An excerpt from “Litigating India’s Biological Diversity Act: A Study of Legal Cases”* by Shalini Bhutani and Kanchi Kohli, which seeks to examine implementation of the Biological Diversity (BD) Act, 2002, with special focus on various instances of how and why disputes or violations of the BD Act have landed up in Indian courts or before benches of the National Green Tribunal:
In November 2012 the Madhya Pradesh (MP) State biodiversity board (SBB) issued notices to 538 companies involved in ‘illegal’ collection of bioresources, especially medicinal plants, for commercial utilisation. On 11 January 2013 the SBB served notices to the three Coal India Ltd (CIL) subsidiaries — South Eastern Coalfields, Western Coalfields and Northern Coalfields – for extraction of coal for commercial purpose without informing the board, as a punishable offence, saying that coal comes under the Biological Diversity Act’s definition of a ‘bioresource’. In March 2013, Northern Coalfields Limited (NCL) responded to the notice by MP SBB stating that under Section 2(c) of the Biological Diversity (BD) Act, ‘biological resource means plants, animals and micro-organisms or parts thereof, their genetic material and by-products…’
Is coal a ‘bioresource’?
The Biodiversity management committee (BMC) Eklahara sought National Green Tribunal (NGT) intervention to declare coal as a bioresource to be able to insist on benefit sharing from coal companies [Application No. 28 of 2013(CZ) and Application No. 17 of 2014(Central Zone – CZ) THC] Judgment dated 16 October 2015.
Section 2(c) of the BD Act, 2002 defines “biological resources” as plants, animals and micro-organisms or parts thereof, their genetic material and by products (excluding value added products) with actual or potential use or value, but does not include human genetic material. Seeking to expand this definition to include coal a fossil fuel, as a bioresource and thereby extend the benefit sharing obligations of the BD Act, the MP SBB issued notices to PSUs like South Eastern Coalfield Limited (SECL) in January 2013.
The notices stated that neither prior intimation had been given to the SBB for use of bioresource in the form of coal, nor payment had been made towards ensuring benefit sharing (BS). At the same time the Biodiversity management committee (BMC) of Eklahara reportedly in discussion with the SBB filed a case before the NGT’s CZ Bench in Bhopal seeking its intervention. The relief sought included the demand to receive payment from Western Coalfields Limited for commercial use of coal from their area, which in the BMC’s view fell within the definition of a “biological resource” [Application No. 28 of 2013(CZ) and Application No. 17 of 2014 (CZ) THC].
While the MP SBB supported the contention of the BMC, the Environment Ministry and the National Biodiversity Authority (NBA) disagreed with this position. The latter two submitted that neither the Convention on Biological Diversity (CBD), nor the Biological Diversity (BD) Act had ever been conceived to regulate fossil fuels. Its primary focus has been genetic material and people’s knowledge on bioresources. This case created a wide debate in the media on whether coal should be treated as a bioresource or not. Mainstream newspapers also discussed whether this is same as levy of a “tax” (Times New Network, 201433; Kohli and Bhutani, 201334; Trivedi, 201335).
On 6 October 2015, the NGT’s CZ Bench declared that coal was not to be regarded a bioresource. The judgment relies on the following paragraph included in a letter from the MoEF&CC to the MP SBB which says, “It is hereby clarified that on the issue of whether coal is a ‘biological resource’ or not, the NBA and the MoEF&CC have unequivocally concluded that coal is not “biological resource” under Section 2(b) of the Biodiversity Rules, 2004. In fact the letter goes on to give directions under Rule 12(xiv) of the BD Act, 2002 which NBA is empowered to do to MP SBB on the subject stated above.”
Once the NGT upheld this contention it concluded that the BMC of Eklahara cannot invoke the sections of the BD Act that empower BMCs to collect fees against access to biological material in their area of jurisdiction.
*The study carried out under a collaborative effort between Kalpavriksh Environmental Action Group and the Foundation for Ecological Security (FES). Click HERE to download