Orissa Mining Corporation
Ministry of Environment & Forest & Others
Case Citation: Writ Petition 180 of (2011)
Bench: Aftab Atam, K.S. Radhakrishna, Rajan Gagoi.
The subject matter of sustainable development has been approached from multidisciplinary perspectives by the academic literature; however, when public policy choices are made the scholarly outputs do not get incorporated in a large number of instances due to many operational constraints including the political economy compulsions. The areas of sustainable development are vast and diverse, often overlapping, nevertheless have long term effects on economic development of both developed as well as on the developing economies, some of these are: institutional environments, governance capacity, public policy choices, policy implementation framework, legal and regulatory regimes, social responsibility, business ethics, human rights and sustainable development, among others. This narrative illustrates how a decentralized policy and bureaucracy in a country like India deal with myriad problems of resource curse together with attendant consequences, despite the fact that as compared to several developing nations India has a better track record of legislative framework, an experienced bureaucracy and a regulatory framework. There are institutional rigidities and limits of public policy formulation and implementation which adversely affect a diverse range of stakeholders: essentially because economic growth priorities override all feasible considerations of protecting and furthering stakeholder interests. India is not the only state which has undergone such an ordeal, many developing countries have suffered as well from their relative inability to deal with the issues of resource curse; but this case study assumes further significance because based on the actual final decisions a future road map in terms of a realistic public policy both for domestic investors as also foreign investors in extractive industries will be decided.
The conflict between ‘rights’ and ‘development’ is vexing and it is seldom for the courts to able to resolve the said conflict leading to denial of the ‘rights’ in return of ‘development’. But the Apex court in the above noted case has endeavoured to resolve the said conflict between two by proposing that the decision that shall be taken upon ‘rights’ shall be relied upon for the decision on ‘development’. The Apex Court has acknowledged the importance of ‘rights’ and have asked the local community assembly ‘gram sabha’ to decide upon the same. The Apex Court has also taken a lenient and accommodating view with respect to industrial development and has observed that the rectification undertaken for the environmental violations shall also be consideration fordeciding on the question relating to ‘development’.
The Apex Court in the above Writ Petition No. 180 of 2011 has issued directions to the State of Odisha to place the issues concerning the cultural and religious rights of the Dongaria Kondh Tribe before the Gram Sabha constituted under the Panchayat (Extension to Scheduled Areas) Act (PESA) for determination of the issue of cultural and religious ‘rights’ so as to provide decision for the consideration of Ministry of Environment and Forest (MoEF) for the final determination on the question of the grant of the approval to stage two of the forest clearance required to be ushered for Orissa Mining Corporation (OMC) and Sterlite Industry’s Bauxite Mining Project at Niyamgiri Hills in state of Odisha.
The Niyamgiri Hills near Hundaljaliin Rayagada and Kalahandi districts in State of Odisha are religious shrine or abode of God Niyam Raja for the Scheduled Tribe (ST) and Traditional Forest Dwellers (TFD) of the region. These tribe and TFD have been worshipping the hills for many decades and had been using the resources of the hills for their live hood for centuries having cultural and traditional rights over the region that have been already recognised under the Scheduled Tribe and other traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or the Forest Rights Act, 2006.
The bauxite mining project requires forest clearance in these hills which have been natural habitat of this tribe for years and shall also be having an adverse impact on the biodiversity and environment of the region which is religious shrine for them. The mining activity in the hills shall also interfere with their customary and traditional rights that been vested in them by virtue of custom and the Forest Act. This project on the other hand is also essential as it is supporting the Aluminium refinery Project of Sterlite Industries which has been largest manufacturer of Aluminium in the country.
The Apex Court relying upon the provisions of Forest Rights Act and PESA observed that Gram Sabha by virtue of the provisions of Forest Rights act and PESA are under an obligation to safeguard and preserve the customs, traditions, cultural identity, and community resources etc of Scheduled Tribe and Traditional Forest Dwellers. The Apex Court took note of the provisions of PESA that had provided the extension of the Act to scheduled areas for preserving the traditional community assemblies like panchayats, gram sabha and had also provided Gram Sabha as holders of power so as to protect and safeguard the traditions and customs of the tribal community and preserve community mode of dispute resolution.
Facts of the Case:
In June 2003 the state signed afresh MOU with Sterlite for 3 million tons of bauxite min, a 1 million ton alumina plant, a 75 MW power plant and a 50,000 TPA smelter project. As per the Central Empowered Committee (CEC) appointed by the Supreme Court 58.943 ha of forest land was needed for the refinery which consists of 29 ha of village forest land and 30 ha of reserve forest. The company set up a rehabilitation colony called Vedanta Nagar and by 2004 some families had shifted especially those who opted for one time cash compensation and some others who had little or no options.
In 2004, the state Forest Department issued notice to VAL for encroachment of village forest land to the extent of 4.21 ha and informed the MOEF accordingly. Two activists and a professional also filed a petition before the CEC of the Supreme Court that the VAL had violated the Schedule V of the Indian Constitution resulting into land alienation and destruction of local cultural heritage.
