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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 233
April 8 2006

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Law Alter views

Legal aspects of Phulbari coal mine

Abul Hasanat

A recent and much debated issue is the Phulbari coal mine project. Energy specialists, mine experts, geologists, economists and even bureaucrats have expressed their views on the project, which is supposed to be operational soon under the authority and supervision of Asia Energy Corporation (AEC), a British multinational company.

Constitutional obligation
Like many other countries, Bangladesh, as a state, is the absolute owner of all mineral resources which may be found beneath her territory. Article 143(1) of the Constitution of the People's Republic of Bangladesh declares, “There shall vest in the Republic, in addition to any other land or property lawfully vested- a) all mineral and other things of value underlying any land of Bangladesh.” The state, therefore, can lift them to ensure national development and public interest as well. In doing so, the government can enter into contract with any multinational corporation. However, that contract must be submitted by the President before the Parliament so that people's representatives can discuss on various aspects of the contract. Article 145(a) inserts that “All contracts and deeds made in exercise of the executive authority of the Republic shall be expressed to be made by the president and shall be executed on behalf of the president by such person and in such manner as he may direct or authorise.” This must be done and by this people can know where and how their national mineral resources are being used.

Whether any contract entered into at all
There is no direct contract between Bangladesh Government and AEC. In 1994, Bangladesh Government issued an exploration licence for BHP, an Australian company. Later on AEC, as a transferee company, took that licence which cannot be regarded as a contract at all. It , therefore, has only the right to explore and assess the potentialities of the coal mine.

Without a fair and full fledged contract, AEC cannot legally lift the coal of Phulbari. This contract must contain the provisions covering all aspects of the mine including future unwanted situation. If it favours the national interest in true sense, the government can enter into the contract, otherwise it should be rejected. Individual or so-called group interest must be ignored on Bangladesh's part. AEC shows that it had invested 2 billion taka in the project. But the question is why AEC invested this large amount of money. If there is any hidden contract between the parties, Bangladesh Government must be convicted of gross malpractices. They must be blamed for their ill-gains at the cost of national interest.

Duties of the contracting parties
AEC has submitted its total assessment report on Phulbari Coal Mine under the exploration licence. If AEC desires to contract with Bangladesh government, it must act bona fide leaving all sorts of malpractices. Bangladesh government must ensure that the displaced (from mine areas) peoples' are properly compensated and rehabilitated. AEC would be bound to fulfil the stipulations of the contract.

Proper compensation and rehabilitation
At least 40,000 people have to be relocated. Adequate compensation must be provided with order to rehabilitate them . Compensation should be determined not on the market price of mine area but of the area beyond the mine. This is because the market price of the mine area went down after the discovery of the mine.

AEC assessment report containing many moral obligations sounds well but practically that will hardly be materialised to the fullest extent. The displaced people from Barapukuria mine area realised practically what the dreadful and shocking experience of displacement is. Most of them turned pauper from solvent farmer. Actually if one's land is snatched away abruptly, that exact type of land can hardly be gained by him.

Administrative 'complexities' and indigenous people issue
A great section of the population at Phulbari area are indigenous people. They have been living there since their birth; their forefathers lived here for centuries. So these people, who are very simple, did not bother about legal documents of the land. They have neither the knowledge of administrative procedure nor any liaison with the government administration. However, the contracted company will submit the compensation money to the Deputy Commissioner of the district concerned. He will distribute the amount among the legal land owners who would be displaced.

But the bitter experience from Barapukuria shows that many displaced people did not get compensation. This happened because of the artificial complexities shown by the administrative authority. Some land owners got 67 thousands taka per bigha, whereas the then market price was 110 thousand taka per bigha. Even to get this amount, they allegedly had to bribe stage after stage of the administration. Their legal documents with some technical defects (e.g, spelling error etc.) have been discarded as invalid.

In this present situation, indigenous people will have no compensation and rehabilitation because of the absence of their legal documents. But they have traditional rights on the land which they have been cultivating or using as abode for long. The rights of the indigenous people on their possessed land have been recognised by various international legal instruments. These instruments have persuasive authority on Bangladesh Goverrnment to ensure all rights of the indigenous people. As per the article 25 of Bangladesh constitution, the state shall have respect for international laws and the principles enunciated in the UN charter.

Our constitutional provisions also help to ensure the special benefits and privileges for the indigenous people. Article 28(4) declares, “Nothing in this article shall prevent the state from making special provision in favour of women or children or for the advancement of any backward section of citizens.” Here Indigenous people necessarily comes under the definition of “backward section of citizens.”

To determine the real compensation and rehabilitation, multiple factors have to be taken into consideration. Compensation distribution should be dealt fairly so that all land owners can get their due amount of compenasation. Therefore, .....
a) The compensation amount should be handed over to the land owners directly by the company authority;
b) The indigenous people should be compensated for the land they have been possessing traditionally for long either as resident or cultivator;
c) Social, cultural, political, religious values should be counted in monetary terms which would be added to the land value.
d) Compensation should be double the market price of the land beyond the mine area.
e) The displaced people should be rehabilitated in such a way that they can maintain their traditional culture and values even after the displacement.

Concluding remarks
All the business enterprises, national or multinational, try to make more profit utilising their policies. Benevolent or humanitarian activities are also included within their policies. When their ultimate goal is likely to be materialised, they come out of their camouflage. AEC may also be not beyond or above this. Therefore, our government's position should be strict and clear. Unlike the contract between Bangladesh Government and Unocol, this contract should comprise all the essential provisions. These should also cover the unforeseen disasters which are harmful for the national interest.

The writer is a student of LL.M in Law Department, Dhaka University.


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