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  • Avantika Verma & Swapnil Singh

Nocturnal Embargo: An Aid to Nocturnal(s)

Introduction

The construction of roads is a crucial part of development and connectivity being the priority, results in a lot of green areas being sacrificed in order to lay roads. These transport lines when passed through ‘protected areas’ affect the ecosystem structure, dynamics of ecosystem function including the composition of species. Consequences of clearing these lines have a dreadful effect on the ecosystem. Negative ecological impacts of roads through protected areas are many and include frequent vehicular movement on roads which results in animal mortalities, modification in animal behaviour affecting natural movement patterns, increased access for humans thereby resulting in illegal activities etc.


The Bandipur Dispute

Recently in the limelight is the Bandipur Night Ban[i]. NH 67 and NH 766 (previously NH 212) are the two main highways that pass through the Bandipur Tiger reserve. Frequent use of the highway and speeding vehicles results in large number of mortalities including that of heavy animals like Tiger, elephant calf etc. Aggrieved by the deaths and ecological imbalance, the forest officials had requested for night ban on the use of vehicles at highway which was approved by the deputy commissioner. But due to severe pressure from locals the ban was lifted.


The issue was then taken to Karnataka High court and through order dated 9th march 2010 the court reinforced the night ban taking into consideration the protection of wildlife.[ii] The Supreme Court on August 8, 2019 [iii] reaffirmed the court’s view about the night time traffic ban from 9 Pm to 6 Am which has been in effect for the last ten years now. The decision of the Supreme Court has again sparked various protests by the locals of Wayanad who will be economically affected if the entire stretch of the highway is closed.[iv]  There has been a number of debates that have surfaced regarding the protection of wildlife versus the needs of locals but no logical conclusion has been reached.


A Glimpse into other Jurisdictions

If we study about other jurisdictions, there have been many countries that have faced the same dilemma and all of them have come up with solutions of building a wildlife corridor. For Instance, South Florida has always been a hub for now endangered Panthers but the state proposed Collier development project has hastened its extinction.[v] Around 45000 acres of land in the south Florida is marked for the housing and development out of which almost half of the area is considered to be the “primary zone” for Florida Panthers.[vi] The increased traffic and road kills during and after the construction will result in habitat loss and other adverse effects. There have been efforts made by both U.S. Fish and Wildlife Service and the Florida Department of Transportation to find a solution where the needs of both are met.[vii] They have come up with building of underpass which will allow the panthers and other species to cross under the roadway safely without any human intervention.[viii]


Jaguars are considered as endangered species in Mexico but jaguar habitat has been fragmented into half of its original area stating development reasons. The Environmental Impact Assessment and the Mexican authorities have identified that the newly made road that passes through green corridor connecting the Sian Ka´an JCUs and Yum Balaam is where major population of Jaguars exist.[ix] The construction has led to many road kills which necessitated building up of wildlife corridors for the smooth passage of the Jaguars.[x]


Similar conflict was also seen with Spain’s critically endangered European mink mustela lutreola where road kills again was the main issue.[xi] Spanish highways started incorporating walkways for animals to connect wildlife from one side to the other.[xii] It was observed by the researchers that these structures actually decreased the animal mortalities on roads.[xiii] Washington is the latest to join the club as it constructs its first corridor ‘Snoqualmie Pass’ in the Cascades running from Seattle to Boston for the smooth passage of animals like deer, coyotes etc.[xiv] The Banff National Park in Canada is home for 25 wildlife passes while Netherlands has 600 wildlife under and over passes. [xv]


Wildlife Corridors : A Viable Solution?

Indian Government also came up with construction of wildlife corridors as the solution for Bandipur Dispute but how viable is this solution is something to ponder over. But if we take a deeper look into the Indian law, the Wild Life (Protection) Act, 1972 (‘WLPA’) is the primary statute which talks about the management and notification of protected areas such as tiger reserves, sanctuaries and national parks.[xvi] The WLP[xvii] through its Section 36C(1) states: “The State Government may, where the community or an individual has volunteered to conserve wildlife and its habitat, declare any private or community land not comprised within a National Park, sanctuary or a conservation reserve, as a community reserve, for protecting fauna, flora and traditional or cultural conservation values and practices.” The WLPA necessitates that after the notification of the community reserve any change in the land use shall be made only in accordance with the resolution passed by the Management Committee and approval of the same by the State Government.[xviii] The Tiger Conservation Plan (TCP) for Bandipur, which was prepared under Section 38 V(3) of the WLPA, 1972, recommended night closure of highways passing through tiger reserves.[xix] Section 38 O(1)(b) states that there must be an evaluation and assessment of all aspects of sustainable ecology and non-promotion of ecologically unsustainable activities like mining, industries etc.[xx]


