MAC: Mines and Communities

Vedanta - India's corporate Raj

Published by MAC on 2016-05-25
Source: Countercurrents, Live Mint, Orissa Times, others (2016-05-25)

A London Calling commentary

The neo-colonial exploitation of some of India's vast natural wealth by Vedanta Resources plc has become barely indistinguishable from much that occurred when the British Raj held sway.

Yes, it's now  being carried out by Indians themselves - under a saffron-coloured  banner held high by the company's chairman Anil Agarwal - ostensibly to uplift the country's vast numbers of rural poor.

However, in virtually all other respects, Vedanta's practices, policies, and ploys are simply a "make over" of the old British model. The company has actually taken some distinctly  backward steps - riding roughshod over modest concessions to Indigenous peoples rights  that colonisers made during the late 19th and early 20th centuries.

It might seem puzzling that the company chose the former imperialist capital - rather than New York, Toronto or Melbourne - as the location for its mercantilist base in 2003. But arguably (whether by design or not) this may have boosted Vedanta's reputation. Certainly  the powers-that-be in "The City" have abjectly abstained from  taking effective action to censure the company - such as forcing it off the London Stock Exchange.

Over just the last couple of months, Vedanta has secured a gold mining lease in Chhattisgarh state (see article below); and got a permit from the Orissa government to construct an iron foundry which will probably be  fed by a mine in the conflict-torn Saranda forest region. (See: London Calling on the Gladson Dungdung "affair")

Recent defeats - and more challenges

But not everything is going the company's way.

Vedanta's fraudulent attempt to recapture the rich bauxite deposit in the Nyamgiri hills - using the Odisha Mining Corporation (OMC) as its "trojan horse" -  now seems to have been defeated by order of India's Supreme Court.

The Court has also prevented the so-called  "Vedanta Foundation" from constructing a boundary wall for Anil Agarwal's pet project - an eponymous university.

On May 21, Vedanta's sponsorship of a London literary festival got hammered by a group of Indian and British protestorf (See: London Calling on Vedanta's literary sham).

Those unable to demonstrate or remonstrate at that event may be comforted by the fact that Vedanta will hold this year's Annual Shareholders Meeting (AGM) in London on Friday August 5th.

Beween then, there's surely going to be lots more unsavoury doings for which the company must be held to account.

[London Calling is published by Nostromo Research. Opinions expressed in this column do not necessarily represent those of any other author. Reproduction is welcomed under a Creative Commons Licence]

Supreme Court rejects Odisha govt's petition for conducting gram sabha for mining in Niyamgiri hills

http://www.orissadiary.com/CurrentNews.asp?id=67036

6 May 2016

New Delhi: Three judge bench of Supreme Court rejects Odisha government's petition for conducting gram sabha for second time for mining in Niyamgiri hills.

The Niyamgiri hills are considered sacred by the indigenous tribes and others, as it is the abode of Niyamraja, their presiding deity.

The Odisha government had scrapped the mining project in 2014 after all 12 gram sabhas had voted unanimously against the Niyamgiri bauxite mining in the state.

Under the Supreme Court’s ruling in April 2013, the Vedanta Group’s bauxite mining project in the Niyamgiri hills had to get clearance from the gram sabhas, which it failed to obtain as all 12 gram sabhas unanimously voted against it.

The state government has made a fresh move to mine bauxite from the Niyamgiri hills in Kalahandi and Rayagada districts nearly three years after gram sabhas had rejected the proposal.


Mining At Any Cost: The Odisha Government’s Continued Dismissal of Adivasi Rights

By Chitrangada Choudhury

http://thewire.in/2016/05/16/mining-at-any-cost-the-odisha-governments-continued-dismissal-of-adivasi-rights-35711/

16 May 2016
 
The Odisha government’s move in the Supreme Court against Niyamgiri’s gram sabha resolutions may have been dismissed, but its revived bid to mine the mountain for Vedanta further alienates local Adivasis.

This February, the Odisha government moved the Supreme Court asking that it annul the 2013 gram sabha resolutions through which 12 villages in the Kalahandi and Raygada districts opposed bauxite mining in the densely forested Niyamgiri mountain range. It urged the court to set aside the denial of forest clearance to the proposed mine, and/or order for fresh gram sabhas to be held. The state government’s petition marked the latest cussed move in a 15-year-old project, which has become a poster child for the violence and lawlessness that underlie mining and allied industrialisation in Odisha – phenomena that have intensified in Adivasi areas of the state in this period.

On April 1, a three-judge bench asked that the government to file a modified petition that impleads the gram sabhas. However, on May 6, the apex court refused to entertain the revised petition, or wade into the issue, ruling:

“We leave it open to all aggrieved parties to challenge the decision of the Gram Sabha and the consequential decision with regard to environmental clearance(s) before the appropriate forum(s), if such parties are so advised. We make it clear that we have expressed no opinion on merits.”

