As India’s Supreme Court case over Vedanta Resources’ proposed mine on the land of the Dongria Kondh tribe draws to a close, a showdown on tribal rights is brewing.
The case of the Niyamgiri mine is currently focused on the rights of the Dongria Kondh under the Forest Rights Act – a historic piece of legislation that is supposed to protect tribal peoples’ rights to their lands. Even as the case is underway, the Prime Minister’s Office has called for an alarming watering-down of the Forest Rights Act, saying that tribal peoples’ consent will not be needed for many industrial projects. This Office had previously pushed for the Niyamgiri mine to be allowed, prioritizing industrial development over the rights of the country’s tribes.
In contrast, the Minister for Tribal Affairs, Kishore Chandra Deo, has expressed concerns that parties to the case are ‘seeking to argue that they can bypass, ignore or undermine the Forest Rights Act’. He has called for the strengthening of the Act.
The mining case is increasingly becoming a battleground not just for Niyamgiri, but for tribal rights across India.
The next hearing is scheduled for January 21st.
Meanwhile, the Minister who stopped the mine in 2010, Jairam Ramesh, paid a visit to Niyamgiri at the weekend. He asked, ‘why for such a small need, a sacred place like Niyamgiri should be destroyed?’ and offered a package of development assistance for the communities in and around the area. He reportedly told the assembled crowd, ‘Mining is not essentially a boom but, often, a curse.’
There are reports that the state government in Odisha tried to stop Minister Ramesh’s visit. The Odisha government has been supporting the mine and the state-owned Odisha Mining Corporation is battling the Minister’s decision to stop the mine in the Supreme Court.
Dongria leaders have reported that they have been harassed and intimidated by security forces. On his way to meet the Minister, with a large delegation of other Dongria Kondh, Lodu Sikaka was accosted by security personnel who tried to stop them coming down from the Hills. On meeting Minister Ramesh, Lodu asked for assurances that the harassment would stop.
NEW DELHI: Differing from the Prime Minister’s Office (PMO), Union tribal affairs minister V Kishore Chandra Deo has stood firm on tribal rights granted over forestlands through the Forest Rights Act (FRA) as the government sought more time from the Supreme Court to finalize its position.
The government’s plea in the Vedanta case comes in the backdrop of differences on the consent clauses involving gram sabhas.
Deo told TOI that “I have previously stood in favour of the August 2009 order (of the environment ministry) and I am against any dilution in the order. The core of the order and this issue lies in the constitutional provisions safeguarding tribal rights.”
The minister is referring to the order of the environment ministry, which was the key reason for UPA’s decision to deny Vedanta’s project to mine bauxite in the Niyamgiri hills — a schedule 5 area in Odisha. The order mandates consent from affected gram sabhas in tribal areas where project proponents require forestlands. Such consent was made mandatory in 2009 by the UPA in order to bring the forest clearance process in compliance with its flagship FRA.
But, the order has recently turned into a bone of contention within the government. The PMO has asked the two nodal ministries to dilute it, advocating that the need for consent from gram sabhas in tribal areas be done away with for most projects requiring forestland.
At the other end, the appellants in the Vedanta case have opposed the order as well in the apex court. It has also come under attack from sections of the industry and infrastructure ministries.
Deo reiterated that Vedanta’s mining in the schedule 5 area of Odisha fell foul not only of the FRA, but also of the constitutional provisions that regulate alienation of land from tribals.
“The government cannot agree to handing over or lease out tribal land in the schedule 5 area, through any route to a corporate house or private entity which is not owned by scheduled tribes,” he told TOI.
Deo said he would work with the Union environment and forests minister Jayanthi Natarajan along these lines to finalize the government’s response for the Supreme Court.
Sources in the green ministry said it had sought two week’s time in the Vedanta case to ensure a joint formal position after consultations with the tribal affairs ministry.
Tribal minister says he hasn’t seen the report on this, though his own secretary is a signatory
A panel set up by the Prime Minister’s Office to review the mechanism for forest clearances in industrial projects has suggested replacing the need for approval from the relevant gram sabha with state government “certificates’’.
