In Nepal, conservation battles head to Supreme Court amid civil society silence

KATHMANDU — Nepal’s Supreme Court has become the latest battleground for environmental activists and defenders, while informed civil society organizations remain largely silent on conservation issues that have long-term implications.

Given its history, the Court has always been a strong pillar in environmental and biodiversity protection issues. It is now at the centre of public attention as it considers a crucial case that could determine the fate of Nepal’s protected areas, home to some of the world’s most endangered species. But without the support of civil society, the Court, which risks being criticised by public opinion as “anti-development”, is forced to deal with this delicate issue alone.

“People are taking their grievances to court because we have adopted an access to justice model,” former Supreme Court Justice Ananda Mohan Bhattarai said at an event in Kathmandu in February, shortly before his retirement.

In April, the government passed a controversial law allowing private developers to build infrastructure in protected areas, areas where local communities have been evicted or subjected to heavy restrictions. Although the law threatens decades of conservation progress, civil society has remained silent, forcing lawyers to take up the issue. “We had no choice but to take the matter to court,” said lawyer Sanjay Adhikari. “Our Constitution gives the Supreme Court the power to interpret the law.”

This silence contrasts sharply with other public mobilizations. In 2018, when the government proposed changes to the guthi The land tenure system, which is tied to religion and culture, has sparked protests across the country. Widespread opposition forced the government to repeal the law without resorting to a court order. Similarly, when the local government in Kathmandu attempted to turn a historic pond into a swimming pool, public outcry led to the project being cancelled.

“These cases show that when civil society intervenes, the government listens and lawyers like us don’t need to go to court,” Adhikari told Mongabay. “Without a strong civil society, the government, which is already a necessary evil, becomes even more harmful.”

Nepal’s Supreme Court has a long history of adjudicating cases related to environmental protection. These include community forestry, flawed environmental impact assessments, hydropower projects, wetland protection, illegal wildlife trade, and displacement caused by infrastructure projects. Public interest litigation (PIL) originated in Nepal in the 1990s, granting citizens the right to appeal to the court to secure their basic rights. Through PIL, landmark decisions on gender equality, among other issues, have led to legislative reforms.

The Court’s approach to conservation has generally focused on balancing human rights, sustainable development and environmental protection. This approach is enshrined in Nepal’s Constitution, which recognizes the right to a clean environment as a fundamental human right.

A major example of the Court’s role in nature conservation is its decision to halt the Nijgadh International Airport project, which would have required the felling of thousands of trees. The Court ruled that the government should restart the project while taking into account both development and conservation. Similarly, in the 900 MW Upper Karnali Hydroelectric Power Plant case, the Court ordered that the project share its benefits with local communities. The Court also ruled that forests and protected areas cannot be allocated to squatters and required wildlife collectors to to declare their collections to the government.

But the court has its limits. Nepal does not have a dedicated green court, meaning that ordinary judges handle environmental cases, often failing to consider important nuances. Judges have expressed concern that they will be labeled “anti-development” when they rule in favor of sustainability. Because the court acts as a last resort, its decisions can sometimes backfire.

But the court has placed sustainability at the center of environmental protection when addressing long-standing conflicts such as development versus environment, recognizing sustainability as both a fundamental element of the Constitution and a legal requirement, Bhattarai said in a recent study he authored for Harvard Human Rights Review.

But convincing the court is not easy, lawyers say. “Whenever we bring environmental and conservation issues before the court, it listens to the advice of experts,” said senior advocate Prakash Mani Sharma. “But our case weakens when experts remain silent,” he added.

Legal provisions now open protected areas such as Chitwan and Sagarmatha national parks to private investment in projects such as hydropower, hotels, roads and railways. Although the Supreme Court has temporarily stayed the new legal provisions, the case is still pending in court.

This situation could have been avoided if civil society had acted sooner. What started as procedures to open protected areas to hydropower development eventually resulted in an ordinance, Sharma said, adding that because no one objected, the government felt empowered to go further. According to documents obtained by Mongabay, the government is now drafting regulations that would open protected areas to hotels and allow activities such as mountain biking and power boating.

Shrawan Sharma, a right to nature activist, attributes this inaction to the lack of commitment of non-governmental organisations to the environmental cause. As a result, crucial issues end up being taken to the Supreme Court, which may or may not yield the desired outcome.

Supreme Court judges themselves point to the lack of coordination between ministries as a common problem. “A ministry makes a policy or rule without consulting the others, leaving the decision to the court,” Justice Sapana Pradhan Malla said at the February event.

Lawyer Sanjay Adhikari said he remained cautiously optimistic about the court’s role in safeguarding sustainable development. “While the court may falter, especially without the support of civil society, it remains our last line of defence. If the court gives up, we risk becoming a failed state,” he warned.

Banner image: Representatives of community forest user groups hold a protest in Kathmandu in February 2022. Image courtesy of FECOFUN

Quote:

Bhattarai, A.M., Sanjel, S., & Kanel, P. (2024). Environmental protection in the Himalayas: The role of the Nepalese judiciary in safeguarding human rights and the environment. Harvard Human Rights Review. Retrieved from https://journals.law.harvard.edu/hrj/wp-content/uploads/sites/83/2024/08/Bhattarai-Sanjel-Kanel-Final.pd

BACK: Use this form to send a message to the author of this article. If you would like to post a public comment, you can do so at the bottom of the page.

Nepalese government bypasses parliament to allow commercial projects in protected areas