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 18^th of Febraury, 2013.

Mining Sector and its Future in India

http://amrc.org.hk/node/1271

Ramamurthi Sreedhar

Introduction
India is endowed with huge resources of many metallic and non-metallic minerals. Since independence in 1947, there has been a rapid growth in the mineral production both in terms of quantity and value. Currently, India produces as many as 87 minerals, which include 4 fuel, 10 metallic, 47 non-metallic, 3 atomic and 23 minor minerals (including building and other materials).
The mining activities are extremely poorly regulated despite the fact that as early as 1948, the founding fathers of the constitution realized this need. During the Constitutional debates, they saidas early as in 1948, “Industrialisation has brought in its wake an ever-increasing demand for mineral resources. These resources are non-replenishable and mostly scarce. Proper control over regulation and development of mines and minerals is therefore, a matter of national concern.” Today over 80,000 mines operate illegally as against nearly 10,000 legitimate leases. Only a third of the legal mines actually report to the Indian Bureau of Mines, the regulator.
Within two decades of liberalised economy, much in contrast with the Constitutional objectives, mining as a sector has come to be associated with scams, conflicts, violence and ecological degradation.
A Quick Overview
Mining of major minerals was a forte of the Public Sector Undertakings until the nineties when the country embarked on the economic policy of privatization and globalization. New ways are being devised for exploitation of the resources and to hand over wealth of the nation for small short-term gains. The rapidity with which the global interests want to usurp these resources is reflected to the stock markets and it is with an exponential rate that mining is devouring lands and livelihoods of many communities. In the case of coal, the private sector was a key player until it was nationalized in the seventies again to be opened up in the last decade and as of today nearly twenty per cent of the known coal reserves of the country have been handed over to the private sector. Most mineral resources are co-terminus with Forests and Schedule Areas and mining has become a major source of destruction of the environment and livelihoods of the local communities and has reached alarming proportions. Some key facts:

1. Mining has a low contribution to the economy. GDP from mining has never exceeded 5% of the GDP even after liberalization. In comparison, small and medium enterprises contributed significantly (29%), employing more people and affecting less people.

2. Out of the estimated or known coal reserves of 267 billion tones, 48 billion tonnes, almost one-fifth are allocated to high networth companies in what is now being debated as the biggest scam around natural resource allocation amounting to illegitimate corporate benefits of over 40 Billion USD.

3. Bauxite mines allotted to companies like ANRAK, NALCO, VEDANTA, and JINDAL could last them for a century. Most of these mining blocks are in the Schedule V areas which have protection under the constitution and by Samata Judgment. The States have circumvented these protections by taking lease by state corporations and entering into JVs with private companies.

4. Mining in several blocks will only begin 5 decades from the date of clearance which is a clear indication of sacrificing resources in one-go and also negating the chance of communities to assert their rights.

5. The input of resources into production stream is huge – e.g. inputs for 1000 kg primary aluminium production requires >5000 kg of bauxite ore, 13,000 litres of fresh water, 27500 litres of sea water, 15,711 kWh of electricity consumption. It clearly depicts that mining of a mineral is not limited to the mineral alone, it is highly intensified resource use of other resources or raw materials.

6. Occupational hazards in mining industry are under reported, unreported and fail to recognize the huge costs at the society level. Underground coal mines result in 1 death for 2.5 mT of coal mines. A huge proportion of coal mine workers suffer from Coal Workers Pneumoconiosis (around 25% of coal workers). Noise pollution (>90dB) is a huge neglected aspect which is increasingly affecting workers as the mines are mechanized and the protective gears do not respond to working conditions or are not appropriately suitable to conditions.

7. The reclamation costs are being estimated at least 4% of the coal production costs, areas impacted by coal fires is increasingly affecting a large conglomerate of settlements. With the introduction of coal bed methane i.e. emptying the last residues, the kind of water evacuation is likely to damage land at large scale. Even at micro levels of processing and disposal there is 1 death per 5 mT of Coal input and 1.3 disabling injuries per mT.

8. Villages in the mining regions are getting devoid of drinking water due to increased competitive use of water by industry and mining. It is not mining alone, once we see the downstream industry we realize that huge quantum of water is being gulped by the industry – e.g. it is estimated that this water can serve 300 million populations. On the other hand, the slippages in rural drinking water supply are huge i.e. the overall quantity and quality problem is glaring. 42% of households in villages of India have no electricity where as the industry is consuming the major share of electricity.

9. With heavy mechanization, the labour or employment is decreasing whereas in small scale mining labour norms are flouted both in terms of remuneration as well as provision of facilities.

