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Supreme Court ruled on the Small Taldykola case
In the Supreme Court, the hearing on the Small Taldykola lakes group case within the framework of the cassation complaint by the coalition of corporate lawyers Aqiqat against the decisions of the first and second instance courts has concluded, reported by the correspondent of the business information center Kapital.kz.
Let's clarify. Human rights activists demanded to return the lands where the Small Taldykola lakes are located from the residential land to the water fund lands, establish water protection zones and strips around the entire perimeter of the lakes, cancel the decisions of the akimat on transferring plots for construction, and hold responsible the officials involved. 'The result of the ruling is announced. The ruling of the judicial collegium on administrative cases of the Astana court dated December 2, 2022, in this administrative case, is to remain in force, and the cassation complaint of the Aqiqat coalition of corporate lawyers is dismissed,' said Supreme Court judge Sembek Baymahanov. During the process, he cited a document from the Esil Basin Inspection for the regulation, use, and protection of water resources, which stated that the transfer of water fund lands (Small Taldykola - Ed. note) to lands of other categories was carried out without conducting a state environmental and sanitary-epidemiological expertise.

«Thus, according to satellite monitoring data as of May 14, 2021, after the decision to transfer the lands due to complete drying, water objects existed. Also, the transfer of water fund lands to lands of other categories was carried out without conducting a state environmental and sanitary-epidemiological expertise. In accordance with this, the Water Resources Committee initiated a letter to the Astana Prosecutor's Office requesting a legal assessment of the transfer of water fund lands to lands of other categories. However, there was no response to this request», the judge read.
This violation did not prevent him from making a decision with a justification tilt. Notably, the prosecutor, in conclusion, asked the Supreme Court judge to leave the decision of the appellate instance dated December 2 unchanged and dismiss the cassation complaint. As one of the arguments, he provided information that over 150 objects of various purposes and state institutions are at the stage of design and construction around the perimeter of the Small Taldykola lakes. Most of the ongoing construction objects are socially significant. According to the prosecutor, at present, the construction of a multi-apartment residential complex, recognized as a problematic object for shareholders based on a joint activity agreement between LLP 'Elorda kurylys kompaniyasy,' Housing Construction Cooperative 'Turan Syganak,' and a private investor LLP 'Kazak Invest Group,' is underway. Shareholders are waiting for their apartments.

«The city court's conclusions are based on the principle of proportionality provided by Article 10 of the Criminal Procedure Code. Such a decision ensures a balance among the participants of the administrative procedure and is the most suitable, necessary, and proportionate,» the prosecutor stated. It's possible that the appellate court made its verdict more guided by these circumstances.
As a reminder, ahead of the EXPO-2017 exhibition, urban development began in the southwest part of the left bank of Astana. According to the comprehensive plan for environmental improvement for the years 2018-2020 in this area, a natural park was planned to be constructed, which should have included all the water bodies of the Taldykola lake system. However, in 2020, it was revealed that the cluster of Small Taldykola lakes, consisting of seven reservoirs, was excluded from the project by the city akimat. Its territory was transferred from water fund lands to residential lands to organize a residential area with residential complexes, social facilities, business centers, shopping malls, villas, and a tourist quarter. Land plots were allocated for construction to construction companies.

Environmental activists opposed the destruction of the Small Taldykola lake system, stating that this natural site serves as a habitat for endangered birds, mammals, fish, and plants. According to the Kazakhstan Biodiversity Conservation Association, in 2020, the Taldykola lake group and its adjacent areas were home to more than 130 bird species, with 66 nesting in the Small Taldykola area. Additionally, the lakes serve as a stopover site for migrating birds. The surrounding areas may also hold historical value as they contain ancient burial grounds, confirmed by scientists from the K.A. Akishev Institute of Archaeology.