Tribal Affairs Minister Kishore Chandra Deo says he has yet to see the report, which in effect asks for disregarding the Forest Rights Act (FRA), which he has been championing.
The committee comprising the Prime Minister’s principal secretary, Pulok Chatterji, and the secretaries in the ministry of tribal affairs and the ministry of environment and forests ( MoEF), gave its report last month.
The report is contrary to the position taken by the MOEF in its order of 2009, where it specifically asks for gram sabha approval for any acquisition of forest land, in keeping with the FRA. It also goes against repeated appeals by Deo, in letters to the PMO last month, about the need to safeguard the FRA while considering clearances for forest land.
The report was given on December 12 and the PMO had directed MoEF to implement these recommendations prior to December 31. So far, neither ministry has acted.
When asked how a committee which had his own ministry represented in it could recommend FRA dilution, Deo said: “The secretary may have been in it. But I have not agreed to anything that would dilute the FRA in any way.’’
The panel has recommended supersession of all earlier MoEF circulars and issue of a new one, stipulating that a proposal for unconditional forest clearance would require merely a state government certificate. The proposed mechanism would require that the state certify “that the complete process of recognition and vesting of rights under FRA has been carried out for the entire forest area proposed for diversion, with a record of all consultations and meetings held, along with the types of individual and community rights recognised and vested’’.
Forest rights activists said Deo had been kept in the dark about the proposals and the subtle wording of the report has helped this. The report, for instance, mentions consulting the gram sabha but only where “project activity on forest land is affecting the quality of life of the people residing there’’. “Who is to decide which activity affects quality of life?’’ asks Shankar Gopalakrishnan, an activist with Campaign for Survival and Dignity.
The report further says that gram sabha approval would not be required where a public hearing has been done for getting environmental clearance. Every project formally needs a public hearing for environmental clearance. So, that rules out the gram sabha in every project, says Gopalakrishnan.
In every case where such certificates were given, these have been found to be false on investigation, he said, citing the cases of Vedanta, Posco and Polavaram, among others.
NEW DELHI: The Prime Minister Office’s move to ease diversion of forest land for industrial use faces further delay as the ministries of tribal affairs and environment want more time for consultations.
A panel headed by the Principal Secretary to the Prime Minister Pulok Chatterjee had decided to dilute the requirement of taking consent from the affected tribal population before diverting forest land. The committee which submitted its report on Dec 12 included top officials from tribal affairs and environment ministries.
The recommendations for all practical purposes allows the forest clearance process to bypass the gram sabhas or village assemblies, which are the basic units for the implementation of the Forest Rights Act.
The PMO-driven report required the environment ministry to change its August 2009 order—removing the clause that makes it mandatory for the state government to provide written consent from the project affected gram sabhas that all claims under the Forest Rights Act had been settled and that they approved of the diversion of forest land. The changes were to be finalised and notified by the ministries by Dec 31.
The dilution of the Forest Rights Act is a politically fraught issue with the Congress leadership and the Sonia Gandhi led National Advisory Council firmly coming down in favour of protecting the rights of the tribal population. However, sections of the government are pushing for a more liberal regime to support industrial growth. Sources indicated that given the high political voltage of the move, no ministry is willing to be responsible for the dilution of the Forest Rights Act.
A senior environment ministry official said, “the issue is still being discussed. The minister has written to the tribal affairs minister”. Sources indicated that there was a level of unease with the recommendations of the committee. Given that the Forest Rights Act is administered by the tribal affairs ministry, it will have the final say on whether it would like a strict adherence of the Forest Rights Act while considering projects for forest clearance, a senior government official said.
Tribal affairs minister KC Deo said, “the recommendations of the PMO-led committee do take on board the concerns of this ministry. However, consultations with the environment ministry are still on. The process is far from over.” Deo has already written two strongly worded letters to environment minister Jayanthi Natarajanstressing the need to ensure that no clearance is given to projects in areas where the Forest Rights Act has not been implemented
Deo told ET that any guidelines on forest areas have to maintain the sanctity of the Schedule V areas (tribal-inhabited forest areas). “The Constitution guarantees protection to the Scheduled V areas. This protection guaranteed in the Constitution has never been repealed and must be ensured. This protection predates the Forest Rights Act and the PESA Act,” Deo said.
