Term paper

On

“Laws and policies of Conservation of Biodiversity in the context of Nepal with especial
reference to case analysis”

1
 Content

Chapter-1

1.1 Background
1.2 Objectives of the study
1.3 Methodology
1.4 Limitation

Chapter-2

2.1 Introduction

2.2 Importance of Bio-Diversity

Chapter-3

3.1 Biodiversity and Nepal

3.2 Convention on Biological Diversity (CBD) and its objectives

3.3 The Supreme Court role in the environmental protection and biodiversity conservation
establishment

Chapter -4

4.1 Analysis and conclusion

Bibliography

2
 Chapter-1

1.1 Background

In social context, the term diversity refers to the presence in one population of wide variety of
cultures, opinions ethnic groups, socio-economic backgrounds and etc. In past era there is no
clear concept of biodiversity conservation, but there was a concept of protect the forest and other
various species as well as natural resources.

Biodiversity, sum of all different species of animals, plants fungi and microbial organism living
on earth and the variety of habitats in which they live. Scientists estimate that upwards of
10million and some suggest more than 100million different species inhabit the earth. 1 Each
species is adopted its unique niche in the environment, from the peaks of mountains to the depths
of deep-sea hydrothermal vents, and from polar ice caps to tropical rain forests. Bio-diversity
underlines everything from food production to medical research. Humans in the world over use
at least 40,000 species of plants and animals on the daily basis. 2 Many people around the world
still depend on species for some or all of their food, shelter, and clothing.3

The array of living organisms found in a particular environment together with the physical and
environmental factors that affect them is called ecosystem. Healthy ecosystems are vital to life.
They regulate many of the chemical and climatic system that makes available clean air and water
and plentiful oxygen. Forests, for example, regulate the amount of carbon dioxide in the air,
produce oxygen as by product of photosynthesis, and control rainfall and soil erosion.
Ecosystems, on turn, depend on the continued health and vitality of the individual organisms that
compose them. Removing just one species from an ecosystem can prevent the ecosystem
misbalance.

1
T.C.Majpuria and Rohit Kumar Majupuria , "Wildlife and Protected Areas of Nepal(Resource and
management)" 493 (2006)
2
Ibid
3
Ravi Sharma Aryal " CITES(Implementation in Nepal and India },Law policy, and practice" (2004)

3
1.2 Objectives

The objective of this paper is to know general concept of Biodiversity and it’s important. Also
papers have tried to study the convention on Biodiversity and its application in the context of
Nepal.

1.3 Methodology

This term paper is totally based on the doctrinal research. So, all materials are collected from the
various libraries and through website visit.

1.4 Limitation

The paper deals only on the situation of biodiversity in the context of Nepal. The paper study the
Supreme Court cases related to biodiversity. But paper does not study on the other international
treaties and convention of Biodiversity.

Chapter -2

2.1 Introduction

Biological diversity has no single standard definition .One definition holds that biological
diversity is a measure of the relative diversity among organism present in different ecosystems.
"Diversity" in this definition includes diversity within species, among species and comparative
diversity among ecosystem. Among definition simpler clearer ,but more challenging ,is the
totality of genes species and species and ecosystems of a region .An advantage of this definition

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is that it seems to describe most instance of its use ,and one possibly unified view of the
traditional three levels at which biodiversity has been identified4 .

I Genetic Diversity

Genetic Diversity is a characteristic of ecosystems that describes and attribute which is

commonly held to be advantageous of survival, that there are many different versions of
otherwise similar organism. For example, the Irish potato famine can be attributed in part to the
fact that there were so few different genetic strains of potatoes in the country making it easier for
one virus to infect and kill much of the crop . The word 'gene' is shared by many disciplines,
including whole organism-based or classical genetics, molecular genetics, evolutionary biology
and population genetics. It has multiple uses within each of these contexts, but in the primary
sense genes are material things that parents pass to offspring during reproduction; these things
encode in formation essential for construction and regulation of polypeptides, proteins and other
molecules essential for the growth and functioning of the organism. This sense, which is
common to all of the above disciplines, is also the original historical meaning of gene. There is a
genetic variability among populations and the individuals of the same species.5

