Monday, February 11, 2013

Vedanta in Niyamgiri – Decade of Obfuscation



After the farcical public hearing conducted on the project on the invitation of local people and a fact finding by our team from mines minerals and PEOPLES, we visited the area in late 2003. We realized that lands, including village forests and grazing land and even protected forests were already acquired and even encroached upon by the refinery and other related activities. The State and the Central Government and particularly the Company and the District Administration were at their devastating best. Villagers had very little clue about the vastness of the destruction. Today the entire world knows about it and people in Niyamgiri have been relentlessly demonstrating against the project which is floating on violations.

 Over this decade, the Vedanta Aluminium Projects have had their legal twists and turns and has entered its second decade of litigation when in the order dated 06/12/2012, the Supreme Court put this up for further hearing on 11.01.2013 in the WRIT PETITION (CIVIL) NO(s). 180 of 2011.

Suppresio veri Suggestio Falsi - 

The group has been obfuscating the facts since the beginning and to its convenience stating in different affidavits that the mining and the plants are integrated or stand-alone. In reality the impact of the project extends across all the components for which the group has initiated regulatory engagement. The various components and the manner in which each one has been presented is a classic example of the definition of untruth – suppresio veri, suggestio falsi!

The Niyamgiri Mines entails the following downstream actions and the total land and fresh water resources that will be consumed in the next 20-30 years is as follows:


Project
Original
Expanded
Area Now (Ha)
Area Expanded
Total
(Ha)
1
Bauxite Mine at Niyamgiri Hills
3 MTPA
15.48 MTPA
660.75

664
2
Alumina Refinery at Lanjigarh
1 MTPA
6 MTPA
664.69
1343.2
2007.89
3
Red Mud Pond

Will need further land
473
2200
2673
4
Ash Pond

264
541
805
5
The Captive Power Plant at Lanjigarh
75 MW
150 MW



6
The Smelter Plant at Jarsuguda
0.25 MTPA
1.6 MTPA
192
375
507
7
Captive Power Plant at Jharsuguda
675 MW
1350 MW



Total Land Area Legally Taken Away in Ha
6656.89


Per Day Now
After Exapansion
Yearly in ML
8
Water Pumping In Tel River for Lanjigarh
15 MLPD

56 MLPD

4500
16800

9
Water for Jharsuguda from Hirakud
112

40600

Total Water Consumption Per Year in Million Liters
57400
10
Forest Land for Refinery & Mining (CEC)
58.943
672.018


730.961
11
Forest Land at Jharsuguda
Claim no Forest Land is required (Violations Reported)
0
Total Forest Land
730.961
It is unfortunate that neither the executive nor the judiciary is able to appreciate the cumulative impacts that are caused by such a decision. This table does not include the coal mines for the captive power plants as they will also entail a significant impact.

The November 2007 order by the Supreme Court was based on the understanding that the project will be handled by an Indian entity as Vedanta Resources was not a reliable company. The current and proposed structure of Vedanta clearly points out the total control of Vedanta on the projects.
Tryst with other Regulators not revealed

Orissa High Court’s rejection of the plea on the expansion of the illegal expansion of the refinery was categorical. It was here too that the company argued on the expansion and availability of bauxite.

 



 and after losing out at the National Environmental Appellate Authority and failing in the review petition in the NGT the company is currently trying to shift attention on the violation under the Forest Rights Act.

The December 6 Order of Supreme Court

“The Solicitor General, appearing for the Union of India has submitted that the decision of the Central Government and the impugned order  passed  by  the  MoS,  Environment  and  Forests, Government of India, are mainly based on  the  provisions  of  the  Scheduled   Tribes   and   Other   Traditional   Forest   Dweller (Recognition of Forest Rights) Act, 2006.
              
In view of the stand taken by the Solicitor General, the provisions of the aforesaid Act have come under consideration and it would be necessary for this Court to examine the import and reach of the Act.  Any decision of the Court on the construction of the Act will have a bearing not only on the proposed project and the mining operation in the bauxite mines at Niyamgiri Hills, but is likely to have a widespread impact on the economic and social life of the country.
                
We, therefore,  direct  the  Union  of  India  to  file  an  affidavit making clear its stand  on  the  Act  and  spelling  out clearly how it understands the provisions of the Act.” (emphasis added)

Also before proceeding further in the matter,  we  wish  to know the status of the proceedings under  Section  6  of  the  Act before the Gram Sabha for the villages on the slopes of  Niyamgiri Hill that are likely to be affected by the  proposed  project  and the  mining  operations  on  the  top  of  the  Hill.   The State Government is directed to file a detailed affidavit bringing on record the steps taken by the Gram Sabha under Section 6 of the Act.

