC, 1972
c. 1974 Agreement between India and Bhutan on the Chukha Hydro-Electric Project
d. Agreement between India and Nepal on the Sarada Barrage, Tanakpur Barrage and Pancheshwar Project
e. Agreements and MoUs between Bangladesh and India, 1977, 1982, 1985 and 1996 on water sharing of the Ganges
f. Agreement on sharing of the water of Teesta
Basic Featuresa. Indus-Preamble
- Attaining most complete and satisfactory utilization of the rivers
- Fixing and delimiting the rights and obligations of each country in relation to the other Has defined Agricultural Use (Article 1(9), Domestic Use (Article 1(10), Non-Consumptive Use (Article 1(11), Interference with the Waters (Article 1(15)”
Obligations not to cause “material damage” (Article IV (2), (3)(a), (6), (9), (10)
Future Cooperation (Article VII)*Prior Notification of Engineering Project (Article VII (2)
Not establishing any general principles of law or any precedent
Ganges: Agreement dated 5 November, 1977- for five years (suspended by the 1996 Treaty)MoU dated 7 October, 1982MoU dated 22 November, 1985Treaty dated 12 December, 1996 - for 30 years
On need for cooperation, the 5 November, 1977 agreement said:
“desirous of sharing by mutual agreement the waters of the international rivers flowing through the territories of the two countries and of making the optimum utilization of the water resources of their region by joint efforts”
Stressed on finding a fair solution
Agreement does not establish any general principles of law or precedentTreaty dated 12 December, 1996 - for 30 years, once again repeated
“desirous of sharing by mutual agreement the waters of the international rivers flowing through the territories of the two countries and of making the optimum utilization of the water resources of their region in the fields of flood management, irrigation, rive basin development and generation of hydro-power for the mutual benefit of the people of the two countries”
For the mutual benefits for the peoples of two countries
Finding a fair and just solution
1996 TreatyArticle IX
Guided by the principles of equity, fairness and no harm to either party, both the Governments agree to conclude water sharing Treaties/Agreements with regard to other common riversArticle X- Review of the present treaty based on the principles of equity, fairness and no harm
India’s shifting position
On dispute over GangesUNGAOR, 23rd Session, 1682 Mtg, page 19
90 percent of the length of the main channel of the Ganges flowed through India
94 percent of the population in the Ganges basin lived in India
99 percent of the catchment area of the Ganges and 91.5 percent of the entire irrigation potential lay within IndiaUNGAOR, 23rd session, 1692, Mtg, page 25
“that an upper riparian can use the waters of a river as it pleases, regardless of the situation which that might cause to the lower riparian State”
India’s position on UN Convention, 1997 aligns with the notion of Absolute Sovereignty
On the other hand, signing of Indus Treaty, opposing Pakistan’s proposal to construct Karnafuli Dam* or opposing China’s proposal to divert waters from Brahmaputra suggest otherwise.UNGAOR 31st Session, Special Political Committee, 21st Mtg., page 2-3: On Bangladesh’s claim over Ganges
“India, for its part, had always subscribed to the view that each riparian State was entitled to a reasonable and equitable share of the waters of an international river”
UNGAOR 23rd Session, 1682 Mtg., page 19: On Pakistan’s proposal to build Dam
No country has the right permanently to submerge sovereign territories by its project
What principles of international law would support the inundation of a foreign territory by the construction of a barrage on its own territory?