ii Species diversity

Number of species habitat in one place. We can find several varieties or strains or races which
slightly differ from each other in one or more characteristics such as size, shape, quality of their
respective product, resistance against pest, insect's diseases etc. and resilience to survive under
adverse environmental conditions. Such diversity in the genetic make-up of a species is called
genetic diversity.6
4
Sarita agrawal , " A text book of Biology" part 1 , 42 (2002)
5
Reference taken by Biodiversity and Poverty In Achieving the UN MDGs Biodiversity After Johannesburg
Zoological Society of London, 3-4 March 2003 Izabella Koziell UK Department for International Development
Kenya

6
Bhoj Raj Bhatta , Associated professor Katmandu School of Law "Biodiversity" (Unpublished)

5
 iii Ecosystem Diversity

The diversity of place, so that the species found in the place are also different for examples Deer
found in the Himalaya is different from deer found in the Tarahi. In ecology, an ecosystem is a
community of organisms (plants animals and other living organisms also referred as biosensor)
together with their environment functioning as a unit7.

2.2 Importance of Bio-Diversity

 Biodiversity provides us valuable natural resources to satisfy the suitable needs of

mankind.
 Diverse communities of plants, animals and micro-organism also provide us valuable and
indispensable ecological services.
 In many cultures, maintenance of mountains and other diverse lands forms are of
religious significance.
 A diversity of habitats of biological communities is useful for recreational activities.
 We know only fraction of the multitude of the species thriving on our planet. A huge
wealth of biological resources is yet to be tapped by the mankind.
 Biological diversity represents valuable genetic resources for the mankind.
 The vast pool of genetic diversity contained within wild populations of plants and
animals is of enormous value for the continuing research and development of agriculture,
industry and medicine.
 Thousands of species which are edible and demonstrated superior then those which are
currently used are waiting in the wings for their useful exploitation.
 The vast insect fauna contain large number of species that are potentially superior crop
pollinators, weed control agents and are parasites of insect pests.
 Biodiversity helps in maintaining a stable and healthy ecosystem.

Chapter 3

7
ibid

6
3.1 Biodiversity and Nepal

Nepal covers only0.03% of world’s total surface area, but claim2.2%of world’s flowering plants,
8.5% of bird’s species, 2.4% mammals, 4.2% of butterflies and 2.2% freshwater fishes.8

And various other species also are found in Nepal. Because of such richness the question of the
biodiversity conservation becomes very essential. There is no doubt that the Natural resources of
Nepal played a vital role in the unification period as well as in the other external attacks.

3.2 Convention on Biological Diversity (CBD), in the context of Nepal

 Date of Signature by Nepal - June 12, 1992

 Date of Ratification by Nepal – November 23 , 1993

Objectives of the Convention

The Major objectives of the Convention as provided by Article 1 are the conservation of
biodiversity, the sustainable use of its components, and the fair and equitable sharing of the
benefits arising out of genetic resources uses. To these goals ,signatories must develop plans for
protecting habitat and species , provide funds and technology to help developing countries,
ensure commercial access to biological resources for the development and share of revenues
fairly among source countries and developers and establish safety regulation and accept liability
for risks associated with biotechnology development. In this way the Article 1 sets out the
balance of the Convention between conservation, sustainable use and the sharing of benefits.
This is the heart of political agreement upon which the Convention is founded.9 Even though the
main objective of the Convention is the conservation of biodiversity, Article 1 provides a list of
broader objective of biodiversity conservation.10

8
Department of National Parks and wildlife Conservation "Biodiversity conservation Efforts in Nepal",
(2005)
9
Cyle Glowka, Francaise Burhenne- Guilmin and Hugh Syng, in collaboration with Jaffrey A.Mc Neely and
Lothar Guilding, A guide to the Convention on Biological Diversity, Environmental Policy and Law Paper
No.30 IUCN, Environmental Law Center, IUCN Biodiversity Programmme, Gland, Bonn, 15 (1994).
10
S.K.N. Blay and R.W. Piotrowicz, "Biodiversity Conservation in the twenty first century: A Critique of the
Earth Summit", 10 Environmental and Planning Law Journal, 450 (1993).

