NEPAL BAR, INTERIM CONSTITUTION AND WEST SETI PROJECT CONTROVERSY
By Dr. AB Thapa
Nepal Bar Association and its representatives had taken active part in drafting the Interim Constitution of our country. Now people involved in water resources sector are surprised at the way the Article 156 of the INTERIM CONSTITUTION is being interpreted by the Government. The West Seti project is going to provide an enormously large benefit to India, whereas the structures built in India to draw regulated flow of the West Seti would uproot thousands of Nepalese people due to widespread submersion. The West Seti project is going to be implemented without the approval of the Parliament despite the fact that in the opinion of many it is de jure as well as de facto multipurpose project spread over India and Nepal. The Government decision appears to be in violation of the Article 156. At present the people of the Eastern Nepal are already panicked by the way Government is trying to interpret the Article 156. In a very recently held meeting of the Community Forest Sangh, representatives of the local people vehemently opposed the Kosi and Sun-Kosi projects despite the fact that those projects are now only in early stage of study. They have started to fear that the Government will decide to implement on completion of study the Kosi project also much the same way alike to the West Seti case turning a blind eye to the plight of the people who would be uprooted from their ancestral homes. Now many people involved in water resources sector would certainly be eager to know the opinion of the Nepal Bar Association, its highly respected present and erstwhile Presidents, eminent law experts about the true meaning of the Article 156 of the Interim Constitution.
West Seti Project and Laxmanpur Barrage
The Laxmanpur barrage, few other barrages including the Girjapur barrage across the Karnali river, and the Saryu Canal are the direct extension of the West Seti High Dam Project proposed to be built in Nepal. The year-round operation of the Saryu Canal earmarked to irrigate a vast area of agricultural lands of the north-east UP would be totally dependant on regulated flow drawn from the West Seti. High Dam Project via Girjapur barrage.
The Saryu Canal has been built too close to our country’s border with India. As a result, people of our Western Terai particularly those living in the Banke district have already started to suffer from submergence. Now, instead of reliving the suffering of the people of the Western Terai by holding dialogue with Indian Government at the highest level to make necessary modifications of the Saryu Canal to avert submergence of Nepalese territory, we are going to greatly worsen the plight of our people by supplying all year round the West Seti regulated flow into the Saryu Canal that would cause widespread submergence and uprooting of people in Banke district in far greater number.
Are Not We Morally Wrong to Ignore Terai People’s Grievance?
It can hardly be denied that it is morally wrong to implement the West Seti project without a thorough technical and environmental impact studies if it involves widespread submergence of the Banke and other districts of Nepal. Such submergence would unjustly cause uprooting of a vast number of Terai people from their ancestral lands. How can we remain indifferent to plight of our Terai people who are going to be badly affected by the West Seti Project?
Violation of Benefit Sharing Proviso
The West Seti Project is going to provide large downstream irrigation benefits to India. Nepal could hope to get a fair percentage of such downstream benefits accruing to India. Recently, as published in Indian news media, India has already expressed its eagerness to share with its neighbours downstream benefits. Do we have a right to dispossess our country a fair share of the downstream benefits?
Interim Constitution appears to be very clear about the procedures to be followed if any major water resources project is going to provide benefit to Nepal and India both. Government is required to enter into an agreement with the neighbouring country before we decide to implement the project, like the West Seti project. Such agreement must be produced before the Parliament. The agreement or the Treaty must be approved, instead of a simple majority, by a 2/3 members of the House. We would certainly be betraying the interest of our country if it is decided to refrain from entering into a Treaty with India that would have helped to protect our right to entitlement to downstream benefits from the West Seti Project. The outright violation of such a sensitive Article of the Constitution, in the opinion of a layman, can even imply to constitute a felony.
Let us take the case of the Columbia River Treaty signed between Canada and the USA. Both the countries had entered into an agreement despite the fact that the concerned projects located in Canada and the USA were not directly implemented by either of the governments. Canada was able to recover from the USA 50% of the net downstream benefits on the basis of the Columbia River Treaty.
Widespread and Long Lasting Adverse Impact
Interim Constitution requires that any water resources project that involves a neighbouring country must be approved by a 2/3 majority of the House if such project would result to widespread and long lasting adverse impact. People of Nepal and particularly those living in the Western Terai would be forced to bear the disastrous consequences if the West Seti Dam Project is implemented without resolving the worsening flood problems in the Western Terai associated with the Saryu Canal ( that includes Laxmanpur Barrage also) which is in realty a component of the West Seti Dam Project.
The total length of the Saryu Canal running almost parallel to Indo-Nepal border is about 230 km. In the original design the barrage across the Saryu River was at a location about 328 meters to the south of the railway bridge at Nanpara. Later, the design was modified and the location of the barrage was shifted 10 km to the north from the original site.
Cause of Western Terai Submergence
The Saryu Canal crosses three main rivers- Saryu (Babai), West Rapti and Rohini (Banganga). Normally siphons ( a kind of tunnel) are provided underneath the riverbed to deliver canal water across the river. An altogether a different type of structure has been devised for reducing the average slope of the Saryu Canal that would allow the canal alignment to be pushed as far as possible north close to Indo-Nepal border. Barrages have been built across the rivers to elevate the river water to a level that would allow free passage of Saryu canal water to the canal taking off from the other side of the river The contentious Laxmanpur Barrage is one of such structures devised to deliver the water from the Girjapur Barrage across the West Rapti.
It would be necessary to maintain all the time pond water upstream of the barrage above certain fixed level to keep the Saryu Canal running at desired capacity. Thus the pond would always be full, with the result that a sizeable area of lands in Nepalese territory could remain perpetually submerged. When the river is in flood, the water would be spreading out onto the lands that were never before regarded prone to flooding.
Terai People Will Feel Betrayed
We all citizens of our country including the legal professionals dedicating their life in the cause to provide justice must realize that the Terai people living in the Western Terai would certainly feel themselves betrayed if the West Seti Project is implemented without a full guarantee based on thorough engineering and environmental impact studies that they would not be unjustly uprooted from their ancestral homes and lands.
(Dr. Thapa writes on water resources)
