MAC: Mines and Communities

Indian government committee condemns Vedanta's proposed Nyamgiri mine

Published by MAC on 2010-08-22
Source: Statement (2010-08-16)

Project may have "serious consequences" for entire country

A high-level committee was commissioned by India's Ministry of Environment and Forests (MoEF) earlier this year to deliver judgment on the country's most controversy-ridden mining proposal.

This is one by Vedanta Resources plc and the Orissa Mining Corporation to extract bauxite from the top of part of the Nyamgiri mountain range in Orissa. See: Is this the "world's most hated company"?

On August 16th the committee, headed by NC Saxena, delivered its conclusions to the Ministry and unequivocally condemned the project.

Consistent and numerous violations

The team discovered numerous instances of negligence - to the point of criminality - on the part of local government officials and the state government itself.

It  highlighted egregious violations of existing legislation to protect Indigenous Peoples rights (specifically as Forest Peoples).

Not least, it roundly condemned the manoeuvres and activities of UK-listed Vedanta - both in regard to the mine and the construction of its adjacent alumina refinery.

"The Vedanta Company has consistently violated the FCA, FRA, EPA* and the Orissa Forest Act in active collusion with the state officials. Perhaps the most blatant example of it is their act of illegally enclosing and occupying at least 26.123 ha of Village Forest Lands within its refinery depriving tribal, dalits and other rural poor of their rights.

"In view of the above this Committee is of the firm view that allowing mining in the proposed mining lease area by depriving two Primitive Tribal Groups of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well being of the entire country."

Vedanta pours scorn on its critics

In response to this condemnation, Vedanta's Mukesh Kumar sought to portray Mr Saxena and his colleagues as a disreputable NGO.

The company's supporters from Orissa have flown  to Delhi in an attempt to thwart a final government decision against the mine.

The report's introduction is reproduced below; the full pdf version is available at: http://moef.nic.in/downloads/public-information/Saxena_Vedanta.pdf

See also this week's other Vedanta-related  posting:

Indian government committee condemns Vedanta's proposed Nyamgiri mine

* Forest Conservation Act, Forest Rights Act, and Environment Protection Act

Introduction to the Saxena Report on Vedanta and the mining of Nyamgiri

In the committee's view the mining of Nyamgiri would:

• Destroy one of the most sacred sites of the Kondh Primitive Tribal Groups

• Destroy more than seven square kilometers of sacred, undisturbed forest land on top of the mountain that has been protected by the Dongaria Kondh for centuries as sacred to Niyam Raja and as essential to preserving the region's fertility.

• Endanger the self-sufficient forest-based livelihoods of these Primitive Tribal Groups

• Seriously harm the livelihood of hundreds of Dalit families who isndirectly depend upon these lands through their economic relationship with these Primitive Tribe Groups,

• Build roads through the Dongaria Kondh's territories, making the area easily accessible to poachers of wildlife and timber smugglers threatening the rich biodiversity of the hills

Violation of Forest Conservation Act

• The company is in illegal occupation of 26.123 ha of village forest lands enclosed within the factory premises. The claim by the company that they have only followed the state government orders and enclosed the forest lands within their factory premises to protect these lands and that they provide access to the tribal and other villagers to their village forest lands is completely false. This is an act of total contempt for the law on the part of the company and an apalling degree of collusion on the part of the concerned officials.

• For the construction of a road running parallel to the conveyor corridor, the company has illegally occupied plot number 157(P) measuring 1.0 acre and plot number 133 measuring 0.11 acres of village forest lands. This act is also similar to the above although the land involved is much smaller in extent.

Violation of the Environment Protection Act (EPA)

• The company M/s Vedanta Alumina Limited has already proceeded with construction activity for its enormous expansion project that would increase its capacity six fold from 1 Mtpa to 6 Mtpa without obtaining environmental clearance as per provisions of EIA Notification, 2006 under the EPA. This amounts to a serious violation of the provisions of the Environment (Protection) Act. This expansion, its extensive scale and advanced nature, is in complete violation of the EPA and is an expression of the contempt with which this company treats the laws of the land.

Violation of conditions of Clearance under EPA granted to Refinery

• The refinery was accorded clearance under the EPA on the condition that no forest land would be used for the establishment of the refinery. But now it is clearly established that the company has occupied 26.123 ha of village forest lands within the refinery boundary with the active collusion of concerned officials. Hence, the environmental clearance given to the company for setting up the refinery is legally invalid and has to be set aside.

Very limited relevance to the expanded Refinery:

• The mining activities in the PML site will have limited relevance to the refinery now under its six fold expansion as the 72 million ton ore deposit here would last only about four years for the increased needs of the expanded refinery. In balance against this are the severe adverse consequences on the primitive tribal people, environment, forests and wildlife that inhabit these forests.

