• TWL Desk

Exploitation of The Earth : Legalities and Illegalities of Sand Mining

Author : Varshika Kanala



INTRODUCTION

Sand is one of the world’s most demanded and most valuable resources. A study by the United Nations Organisation has determined that the global demand for sand to be more than 40 billion tons a year, China being the leading consumer, followed by India. As in the case of other natural resources, sand too, is being consumed at a much faster rate than it can be replenished. On a global scale, the sand mining industry is worth $70 billion.

Sand Mining or more specifically, illegal sand mining refers to the unabated extraction of sand from reservoirs, beaches, riverbeds and lakes. Although sand mining is legally regulated by law, in many instances it is an illegal activity. Despite the direct impact illegal sand mining has on the ecological system, it has become an environmental issue that has often taken a backseat when compared to issues like deforestation or water pollution.

Owing to population pressure, increased demand coupled with scarce supply, illegal sand mining or the Sand Mafia, as it is called unofficially, has been growing and expanding at a rapid pace. Infrastructure requirements, land reclamation projects and artificial land expansion are the three major reasons for which sand is demanded. This rise in demand has consequently resulted in the extreme environmental damage and destruction of the marine ecosystems, particularly in river banks.

While it may seem like we have an endless supply of sand, this is not so. Similar to how all water bodies are not sources of drinking water, only specific types of sand are useful for infrastructure building. Illegal sand mining is more prevalent in riverbeds than in other locations. This is because river sand is more ideal for construction activities as it is of a better quality and requires less processing. Desert sand, on the other hand, has a much finer texture and is unsuitable for any kind of infrastructure building. This is the reason why even the United Arab Emirates has had to import close to $456 million worth of sand from other countries in the year 2014. This number has only grown due to increased demand. Hence, illegal sand mining has an extremely direct and drastic impact on the marine environment and aquatic life.

INTERNATIONAL TREATIES

Despite the existence of international and regional legal frameworks to prevent the illegal extraction and transportation of sand, they have not been able to prevent it. The lack of stringent laws, little to no accountability, lack of consistency in laws and the absence of international cooperative efforts have led to the rampant exploitation of this natural resource. As of today, there are more than 200 different international treaties between countries with the aim of restricting and regulating mining activities while preserving marine ecosystems and environment. A majority of those international treaties and regulations are focused on preserving the marine environment and promoting the efficient use of natural resources including sand. However, owing to their broad scope, there was no specific rules barring the uncontrolled exploitation of sand. 2 of the most important international treaties which have been established for the purpose of governing sand mining, particularly marine sand mining are as follows:


1) UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

The Convention was adopted on the 10th of December, 1982 and has since been ratified by 162 countries. It is a comprehensive legal agreement which lays down the rules to be adhered to in the usage of marine resources. It has a very wide scope and encompasses all problems and difficulties related to the sea. The Convention contains the various rights and responsibilities of the member countries to be fulfilled by then. It also details the guidelines and regulations to be followed in the management and extraction of marine natural resources. Part XII of the Convention, in particular, contains the provisions relating to the protection and preservation of marine ecosystems and wildlife. This part creates a general obligation on the member parties to protect and preserve their marine environment while pursuing their right to exploit their natural resources. Article 208 and 214 of the Convention impose obligation on coastal States to create and enforce laws and regulations in order to prevent, reduce and control pollution in the marine environment through activities like sand mining. Article 194(2) of the Convention states that the State must take necessary steps to make sure that the mining and extraction activities undertaken by it are not carried out in a manner which would result in damage to other States and their environment.

Article 235 of the Convention imposes obligation on all its parties to fulfill the duties and responsibilities imposed upon them by the articles of the Convention. It also holds them liable in case of violation or failure to comply with these obligations, as held in Malaysia V Singapore. In this case, Singapore was held liable for violating several provisions of the Convention as it was conducting land reclamation activities that were causing severe harm to the marine environment under the jurisdiction of Malaysia.

The language of this Convention is such that it aims to create a collaborative sprit among countries in their joint effort to preserve the environment. However, the major drawback of this Convention is that it does not prescribe the potential standards that the guidelines of States must adhere to. It also does not provide details or guidance on how these regulations and rules must be established. As a result, the Convention leaves room for varied interpretation by States and thereby, leading to a lack of consistency in international standards.