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3.3 The Supreme Court role in the environmental protection and biodiversity conservation

The Supreme Court played positive role in the environmental protection and biodiversity
conservation from its established. The decision taken by the honorable court are historical from
vary beginning. The Supreme Court always seems in the favor of sustainable development and
biodiversity conservation. Now a day the Supreme Court played very positive role in the
biodiversity conservation and sustainable use of natural resources.

The following are the leadings cases which proved Supreme Court played positive role in
the biodiversity conservation from very beginning,

1. Midev Upadhay Vs Buddhi Lal Guvaju 11

issue- use poison in Tinau River to catch the fish.

decision- because of found the guilty to use poison in river to kills the offenders were liable for
six month of imprisonments.

2. Singa Bir Vs. Man Bir12

issue- encroach and cultivate in forest land

decision- if permission is given to cultivate and encroach forest, it causes water shortage for
local people so maintain the forest area as it is , cultivation in forest is illegal.

3. Kirti Brahmhanda Joshi Vs. Nati Maharjen13

issue- to fill the pond in own land used by public and certified the map to construct house for
individual purpose

decision- the pond is used by local people in various religious and cultural purpose so it is illegal
to fill up such ponds although it is personal.
11
Decision by single bench of CJ Hari Prasad Pradhan in 2010\04\14.
12
Decesion by division bench CJ Hari Prasad Pradhan and J.Bhagawati Prasad Singh in 2010/4/20.
13
Decession by full bench of supremecourt in 2029\1\20.

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 4. Juddha Bahadur Vs. Ambika Prasad DFO of Gulmi
issue- registration of forest land as a private land

decision- the lands seams to a forest land by the evidence (Sarjimini and other governmental
evidences) so the registration is illegal and the decision of DFO is write to maintain such land as
a forest land.

5. Surya Prasad Dhungel Vs Godawori Marble Industries 14

issue – environmental degradation because of the work of marble industry

decession- take appropriate measures to conserve the natural beauty and environment of
Godawari Area .

This is the land mark decision of the Supreme Court of Nepal in the case of
environmental conservation and biodiversity conservation. In this case the court focuses on the
doctrine of sustainable development first time in Nepal. Other major principles laid down by this
case are as fallows;

→ Public right as a guaranteed as fundamental rights,

→ Reorganization locus-standy of environmental institutions to bring environmental issues

in court, and

→ considering the devastating consequence cause of explosion,

Like this Court give order to government to implement the Mineral Act 2042 and
protection of the air, water, and ecology of the Godawari area.

6. Balkrishna Neupane Vs Prime Minister Girija Prasad Koirala15

issue.-Tanakapur treaty retification (2\3 majority required or not) and the petitioner has right to
file case or not in the case of use of public resources
14
NKP Golden Jubilee Special copy 2052 page 169.
15
NKP 2054 , page 77.

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decision- the court fallow the principle of Godawari marvel case and accept locas-standi of
petitioner since there is use of natural resources and it directly hamper the ecology of that area.

7. Yogi Narahari Nath Vs Prime minister Girija prasad Koirala16

issue- permission given for International Society for Medical College to established Bharatput
Medical College, so that that hamper the ecological condition of the religious places.
Environmental as well as socio-cultural issue.

Principle laid down by court

→ Environment is indispensable with human life so it should protected,

→ Cultural and religious rights should protected, and

→ it is the duty of the government the religious and cultural places .

So the decision of the Government to given land to established Medical College near the
Devghat area is against the Constitution , Ancient Monuments Act2013 and so on, that why such
decision has quashed.

8. Rajendra Parajuli Vs Shree Distillery Nawalparasi17

issue- emission of various unusual effluents or excrement from distillery so that cause of
environmental; degradation of local area and hamper the human health.

decision- permission and license required from concern authority does not meant that it is not
responsible towards the local people , and nature. It is unacceptable to run the industry causing
ecological dis-balance. So courts give order to take appropriate major for environment protection
and nature conservation.

