Ashish Kothari and Kanchi Kohli
The Supreme Court’s judgement on mining bauxite in the Niyamgiri Hills of Orissa is a classic case of providing an escape route to a legal defaulter. Delivered on 23rd November 2007, amidst stunned silence in the Chief Justice’s court, it displays several biases and flaws. Overtly it disallows forest clearance to a industrial house that has violated the law both in spirit and practice, but hidden behind the strictures is a neat solution for the company to get clearance! A final hearing on the mining proposal is due any day now, and unless the Court realizes its folly, serious injustice will be done to a sensitive adivasi community and to the environment.
In 2004, Vedanta Alumina Ltd (VAL) obtained environment clearance to run an alumina refinery in Kalahandi district of Orissa. The refinery was critically linked with the mining of bauxite in Niyamgiri Hills. VAL had started construction of the refinery without procuring clearances for the mining. It did not then mention that the refinery could not run unless it also mined bauxite as the raw material. This anomaly was exposed by three petitioners, R.Sreedhar, Biswajit Mohanty and Prafulla Samantara, in a complaint to the Central Empowered Committee (a monitoring body set up under directions by the Supreme Court’s Godavaraman forest case bench). The petitioners pointed out that the mining proposed in the Niyamgiri Hills was likely to have devastating impacts on forests, wildlife, and on the extremely vulnerable Dongria Kondh adivasi community.
Niyamgiri houses rich biodiversity, including tiger, leopard, sloth bear, pangolin, giant squirrels, and mouse deer. It is part of an elephant migration corridor, and home to over 300 plants species. These Hills are also the birth place of hundreds of streams which feed 2 large rivers (Vamsadhara and Nagavalli), providing drinking and irrigation water to millions of people in Orissa and Andhra Pradesh. Finally, the region harbours Dongria Kondh adivasis (a Primitive Tribal Group), who are supposed to have constitutional safeguards against such uprooting. The forests that VAL wants to mine contain sacred groves that are crucial for the Dongria Kondh’s cultural and spiritual sustenance. For them it is equivalent to proposing mining under a temple or a mosque.
The very first sentence of the Court’s November judgement is factually incorrect. It states that “M/s Vedanta Aluminuim Ltd. (formerly known as “Vedanta Alumina Ltd.”) filed an application seeking clearance of the proposal for use of 723.343 ha of land (including 58.943 ha of reserve forest land) in Lanjigarh Tehsil of Kalahandi District for setting up Alumina Refinery. The matter has been pending since 6.3.04.” In actuality, it was citizens who filed a case showing the company’s violations.
The judgement goes on to make further such statements. Over the last three years, petitioners, researchers, and the Centrally Empowered Committee (CEC) have pointed out the serious nature of violations indulged in by VAL. The petitioners had pointed out that the company wrongly delinked the mining from the refinery when originally seeking clearance (and getting it from the Ministry of Environment and Forests), and then sought to obtain clearance for mining saying it was necessary for the refinery! The CEC in its final report explicitly recommended to the Court, that clearance not be given. And yet, the contradicting its own monitoring committee’s recommendations Court’s judgement states: “It is not in dispute that in this case mining of bauxite deposits is required to take place on the top of Niyamgiri hills. MoEF has given an environment clearance for Alumina Refinery Project.”
At first glance it would appear that the November judgement has denied VAL clearance to mine. But scratch the surface, and it’s a different story. Just a few days before judgement day, the newspapers had splashed a report that the Norwegian Council of Ethics (NCE) had passed severe strictures against Vedanta, based on which the Norwegian government excluded the company from the investment portfolio of its Global Pension Fund. The report pointed to several unethical practices of VAL and its subsidiary Sterlite Industries India Limited (SIIL) in whose name the initial environmental clearance was granted. SIIL was found guilty of irresponsible handling of hazardous waste, illegal production expansion, and repeated and severe violations of a series of environmental requirements in its other operations within India.
Ironically, the Court chose to respond to this criticism from a foreign body, having previously ignored the advice and pleas of Indian citizens and experts including the CEC. The judgement states, referring to the NCE’s report: “We do not wish to express any opinion on the correctness of the said Report. However, we cannot take the risk of handing over an important asset into the hands of the company unless we are satisfied about its credibility.”
Incredibly, though, in the same judgement the Court offers a way out to VAL. It allows SIIL and Orissa Mining Corporation (OMC) Limited to appeal for clearance of the project, by assuring the Court of a “rehabilitation package”. This includes:
- State of Orissa to float a Special Purposes Vehicle (SPV) for scheduled area development of Lanjigarh Project with State of Orissa, OMC Limited and M/s SIIL as stakeholders.
- M/s SIIL will need to deposit 5% of its annual profits before tax and interest from Lanjigarh mining project or Rs. 10 crores, whichever is higher, for Scheduled Area Development with the said SPV.
- M/s SIIL shall pay Net Present Value (economic value of the forest being diverted) of Rs. 55 crores, Rs. 50.53 crores towards Wildlife Management Plan around Lanjigarh mine, and Rs. 12.20 crores towards tribal development.
- There are 16 specific suggestions by the Orissa State Government which include demarcation of lease area; identification of area for compensatory afforestation; rehabilitation; phased reclamation of mined area; specific and comprehensive plans for wildlife management and development of tribals and so on.
It is astounding that while disallowing the parent group’s plea, the Court has opened up the possibility of its subsidiary SIIL getting the same clearance! Was the Court merely trying to save its face by not granting direct clearance, but not offend VAL at the same time?
Moving quickly, SIIL moved the Court on 14th December 2007, accepting all the conditions laid down in the judgment. This application is due to come up any day now.
In the meanwhile, a review petition has been filed by a citizen, Sidhartha Nayak. Nayak and his lawyers had earlier moved the court independently on the grounds of the impacts mining on the Dongria Kondh tribals. On 5th October 2007, this case was merged with the ongoing arguments before the Godavarman (forest) bench. Nayak’s plea is that the issue being referred to is not that of the refinery, but of the 672 ha being sought for mining. The impacts of this activity have not been duly considered and argued.
Whatever the fate of this case, it has exposed the shallowness with which the court has looked at environmental and social issues, and the manner in which it has given easy escape routes to an alleged violator.