2) CONVENTION ON BIOLOGICAL DIVERSITY (CBD)

This Convention was adopted on the 22nd of May, 1992 and was formally enforced on the 29th of December, 1993. The purpose of creating the Convention was to encourage cooperation among countries to protect and conserve biodiversity in marine environments while simultaneously undertaking efforts required for rehabilitation of degraded ecosystems. The Convention currently has 193 parties. According to Article 3 of this Convention, the States could still retain and pursue the right to exploit their resources but will be obligated to do so responsibly and ensure that they do not damage the environment within their jurisdiction, or in the jurisdiction of other States. The Convention exists as a legal framework for all the member countries.

Article 5, 6 and 7 of the Convention encourage cooperation among States to develop conservation strategies and programmes for ensuring sustainable use of natural resources, while simultaneously identifying, monitoring, and rehabilitating those environments which have been drastically damaged. Article 7, in particular, imposes a duty on the member States to identify, monitor and assess the impact of activities like sand mining on the environment. Article 14 of the Convention places an obligation on the member States to also carry out assessments to determine the environmental impact of proposed infrastructure projects.

The aim of the provisions of this Convention is to create obligation and responsibility on the States themselves by making them accountable for their actions. An activity like sand mining is proven to be very detrimental to the marine ecosystem and biodiversity. However, these provisions too, are broad and open to interpretation. The guidelines proposed by the Conventions are voluntary and States are free to formulate their own regulations through national legislations. As such, these provisions act only as mere guides to safely carrying out mining. National legislations, on the other hand, have limited enforceability restricted to that particular nation.

SITUATION IN INDIA India has been suffering with the problem of illegal and unauthorized sand mining since several years. Owing to growing demand nationally and internationally, sand is becoming one of the most extracted and exploited natural resource in the country. The problem is so widespread and prevalent that it has developed into a booming black-market business. In India, illegal sand mining is prevalent in the States of Meghalaya, Punjab, Yamuna, Delhi, Bihar, Madhya Pradesh, Gujarat, Odisha, Telangana, Karnataka, Andhra Pradesh and Tamil Nadu. Unsustainable and unauthorized mining practices are rampant throughout the country despite the existence of various laws and guidelines being enforced. These are as follows:

1) MINES AND MINERALS (DEVELEOPMENT AND REGULATION) ACT, 1957

In India, Section 23(c) of the Mines and Minerals (Development and Regulation) Act of 1957, gives power to the State Governments of India to create rules and legislations in order to regulate sand mining and thereby, prevent illegal mining and transportation of it. It is the foremost national legislation that seeks to reduce the problem of sand mining by increasing transparency in the lease auctioning process and accountability of the mine owners through regular monitoring of the mines. Section 4 of the Act specifically designates mining of sand without necessary permits as illegal. Section 21 provides the penalties for violation of the provisions of the Act. These punishments include imprisonment for up to 5 years, imposition of fine of up to Rs. 5 lakhs per hectare, seizing of tools, equipment and vehicles used for the illegal mining and recovery of the illegally excavated material or its price. However, since it is left to the State Governments to make laws and rules governing mining activities, there is a lack of consistency from State to State. In addition to this, difference in opinion between the State and Central Governments has often times led to a lack of cooperation between the two. These two drawbacks have been the major obstacles in effective implementation of this legislation.

2) SUSTAINABLE SAND MANAGEMENT GUIDELINES 2016

These Guidelines were provided by the Ministry of Environment, Forest and Climate Change. They laid emphasis on the importance of sustainability in sand mining and monitoring of the impact of mining activities on the environment. It encouraged social responsibility and accountability in mining while also suggesting the exploitation of alternative sources of procuring sand. The Guidelines also focused on conservation, protection and restoration of ecological systems while maintaining river equilibrium.

Under this set of guidelines, the process of approving environmental clearances for sand mining and auctioning of leases was decentralized. District Environment Impact Assessment Authorities (DEIAA) were established for the purpose of conducting district-level surveys reports (DSR) as a means of screening mining proposals. The burden for implementation and enforcement was placed on district and state-level authorities.