The Odisha government’s hopes to push through a deeply contested mine through judicial fiat have been dashed for now. But the petition’s content merits attention for what it says about the government’s stubborn belief that lucrative mining interests should trump democratic devolution, Adivasi resource rights and even legality.

The petition came nearly three years after Kondh and Gouda (i.e. Adivasi and Dalit) communities in Niyamgiri unanimously opposed stripping a hilltop over a seven square kilometre large area to extract 72 million tons of bauxite ore. In each of these gram sabhas held over July-August 2013, 12 villages explained their opposition to mining in ecological, religious and food security terms. Several more villages, including 104 Dongaria Kondh villages, have customary and religious rights in Niyamgiri, but the state government had limited the gram sabhas to only 12.

In January 2014, based on documents that included the gram sabha resolutions, the environment ministry denied forest clearance to the proposed bauxite mine – significantly, the only case so far where the voices of Adivasi residents have been heeded in this manner in state decision-making around privatising forested commons. It is these resolutions that the Odisha government wanted the court to annul, thus mounting a renewed bid to mine Niyamgiri.

The petition’s timing

A note first on the petition’s timing: why now, 30 months after the gram sabhas took place? The petition stressed that the mining proposal is of “a public sector corporation,” namely, Odisha Mining Corporation (OMC). It omits any mention of the multinational mining firm, Vedanta Resources Plc’s alumina refinery at the Niyamgiri foothills, in Lanjigarh, Kalahandi – a sprawling, gated complex, down the road from a police station, and barracks of paramilitary forces, deployed ostensibly to fight Maoist rebels.

But the irony of a government moving the apex court to annul the voices of some of its most marginalised citizens can only be understood in light of the connections between the state government, OMC and Vedanta. Vedanta’s construction of the alumina refinery at Lanjigarh was prompted by “the availability of huge deposits of bauxite” in the surrounding mountains that would defray the “key cost” of transporting ore. Outlining the “economic assumption of the refinery” Vedanta said it intended to source, via OMC, 150 million tons of ore from the area’s bauxite-rich mountain tops, starting with Niyamgiri. In 2004, OMC and Vedanta signed a joint venture agreement for mining Niyamgiri to feed ore to the refinery.  

Intense opposition from Adivasi communities has stymied Vedanta’s bauxite extraction plan from the word go. The joint venture was formally annulled in September 2015. Meanwhile, Vedanta has periodically threatened Odisha (“with a heavy heart,” no less) that it will close down its refinery, and exit the area because of the lack of raw material.

Only, it has simultaneously moved to expand the capacity of its refinery from one to six million tons per annum. At a public hearing on July 30 2014 for environmental clearance for such expansion, government authorities downplayed Kondh voices who pointed out the harmful environmental impacts of such expansion, later portraying such dissent to me as “a small disturbance”. The January 2014 denial of forest clearance to the bauxite mine notwithstanding, several villagers who registered their protest at the July public hearing for the refinery’s expansion had instinctively grasped what would inevitably follow. Talking to me the following week, one of them, Kumti Majhi had said, “We are worried that [the refinery expansion plan] will be followed by pressure on us to consent to bauxite mining in this area”.

That is exactly what unfolded with the government moving the Supreme Court against the gram sabhas. In fact, the petition, though filed by the state government and the OMC, exemplifies the blurred lines between the public sector and private industry, between the elected government and the corporation, when it comes to lucrative resource extraction. As resident Lada Sikkaka evocatively described the Kondh experience of opposing mining in Sanjay Kak’s documentary film Red Ant Dream: “The company has swallowed the government.”

Undercutting the FRA

The Niyamgiri gram sabhas of 2013 were held under the landmark Forest Rights Act (FRA), 2006. They followed an April order by the Supreme Court, which upheld the role of gram sabhas under FRA in safeguarding customary and religious rights. The FRA departs from colonial-era legislation to belatedly acknowledge that India’s forest-dwelling communities have long-standing habitation, usage and conservation ties to forests. Further, the act offers Adivasi and forest-dwelling communities the only formal space for participation and consent, with regard to state decision-making around the enclosure and destruction of their forests for mining. FRA-mandated gram sabhas are thus a critical avenue for democratising decision-making around forests, and potentially making such far-reaching processes more ecologically informed, participatory and just.  

The state government’s petition in the Supreme Court argues that the 2013 gram sabhas are “not lawful” because the villagers made “various general claims of worshipping all the hills in the Niyamgiri range…” and “were unanimous in their opposition to the Bauxite Mining project.” Further, the petition says, the gram sabhas “did not identify any precise area which might be needed to carry out essential religious functions or offer any justification for claiming an embargo on mining in the 25 km long and 10 km wide Niyamgiri range.” The petition thus argues that the gram sabhas should be struck down because they went “beyond the provisions of FRA.”