D. Case Precedent-Endorsing the legal maxims and principlesLeading: Gabcikovo-Nagymaros Case decided by the ICJ (37 ILM 162)
Dispute between Hungary and Slovakia over the Danube river
Breach of Agreement (1977) pleaded as Hungary decided to abandon work of construction work (1989)
Slovakia proceeded unilaterally with the Gabcikovo Project that involved the construction of a dam in the Slovak territory that resulted in temporary diversion of water
In the court, Hungary urgued ‘protection of environment’ as justification for abandonment
ICJ confirmed the validity of 1977 and found Hungary in breach
ICJ also endorsed the provision of Article 5 (2) of the 1997 Convention and held that Slovakia failed to respect ‘proportionality’ and deprived Hungary of her right to ‘an equitable and reasonable share’
Other Pertinent Cases:
• Wurttemberg and Prussia vs. Baden (3 state of Germany over Danube)
• Lake Lanoux Arbitration (France & Spain)
• The Roya Case (France & Italy)
• The Trail Smelter Case (Washington vs British Columbia (Canada))
• The San Juan River Case (Coasta Rica & Nicaragua)
• Solothurn vs. Aargan: Swiss Case (Swiss case)
• The Gut Dam Arbitration (US & Canada )
• Corfu Channel Case: The UK and Albenia (UK & Albania)
• The Island of Palmas Case: United States vs. the Netherlands (Us vs The Netherland)E. Implementation, Monitoring, Dispute Resolution
• Committee, Commission (Fact-finding), Arbitration, Mediation, Third Party Resolution, Conciliation, Regional Set Up, International Court of Justice,
Thank You---------------------------------------------------------------------------------------------------------------------For any information regarding CHRDHS please visit www.chrdhs.org Contact: This e-mail address is being protected from spambots, you need JavaScript enabled to view it This e-mail address is being protected from spambots, you need JavaScript enabled to view itThe Tipaimukh Dam:Who is to benefit from?
LAST_UPDATED2 Written by Fazlous Satter Monday, 24 August 2009 06:04
The Tipaimukh DamWho is to benefit from?
Engr. M. Inamul Haque*
The paper was presented in a seminar titled ‘Tipaimukh Mega Dam Project: Looking into the International River Laws, Environmental & Human Security Perspective’ held on July 28th 2009 at BRAC INN Auditorium, Dhaka.
Organized by the
Centre for Human Rights, Development & Human Security (CHRDHS)
The Barak River:
The Meghna River is continuation of the Barak River that originates from the south of Naga highlands in the Manipur state of India. This river receives waters from its several tributaries named, Makru, Irang, Tuivai (Tipai), Jiri, Chiri, Sonai, Jatinga, Dhaleswari, Harang, Longai, etc., arriving from Nagaland, Manipur, Burma,Mizoram and Assam. The Barak River has two major parts; one through the hills of Manipur and Mizoram, in Senapati, Tamenglong, Churachandpur, Kolashib and Champhai districts, the other in the plains of Assam in Cachhar, Hailakandi and Karimganj districts. Its total length in India is about 500 km.
The Barak River enters Bangladesh near Amalshid of Sylhet district and bifurcates. The right hand branch is the Surma River and the left hand branch is the Kushiara River. The Surma (old channel) and the Kushiara rivers reunite near Markuli in Habiganj district and becomes the Kalni River. Near Bajitpur of Kishoreganj District, this river meets the Ghorautra River to become the Meghna River. Thus, the Meghna River from its entry point in Bangladesh travels in the names of Kushiara, Kalni, and Meghna for about 530 km to fall in the Bay of Bengal.
Map 1: Location of Tipaimukh & Fulertal
Tipaimukh Dam:
Tipaimukh is the place on the border of Kolashib district of Mizoram and Churachandpur district of Manipur, where the Tipai (Tuivai) River falls in the Barak River. Here, the Barak River arriving from northeast, through the Kala (Kacha) Naga areas of Manipur in Tamenglong district, makes a U turn. The Tipai River originate in Myanmar, arrives from the south to fall on this turning point. The Barak River then flows towards the Cachhar district of Assam over the eastern valley of Bhuban Hills.
The Barak River is known as Ahu in Manipur. A dam at the Tipaimukh was contemplated as early as in 1954. Presently, the Brahmaputra Board in Guahati has floated this 50 billion dollar project under the Central Water Commission. This dam of height 162.8 meters would submerge 311 sq. km areas to store 15 billion M3 water,
and generate 1500 MW hydroelectricity.
Since inception, people in Assam, Manipur & Mizoram started protesting against this project, as it would submerge cultivable lands, uproot people and cause extinction of some tribes from the valleys. The Zeliangrong & Hmar communities and Kukis of Churachandpur District would be the most affected. An action committee on Tipaimukh Dam Project was formed in 1991. The Zeliangrong Students Union in 1994 and the Zeliangrong Naga Union of Assam, Manipur & Nagaland in 1995 sent memoranda to the Prime Minister of India opposing the Dam.