However, these guidelines were regarded as largely unsuccessful in curbing the practice of illegal sand mining. One of the main reasons was that the Guidelines did not prescribe the procedure to be followed in the creation of DSR, which is an essential step to be undertaken for evaluating mining proposals. As a result, the reports were often not detailed enough and excluded the opinion of the local residents of the area, who are decidedly, the most important stakeholder in the process. Inherent drawbacks in the guidelines coupled with poor governance, rampant corruption and involvement of government officials themselves in the sand mafia led to the ineffective implementation of these Guidelines.

3) ENFORCEMENT AND MONITORING GUIDELINES FOR SAND MINING 2020

Due to the ineffectiveness of the Sustainable Sand Management Guidelines of 2016 and following a series of orders from the National Green Tribunal in 2018, the Ministry of Environment, Forests and Climate Change released another set of guidelines. The new set of guidelines were known as the Enforcement and Monitoring Guidelines for Sand Mining 2020.

These new Guidelines were to be enforced parallelly along with the 2016 Guidelines. While the previous guidelines focused on management of sand mining, the new ones emphasized on monitoring and increasing transparency to facilitate the enforcement of various regulatory provisions. The 2020 Guidelines provided for several necessary measures such as:

  • - The undertaking of river audits to identify and create an inventory the various sources of sand.

  • - Establishment of detailed and clear procedure to be followed when preparing comprehensive District Survey Reports.

  • - Constant monitoring of mining activities by using drones.

  • - Conducting replenishment studies of river beds to understand and eliminate the adverse impacts of excessive sand mining.

  • - Prohibition of reverbed mining during monsoon seasons.

  • - Encouraging purchase and sale of sand through online modes to ensure transparency in the process. Since the 2020 and 2016 guidelines are to be enforced simultaneously, the new set of guidelines would prevail over the old guidelines in case of a conflict between the two. Apart from these national guidelines and statutes, each state has also implemented its own policies and legislations in consonance with the MMRD Act, 1957 and the Guidelines of 2016 and 2020.

CONCLUSION

The prevention, reduction and elimination of illegal sand mining is of utmost importance due to the significant impact it has on the environment. National Legislations and Guidelines in India have a much more specific scope focused on sand mining when compared to the International Treaties which have a wider scope. As such, it becomes necessary to further strengthen these guidelines with strict laws and stringent penalties to potentially eradicate the problem of unauthorized mining. The complex environmental and regulatory problems posed by sand mining need to be addressed in a comprehensive manner by the States. Establishment of internationally applicable standards of mining and stringent machinery for monitoring are key steps in curbing illegal sand mining. Regular surveys to collect data regarding the sand mining activities to ensure that they are operating according to standards is also a necessary tool for effective enforcement. It is also suggested to undertake awareness programmes at the grassroots level to encourage public participation in decision-making.


In addition to these measures, research must be undertaken to explore the alternative sources of sand like slag, crushed bricks, or waste products from bricks and tiles industries for use in infrastructure building. Multi-layered strategies at the regional, national and international level should be created and enforced to bring consistency and coherence in establishing a legal framework to regulate sand mining activities. Such strategies must encourage and emphasize on increased transparency and accountability as a means to develop more sustainable mining practices.

REFERENCES

  1. http://www.cmla.org/papers/Professor%20William%20Tetley%20Award%20Submission%20- %20Riley%20Weyman.pdf

  2. http://www.legalserviceindia.com/legal/article-73-why-is-illegal-sand-mining-harmful-.html

  3. http://www.legalserviceindia.com/legal/article-73-why-is-illegal-sand-mining-harmful-.html

  4. https://mines.gov.in/writereaddata/UploadFile/MMDR%20Act,1957.pdf

  5. https://www.cbd.int/doc/legal/cbd-en.pdf

  6. https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf

  7. https://www.imo.org/en/OurWork/Environment/Pages/London-Convention-Protocol.aspx

  8. https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1166&context=jelr

  9. https://indianexpress.com/article/india/govt-releases-guidelines-to-monitor-check-illegal-sand- mining-6240249/

  10. https://www.indiawaterportal.org/articles/how-sand-mining-impacts- ecosystem#:~:text=in%20your%20browser.- ,River%20sand%20is%20preferred%20for%20construction%20because%20it%20requires%20less,b etter%20quality%20than%20other%20sources.&text=Guidelines%20on%20the%20extraction%20of ,replenishment%20rate%20and%20river%20width


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