The Unfairness Of Doing Good

Conservation is good, but is it always fair? It is indigenous and local fishing communities that are bearing the costs of marine protected areas. They are faced with denial of livelihoods, displacement from fishing grounds, arrest and harassment for asserting their rights to use coastal spaces and the sea as common property resources.

A proposed clause in the Draft WLPA Amendment Bill, 2010: Penalties for hunting in a wildlife sanctuary: imprisonment upto 5 or 7 years or fine between 5 – 25 lakh rupees or both.

Who enjoys being scrutinised, questioned or judged? Most of us fiercely defend our actions, our carefully constructed worldviews, especially our calculations of right and wrong. Challenging assumptions about people, organisations or events associated with human endeavours that have a moral or virtuous prologue – like religion, charity, saving the planet, conservation – is always an uncomfortable if not unpleasant business. (Fellow conservationists of our amorphous tribe are herewith forewarned of the contents of this piece.)

Is conservation fair practice? Those who generally ask this the loudest, are the impatient ‘developers’ of our country – bureaucrats of ‘forward-looking’ ministries, proponents of large dams, mining conglomerates or industries that are in a deadlock with environmentalists over project clearances. My question is neither in this category nor is it a roundabout approach to congratulate conservation workers. This article wishes to realign attention towards complexities in doing ‘good’ that are often sacrificed at the altar of expediency. Now what would be a fair way to go about addressing this?

Conservation is as conservation does. It therefore gathers as much meaning and interpretation as it does followers and practitioners. It is also synonymous in public imagination with an array of ‘positives’ depending on your preference – prohibiting the hunting of endangered species; sustainably hunting endangered species; creating refugia for wildlife, such as national parks and sanctuaries; re-drawing park boundaries to sustain local livelihoods; preventing industries or development activities detrimental to ecosystems; compensatory afforestation programmes undertaken by mining companies in return for forest clearance permissions. And thus, we come to inhabit a world where tribals and mining corporations can both make claims to a conservationist identity.

Ostensibly due to the global nature of the impacts on nature and earth, localised efforts since over half a century are today eclipsed by the global enterprise of conservation — employing an expanding international workforce and garnering financial support from a still larger population worldwide. This is conservation by specialists, with custom-made structures and institutions built for this express purpose – to mediate, inform, decide on, or drive home (even distant ones) expert solutions to environmental problems.

Conservationists and their organisations operate at village, district, state, national, regional or international scales or a combination of these. The diversity of goals that marked the enterprise of conservation earlier is gradually being homogenised by organisations that are able to straddle all these scales of influence. Global priorities are encouraged to navigate and establish themselves between goals that emerge at a local scale. How has such specialist conservation effort impacted the livelihoods and rights of local communities? What good comes from doing good?

The complaint that marine areas do not receive as much attention as terrestrial areas probably holds true for scientific research (both in the natural and social realms), but is fast diminishing for conservation interventions. A large number of international, national and local NGOs in various countries are involved with the protection and conservation of marine habitats and species. Many of the larger organisations, particularly the international organisations such as International Union for Conservation of Nature (IUCN), WWF, Conservation International and Greenpeace, are working towards globally established marine conservation goals. These goals range from the protection of various marine species such as sea turtles and dugongs, to entire habitats. In the menu of protection options, Marine Protected Areas (MPAs) and species protection (through hunting /catch bans) hog the show as conservation strategies. Answers to the above questions are sought in this article, by examining the experiences around the conservation endeavour of establishing MPAs as one of the foremost global goals.

The mission of IUCN’s World Commission on Protected Areas is “to promote the establishment of a global, representative system of effectively managed and lasting networks of MPAs”. The United Nations’ Millennium Project calls for 10% of the oceans to be covered by marine reserves in the short to medium term, with a long-term goal of 30%. WWF’s Global Marine Programme aims at working towards a network of effectively managed, ecologically representative MPAs covering at least 10% of the world’s seas. Greenpeace’s report Roadmap to Recovery – a Global Network of Marine Reserves states that it seeks to campaign for a network of (high seas) marine reserves covering 40.8% of the world’s oceans. The Indian state has the obligation to demonstrate biodiversity conservation, being also a signatory to the Convention on Biological Diversity (CBD), whose members have agreed to bring at least 10% of the world’s marine and coastal regions under protection by 2012.