Non-implementation of the Panchayats (Extension to the Scheduled Areas) Act (PESA)

The concerned area is a schedule V area where PESA is applicable. Thus, in addition to the implementation of FRA, the state government also has to ensure the compliance of the following provisions of PESA:

Section 4(i): The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects.

section 4(d) : every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;

section 4(m) (iii), according to which Gram Sabha has the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe.

Recommendations

• On the basis of oral and documentary evidence collected by the Committee it is established beyond dispute that Dongaria and Kutia Kondh have had traditional, customary, and often formalized access to the PML area as well as to the surrounding thick forests on the slope to collect various types of forest produce. These rights would be extinguished if the area is transferred for mining.

• The Ministry of Environment and Forests cannot grant clearance for use of forest land for non-forest purposes because the legal conditions for this clearance as laid down by its circular of 3 August, 2009, have not yet been met. These include the following: the process of recognition of rights under the Forest Rights Act has not been completed; the consent of the concerned community has neither been sought nor obtained; and the Gram Sabhas of the area concerned (hamlets in a Scheduled Area) have not certified on both these points as required.

• Mining will severely degrade the Niyamgiri hills ecosystem which is a rich wildlife habitat and an important and recognized elephant corridor, endanger the Dongaria Kondh's self-sufficient forest-based livelihoods, and lead to the extinction of their culture over a period of time.

• More than 7 square kilometres of the sacred undisturbed forest land on top of the mountain that has been protected for ages by the Dongaria Kondh as sacred to their deity, Niyam Raja, and essential for the region's fertility, will be stripped off its vegetation, soil and rendered into a vast barren exposed land.

• Mining will build roads through the Dongaria's territories, opening the area to outsiders, a trend that is already threatening the rich biodiversity of the hills.

• The mining at the proposed mining lease site will provide only 3Mtpa of ore out of the total annual requirement of 18 Mtpa of the Refinery after its ongoing expansion from the existing capacity of 1 Mtpa to 6 Mtpa (for which they have already nearly completed the work even before getting permission). The proposed mining site thus has low relevance to the future of the Refinery and is not critical at all for its functioning as is being claimed by the Company and the state officials.

• The Vedanta Company has consistently violated the FCA, FRA, EPA and the Orrisa Forest Act in active collusion with the state officials. Perhaps the most blatant example of it is their act of illegally enclosing and occupying at least 26.123 ha of Village Forest Lands within its refinery depriving tribal, dalits and other rural poor of their rights.

In view of the above this Committee is of the firm view that allowing mining in the proposed mining lease area by depriving two Primitive Tribal Groups of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well being of the entire country.


MoEF panel: Vedanta should not be given mining approval

Debabrata Mohanty

Indian Express

16 August 2010

Bhubaneswar : Vedanta's plan to mine the bauxite-rich Niyamgiri mountains in Kalahandi district suffered a major jolt today after a four-member panel jointly formed by Ministry of Environment and Forests and Ministry of Tribal Affairs recommended that the company should not be allowed to mine the mountain as it would shake the faith of tribal people in the laws of the land.


The Rs 4000 crore Vedanta alumina refinery project in Lanjigarh area of Kalahandi is waiting for green light from MoEF for digging the mountain that has about 72 million tonnes of bauxite ores.


The committee headed by National Advisory Council member NC Saxena in its 119-page report said that mining in the mountain would deprive two Primitive Tribal Groups of their rights over the proposed mining site and it should not be sacrificed in order to benefit a private company. "Since the company in question has repeatedly violated the law, allowing it further access to the proposed mining lease area at the cost of the rights of the Kutia and Dongaria Kondh, will have serious consequences for the security and well being of the entire country," the committee said.


The committee made it clear that the proposed area is intimately linked, by way of economic, religious and cultural ties, to 28 Kondh villages with a total population of 5148 persons. The affected include about 1453 Dongaria Kondh which constitutes 20 per cent of the total population of this tribe. If the economic, social and cultural life of one-fifth of the Dongaria Kondh population is directly affected by the mining, it will threaten the well being of the entire community. Since the Dongaria and Kutia Kondh are heavily dependent on forest produce for their livelihood, this forest cover loss will cause a significant decline in their economic well-being. Landless Dalits who live in these villages and are dependent upon the Kondh will also be similarly affected.

