Round and round the sacred hills

Some stories are long, winding and complicated. Their chronologies have within them histories: of facts, feelings and furore. No matter how interesting and exciting the present chapter might be, it remains totally de-contextualised if one does not flip back a few pages to understand where it all began. The real life trajectory of the proposed mining in Niyamgiri Hills of Orissa, sacred to the Dongria Kondh tribals, is one such tale that requires repeated narration.

The current segment of this tale hinges strongly on whether or not to allow mining by Sterlite Industries - through a special purpose vehicle with Orissa Mining Corporation - in the Niyamgiri Hills. On 29 June 2010, the Ministry of Environment and Forests (MoEF) set up a committee to examine the proposal submitted by OMC to carry out bauxite mining in Niyamgiri. The four members of this committee are N C Saxena, a former IAS officer (Chair), S Parasuraman, Director, Tata Institute of Social Sciences, Amita Baviskar from the Institute of Economic Growth and Pramode Kant, a retired Indian Forest Service (IFS) officer.

The initial terms of reference of this four member committee were broadened on 19 July. The committee is now trying to understand the impacts of the proposed mining in on the culture, lives and livelihoods of the Dongria Kondh tribals, the impacts on biodiversity, wildlife and ecology. It will foremost also look at the status of implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

But this is not the first committee to whom heads are turning for a decision or recommendation. One of the first was that of the Central Empowered Committee of the Supreme Court, way back in 2005. However, before we look at that committee's work, let's flip some other pages back in this story.

The history of the judicial challenge

The issue first came into light in 2004, when the forest and environment clearances granted to the Lanjigarh alumina refinery of Sterlite Industries was challenged before the Central Empowered Committee (CEC) of the Supreme Court. The refinery depended on bauxite mining in the nearby hills by Sterlite's parent company (UK-based Vedanta), but forest clearance for the mining, required under the Forest Conservation Act, 1980 (FCA) had not yet been obtained. This, the petitioners claimed, violated Section 4.4 of the FCA, which forbids construction on either forest or non-forest land unless forest clearance under the FCA has been issued.

Sterlite denied the link between the refinery and the mine, and succeeded in going ahead with the construction of the refinery. The company even went to the extent of declaring that no conversion of forest land would be needed for its project, and withdrew its earlier application before MoEF, in which it had sought conversion of some lands to non-forest use.

In 2005 the report of the Central Empowered Committee of the Supreme Court's T N Godavarman Thirumulpad v/s Union of India (forest) case was submitted to the court. This report categorically stated that mining activity should not be allowed in this ecologically sensitive hills. The legalese around the bauxite mining went on for a good two years, ending in the most scathing order in November 2007 by the Supreme Court against Vedanta.

However, while denying Vedanta, the court oddly permitted Sterlite (a subsidiary of Vedanta) to carry out the mining through a Special Purpose Vehicle with the state-owned Orissa Mining Corporation. In-principle approval for the diversion of 660 hectares of forest land for mining was granted in August 2008.

Environment clearance violations and the NEAA

Other than the forest clearance, mining in Niyamgiri also required an environment clearance, mandatory as per the Environment Impact Assessment Notification, 2006 (earlier 1994). OMC, which held the mining lease for the region, procured its environment clearance on 28 April 2009. This clearance, however, was challenged before the National Environment Appellate Authority (NEAA) soon after, and a number of issues were raised.

One of the foremost was that there existed two Environment Impact Assessment (EIA) reports with regards to mining in Niyamgiri Hills. The first was in the year 2002 by the Tata AIG group, the same agency which did the EIA for the refinery. During the legal challenge and through the use of Right to Information, it was realised that there existed a second EIA report in the year 2005. This EIA, prepared by VIMTA Labs, was never shared with the locals who would be affected by the project. The public hearing for the project had been conducted earlier, using the 2002 report - violating the law, which is quite clear that the final EIA report must be available prior to the public hearing.

At the time of writing this article, the arguments at the NEAA were complete and the judgment stands reserved.

Violations by the refinery

Even as the legal challenges continued and the protests and petitions at both national and international levels solidified, the alumina refinery took full shape and came into operation, benefiting from its forgotten illegalities. However, the its operations were also full of muck and messy affairs. The Orissa State Pollution Control Board (PCB) issued at least three notices to Vedanta for violating pollution norms at its Lanjigarh plant. The notice had asked the company to take immediate steps with references to the violations related to the refinery operations.

During a December 2008 site inspection by the Orissa PCB it was observed that the company had begun expansion work of its alumina processing unit and power plant in full swing, without any environment clearance or consent to establish, which are both mandatory requirements under different laws. The inspection report also revealed that there was seepage of alkaline wastewater into the Vamsadhara river, causing pollution. The Orissa PCB had issued show cause notices for the refinery operations in the years 2006 and 2007 as well.

Other committees and site inspections

The Vedanta-Sterlite story has seen other committees and inspections too. On 27 November 2009, the MoEF issued a statement in the Lok Sabha and subsequently to the public through a press release that according to a site inspection by the MoEF's regional office, the construction activity in for bauxite mining in Niyamgiri Hills had been carried out on non-forest land without the final forest clearance. Ironically, the press release mentioned that this was in violation of Section 4.4 of the guidelines of the FCA, 1980 which is where the case had first begun way back in 2004 (see this link).

However, in view of the above allegations and to address concerns regarding tribal rights and wildlife, a three-member committee was constituted by the MoEF. This committee consisted of Dr. Usha Ramanathan, from Centre for Study of Developing Society, Dr Vinod Rishi, Former Additional Director General (WL), WII, Dehradun and Shri J K Tewari, CCF (Central), Eastern Region Office (ERO), MoEF, Bhubaneswar. The committee made two visits to the area in January 2010. Dr. Vinod Rishi's report concluded, "do not allow further diversion of forest land in the niyamgiri ecosystem complex spanning the formation visible in the satellite imagery of google earth."

The report by Usha Ramanathan brought out yet another critical dimension - that of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). This legislation requires that rights of tribals and other forest dwelling communities be recognised and granted as per a procedure laid out in the law which includes resolutions of the gram sabha and additional requirements.

The report observed, with respect to the rights of the Dongria Kondh community, "the settlement of determination and settlement of individual, community and traditional rights had not been completed yet," It further added that, "until these, and allied rights are recognised, recorded and settled under the FRA, it would be unconstitutional and in breach of the FRA, to disturb their habitat". These reports were finalised and sent to MoEF on 26th February 2010.

In July 2010, the Saxena committee conducted its visit to the area. Soon after there were newspaper reports indicating that under pressure from the MoEF, the Orissa government had begun the 'recognition of rights' process.

The current chapter

Today, we sit awaiting the report of the latest committee, and wonder if there will be a further enquiry and scrutiny on that. Meanwhile, there is news that the Prime Minister.s Office (PMO) has written to the environment ministry to give clearance for the mining after "a through scrutiny by the expert appraisal committee and due consideration of all aspects," (see this link). Despite many violations, protests, evidences and committee recommendations, the fate of the Niyamgiri continues to hangs around in the corridors of power.