9. Bharat Mani Gautam Vs. HMG Nepal18

16
NKP 2053, page 33.
17
Writ No.3259,2053,Decesion2054\7\12.
18
Writ No.354 of 2053, Decision, 2056\3\29

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issue- pollution of bagamti and vishnumati river is against the cultural rights of the people and
causes environmental harm and losses of biodiversity.

decision- drain sewerage in both river causes environmental degradation of that area so that
directly affect the people because people has use such river for religious aspects also so Court
give order to install treatment plant in both river and control pollution of those rivers.

10. Lok Bikram Thapa Vs Council of Minister19

issue- public land registered in the name of Gokkhapatra saathan, without considering the view
of local people.

decision- court first time apply the "Public Trust Doctrine" and quashed the government decision
saying that public opinion and there agreement is essential for any activities. This case is very
landmark because it recognizes public opinion so government monopoly reduce.

By analyzing the above cases we know that supreme court played positive role in the
biodiversity conservation in Nepal and fool the modern principles i.e. Sustainable Development,
Polluter Pay Principle, Inter-generational Equity and so on . But there are also some cases which
make bound rethink whether supreme court is positive about environment protection or not.

Chapter 4

4.1 Analysis and conclusion

The Main problem of biodiversity conservation in Nepal is effective implementation of

the legislation and continuity of the laws and policies. If the laws are effectively implemented I
think most of the problems i.e. poaching, trade of wild life, introduced species and so are reduce.
After the short observation made in the study, everyone can definitely agree that the existing

19
Decision 2058\9\10

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legal provisions are not sufficient and either they have to make more effective or new legislation
need to enact. To fulfill the lacuna and addressed the present problems following suggestion are
made:

a) Enact the drift bill of, Control of international Trade of endangered Species, Access to
Genetic Resources and Bio-safety as soon as possible and implement them strictly
b) Amend the National Parks and Wildlife Conservation Act, 1973 to provide protection for
endangered and vulnerable plant species and to include other endangered and vulnerable
wildlife species which are not listed in schedule 1 of the Act.
c) Transfer the EIA Guidelines 1993 into regulations under the Environment Protection
Act,1997 as soon as possible in order to make them legally binding.
d) Amend the Forest Act, 1993 to recognize the role of the tribal in the conservation and
protection of forests, where most of biological diversity exist.
e) For the effective implementation of EPA appoint the environmental inspector as soon as
possible.
f) A biodiversity Conservation Action Plan should be endorsed by the government as soon as
possible.
g) Additional programs for ex-situ and in-situ conservation should be endorsed.
h) Ratify The Convention on the Conservation of Migratory Species of Wild Animals, 1979,
since the concept of transboundary conservation has accepted by the Nepal and India, by
developing the concept of Terai Arc Landscape.
i) Add the security check posts in the protected areas to control the poaching.
Bibliography

1. T.C.Majpuria and Rohit Kumar Majupuria , "Wildlife and Protected Areas of

Nepal(Resource and management)" 493 (2006)
2. Sarita agrawal , " A text book of Biology" part 1 , 42 (2002)
3. Reference taken by Biodiversity and Poverty In Achieving the UN MDGs Biodiversity
After Johannesburg Zoological Society of London, 3-4 March 2003 Izabella Koziell UK
Department for International Development Kenya

12
 4. Bhoj Raj Bhatta , Associated professor Katmandu School of Law "Biodiversity"
(Unpublished)
5. Department of National Parks and wildlife Conservation "Biodiversity conservation
Efforts in Nepal", (2005)
6. Cyle Glowka, Francaise Burhenne- Guilmin and Hugh Syng, in collaboration with
Jaffrey A.Mc Neely and Lothar Guilding, A guide to the Convention on Biological
Diversity, Environmental Policy and Law Paper No.30 IUCN, Environmental Law
Center, IUCN Biodiversity Programmme, Gland, Bonn, 15 (1994).
7. S.K.N. Blay and R.W. Piotrowicz, "Biodiversity Conservation in the twenty first century:
A Critique of the Earth Summit", 10 Environmental and Planning Law Journal, 450
(1993).
8. NKP Golden Jubilee Special copy 2052
9. NKP 2054
10. NKP 2053
11. Writ No.3259,2053,Decesion2054\7\12. ,Writ No.354 of 2053, Decision, 2056\3\29

13