The committee said that if mining is permitted on this site it will not only be illegal but it will also -
• destroy one of the most sacred sites of the Kondh Primitive Tribal Groups;
• destroy more than seven square kilometres of sacred, undisturbed forest land on top of the mountain that has been protected by the Dongaria Kondh for centuries as sacred to Niyam Raja and as essential to preserving the region's fertility;
• endanger the self-sufficient forest-based livelihoods of these Primitive Tribal Groups;
• seriously harm the livelihood of hundreds of Dalit families who indirectly depend upon these lands through their economic relationship with these Primitive Tribe Groups; and
• build roads through the Dongaria Kondh's territories, making the area easily accessible to poachers of wildlife and timber smugglers threatening the rich biodiversity of the hills.

The mining activities in the proposed mining site will have limited relevance to the refinery now under a 6-fold expansion as the 72 million ton ore deposit here would last only about four years for the increased needs of the expanded refinery. In balance against this are the severe adverse consequences on the primitive tribal people, environment, forests and wildlife that inhabit these forests.

The committee said that the area proposed for mining lease (PML) in Niyamgiri and the surrounding thick forests are the cultural, religious and economic habitat of the Kondh Primitive Tribal Groups. "Discouraging and denying the claims of the Primitive Tribal Groups without the due process of law is illegal on the part of district or sub-divisional committees. Since the provisions of the FR Act have not been followed by the state government, and the legitimate and well established rights of the Kondh Primitive Tribe Groups have been deliberately disregarded by the district administration and the state government, the only course of action open before the MoEFis to withdraw the Stage 1 clearance given under Forest Conservation Act for the said area," it said.

Severely indicting the state government for its falsehoods in settling the tribals rights under FRA, the committee said from the evidence collected it can be concluded that the Orissa government is not likely to implement the Forest Rights Act in a fair and impartial manner as far as the proposed mining area is concerned. Since it has gone to the extent of forwarding false certificates and may do so again in future, the MoEF would be well advised not to accept the contentions of the Orissa government without independent verification. The centre should, therefore, engage a credible professional authority to assist people in filing their claims under the community clause for the PML area with the state administration.

The committee made it clear that the MOEF cannot grant clearance for diversion of forest land for non-forest purposes unless: .
- The process of recognition of rights under the Forest Rights Act is complete and satisfactory;
- The consent of the concerned community has been granted; and
- Both points have been certified by the Gram Sabha of the area concerned (which must be that of the hamlet being a Scheduled Area).
All of these conditions, not any one, must be satisfied. This is irrespective of the fact whether people have filed claims or not.

The Vedanta Alumina Limited's 1 million tonne alumina refinery in Lanjigarh area of Kalahandi district is already in the eye of a bigger storm with activists from India as well as abroad taking up cudgels on behalf of the aboriogine Dongaria Kondhs living on the slopes of Kalahandi's Niyamgiri mountain, from where the company plans to mine the bauxite ore. The company has got the environmental clearance from the Ministry of Environment and Forests. However it can not mine the mountain for bauxite as it is yet to get forest clearance from the Ministry of Environment and Forests.

Other violations that committee found out was-
* Violation of Forest Conservation Act - The company is in illegal occupation of 26.123 ha of village forest lands enclosed within the factory premises. The claim by the company that they have only followed the state government orders and enclosed the forest lands within their factory premises to protect these lands and that they provide access to the tribal and other villagers to their village forest lands is completely false. This is an act of total contempt for the law on the part of the company and shows an appalling degree of collusion on the part of the concerned officials.
* For the construction of a road running parallel to the conveyor corridor, the company has illegally occupied plot number 157(P) measuring 1.0 acre and plot number 133 measuring 0.11 acres of village forest lands. This act is also similar to the above although the land involved is much smaller in extent.
* Violation of the Environment Protection Act (EPA) - Vedanta Alumina Limited has already proceeded with construction activity for its expansion project that would increase its capacity six fold from 1 million tonne per annum to 6 million tonne per annum without obtaining environmental clearance as per provisions of Environment Impact Assessment Notification, 2006 under the EPA. This amounts to a serious violation of the provisions of the Environment (Protection) Act. This expansion, its extensive scale and advanced nature, is in complete violation of the EPA and is an expression of the contempt with which this company treats the laws of the land.
* Violation of conditions of Clearance under EPA granted to Refinery - The refinery was accorded clearance under the EPA on the condition that no forest land would be used for the establishment of the refinery. But now it is clearly established that the company has occupied 26.123 ha of village forest lands within the refinery boundary with the active collusion of concerned officials. Hence, the environmental clearance given to the company for setting up the refinery is legally invalid and has to be set aside.

________________________________________________________________________

India's New Avatar

Samar Halarkar

Hindustan Times

18 August 2010

"He is ignoring all the documents and clearances, he is talking like an NGO!'"

The outburst was directed against N.C. Saxena, member of the powerful National Advisory Council, former bureaucrat, a confidant of UPA chairperson Sonia Gandhi and the government's go-to expert on issues of poverty, forests and tribal rights.

