Orissa's Niyamgiri tribals await apex court verdict

"Heard both sides. Arguments concluded. Judgment reserved. Parties are permitted to file their written submissions, if any, within a week."

This was the order of the Supreme Court's green bench for the final hearing in the case of the bauxite mining in the Niyamgiri Hills in Orissa. It sounds like a routine order, but its twenty words do not reflect the volatility of the deliberations that went in the preceding hearing. The final judgment is yet to be issued.

Niyamgiri hills. Pic: Himansu Patra.

This issue of mining and refinery of the Sterlite Industries Ltd. (a flagship company of the Vedanta Resources Plc a British company), is complex and symbolic of the growth-driven realities of India. It is a case where law has been molded, impacts underestimated, facts twisted, and life undermined.

From the standpoint of those at the receiving end, the struggle has been on in the apex court, through public pressure, ground protests and through the media. The final hearing of the case took place on 26 October 2007. Earlier, the Supreme Court had separately heard an independent writ petition against in Niyamgiri hills. The petition highlighted the impacts of mining on the Dongria Kondh tribals as well as their rights.

Sidhartha Nayak, a social activist and advocate from Bhawanipatna, Kalahandi in Orissa, filed the petition through advocate Anitha Shenoy. The petition highlighted and the proposed mining will strip open the forest and destroy the Niyamgiri hilltop. It also delved on the significance of hilltops and specially Niyamgiri for the Dongaria Kondh community -- the hilltops and plateau are seen as "playground" of gods and goddess i.e. Dasak or Patra.

The petition also referred to provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 in the context of the rights of the adivasi community. It quoted the definitions of Community Forest Resource as defined in Act, linked it to the current context and also highlighted that the legislation clearly states that no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted from the forest land under his occupation till the recognition and verification procedure is complete. It is the gram sabha which is the authority to initiate the process for determining the nature and extent of individual or community forest rights.

Following the 5 October hearing, Nayak's petition was merged with the hearings in the ongoing T N Godavarman case. The Ministry of Environment and Forests filed its report with the apex court, to which the court then asked petitioner was asked to file objections.

At the 26 October hearing the petitioner submitted his response and sought that it to be argued. However, the court said that the submissions will be examined at the level of the Amicus Curiae (friend of the court), and that there would be no further argument in this regard.

When senior counsel appearing for the petitioner Sanjay Parikh highlighted the facts of the application and its impact on the Dongaria Kondh tribals, he was asked instead to give the number of tribals he was representing. Further, the court did not set a date when an Amicus Curiae would hear the petitioner's rebuttal.

A rally against the mining project awaiting clearance. Pic: Himansu Patra.

The case was discussed in the light of the profits and dealings of Sterlite Industries, and the apex court said that Sterlite was the company in question and not Vedant, since Sterlite was operating in India. In line with this, the court asked Sterlite to pay 5 per cent of the profits from the mining segment of all their undertakings in India for tribal development, and also deposit Rs.50 crores to the Government of Orissa. It ordered Sterlite to file an affidavit in this regard.

The Supreme Court's own body, the Central Empowered Committee (CEC) set up as part of the ongoing T N Godavarman case had already given its recommendations against the grant of clearance for the project. My earlier articles in India Together have highlighted these facts.

International scrutiny of Vedanta

However the conflict over the Niyamgiri hills, amongst other similar developments, has recently put Vedanta under scrutiny internationally. The social and environmental violations in the current case and other instances like Sterlite's operations in Tuticorin, Tamilnadu has led to a very significant set of recommendations by the Norwegian Council of Ethics. In October 2006, following a request from the Norwegian Government Pension Fund-Global, the Council decided to assess whether the investments in Vedanta implied a risk of the Fund contributing to unethical acts.

The Council on Ethics is an independent advisory body charged with submitting recommendations to the Ministry of Finance. Their mandate, according to them, was to assess whether companies should be excluded from the Norwegian Government Pension Fund-Global because of acts or omissions that are in conflict with the criteria of already laid-out ethical guidelines.

After its assessment, the Council concluded that Vedanta as well as its Indian subsidiaries Sterlite and the Madras Aluminium Company (MALCO) be excluded from the investment universe of the Norwegian Government Pension Fund. They recommended this in a report to the Ministry of Finance of Norway and on 15 May 2007. According to the International Herald Tribune earlier this month, the Norwegian Government Global Pension Fund accepted the recommendations and dropped Vedanta from its investments. (See: The IHT report.)

The 41-page report cites the environmental and human rights violations during the operations of the company in India as the basis for its recommendation. With specific reference to the Niyamgiri case, the report amongst other things observes, "the Council finds that the planned mining project in the Niyamgiri Hills may entail considerable negative and irreversible effects on the whole ecosystem of the area. In addition to this area's seemingly unique natural heritage values, the Council attaches importance to the serious consequences the mining operation may have on the water resources in the area."

Their conclusion is emphatic. While talking about Vedanta's operations in India the reports states that, "this indicates a pattern of behaviour where such violations are accepted and have become an integral part of corporate practice. This pattern represents an unacceptable risk that the company's unethical practice will continue in the future."

Thousands of miles away from India, a different country's investment fund appears to have recognized what has gone wrong. The contradictions between the lack of substantive argument in the Supreme Court of India and the recognition of serious concerns on the same matter in the Norwegian Council of Ethics report are stark and ironic.

This may be a symbolic victory. In the meantime, it is a 'wait and watch' to see what the final judgment of the Supreme Court has to say about the future of the pristine Niyamgiri hills and the tribal communities dependant on it. Activists fear that the ruling may be in favour of the project proponent, given the manner in which the proceedings on 26 October went on.