A 2010 environment ministry-constituted committee has already detailed the sustained contempt with which the state government treated the FRA, with regard to Niyamgiri. Officials consistently ignored claims and resolutions filed by local communities, including for areas falling within the proposed mining lease, junked participation and consent provisions, and even falsified certificates mandated by the FRA, to obtain clearance for the project. Far from redressing these wrongs, the government reiterates its disdain for the law in the Supreme Court petition.

By drawing an artificial distinction between mountain and forest that lies within the mining lease from that which lies beyond, the government seeks to disrupts the integrity of a singular ecosystem (the only habitat for the estimated 8000-strong Dongaria Kondh community, as well as a site of extraordinary biodiversity, including various rare and endangered specifies of flora and fauna).

Local residents revere the Niyamgiri range as an integrated landscape, in which their lives, spiritual identities and multiple rights are embedded. As several villagers articulated in the gram sabhas, Niyamgiri encompasses sources of forest foods and marketable produce, podu (hill) cultivation of indigenous crops, perennial mountain streams and the origin of important rivers, grazing lands on the plateau, wildlife, as well as vital sacred sites of clan deities, and the revered God, Niyam Raja, the ‘giver of law’. Niyamgiri, they asserted, blessed their lives, and provided for their very survival. As Felix Padel and Samarendra Das write in their book Out of This Earth, the lease area is so densely forested because of “the Dongarias’ taboo on cutting trees on the summit, seeing it as Niyam Raja’s abode, and aware of ‘a magnetic force’, which the forest exerts on the whole region’s fertility.”

Rather than “going beyond FRA” then, the gram sabhas exemplify the recognition this law intends to provide to pre-existing ties between communities and forests. To quote the environment ministry committee’s 2010 report: “Through their traditional practices, beliefs and customs, these forest dwellers have preserved intricate ecosystems. This customary stewardship only reinforces the authority vested in them by Section 5 of the FRA, wherein these very forest dwellers are the custodians of their forests. Section 5 of the FRA empowers the right holders to protect the wildlife, forest and biodiversity of Niyamgiri hill top and surrounding areas… This also places a duty on the State to seek their informed consent before permitting any diversion of the forest land under the Forest Conservation Act (FCA).”

In fact, in line with Section 3 of the FRA, which provides for habitat rights for particularly vulnerable tribal groups, Kondh villagers have been demanding a habitat title for their customary territory, in the name of Niyam Raja. As Rabi Kumruka of Rajulguda village told visiting researchers in 2015, “If the government was ready to give rights to the company over the mountain, then why not to Niyam Raja?” But district officials have taken no action to recognise these habitat claims.

The state government’s petition not only mocked the intent of the FRA, it also candidly misrepresented the legislation and its rules. To quote from it:

“That undisputedly, the FRA including the rules do not require any consent from the gram sabha as a mandate before any diversion of forest land for non-forest use, provided the process of recognising, verification and vesting of forest rights as per FRA has already been completed.”

Effectively, the petition argues that once the state has formally recognised the traditional resource use and conservation rights of individuals and communities through FRA, it can forcibly extinguish such rights for industry. What meaning would recognition hold then for Adivasi and forest communities?

The above paragraph also misleads on the issue of consent. The September 2012 rules for the FRA issued by the Ministry of Tribal Affairs, the nodal ministry for the legislation, outline in detail the process for securing community rights, participation and consent before forest area can be given away to industry. Further, an August 2009 circular by the environment ministry, delineates the gram sabha consent process and allied evidence that must be included in a forest clearance proposal. The circular was issued after the then Environment Minister Jairam Ramesh received multiple public representations drawing attention to how the FRA-mandated recognition of traditional rights of Adivasi and forest-dwelling citizens was being officially jettisoned, while handing over forest areas to industry.

The petition to the Supreme Court included other creative interpretations of the validity of FRA-mandated gram sabhas. After stating that gram sabha consent has no place in forest diversion (it criticises Niyamgiri villages for hav(ing) “purported to act as authorities to determine whether or not mining activities should be determined”), it goes on to argue that fresh gram sabhas need to be convened. Its arguments for this include the following: “…as of now, several new members would be entitled to participate as members of the gram sabha. Some of the adult members who had participated in the gram sabha in 2013 many have ceased to be the members of the Gram Sabhas.”

In moving the apex court so, the state government perhaps believes that holding fresh gram sabhas will yield a contrary outcome from that of 2013. However, locals have steadfastly opposed mining. Anger against the government and Vedanta still ran high when I revisited Niyamgiri the following year. It had been three months then since the environment ministry had denied forest clearance to the mine, but wary villagers continued to speak as if the threat of mining still held good. As the state government’s move against them in the Supreme Court indicates, their fears were not unfounded.