In India's corridors of power, calling someone "an NGO" is an expression of scorn and resentment. Both feelings were evident as I talked to Mukesh Kumar, Chief Operating Officer of Vedanta Aluminium Limited, part of the Vedanta group, a global corporate wonder that's grown to 54 times its size from 2000. In terms of value, Vedanta is India's third largest conglomerate after the Tata group and the Mukesh Ambani group.

Over two conversations that lasted an hour, Kumar vented his fury at the scathing observations of a government committee headed by Saxena: Don't clear mining in Orissa's Niyamgiri Hills, an anticipated source of bauxite for Vedanta's aluminium refinery, which has grown six times in capacity and violated a raft of forest, environmental and tribal rights laws.

Released three days ago, the 163-page report acknowledges that mining will affect the Dongaria Kondh, a primitive tribe that's now a cause celebre in international environmental circles after being likened to the Na'vi, the blue-skinned nature-loving aliens massacred by greedy human miners in the 2009 movie Avatar. Vedanta says no village will be displaced, no Dongaria Kondh made homeless, and that the Saxena committee says "nothing" that the Supreme Court did not observe in according conditional clearance - subject to regulatory approval - in 2008.

When I spoke to Saxena, he said: "I told them [the state government and Vedanta] to file a case of contempt against me. I dare them to." Saxena told me local officials were "very reluctant" to give him and three fellow committee members data on Vedanta's project, with one district official saying they could "collect it from the Supreme Court". Unsurprisingly, the Saxena-committee report accuses Vedanta of "total contempt for the law" and "an appalling degree of collusion on the part of the concerned officials".

While talking to Kumar, it was hard to tell sometimes if I was talking to a corporate executive or a representative of the Orissa government, which is run by the Biju Janata Dal, a part of the opposition National Democratic Alliance. "How are such issues raised only in Chhattisgarh or Orissa?" Kumar asked.

Well, I could have pointed out the Ministry of Environment and Forests, headed by Jairam Ramesh, was now equally hated in Congress-ruled Maharashtra, where it's questioned the location of a second airport at Navi Mumbai amidst a mangrove forest.

But Kumar had spoken long and passionately about changing rules, the decade-long effort to get his aluminium refinery underway, the electrification of 13 villages, the 20,000 children being fed mid-day meals (but this I learnt subsequently hasn't started yet), the 43 Vedanta child-care centres, the leaf-plate making courses for tribal women, the company's "mission" to eradicate malaria, and the "tremendous pressure for employment" from the locals that apparently prompted the company to start operations without final clearances. He insists all clearances are in place for the existing operations. So, it seemed irrelevant to point out that Ramesh, clearly with Sonia Gandhi's blessings, over the last six months was pushing an environmental crackdown, irking even fellow Congressmen and cabinet colleagues running the highways, coal, steel and tribal affairs ministries.

I have gone into the Vedanta case in some detail because it illustrates India's developmental dilemmas at a time when New Delhi is increasingly mindful of a growing image and insurgency problem.

Investors as diverse as the Church of England and the Norwegian government, sold investments in Vedanta as the controversy over the Indian Na'vi ground on. The concern that unequal growth is endangering the idea of India is reflected in the Saxena committee report: "This committee is of the firm view that allowing mining in the proposed mining lease area by depriving two primitive tribal groups of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well being of the entire country."

Saxena believes the tribals are getting the rawest deal in the new India, and in a letter to Sonia Gandhi has warned that the methods of the Ministry of Tribal Affairs are contributing to the spread of Maoism.

Ramesh has many consequences to consider and a lot of balancing to do. Tomorrow, another evaluation of the Vedanta project - once pushed by the Prime Minister's Office - begins. The Forest Advisory Committee (it shares a committee member with Saxena's group; Amita Baviskar, a PhD from Cornell University and professor at New Delhi's Institute of Economic Growth) will make a recommendation that Ramesh will use in his final decision, due next week. Every insider says it's unlikely there will any mining on Niyamgiri. By the weekend, another committee will decide the fate of Navi Mumbai's new airport. That, too, appears unlikely.

Last week, Ramesh's ministry ordered the Orissa government to stop land acquisition for India's biggest direct foreign investment, the R54,000 crore steel plant proposed by South Korea's Posco, after another four-member committee - headed, again, by Saxena - reported widespread violations of forest and tribal-rights laws. The pressure to reverse this decision is growing with Union Minister of Steel Virbhadra Singh vowing to intervene. As I write this, angry officials - those Saxena's committee accuses of collusion - from Orissa are flying into Delhi to lobby Vedanta's case.

Will India's laws prevail? Will Ramesh get his way? Will a new balance emerge?

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