The impacts are widespread and diverse, and have created socio-economic and cultural impacts over different geographies and ecosystems – from the Western Ghats which is an UNESCO Heritage Site and a Global Biodiversity Hotspot to Stone Quarries of Rajasthan where silicosis is a blight on a huge population still emerging from the cover of denial by the government, and from coal mines in Meghalaya leading to Acid Mine Drainage to beach sands in Kerala causing cancer from radiation. Even constitutionally protected tribal areas Scheduled Areas, (Schedule V and VI), where a large proportion of the mineral wealth of the country rests, have not been spared of this onslaught.
The current trend is to promote more mining and a complex set of factors external as well as internal are driving more investments. India opened up its FDI in mining without any bottlenecks for the investors in 1991. The policies initially aided the State and later, the corporates, as promoter of economic growth and private profitability by rapidly abstracting mineral wealth of the country. Various actors have invested into the sector, including national and international companies, banks, equity funds, and also “round-tripping” of illegal funds etc. It is now predicted to almost doubling its current size within the next 15 years. The irony is while the mining is being promoted, there is no polluters pay principle in practice which is building a huge cost towards environment. The regulatory regime is in place but these are again skewed by executive decisions to promote investments. Moreover monitoring is not effective thus leading to lowest compliance.
Government of India’s Priority and Our Concerns
The National Mineral Policy of 2008 banks upon inviting high investments into the mining sector and has promised of a Sustainable Mining Framework. Although there has been mention about impact on people, land acquisition and compensation, it is hugely oriented at looking mining as an economic opportunity. This is reflected in the new bill, through which a single mining lease could be as large as 100 km²; renewal of leases is being replaced by extension bequeathing it till the deposit lasts which will make miners squat for long; there is a growing dilution of provisions which favours ownership to communities to only profit sharing that too through a highly bureaucratic setup.
The push is to change government policies and make them favourable to industry, thus the mining companies and the State are equally alienated from the host communities. The financial transactions are very opaque, with investments banks which are large in number channelizing funds which is difficult to track. The whole issue of capital mobility and its role in expanding mining is still poorly understood.
Ecosystems are getting disturbed beyond their resilience, like the river ecosystem is getting hugely affected, so is the wildlife corridors. The interrelationship between governance of a welfare state and mining is marred by huge gaps and strange complicated structures. The glaring anachronism in terms of neglect of mapping human, botanical, zoological and atmospheric resources is huge; the result of which is these overlying resources are not accounted and treated as overburden by companies and government. Thereby the whole process is damaging the huge potential of community and undermining the wealth of the ecosystem.
By and large in the mining operation and investment world, the key beneficiaries are investors, banks, owners, politicians and contractors, consultants and reclaimers. The cost is being paid by local communities, workers, environment, ecosystem and small investors.
The first Industrial Policy Resolution adopted in 1948 codified the national policy in respect of mines and minerals. Mining sector also received due attention in the second 'Industrial Policy Statement' issued in 1956. As a follow-up measure to Industrial Policy Resolution of 1956, the Mines Minerals Regulation and Development Act 1948 (MMRD) was repealed and MMRD Act 1957 was enacted. Under this Act the Mineral Concession Rules 1960 and the Mineral Conservation and Development Rules 1958 (MCDR) were issued. The new Industrial policy in 1991 oriented towards market liberalisation.
The National Mineral Policy 1993 was an exercise to keep the mineral sector tuned to the restructuring measures adopted in the trade and fiscal sectors. The new Mineral Policy declared in March 1993, has made a radical departure from the earlier policies by throwing open the mineral sector to private companies and by allowing equity participation by foreign companies in joint venture in mining promoted by Indian Companies. Further Amendments in MMRD Act, 1957 in 1999 was brought in to reflect the changed emphasis on “development” rather than “regulation” and was amended to MMDR Act.
The slow pace of Foreign Direct Investments (FDI) in the mining sector even five years after the liberalization of the investment regime, the lack of enthusiasm for investment in prospecting shown by the domestic private sector, and the lack of resources with public sector agencies meant that the sector was unable to significantly contribute to growth. During the Mid-term Appraisal of the 10th Plan in the Planning Commission, it was observed that the 1993 policy had not been able to achieve the aim of encouraging the flow of private investment and introduction of high end technology for exploration and mining because of procedural delays, etc. A need for review of NMP, 1993 with a High Level Committee on National Mineral to review the situation led to the National Mineral Policy (NMP), 2008, which confers lot more concessions to investors while also expressing the need for environmental and social safeguards. A new Bill, the Mines Minerals Development and Regulation Act 2011 has been introduced in the Parliament and is currently under the scrutiny of the Parliamentary Standing Committee.
The provisions regarding working conditions and workers are covered by the Mines Act 1951 which is also being reviewed. Surveys conducted in few selected mines recently by Directorate General of Mines Safety show that a significant number of persons employed in the mines are suffering from occupational diseases including Silicosis, Coal Workers’ Pneumoconiosis, Noise Induced Hearing Loss, etc. Because of the acute shortage of Occupational Health Inspectors, a complete picture of the occupational health status in mines is not available. Moreover, the persons employed in mines are exposed to number of hazards at workplace which adversely affect their health. Some of the important ones are dust, noise, vibrations, heat, humidity etc.
The long-term programmes in every sector of the economy in India are still governed by and large by the Plan Programmes. Occupational Safety and Health at workplaces has been declared a priority area for formulation of activities in the XII five year plan, the Planning Commission had set up a Working Group on Occupational Safety and Health (OSH) under the chairmanship of Secretary, Ministry of Labour and Employment. The report concludes on the existing situation “In spite of many initiatives, the standards of safety in mines have not yet reached to a worldwide accepted norm of Zero Harm at Workplace. Further, there are periodic occurrences of disasters in coal mines.
This calls for fresh initiatives with use of modern technologies and tools, scientific data acquisition, analysis and formulation of action plans on each identified thrust areas, proper implementation and effective monitoring of results. In the area of statutory enforcement, result based inspections and enquiries, compliance tracking system and on-line monitoring of processes are proposed to be undertaken through various plan schemes proposed during the XII Five Year Plan.
However all these so called measures being taken up as a priority will not be having much implications until the Mines Act is made more stringent and companies and government agencies are held accountable.
Towards a Way Ahead
Mining is one of the most environmentally and socially destructive economic activity. It has a low contribution to the GDP but the conflict it engenders is enormous and widespread. Our country today has the dubious distinction of having illegal mines significantly outnumbering the legal mines. A new Mines Mineral Development and Regulation Act is on the anvil and it calls for far reaching reforms in the mining sector. The future should usher in an era of Mineral Development with development as the focus rather than the current attitude of exploiting minerals for mere profit.
The key emphasis has to be on

