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.
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