The Manipur state of India has two river systems; the Barak River to the west flowing towards Bangladesh has 200 meters low altitude valleys, the Manipur & Kabaw Rivers to the east flowing towards Myanmar has 2500 meter high altitude valleys. In August 1995, and later in 1998, the Manipur State Government came in opposition to the Tipaimukh Dam. Despite this, the North East Electric Power Corporation getting permission from Brahmaputra Board in Assam signed MoU with the state government of Manipur in January 2003. The Central Electricity Authority gave Final Techno-Economic Clearance to NEEPCO on July 2, 2003. The Tipaimukh Dam project is scheduled to be completed by 2011 (The Independent, Dhaka. December 2, 2004).
Joint Rivers Commission :
The India Bangladesh Joint Rivers Commission was engaged in recent years in confidence building between the two nations, on the proposed River Interlinking Project, through which India wants to divert Brahmaputra River water towards western India. India always denied however, saying, ‘the project at very much conceptual and nascent stage’ (The Daily Star, Dhaka. 29.09.2003). But India by now has implemented parts of this project in central India (Route 24 between Ken River and Betwa River). Having the Ganga Water Treaty signed in 1996, Bangladesh at this moment wants to discuss sharing waters of Tista, Dudkumar, Dharla, Manu, Khowai, Gomti & Muhuri rivers.
India now plans to build a storage dam at Tipaimukh to produce hydroelectricity, and a barrage on the Barak River at Lakhipur (Fulertal) in Cachhar district. Storage of water shall affect the hydrological characteristics of the river by regulating downstream flows particularly in October to January. By barrage, a substantial quantity of water shall be diverted, resulting in lower low flows towards Bangladesh from February to May. By these two interventions, the Barak River shall loose its seasonal flow characteristics, leading to environmental catastrophe.
The Bangladesh side of the Joint Rivers Commission is now pressing for a minimum environmental flow in the common rivers; when the remaining flow can be shared between nations, to withdraw or divert for irrigation. Flow of the Tista River is now restricted in India by a barrage at Gazaldoba; the Bangladesh side has a diversion barrage at Dalia; but until now, no agreement on the distribution of its flow is signed between the two nations. As a result, there is no environmental flow to the downstream of the Tista barrage in Bangladesh.
Flow Patterns :
The Surma is the main river flowing through the haor areas of Sylhet Division. It feeds the lowlands with flood during monsoon and drains them in winter. The ground elevation has a natural slope towards the Tanguar Haor in Sunamganj, which has surrounding elevation about 3m average above mean sea level. The Surma River has catchments in the Garo, Khashi and Jaintia Hills. The floods in the haors arrive in April, after any heavy downpour in the Barak or Surma valley.
A dam at Tipaimukh shall restrict some flood flow towards the lowlands of the Kushiara & Surma valleys. This flood if of an early one in April, the dam shall held up water in its reservoir, and shall help the boro crops to get harvested. But if it is during rainy seasons from July to September, the dam reservoir shall spill out the water beyond its capacity. Anyway, storage in the dam to produce hydroelectricity shall augment low flows in the rivers during dry months; so the haors shall remain filled in water until January. As a result, boro crop coverage shall be reduced.
The Barak River to the downstream of Tipaimukh shall have controlled flow released from the dam. A barrage at Fulertal further downstream shall not contribute to the floods, but shall take away much of its flow for irrigation. As a result, the Barak River towards Bangladesh shall be significantly lean from February to May, and shall create drought in the area.
The Dam Dynamics:
The Barak valley in India after the Tipaimukh Dam in place shall transform the valley into two different scenarios, one on the upstream of the dam, and the other to the downstream of the dam. On the upstream, there will be two large lakes; one on the Barak and Irang rivers towards north, the other on the Tipai (Tuivai) River to the south and east. The Tipai River curls on its alignment and has catchments in Mizoram, Manipur and Myanmar.