The proposed order would make it mandatory for all “proposals for unconditional forest clearance” to include a letter from the state government “certifying” that the complete process of recognition and vesting of rights under Forest Rights Act has been carried out for the entire forest area proposed for diversion. A record of the all consultations and meetings and the types of individual and community rights recognised would also have to be provided. The state government would also have to certify that the rights of the primitive tribal groups and Pre-Agricultural Communities had been safeguarded.
“Till date, in every case where state governments have given such certificates, the claims have been questioned and found to be incorrect. This was the case in Odisha (Vedanta and POSCO cases), Andhra Pradesh (Polavaram dam), and Madhya Pradesh (Mahan coal mines). It is precisely to avoid such a situation that the Forest Rights Act doesn’t provide for a certificate from the state government,” a forest rights expert explained.
In case the process of recognizing claims under the Forest Rights Act had yet to begin, the PMO-sponsored changes suggests that the state government provide a a confirmation stating that the process would be completed before the final approval of the proposal or order of diversion by the State. The August 2009 order requires the state government to submit evidence that they would initiate and complete the process before approval was given.
The committee recommended that where the project activity on forest land is “affecting the quality of life” of the people living in the project affected area would require a resolution of the affected gram sabhas allowing for the diversion of the forest. Even in this instance, the committee has provided for exceptions. It states that a resolution from the affected gram sabhas would not be required if any “consultation” that is “statutorily statutorily mandated has been carried out and has been communicated to the state or the project proponent” and has been included in the project proposal. This would include public hearings required for environmental clearance.
The government versus Vedanta case has the entire mining industry interested in the outcome, in the hope of getting more clarity on mining permissions
The Supreme Court is hearing a petition filed by the Orissa Mining Corporation (OMC) against the Ministry of Environment and Forests’ decision to withdraw the permission given to mine bauxite reserves on the Niyamgiri hill range. A joint venture between OMC and the local unit of the Anil Agarwal-owned Vedanta Resources, wants to develop the mines in Orissa and supply bauxite to the alumina refinery run by the London-based company.
Though the Supreme Court had cleared the mining proposal in 2008, three years later the environment ministry withdrew its clearance. A committee set up by the then Environment Minister Jairam Ramesh alleged that provisions of the Forest Rights Act had been violated.
The apex court’s ruling will decide the fate of Agarwal’s aluminium project in Orissa that has till now coughed up losses of Rs 2,500 crore. The refinery is right now shut down for want of bauxite supply.
But the whole mining industry is interested in the outcome of the case. Some of the biggest companies, from SAIL to ArcelorMittal and Posco have applied for mines that fall in forest areas, and one of the most important aspects discussed by the Supreme Court is the scope of the Forest Rights Act. In a hearing on December 6, the court had asked the Central government to make its stand clear on whether a local gram sabha has the final right over mine reserves.
In a 2009 directive, the environment ministry had said that any project that intends to use forest land will need to first settle the rights, including taking consent of tribals and other traditional forest dwellers, through a gram sabha before the land is taken from them.
While companies like Vedanta claim to have held gram sabhas for land-owing tribals, bringing “other traditional forest dwellers” under the purview of the Forest Rights Act would “increase expenditure”, said a senior executive of a leading private Indian mining company.
Interestingly, there might be a re-think happening at the Centre. This prompted Tribal Affairs Minister Kishore Chandra Deo to warn in his letter in early December to Environment Minister Jayanthi Natarajan, “This order is extremely significant… any dilution of the above mentioned circular of 2009 will have an adverse impact on the Vedanta case which is sub-judice,” a newspaper report quoted him.
The biggest concern though is whether this will further increase the uncertainty around mining project permissions. “A balance is needed as neither environment nor industrial development should suffer. Any clarification from the government should help reduce the confusion on what is and what is not allowed to be mined. Overall, government policies should be aimed at reducing the uncertainties for project proponents who put risk capital on large infrastructure projects,” says Gurpreet Singh Chugh, director, Natural Resources, Crisil Infrastructure Advisory.