The Supreme Court recently put an immediate halt to the construction of roads, bridges and culverts in the Rajaji Tiger Reserve between Laldhang and Chillarkhal as it would “adversely impact the habitat and wildlife of the ecologically sensitive area”.[xxi] The Hon’ble Court has further temporarily banned tourism in the core areas of tiger reserves and held that critical tiger habitats should be kept inviolate of all types of human disturbances, including tourism.[xxii] In a recent case wherein a wall was built such that it cut through the path of an elephant corridor which resulted in death of a male elephant due to bashing its head against the wall. The Supreme Court ordered the wall to demolished and opined that animals have the first right on forest.[xxiii]


There is no specific Indian legal instrument also which specifically talks about constructions of wildlife corridors which show that the drafters never intended any kind of interference in Protected Areas. Further, such constructions are prohibited projects under the final notification of the Eco-Sensitive Zone for Bandipur issued in September 2011 based on the Environment Protection Rules, 1986. The guidelines make it clear that in the areas of threatened taxa, there should not be infrastructure development, and since Bandipur is a source habitat for tigers, flyovers cannot be constructed.[xxiv] Additionally, building wildlife passes are time consuming and expensive alternative. Wildlife passes when not constructed with roads are even more expensive which the case in the bandipur conflict is. The State government has been consistent in opposing the project and has also spent over ₹75 crore on an alternative road that bypasses the core forest area. The detour is only 30 km longer. Additionally, the Wildlife Board has exempted fire service vehicles, ambulance and 16 transport buses from the night ban. [xxv]


Even if the government still thinks wildlife corridors to be the solution for ending animal mortalities, the principle behind designating an area as ‘protected area’ stands defeated. The principle behind designating areas as the ‘protected area’ was to neutralize these areas with other aspects such as growth and development. Some areas must be repositories of natural heritage that one must not lose. They must be kept intact at any cost and must not be prioritized over infrastructure and development.[xxvi] Lastly, the laws governing the management of these wildlife corridors are not stringent enough to ensure their smooth implementation and maintenance.[xxvii] Though corridors seem to hold the most promise to restore biodiversity and recapture land for most of the countries but it is very expensive to construct one. The Government is limited by the financial resources and also the lack of study and analysis about the habitat which is going to be affected by the construction of corridor makes this investment disputable. Until a certain degree of confidence of its success is not ensured, this construction would be a shot in the dark. With night ban already fulfilling its objective by showing major decrease in animal deaths in the area, the State government should keep up with their initiative of 9-hour night ban. The use of the alternative route via SH 90 and NH 275[xxviii] which only increases the distance to parts of Karnataka by at least 40 kilometres looks like the most viable solution as it is the only way to balance both, ecological and economic development.

 

[iii]State of Kerela v. L Srinivasa Babu, Petition(s) for Special Leave to Appeal (C) No(s). 13838/2010.

[vi] ibid.

[vii]Ken Warren, ‘Improving Prospects for Florida’s Panther’, U.S. Fish and Wildlife Services, available at https://www.fws.gov/endangered/news/episodes/bu-spring2015/story1/index.html(Last visited on October 12, 2019

[viii]ibid.

[x]ibid.

[xi]Santigo Palazon, ‘Causes and Patterns of Human induced mortality in the critically endangered European Milk Mustela Lutreola in Spain’, Fauna & Flora International, Oryx, 46(4), 614–616 (2012).

[xii]Available at https://www.sciencedaily.com/releases/2008/09/080917074132.htm (Last visited on October 14, 2019).

[xiii]ibid.

[xvi]Raghav Srivastava & Richa Tyagi, ‘Wildlife corridors in India: Viable legal tools for species conservation?’, Environmental Law Review 2016, Vol. 18(3) 205–223.

[xvii]The Wildlife Protection Act 1972, Section 36(C)(1).

[xviii]supra 16.

[xix]The Wildlife Protection Act, Section 38(V)(3).

[xx]The Wildlife Protection Act, Section 38(O)(1)(b).

[xxvii]Mandy Tran, ‘Pros and Cons of Wildlife Corridor’, Available at http://darwin.bio.uci.edu/sustain/global/sensem/tran297.html (Last visited on October 22, 2019).

This blog is a part of RSRR Blog Series on Environmental Law. By Avantika Verma and Swapnil Singh, 4th year, Dr. Ram Manohar Lohiya National Law University, Lucknow.

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