Dhaka, Sunday, 2015-12-01
http://www.thefinancialexpress-bd.com/2015/12/01/3518
Magurchara-Tengratila gas field accidents and Bhopal experience M S Siddiqui Bangladesh suffered two fatal gas well blow-out incidents at Sylhet-1 gas field, the Moulvibazar1(Magurchara) gas field on June 15, 1997 and Chattak-2 (Tengratila) gas field on January 08, 2005. These blow-out incidents made great impacts on both environment and economy. In the incident of Tengratila, rising flames were visible from 30 kilometres away which thoroughly damaged the geological structures and nearby surface areas and gas is still vented out from fissures in the well side and nearby agricultural land. The Canadian firm NICO was carrying out exploration in these gas fields. According to a committee report, the damage to forest resources amounted to Tk 98.58 billion, while 29 tea gardens of the area suffered a loss of about Tk. 460 million. The railway suffered a loss of Tk.210 million, Jalalabad Gas Company Tk.4.3 million, the electricity department about Tk.43.5 million. Indigenous Khasia people lost betel leaf plantations worth Tk.1.8 million. Another expert committee, appointed by the National Committee to Protect Oil-Gas-Mineral Resources and Port (NCPOGMRP), after an investigation revealed that the blow-out caused an estimated Tk.90 billion loss to the nation and gas reserve of about 245 billion cubic feet was burnt in the explosion while the environment, ecology and wildlife of the area were also severely affected. The volume of natural gas damaged in the two fields would have been enough for generating electricity for two years in the country. The NCPOGMRP estimated that construction of two Padma bridges could be made possible with the realisation of the amount of compensation money from the two foreign companies. In 2008, Petrobangla lodged a money suit with a Bangladesh court, seeking Tk.7.46 billion ($106 million) as compensation for damages from Niko for Chhatak gas-field blow-outs in 2005 and local court asked Petrobangla not to make payment to Niko for gas supplied to national grid, until the compensation issue was settled. On the other hand, upon complained by Nico over-payment against gas sales, the International Centre for Settlement of Investment Dispute (ICSID), the international arbitration centre, pronounced a verdict for payment of outstanding gas bill along with interest to Nico. The matter is still unsettled. Finally, an international court in USA will further hear in February next year the compensation case filed by Bangladesh as reported in FE on 24th November 2015. Bangladesh is active in courts in Bangladesh and USA to obtain a verdict for compensation and it seems a difficult task. In a similar incident in India on December 02, 1984, a massive emission of lethal gas from a storage tank at Bhopal plant of the Union Carbide India Ltd. (UCIL) left more than 2,000 dead in a single night and more than 300,000 persons were exposed to different degrees of injuries.
The issue of compensation also struck the minds of the Indian authority as it would have been impossible for a victim or his/her family to have filed an individual suit against the company in India or in U.S.A and obtain verdict against a giant multinational company. After the accident, Indian parliament passed The Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985. The law conferred certain powers on the Central Government to secure the claims arising out of, or connected with, the Bhopal gas leak disaster are dealt with speedily, effectively, equitably and to the best advantage of the claimants. In the law, Central Government has been given the exclusive right to represent and act in place of (whether within or outside India) every person who has made, or is entitled to make, a claim for all purposes connected with such claim in the same manner and to the same effect. The law empowered the Government of India to file and withdraw cases, negotiate and compromise the compensations with UCIL. In April 1985, immediately after the Bhopal law was passed, the Indian Government sued the Union Carbide in the United States and the US court refused to entertain the case. Indian Government then decided to go for legal battle within India. The District Court of Bhopal awarded an interim payment of 3.5 billion rupees. However, in an appeal to higher court against the judgment given by District court, the penalty was reduced by 30 per cent, against which the Government of India appealed in the Supreme Court where a bench of five judges heard the case. In 1989, the Indian Supreme Court approved a "full and final" settlement between UCIL and the Indian Government for $470 million dollars in the civil litigation over the Bhopal disaster. In addition, the court quashed the criminal charges of culpable homicide against UCIL, its former CEO Warren Anderson, UCIL's Indian subsidiary, and all seven Indians implicated in the disaster. In 1991, in response to a revision petition challenging the settlement, filed by survivors and support organisations, the Supreme Court of India revisited the settlement issue. Rather than increasing the amount payable by the corporation, the Supreme Court instead stipulated that if the amount is deemed insufficient in future, the government of India would make up the difference. Moreover, the administrative actions were frustrating. India's Central Bureau of Investigation (CBI), charged with prosecuting the case, has repeatedly tried to dilute charges against all of the accused. Survivor's groups succeeded in preventing the CBI from reducing the charges against Anderson and UCIL from culpable homicide to criminal negligence, but failed to prevent the same reduction of charges against the some Indian national accused, who are finally twenty one years later, appearing to testify in the slowmoving Bhopal court. During the period, several suits were filed for compensation and damages in different courts of India and also in the United States. It has been observed that the courts in the USA and India, even the Indian government failed to address the issue to the satisfaction of the victims. The civil society also had monitored everything carefully and vocal against any administrative and judicial favouritism towards UCIL and its officials. Ultimately, a settlement had been arrived at between the Indian government and the Union Carbide through the negotiation under the auspices of Bhopal disaster law. The passage of the Bhopal Leak Disaster (processing of claims) Act 1985 is an example of equity legislation where ADR (Alternative dispute resolution) was invoked. The strong civil society and government of India finally negotiated the compensation deal and recovered the compensations. Having agreed mutually, the Indian government
withdrew all the cases and claims against the Union Carbide and its officers. The criminal act settled with civil remedy of compensation only. But, in the case of Bangladesh, no government since 1997 has tried their best and none of their initiatives was successful for realising the compensation. The rights groups are still fighting for compensation. Bangladesh should follow the same strategy as India did in case of Bhopal disaster and enact a law for negotiation and mediation for compensation. This may be the best alternative to realise compensation for the national loss. The writer is a Legal Economist. mssiddiqui2035@gmail.com