KATHMANDU – Nepal’s Constitution has recognized the right to live in a clean environment and healthy environment as the fundamental right of people, and the Article 30 (2) has granted the right to obtain compensation, in accordance with law, for any injury caused due to environmental pollution or degradation.
Even though Environment Protection Act (First Amendment), 2075 was issued in line with the same spirit, the government doesn’t seem to have implement the provision citing the failure to enact regulations and guidelines.
Section 17 of the Act states, “In case, in consequence of the creation or disposal of pollution, sound, heat or wastes by anybody contrary to this Act or Rules or guidelines framed hereunder, any person or organization happens to suffer any loss or damage, the person or organization affected from such actions may, if he/she desires to have compensation recovered from the person or institution or proponent doing such act, make an application to the prescribed authority setting out the details thereof.”
According to the Act the government officials should verify the damage or loss caused to anyone and ensure the affected person gets the due compensation from the institution responsible for causing the harm. However, Director General at the Department of Environment, Jhalak Ram Adhikari, said the right to get compensation by the people affected by pollution has not been implemented owing to lack of regulations and guidelines even though the Environment Protection Act (First Amendment)-2075 has been implemented. “There is not benchmark on how to compensate. That’s why we have to wait for regulations on compensation to those affected by pollution,” said Adhikari.
Along with the provision for compensation, the government officials say there will be higher chances of getting compensation from industries, crusher plants, and mines if any person lodges complaints against such sectors that emit hazardous pollutants.
Spokesperson at the Ministry of Forest and Environment, Dr Sindhu Dhungana said, “As the constitution has adopted the right to live in clean environment as the fundamental right, its ambit has become broader. Thus, we can only go for implementation by making regulation.”
According to the existing system, the responsibility of environmental monitoring rests on the chief district officers at district level and the Department of Environment at the central level. But in the changed context after the country adopted federal structure, the environmental monitoring responsibility is likely to be shared among all three tiers of the government.
“It is necessary make a clear standard for providing compensation to the people affected by pollution. That’s why guidelines should be prepared for including the issues that couldn’t be incorporated in the regulation.”
It is well known that the local authorities in Kathmandu Valley has been facing problems in collecting and disposing garbage for weeks especially during monsoon season. Advocate Padam Bahadur Shrestha said now the people can claim compensation from the state by lodging complaint that their right to live in clean environment has been violated due to the foul odor from the garbage piles.
‘Compensation can be provided to those affected by pollution’
Earlier on November 16, the National Human Rights Commission (NHRC) wrote a letter to Office of Prime Minister and Council of Ministers with a 10-point recommendation on keeping the environment clean. Copies of the letter were also sent to the government offices including the Ministry of Environment.
The 10 (d) point of the letter has stated, “The commission on November 14 made a decision to enact necessary laws in line with the spirit of Article 30 (2) of the Constitution so as to provide free medical treatment and compensation to those affected by environment pollution.”
“After the NHRC recommendation, the government has to enact concrete laws in order to provide compensation to the people affected by the pollution,” said Advocate Shrestha. In 2016, Shrestha had lodged a complaint at NHRC stating that the environment pollution has caused a serious impact on public health and the Supreme Court order regarding the environment protection has not been implemented.
“Either by enacting necessary laws or through alternative arrangement, the government should ensure provide the constitutionally guaranteed right to clean environment and the compensation to the victims,” he said.
Even as the government officials have been saying the laws on compensation are being formulated, experts say the people affected by pollution can be compensated according to Environment Regulation 2054.
“Environment Protection Act (first amendment)-2075 has only been amended but not scrapped the old,” said Jyoti Baniya. “Thus, the Environment Protection Regulation 2074 will continue to exist until a new regulation is made.”
The authority can’t wash its hands of the issue of proving compensation to the victims of pollution as each Nepali has the right to live in a clean environment.
Former Joint Secretary at the Environment Ministry Batu Krishna Uprety said there won’t be any complication in implementing the compensation rule as both the Environment Act 2053 and Environment Protection Regulation 2074 have the provision of compensation.
Rule 45-47 in Section 8 of the Environment Regulations 2074 states about compensations to pollution victim.
Organizing a program on September 9, the NHRC said there had been delay in enacting concrete laws relating to the environment due to lack of coordination between government bodies that has resulted in the violation of people’s fundamental right to live in a clean environment.
According to constitutional provision, the laws pertaining to fundamental rights should be implemented by September 19, 2018. Though the Environment Protection Act has been implemented, it is not complete.
An official at the Ministry of Forest and Environment said, “The first amendment of act was passed to meet the constitution requirement on fundamental rights. But the act should be amended again to incorporate other issues.”
In the first amendment, the Ministry of Environment had prepared the first draft so as to include the impact of climate change and adaptation. But the issue was put on the back burner after the Ministry of Law, Justice and Parliamentary Affairs said only the laws related to fundamental rights would be issued in the first phase. “The task of amending the act and making regulation would begin now,” said Spokesperson Dhungana.
However, not much discussions have been held on the issue of providing compensation to the pollution victim, as demanded by the NHRC in recent times, and for implementing the regulation. “The rule on the benchmark for compensation to the pollution victim has yet to be drafted. We will hold discussions after preparing the draft,” said Dhungana.
The provincial government can also enact environment related laws along with the federal government but the laws should not contradict with the federal laws. “There is no mandatory provision for the province to enact law. But they can draft their own laws so as not to contradict the federal laws,” he said.
The NHRC has advised that all three tiers of government should work collectively for the issue of clean environment is a vital for everyone.
