India: Burying the Law to Make Way for a Coal Mine

Burying the Law to Make Way for a Coal Mine

BY Kanchi Kohli and Alok Shukla

http://thewire.in/2016/02/19/bypassing-the-law-to-make-way-for-coal-mine-in-chhattisgarh-22048/

19 February 2016

The cancellation of the community rights of Ghatbarra village over the Hasdeo Arand forest to make way for a coal mine raises many questions.

When the Forest Survey of India’s 2011 report celebrated Hasdeo Arand as the largest unfragmented forest in central India outside the official protected area system, there was another process ongoing to undo this fact. The Ministry of Environment, Forests and Climate Change (MoEFCC) was considering a coal mining proposal to open up 1898.328 hectares of Hasdeo that is significant for water, wildlife and ways of living for tribal and forest-dependent communities.

That Hasdeo Arand was proposed as an elephant reserve and that the legal forest rights of communities had not been recognised did not stop the approval bodies from handing over the forests on the Parsa East Ketan Besan (PEKB) coal block in Chhattisgarh to Rajasthan Rajya Vidyut Utpadan Nigam Ltd (RRVUNL), which would carry out the mining operations through Parsa Kante Collieires Ltd, a joint venture with Adani Mining Ltd. RRVUNL was granted an official approval for forest diversion on March 15, 2012 by the MoEFCC and subsequently, on March 28, by the Chhattisgarh government.

Bypassing the law

This recent development is yet another incident of allowing coal mining, no matter the cost to the locals.

On January 8 this year, residents of Ghatbarra village received a notice from the district collector, the divisional forest officer and the assistant commissioner of the tribal development department stating that ever since they had received their community forest rights (CFR) in September 2013 they had caused disturbances to mining operations and as a result their rights were being officially cancelled. The letter further justified the move by stating that the titles for CFR were received only following the approval for forest diversion in 2012.

The move lies at the heart of the ongoing battle between two laws governing conservation, use and diversion of forests in the country today. Since 2006, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act is being implemented to ensure that the individual and community forest rights of the people residing in forest areas that “could not be recorded” are both recognised and “vested”. At the same time the Forest Conservation Act, 1980 lays out a regulatory process where existing forest land can be diverted for non-forest use, such as mining, after following a due procedure of site inspections, cost benefit analysis and expert appraisal.

Since the implementing agencies for both laws are different, clashes were envisaged from the outset. On August 3, 2009, the MoEFCC issued a circular, which, among other things, clarified that no diversion of forest land would take effect unless the process of recognition of rights had been completed. This circular also clearly stated that the government would need to submit, amongst other documents, a written consent or rejection of the gram sabha (village assembly) on the forest diversion proposal.

Even before the final approval for the PEKB was granted by the MoEFCC, Ghatbarra’s village forest committee, forest rights committee and joint forest management committee had issued a letter clearly stating that even though their claims had not been recognised under the Forest Rights Act, the company had initiated ground inspection activities related to the coal mining.

The letter, sent to the state forest minister, divisional- and range-level forest officers and Parsa Kante Collieires, to point out that the only gram sabha meeting carried out to discuss this project was “fake” and that it had nothing to do with the forest rights process as per the law. The letter also clearly indicates that a subsequent meeting of the gram sabha on October 2, 2011 officially declared the previous meeting held in August 2009 as fake. The issue was reiterated by the villagers in another letter on March 2012 prior to the diversion approval and again in November 2012, which was written after the approval was granted by MoEFCC.

When the “claims” were recognised

The executive power centers, especially in the Ministry of Tribal Affairs, had perhaps begun to understand that the process of recognising forest rights was not being followed as desired across the country and conflicts, as in the PEKB case, could become common. In September 2012, when the rules related to the Forest Rights Act were amended, a district level committee was made responsible to proactively ensure that the recognition of rights related to protection, regeneration or management of any community forest resources was carried out. In PEKB’s case the implementation of this clause remains a gaping hole.

In June 2013, even as administrative inaction continued to facilitate mining activity, the gram sabhas of Ghatbarra, Fatehpur, Sedu, Suskam, Parogiya, Salhi and Hariharpur finalised their community forest rights claims and sent it to the concerned sub divisional committee as per the due process. On September 3, 2013, Ghatbarra’s CFRs was recognised. Today these rights stand revoked by the same district level committee that first granted it.

Another push for the mine

The revocation of claims is not the only development that is of significance in the efforts to ensure that mining at the PEKB coal block is allowed to be carried out. The Forest Advisory Committee (FAC) at the MoEFCC is meant to review and reconsider the approval for forest diversion granted on March 15 and March 28, 2012. The permission granted earlier was rejected by the National Green Tribunal (NGT) on several grounds, including upholding the biodiversity and ecological sensitivity of the Hasdeo Arand forests as it is an extremely important elephant corridor. The FAC also has to ascertain whether the coal block has “significant conservation/protection value so much so that the area cannot be compromised for coal mining”

The FAC claims the matter is subjudice in the Supreme Court as the court had allowed the mining operations to be carried out when the NGT’s directions were challenged. But the SC’s orders also say this can be done only “till further orders are passed by the Ministry of Environment and Forests”. Importantly, it does not stay the review process that the NGT has sought.

Despite reminders, the FAC has not taken this forward. Meanwhile, on October 16 last year, the MoEFCC and the FAC granted an in principle approval for the construction of a railway line through Hasdeo Arand to transport the extracted ore, making it appear as if all legal questions on the mine have been resolved.

The rejection and cancellation of the CFR titles issued to Ghatbarra are the latest in the process to remove legal obligations and other encumbrances to the mining operations. Moreover, the district level committee that approves the claims does not have any powers under the law, especially under the Forest Rights Act, to take any action.

While the letter sent to Ghatbarra states that villagers were using their CFRs to hinder mining activities, it ignores that the mine had always been an unwanted imposition on the people of the region. Not only have the clearance procedures bypassed their repeated attempts to uphold their right over the forests, it has now turned turtle the very recognition that had been lawfully granted.

Kanchi Kohli is with the CPR-Namati Environment Justice Program and Alok Shukla is with Chhattisgarh Bachao Andolan.