The Barak River upstream of Tipaimukh has catchments of about 10,000 sq km. With an average annual rainfall 1500 mm in the area, the total water generation should be 15 billion M3. But the available runoff minus the minimum annual average evapo-transpiration of 1200 mm cannot be more than 3 billion M3. Water has to be released from the dam hitting the turbines round the year to generate electricity. In that case the average flow shall come to about 33000 cusec. This can be as much as 80,000 cusec (added through spillways in flooding months) to about 5000 cusec (through the turbines only) in dry months.
Chart 1: Effects of Tipaimukh Dam & Fulertal Barrage
The dam dynamics is; to create reservoir, water flow has to be stopped on the dam. This shall delay flow downstream until the desired level in the dam is achieved. The dead storage is filled in the starting year, so the delay shall be of lesser times from the subsequent years, but shall be on regular basis. The water stored in rainy months shall be released in drier months, so shall have increased flow at that period in the river downstream.
Who is to benefit from? :
The Tipaimukh Dam shall change the hydrological and morphological characteristics of the Barak River. It shall inundate people’s home and land in the Manipur and Mizoram states by the storage. People shall be forced to migrate or vanish from the reservoir areas. No compensation or rehabilitation plan can be adequate against such disaster. People living downstream of the dam shall have controlled flow with lesser threat of flood; but the navigation routes shall dry up due to the barrage. As the dam site is on a risky Taithu fault in the northeast Indian earthquake zone, people here shall also remain under threat of submersion in case of collapse of the dam when earthquake strikes.
The Tipaimukh Dam shall give a severe blow to the existing natural environment. Some animals on the ground shall loose their habitat and get lost. Some fishes shall loose their breeding ground and get extinct. Large amount of forestry shall be drowned. The cropping pattern downstream shall change.People living far out in the cities shall be benefited with the new supply of hydroelectricity. Contractors engaged in the construction works shall be benefited. Prices of land & cost of living shall go up. Sufferings of the poor people around the project areas shall increase.
Dam Philosophy:
Building dams for generating hydroelectricity, and supplying water to cities from the created reservoirs were considered of great civil engineering fit during 1950s and 1960s. But in 1970s, eviction of human population, loss of agricultural land, and damage to the ecosystem were quantified several times loosing than the benefit achieved. By 1980s, public sentiment against dams started and in 1990s it is opposed from everywhere in the world.
Dams may give some benefits in developed countries where compensation to the evicted people is given substantially. But in poor countries of Asia, eviction means extinction or slavery. When Farakka Barrage came into operation, some experts in Bangladesh advocated building dams in Nepal to store up Himalayan waters to augment Ganga flows, against an Indian proposal of divert Brahmaputra water to Farakka. Public opinion against the dams in Nepal forced their government to refrain from two dam proposals over the Gandak & the Sapt Koshi Rivers.
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*Engr. M. Inamul Haque Former Director General, Water Resources Planning Organization. Ministry of Water Resources.Available: This e-mail address is being protected from spambots, you need JavaScript enabled to view it , 01817123631.
For any information regarding CHRDHS please visit www.chrdhs.org Contact: This e-mail address is being protected from spambots, you need JavaScript enabled to view it This e-mail address is being protected from spambots, you need JavaScript enabled to view it
SAY NO TO TIPAIMUKH DAM?
LAST_UPDATED2 Saturday, 08 August 2009 16:57
Co-Chairperson,
Citizens' Concern for Dams and Development (CCDD,)
Manipur, India
Organized by the
Centre for Human Rights, Development & Human Security (CHRDHS)
The historic Old Cachar Road, popularly known as Tongjei Maril and traditional waterways along the Barak will be disconnected from the state capital and the upper Barak 'forever'. The people use the river extensively for transportation as road connectivity is poor. They carry bamboo and ginger through the Tuivai river to Barak and then all the way to Lakhimpur in Lower Assam. A 20 km. stretch of the existing New Cachar Road (NH-53), including two major bridges over the Barak and Makru rivers will be submerged.