Architects warned that artificial draining of the lakes without comprehensive studies carries significant risks. Serik Rustambekov, a distinguished architect of Kazakhstan and the author of the first master plan for the capital, called for geodetic, engineering-geological, hydrological, and hydrogeological surveys to be conducted in the territory of the Small Taldykola lake system. He highlighted that construction over the water bodies without these studies could have irreversible consequences.
The city administration stated that the lakes pose a danger to city residents since the water-meadow territory contains an excess of harmful chemical compounds beyond the permissible limits. However, ecologists expressed doubts about the relevance of such conclusions from the local executive authorities, as there was no proper documentary evidence to support this claim.

The coalition of corporate lawyers, Aqiqat, perceived the actions of the Astana akimat as a violation of legislation concerning the territory where the group of lakes, the Malyy Taldykol, is located. In November 2021, the coalition filed a lawsuit against the akimat. Human rights advocates demanded the return of the lands to the water fund, the establishment of water protection zones and belts around the lakes, the cancellation of akimat resolutions regarding the transfer of land plots for construction, and holding accountable the officials responsible. The preliminary hearing for this case took place on December 14 of last year, and the first court session occurred on January 17, 2022. The process was suspended in February as the court deemed the materials presented at that time insufficient. The Ministry of Ecology of the Republic of Kazakhstan was tasked with investigating the lakes as part of the process, a preparation that took four months within the ministry.

The proceedings were resumed on June 16, 2022. On July 11, the court partially granted the coalition's demands against the city authorities. The court chair invalidated the akimat's resolution to transfer the land of the lake group from the water fund to residential land. However, this decision applied only to three out of the seven plots - numbers 6, 7, and 9. The court also mandated the establishment of water protection zones and belts around them.

However, as reported by the SOS.Taldykol initiative group, the court's rulings were not enforced by the respondent. Furthermore, eco-activists uncovered instances of illegal draining of the lakes – equipment was discovered on the water bodies used to pump out water. Construction activities within the lake group's territory also persisted – a significant portion of the water bodies had been filled, as noted by the activists.

Meanwhile, the lawyers from Aqiqat disagreed with the partial satisfaction of their lawsuit by the first-instance court. They opted to pursue their legal battle with the city administration in the appellate process, demanding the establishment of protective zones around the entire lake system, not just specific segments. Simultaneously, the coalition continued to challenge the city administration's resolutions regarding granting temporary paid land use for construction and the conversion of water fund lands into residential areas.

However, in December 2022, the second-instance court not only dismissed Aqiqat's complaint but also upheld only one instead of three lakes, specifically the water body located between Uly Dala Avenue and Rozybakanova Street. Consequently, the developers and the city administration's actions were legitimized. The water bodies were further drained and developed. Out of the seven water bodies in the Malyy Taldykorgan group, only one remains today.

In January 2023, the coalition of corporate lawyers appealed to the Supreme Court to overturn the decisions of the first and second-instance courts. In their appeal, the lawyers insisted on converting the Malyy Taldykorgan group's territories into water fund lands, establishing protective zones around the entire chain of lakes, declaring the city administration's actions in allocating land for construction illegal, and holding officials accountable. The legal process in Kazakhstan's highest court began only five months later, on June 15.

Both the Specialized Inter-District Administrative Court of the capital and the Judicial Collegium on Administrative Cases of the Astana Court issued rulings on the lawsuit, according to the coalition, relying on expert conclusions that were unjustifiably drawn. For instance, the authors admitted that "the degree of connection between groundwater and lake waters was not studied," and "there is no monitoring of groundwater (observations of water levels and quality)." Experts referenced data from the working project of BIOSPHERE NPP, compiled in 2014 and ceased to be valid from April 2, 2018. The coalition highlights that some specialists had conflicts of interest, undermining the credibility of their studies conducted unscientifically and at inappropriate times. They argue that the conditions were unsuitable for long-term habitation of a significant self-reproducing population of waterfowl and other large vertebrates.
Source: Kapital.kz
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