1. Rationalising and regularization of the on-going mining activities on a war footing;

The unacceptable situation of illegal mining must be put to an end. Irrational exploitation of differing grades of ores for short term gains has to be restrained. Illegal mining of minor-minerals particularly of river-bed across the country have been destroying the river systems and needs urgent attention. This calls for a total moratorium on new leases and ensuring “zero-tolerance”.

2. Increasing investments on exploration of all resources and have a detailed map before embarking on deeper exploration and even in that process especially through non-invasive technologies and augmenting the reserves both on-land and within our exclusive economic zone in the oceans;

Exploration investment in the country is abysmally low and does not even constitute two per cent of the global exploration investments and needs to be raised significantly.
There are very little resources going into developing new exploration methods. While our EEZ extends to 200 km from the coast, current investments are restricted only to search for oil and gas and disturbing the near shore environment.

3. Enhancing the efficiency of the mining activities and generating more resources from “brown-field” expansion rather than opening up new “green-field” areas;

Small pocket deposits in forested regions are being opened up creating patchiness and larger impact on the forest corridors while efficiency improvements and expansion of existing deposits are being neglected. This has to be a high priority.

4. Enabling and emphasizing on local value addition and restricting export of minerals;

Though every state government talks about value addition, in the name of lack of technology or that mining is a stand-alone industry important minerals are being exported with very little benefit to the state or the communities. Value addition must be the norm rather than as an exception.

5. Developing a widespread understanding of the strategic value of different minerals and ensuring conservation of requisite quantities of such minerals;

The strategic value of various minerals must be recognized and specific efforts must be made to conserve minerals essential for the country’s future. Minerals such as bauxite, titanium, several heavy metals which will be crucial for future development of materials need to be assessed for our long term needs rather than for profits to corporates in the current period.

6. Ensuring strict compliance of all the environmental, social and labour laws governing mining activities and several environmental, social and labour laws are constantly violated in several mining contexts.

The laws should be made convergent with proper oversight authorities. The blight of occupational diseases such as asbestosis and silicosis must be eliminated.

6. Enabling evolution of economic opportunities not dependent on mining.

The long term consequences of climate change and strategic future mineral availability should form the key consideration in the development of minerals. It is important to recognize that mineral bearing areas do not suffer from the classic situation of “resource curse” which is seen across the globe. In order to do this effort must be made to identify economic opportunities which are not dependent on mining.
A Reflection
We recognize that the minerals will be ours forever if we restrain mining but the wealth of the soil and other biota will be lost forever if we mine the minerals below them. Mechanisms like paying the Net Present Value as compensation do not reflect the true long term value of the ecosystem services which the terrain and the plant and animal resources provide. The future must make these important elements in the design.
These are issues that several organisations, networks and alliances be it mm&P in India, JATAM in Indonesia and AIMES in Africa, ATNC, ANREOV, JSAPMMD, NGO Forum on ADB, MAC and several other groups in Latin America are grappling with and confronting as realities. There are varied strong protests in the entire life-cycle where alliances have had a positive presence. We are against Greenfield mining, we want the existing mines to work as per rules and regulations and we want mine-closure to happen properly including the rehabilitation of the workers. We want our countries to move away from an economy dependent on mining in the short run.
The real change has to be in the development paradigm. We need greater information exchange and relationships with the communities to evolve this new paradigm. Otherwise we will run the risk of ending up only in targeting governments and investors and institutions jointly, delay the activities and denigrate their behaviour and definitely seek justice to the specific communities and yet feel inadequate. It is indeed a long way to go for the transformation we are seeking!