A large number of people, mostly Zeliangrong and Hmar indigenous peoples, will be displaced permanently .. Official figures state that 1,461 Hmar families will be directly displaced due to the project, but the number of villages to be affected is yet to be independently verified (the 1984 report said 31 villages, in 1998 the official number fell to 15 and the 2000 report of NEEPCO records only 8 villages). The dam will submerge areas of about 311 sq. km covering 90 villages with 1,310 families, including 27,242 hectares of forest and cultivable land and posing serious threat to the rich biodiversity, flora and fauna of the region. The forested hills are the habitat of rare and endangered species of reptiles and mammals, including pythons, gibbons, leopards and deer. The region is rich in orchids, medicinal and herbal plants.
The benefit from the Tipaimukh Dam remains uncertain with the state envisaged to receive only 5% of the total power output of the project, which even falls below 40 MW at the envisaged generating capacity of the project at 350 - 450 MW. The question emerges as to why the people of Manipur should sacrifice such enormous land rich in biodiversity for so little benefit. The power again will only be used to electrify only the elite groups of Manipur, the people deprived of power. Despite Loktak Project with an installed capacity of 105 MW of power, people of Manipur are victimized with load shedding and complete blackouts till today. The long term demographic impact will be enormous with the laborers and the workers manning the projects and the Indian military guarding the project will be mostly from outside the state.
The Government of Manipur and NEEPCO conducted two Public Hearings on Tipaimukh Dam on 17th November and 22 November at Churachandpur and Tamenglong District respectively despite peoples' call for revocation of the Memorandum of Understanding on Tipaimukh Dam signed between NEEPCO and the Governor in Council during Presidents Rule in Manipur in 2001. The hearings flouted all democratic processes and undermined accountability. The denial of participation of affected villagers while entertaining handpicked villagers in the two hearings also constitutes an attempt to drive a wedge among the people of Manipur to create disunity, misunderstanding and conflict.
The project authorities stage managed and instigated back door affirmative presentations of 13 villagers for Tipaimukh at Tamenglong as against the stance against the project by more than 90 percent of the people of Tamenglong District on 22 November 2006. The first public hearing on Tipaimukh at Darlawn Community Hall, Darlawn, Mizoram on 2 December 2004 was severely criticized for its lack of transparency on the part of project proponent and failure to provide project documents, including Detailed Project Report, Environment Impact Assessment and Environment Management Plan.
In violations of India's own environmental rules and developmental standards, the power Minister of India laid foundation stone for Tipaimukh Dam on December 2006 despite peoples objections. Earlier, in defiance of the call of the affected peoples to refrain from laying foundation stone, the Prime Minister of India, Mr. Manmohon Singh, publicly declared to lay the foundation stone. Again, the project authority, NEEPCO, in violations of all developmental norms and in disregard of peoples call for widespread consultation and their consent taken with due provision of information on the project, had called for International bid from International construction companies for construction of Tipaimukh Dam.
Again, the Memorandum of Understanding between the Government of Manipur and the project authority was signed on 9 January 2003 even as the affected peoples both in the upstream and downstream portion of Barak River called for a wide spread consultation on Tipaimukh Dam based on provision of information on the project. This undemocratic move from the project authorities and the Government of India is further consolidated when the Assam Rifles, a paramilitary unit of the Indian Army, operating in Manipur for counter Insurgency operations, came out publicly that AR will provide security for Tipaimukh Dam.
The two public hearings held at Churachandpur and Tamenglong on 17th November and 22 November 2006 respectively have in 2006 were fraught with manipulations, the project proponent and the Government bribing villagers to make false submissions without provisions of information, inciting misunderstanding and possible conflict among the communities of Manipur. Affected peoples had already rejected the two public hearings as the Public Hearing process is a weak mechanism with no space to entertain the multifaceted grievances of affected peoples and norms of accountability seriously missing out.