In September 2005 the CEC in their report to the Supreme Court did not recommend clearances to the project so the Supreme Court in February 2006 asked the FAC to prepare a report and submit in three months. Based on the reports of two agencies the FAC recommended clearances to forest land for the project though another case in which the clearance was granted by FAC was under court’s review (2006). As per the CEC the MOEF acted in haste in granting clearances to the project (2007). The Supreme Court asked the CEC and the VAL to propose alternate sites for mining.
Power plant commenced 2017 in February 2007 and trial run at the refinery started in March 2007 as the Company stated that it was obtaining bauxite from Gujarat and Chhattisgarh on account of pending clearance from the Court. Ecological and biodiversity: The REIA (Rapid Environmental Impact Assessment) report prepared by Tata AIG Risk Management Services Ltd., Mumbai (TARMS) for SIIL mentions that the estimated bauxite reserve in the lease area was about 73 million tons and the estimated life span of the mining was 23 years.
The proposed mining site was located on the top of Niyamgiri hills. The company did not originally disclose that forest land diversion is required. It also did not clearly spell out what were the likely effects of such mining operations on the environment and society. In fact the company claimed that there was no forest land within 10 KM radius of the plant. The CEC made inspections and submitted a report on September 21 2005, and recommended that the clearances should be revoked and mining operations be discontinued. But the Supreme Court granted clearance for forest land diversion in April 2009. This approval generated mass protests from the local people.
The question whether STs and other TFD like Dongaria Kondh, Kutia Kandha and others have got some religious rights i.e. rights of worship over Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha
The Supreme Court Judgment of April 18 2003 was historic in the sense that Gram Sabha’s were empowered to process all claims on forest rights, in particular, religious rights. Once this was done under supervision of a District Judge the report would be sent to the MOEF (Mishra, 2010). As per May 6, 2016 news report, the Supreme Court dismissed a petition filed by the OMC challenging the Gram Sabha decision on refusing permission for bauxite mining on the Nayamgiri hills. The Supreme Court in their order of 2013 had asked the Gram Sabha to decide whether or not this project should go ahead.
Gram Sabha role: In July 2013, the locals were asked to give their views on the project at the Nyamgiri Hills. They told the observer of the Court that the project would destroy God and source of sustenance. This was challenged by the state in the Supreme Court. In April 2013 the Supreme Court ruled that Gram Sabhas will consider claims under FRA and decide if the project infringes on the ‘religious and cultural rights’ of the local people. Amnesty international reports: The salient conclusions of Amnesty International’s 2010 and 2011 had concluded that the project involves a diversion of 660 hectares of protected forest land located in the traditional lands of the 8,500 strong Dongria Kondh, a protected Adivasi (indigenous) community and a few other marginalized communities, which will threaten the very survival of the community. The project had undermined the human rights, including right to health and a healthy environment, an adequate standard of living, water, work and food. The report criticized the weakness of India’s official bodies to respect and protect the communities’ human rights as required under international human rights law. Recommendations from Amnesty International include provisions for community to access adequate information, comprehensive human rights and environmental impact assessment of the mine plans and any implementation should be undertaken in genuine and open consultation with the local stakeholders. It ordered the suspension of all mine and refinery expansion plans until the human rights issues are properly addressed.
According to the Saxena committee report , Ecological Costs of Mining operations with the proposed intensity would spread over more than 7 square km and severely disturb the wildlife habitat especially elephants by cutting 1,21,337 trees. The Forest Rights Act could be modified only for conservation of critical wildlife habitats. The Section 5 of the Act vests the Gram Sabhas and the forest dwellers with statutory rights to conserve, protect and manage forests, biodiversity, wildlife, water catchment areas and their cultural and natural heritage.
The resource extraction projects in the developing countries have become a very complex process because of several legal, regulatory, institutional and governance limitations. The public policy in respect of mining too takes a long time to emerge; meanwhile the damage is done to the society and environments. These countries take relatively a longer time to develop an absorptive capacity to realize the gains from Foreign Direct Investment (FDI). Particularly in the context of India there is no dearth of experience in the mining in several types of minerals but unfortunately the institutions are not able to derive any worthwhile benefits from the past experiences whether by the local investors or foreign investors. Delays and litigation at the state and national level give a mixed message to the foreign investors. FDI usually flows to the countries with relatively stable and predictable legal and institutional regimes (though often FDI is also attracted by the lax environment enforcement in the host countries). In the anxiety to develop the Orissa state, government invited both foreign as well as domestic investors; but due to the limits of the state public policy and implementation there were inordinate, delays, litigation, and protests. Some of the power and steel projects of domestic investors have taken decades to fructify
The Apex Court thus pronounced a landmark judgment wherein it not only upheld and recognised the rights of Schedule Tribe and traditional Forest dwellers that have often been marginalised in the wake of development projects but also recognised the importance of big infrastructure projects which not only provide platform for ‘development’ but also provide opportunities of employment and cannot be disregarded completely in view of ‘rights’.