Well, what really are MPAs? How many do we have here in India? The CBD defines it as “any defined area within or adjacent to the marine environment, together with its overlying waters and associated flora, fauna, and historical and cultural features, which has been reserved by legislation or other effective means, including custom with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings”. For the Government of India it is the protected areas in coastal and marine areas defined under the Wild (Life) Protection Act (WLPA), 1972, taking the figure of MPAs in India to 131 (according to its third report to the CBD). The fourth and latest report to the CBD promises to find ways to establish new ones. Any other form of protected area, outside of the WLPA, are not recognised by the Government of India.

Judging fairness

One can use a range of measures to judge the experience of declaring MPAs and the fairness of marine conservation in India. In doing so, one needs to bear in mind that while laws and the declaration of MPAs are effected by the state, their origins and implementation are influenced heavily by interest groups – such as conservationists, or development lobbies. I discussed these ideas with V Vivekanandan, Advisor of the South Indian Federation of Fishermen’s Societies and the Convenor of the National Campaign for the Protection of Coasts (NCPC). His forthright views on some indicators of fairplay suffixed below neatly sum up the facts of conservation reality in the country:

Conservation design?

    “Applying something from the terrestrial field whether appropriate or inappropriate, from a marine ecosystems and fishing communities’ point of view, will be catastrophic – bad for the community; it’s quite unjust.”

The WLPA has no historical record of being a people-friendly environmental legislation. Conversely, it calls for the extinguishing (through settlement) of all rights within national parks, and within sanctuaries declared under it, only a select few activities sanctioned by the Chief Wildlife Warden are permitted. The WLPA was drafted bearing in mind terrestrial systems. Hence, all our officially recognised MPAs, which are declared only under the WLPA and not under any other laws (like fisheries laws) and are all based on a system of protecting bounded spaces. Thus the Gahirmatha Marine Sanctuary (GMS) in Orissa, declared on September 27, 1997, measuring about 1,435 sq km, stretching 20 km into the sea, is closed throughout the year, despite the fact that sea turtles are highly mobile and their congregation patches (containing several mating pairs) are often seen outside the GMS. The scientific rationale for many of India’s MPAs has been questioned. It also doesn’t help that there is evidence that the Gahirmatha’s boundaries were shortened to accommodate the (then) proposed Dhamra port (ref: letter from the Government of Orissa to the Forest Department dated June 20, 1997). Although the same file holding this letter contains another one from the Orissa Fisheries Department opposing the GMS declaration, on account of impacts to local fisherfolk, those concerns never found any listeners.

Early in the game, scientists like the celebrated H R Bustard, of crocodile breeding fame, and scientists from the Central Marine Fisheries Research Institute did promote the idea of according protection to this area, but science itself had little to do in determining the final contours of India’s largest MPA’s design, as seen above.

Participation over commons?

    “The problem with most of these laws is that they are introduced and for a long time they lie idle. So nobody knows whether to take it seriously, or nobody is even aware. Suddenly, there is a trigger and it starts getting enforced. Firstly, nobody was informed that these PAs were being initiated and so there was no possibility to intervene at an early stage.”

The largest blind spot of the WLPA is its assumption on the ownership rights over territorial waters. Naturally as an instrument of the state, the law cannot question the state’s exercise of eminent domain over territorial waters. Section 26A (1)(b) easily dismissed any need for the state to undergo the motions of hearing claims over rights. This section is based on the assumption that all rights over territorial waters vest with the Government of India, and hence there can be no claims of rights over these waters by the fishing community. This clause saves the district collector and the forest department the trouble of having to enquire into and finally settle claims and/or extinguish rights. However, historically coastal spaces and the sea are common property resources that fishing communities have managed, protected and utilised under a range of governance regimes. Coastal lands are spaces for beach-based fishing activities like fish drying, net mending, storing boats and nets, and an important recreational space for fisherfolk. The sea is often mistaken to be an ‘open access’ area, but is in fact governed by very carefully developed access codes, developed and created by age-old community governance institutions. All this is simply brushed aside by the clauses of the WLPA and the opportunity to make a claim — hearing the ‘other side’, a principle of natural justice — remains unattended to this day.