Various organizations in Mizoram consistently demanded the Mizoram government and NEEPCO for withdrawal of their petition for diversion of forest land for non-forest purposes from the Ministry of Environment & Forest to pave way for implementation of Tipaimukh Hydro-electricity (multi-purpose) project. The organizations also maintained that the consent of the people in the affected areas of the project has not been sought while applying for the forest clearance and that the 1500MW project will affect 1618 hectare of forest inside Mizoram. On 11 July 2005, the Aizawl-based Centre for Environment Protection (CEP) has strongly demanded of the Mizoram government and NEEPCO for the withdrawal of their petition for diversion of forest land for non-forest purposes from the Ministry of Environment & Forest to pave way for implementation of the controversial Tipaimukh Hydro-electricity (multi-purpose) project.
Concerns expressed by affected villagers in the downstream portion of Barak River, mostly in Bangladesh, remained unheard. On March 9, 2005, the National Committee for Resisting India's River Aggression, Dhaka, Bangladesh, launched a protest march towards Jakiganj in Sylhet from Dhaka to protest against the construction of a dam at Tipaimukh on the river Barak, the water source of Surma, Kushiara and Meghna rivers. An International Tipaimukh Conference at Dhaka in December 2005 also strongly objected the construction of Tipaimukh High Dam, seriously viewing the absence of consultation and participatory impact assessment in both the upstream and the downstream portion of Barak River. Numerous representations have been submitted to the Prime Minister, Union Power Ministry, Chief Minister of Manipur and to project authorities, North Eastern Electric Power Corporation.
Perspectives on defined Merits:
Economic viability : Sushil Kumar Shinde, the Union Power Minister of India has stated on 12 May 2006 on the floor of the last session of the parliament that the Central Electricity Authority of India had already expressed that the Tipaimukh Multipurpose Hydroelectric Project is not economically viable . Given that the project cost has been revised again in accordance with September 2008 standard, the cost of the project has been skyrocketed once again. It is also pertinent to mention here that with the receipt of the environmental clearance for taking the project in October last year, 2008, the project cost has further been updated at September 2008 price level. The updated cost (excluding the components for flood moderation, external security and diversion of national highway, but including internal security and NPV), works out to Rs 8138.79 cores. The first year tariff and levelised tariff works out to Rs 4.65 and Rs. 4.03 per unit respectively. The submergence of prime forest and agricultural land in Churachandpur and Tamenglong districts of Manipur will again be a big economic disaster for the people of these two districts who rely on their forest and land for their economic sustenance.
Addition on Defined demerits: The environmental clearance of the Ministry of the Environment and Forest to commence construction of Tipaimukh Multipurpose Project is despite the fact that the downstream impact assessment is still yet to complete. And questions looms large on the conscience of the EAC of the MOEF as to how a project is conceived without undertaking a comprehensive impact assessment covering both upstream and downstream portion of the river. Similar adhoc, exclusive and non-transparent approach in development decision making is also visible with the case of the Lower Subansiri project where the downstream impact assessment of the project is undertaken only after various civil societies in Assam raised the issues. If not for the voices from Assam, the Lower Subansiri project would have been proceeded without undertaking downstream impact assessment. The Govt of India , NEEPCO and officials of the MOEF are lucid clear that any mega development initiatives foremost require a comprehensive process respectful of the rights of peoples, the need for elaborate participatory impact assessment, both upstream and downstream impacts and other multifaceted impacts. The selective and exclusive impact assessment of NEEPCO and NHPC in both Lower Subansiri Project and Tipaimukh dam project is a sinister effort to deceive the indigenous peoples of the region.
Questions over any decision over transboundary rivers vis a vis indigenous peoples rights. Question still looms large as to whether any particular country has exclusive rights to decide over transboundary rivers such as Barak River in exclusion of indigenous peoples rights. The issue of access and use of transboundary rivers is still an international debated Issues and the Government of India must not complicate the issue with the construction of Tipaimukh Dam. Indigenous peoples who has been using these waters have rights over any decision making process over the use of their waters in accordance with international human rights standards, primarily the UN Declaration on the Rights of Indigenous Peoples. Indigenous Peoples have the right to free prior and informed consent and the right to define and develop the way how they feel their land and resources should be developed in accordance with the UN Declaration on the rights of Indigenous peoples, 2007.