The State should also have the original records of those proceedings available for our perusal when the matter is next taken up.

The Legal Standpoint – The Bare Act

The Section 6 (1) of the Act as rightly pointed out by Hon Justice Aftab Alam wrests the sole authority of vesting rights to the gram sabha. Perhaps this is the real import of the reversal of the historical injustice to this republic. The Forest Acts progressively consolidated the powers to decision making over forests and its use to the Central Government and the Forest Rights Act directly vests it to the smallest unit of self-governance. Any other interpretation would render it hollow and completely undermine the process.  The section reads

6. (1) The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee.
Therefore the Union of India is duty bound to ensure that these rights are respected irrespective of the number of projects and has no role in the vesting of the rights per se as would be the status of the State Government.
Enablement – The real role of the State
The State’s role would be in providing the requisite tools and techniques to undertake various tasks envisaged under the section of the act. The State however has usurped this role and on the contrary given an impression that some largesse is being bestowed upon them. Instead of enabling the communities, Gramsabhas the States have been using Section (6) Clause 3 Independent of Section 2
The section 6(2) presents a case for the aggrieved and the grievance redrressal system. This authority of appeal has usurped the role of the vesting authority. The section reads as follows:
(2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee constituted under sub-section (3) and the Sub-Divisional Level Committee shall consider and dispose of such petition:
Provided that every such petition shall be preferred within sixty days from the date of passing of the resolution by the Gram Sabha;
Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case.
And the Section 6(3) reads
(3) The State Government shall constitute a Sub-Divisional Level Committee to examine the resolutions passed by the Gram Sabha and prepare the records of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.
This is definitely the most singular cause for the delay in delineation of areas covered by rights vested by gram sabhas by Scheduled Tribes and other Forest Dwellers.
Thus by highlighting the issues of global economy some specific constitutional and legal issues are involved and it narrows down the perspectives of a case that has entered its second decade of litigation. There are other important and key clauses in this act itself, such as consent for any change in land use or access beyond the fundamental aspect of vesting itself that has been pinpointed by the Hon Court.
Unequivocal Statement of the Ministry of Tribal Affairs 

Further in his recent letter to the Environment Minister, the Minister for Tribal Affairs has unequivocally mentioned that the provisions of the act will have a bearing on the Vedanta Judgement and hence should not be diluted at any costs.
Complete Violation of Environmental Laws and their failure of the groups appeal in relevant forum
So far the case has been heard on the issue of the Forest Rights. The number of violations in relation to the other laws that the group must comply with have also got to be taken into account in any decision on the matter. The entire proceedings in the NEAA and NGT were on the EC which was granted in April 2009, which was not a subject matter of the earlier decision by the Supreme Court as the cause of appeal arose because of a fresh decision by the MoEF.
After several hearings, appeals for revision by the group the NEAA finally delivered this order
“14.        From the submission of the Appellants and the Respondents, it is clear that the Vimta Lab EIA of 2005 on the basis of which the EC was granted, was never in public domain for people to express their views/concerns during the two Public Hearings held in Raigada and Kalahandi during 2003, leading to non-compliance of Ministry’s Notification. Further a perusal of rapid EIA by Vimta Labs reveals that it lacks analysis in respect of human miseries which the project is likely to inflict. However, except for some minor variations, there is a marked similarity in the two reports and whether the Tata AIG report could have provided some basis to the Ministry to incorporate additional safeguards or mitigative measures can best be assessed by the Ministry itself through its expert arm viz the Expert Appraisal Committee.
                The Authority therefore remits the matter to the Ministry with direction to revisit its Environment Clearance including the aspect of public hearing and take appropriate action. Till this process is over, the Environment Clearance stands suspended. The appeals are disposed accordingly. No Costs.” (Emphasis added)
 
When the group preferred a review with the National Green Tribunal, the Tribunal ordered on 28thJuly 2011
The continuing violation of the FC Act also indicates that the group has no interest in remedying the situation.
 
Human Rights cannot be ignored
A number of human rights violations have taken place and continue. Amnesty International has brought out a series of reports indicating how blatant and persistent the violations have been and are being conducted at the behest of the company.
 In 2013 any nation aiming to be high on the League of Nations cannot turn a blind eye.  Though the NHRC has been investigating a number of them, including one in which the company has filed a fabricated case on five women of stealing scores of tonnes of steel and metal. The irony is these women, two of whom had feeding babies in their arms, were in prison for months only to be later found that this was at the instance of the company’s contractor in response to the demand of these women for fair wages.
Thus a group which has become a veritable “periodic-table” of illegalities must be made to realize that the judicial system though prone to delays will not deny justice to the people affected.
The next hearing on the case is fixed for 18th of Febraury, 2013.