Proportionality principle

    “As long as there is fishing, there will always be bycatch, whatever be the gear. See, basically the law, and what the constitutional position is on land, water and sea is, that is one thing. But practically speaking, the small fisherman is already a victim of over-fishing, as a result of state-sponsored mechanisation programmes. The government has virtually no control of this now, and few clues on how to manage our predominantly decentralised, small-scale, informal community-based fishing. In light of this, I would say it’s even harsh or unjust to punish fishermen for these so-called ‘offences’.”

The definition of hunting in the WLPA is a perfect description of all forms of fishing – capturing, killing, baiting, snaring, trapping, driving an animal, even poisoning (albeit illegal). Mercifully, this section only applies to wild animals specified in schedules I-VI of the Act. However, it includes sea turtles, dolphins and a range of other marine species which are ‘bycatch’ in fishing operations. If the proposed WLPA Amendment Bill, 2010 comes into effect, a fisherman caught with a single sea turtle in his net (not necessarily in the GMS) risks either an imprisonment term between five to seven years or a fine of Rs 25,00,000 or a combination of both, for good measure!

he definition of hunting does not distinguish between incidental catch and intentional hunting. Left to the discretion of forest guards and local forest officials, conflicts over bycatch have escalated tensions all over coastal Orissa where sea turtles are found. Problems arise when each offence of incidental catch makes forest officials and conservationists treat the fisherman as a Sansar Chand of the sea, while turtle mortality due to mechanised trawlers continues and while ports establish themselves neatly along mass nesting sites in Orissa. For the traditional fisherman, a time when the punishment fits his ‘crime’, is yet to come.

Deciding on a foundation of unknowns

    “There is so much diversity (of communities) on the coast that the state by itself has no capacity to understand it. So the government starts something, then we have to fight it, then it says ‘consultation’ etc. The same time could be better spent in a much more detailed investigation of the realities of the coast, with an open mind and a genuine enquiry into what the status of the fishing community is, and what you really mean by customary rights. Nobody has ever explored this. The state has the resources to do that – it can call on expertise to do that but it never has.”

The rationalisation of the boundaries of the GMS has been a persistent demand from the Orissa Traditional Fisher Workers’ Union. Scientific studies on turtle congregation areas from the other mass nesting site at Rushikulya also point to the futility of a large constant bounded space for protection. Despite growing insecurity over livelihoods and growing conflict over fishing restrictions, there is still much reluctance among many conservationists (government and non-government) to alter the GMS boundaries or even review fisheries restrictions within it. The rhetoric for treating the MPA’s boundaries as sacrosanct, has evolved from GMS being a turtle reserve to it being a fisheries reserve – for the welfare of fisherfolk of course. This noble intention is grounded in unknowns. Without any assessment of the need for a fisheries reserve at this site, and without information on the social and economic nature of fisheries in this region, without investigating the management regimes of these coastal and marine commons, the putative benefits of this fisheries reserve are also unknown. The application of the ‘precautionary approach’, to retain status quo at GMS, suggests the operation of prejudice in choosing between unknowns.

The WFFP-ICSF Nagoya 2010 statement — more than a verdict

    Indigenous and local fishing communities are deeply concerned about non-inclusive approaches to conservation and management, in particular, about current, target-driven efforts to establish marine and coastal protected areas (MCPAs). Studies undertaken indicate that in many countries it is indigenous and local fishing communities who are bearing the costs of such efforts. They are faced with denial of livelihoods, displacement from fishing grounds, arrest, harassment and other forms of human rights violations.

At the latest Conference of Parties of the CBD (COP 10) in the city of Nagoya, Japan, the World Forum of Fisher Peoples (WFFP) and the International Collective in Support of Fishworkers (ICSF) – both international mass-based bodies representing the livelihood concerns and interests of small-scale, artisanal fisherfolk, released the statement, quoted above, that summarises the cost of conservation to fishing communities. In addition to this, they state “In several parts of the world, small-scale fishing communities have been known to take their own initiatives, as part of traditional and more recent systems, to protect and manage their resources, including by setting aside ‘no-take’ or ‘limited-use’ areas.” The Nagoya statement is therefore more than a pronouncement of the unfairness of the conservation experience of MPA establishment on traditional fisher communities. It is their emphatic claim to a conservationist identity.

These conservationists also have causes. Familiar terms appear in the statement — protection of coasts and seas; use of the precautionary principle; ecosystem approaches. One might say that central to their cause is raising their stakes in deciding conservation design, participation, proportionality in punishments, decisions on the unknown…


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