In fact, Adivasi anger has only spiked with news of the government reviving efforts to mine Niyamgiri. Villagers have held protests in the area asking ‘What is this farce of repeated gram sabha hearings?’ and opposed the government’s move in a letter to the Odisha Governor on March 8. There is also the worrying development of renewed state violence against villagers, which has taken the form of multiple arrests and the killing in a ‘police encounter’ of 20 year-old Dongaria Kondh youth, Manda Kadraka on February 27. These state excesses are playing out in the name of countering “the Maoist spread” in this region, which the Ministry of Home Affairs ironically links to growing disaffection over bauxite mining in the Eastern Ghats of Odisha and Andhra Pradesh.

Which brings me to the final argument in the petition, the ultimate fait accompli deployed to justify all kinds of injustice against Adivasis, namely, ‘development’. The petition argued:

“It is very unfortunate for the growth and development of the state of Odisha as well as the country that the Bauxite Project has not been given due clearance.” It also wants us to believe, “the project area, one of the remotest/backward areas of the country, which could not see much of development in the last 50 (sic) years of post-independence India and which has just about started witnessing substantial development process, now runs a risk of such development activities coming to an end..” (a thinly veiled reference to Vedanta’s refinery). And finally, “the benefits of industrialisation process are being themselves severely handicapped and affected by preventing the development which is possible by usefully and gainfully utilising the resources of the state.”

The government embarrassingly exaggerates the deliverance to Odisha (and India) that a single bauxite mine would bring, especially one that would meet the requirements of Vedanta’s expanded refinery for a mere four years. More fundamentally questionable is the notion that mining benefits locals, and heralds benign development.

As the 2012-13 findings of the Justice M. B. Shah Commission of Enquiry on Illegal Mining outlined, mining has served as a resource curse for the state’s Adivasi communities. They have borne its livelihood, social and environmental costs, while a sliver of economic and political elites were enriched by proceeds of the ensuing loot. More crucially, there is no price to be paid for the widespread breaking of laws – evident in the fact that recovery notices issued to miners for over 59,000 crore rupees, over three years ago, haven’t resulted in a single rupee returning to the public exchequer yet.

For now, by dismissing the government’s petition, the Supreme Court might have recognised that the voices of local communities are inescapable to decision-making around Niyamgiri. The government’s next move to push mining remains to be seen. For Niyamgiri’s beleaguered residents, however, this petition has only served to reinforce their deep mistrust of the “company”, and their even deeper alienation from the “sarkaar”.

Chitrangada Choudhury is an Orissa-based multimedia journalist and researcher, and a Fellow with the Open Society Institute. She can be reached via email on suarukh@gmail.com


Niyamgiri adivasis' victory against Vedanta is a landmark for land rights in India

Despite the atmosphere of intimidation and fear, the tribals have preserved their resilience and love for nature.

Shobha R

http://www.dailyo.in/politics/vedanta-loses-niyamgiri-forest-rights-act-tribals-adivasi-odhisha-mining-land-acquistion/story/1/10627.html

14 May 2016

I visited the Niyamgiri hills last year and witnessed the Dongria Kondh and other adivasi community’s annual celebration of their forests and hills, which they worship as the most important part of their lives. The lessons that these communities have to offer to the world, about sustainable living and respecting nature, needs to be experienced to be understood.

Vedanta Limited, a British MNC, has invested Rs 5,000 crore to set up an alumina refinery with a capacity of one million tonnes a year at Lanjigarh in Kalahandi district of Odisha. The refinery planned to source its minerals from the Niyamgiri hills in Rayagada and Kalahandi districts.

Projects like these have little consideration for environmental impact, social impact assessment and legal rights of people who own these lands, and disregard provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and Panchayats (Extension to Scheduled Areas) Act, 1996, which are safeguards at least to some extent, for thousands of communities living in natural resource-rich habitats, which they have protected and preserved over generations.

Given the potential strength of these laws, it comes as no surprise that governments, toeing the line of greedy corporates, make all possible efforts to dilute these laws and create an environment that is easy to exploit, with no regard for local communities and their rights.

The forest clearance for the proposed project at Niyamgiri was rejected following a directive of the Union ministry of environment and forests in August 2010. The Odisha Mining Corporation challenged this in the Supreme Court. Following this, the Supreme Court ordered the state government to organise gram sabhas under the Forest Rights Act, 2006, to take a final decision on the issue based on public opinion.

Gram sabhas were held in 12 villages of the Niyamgiri hills between July and August of 2013. The proceedings of the gram sabhas, as specified in the court order, were attended by a district judge, nominated by the chief justice of the Orissa High Court.

Despite the fact that the proceedings were held under strict scrutiny by the state, it did not leave any doubt that the people did not want the project in their hills. While scores of women and men came forward and articulated their love, worship and respect for their hills and forests which is their home and asserted their legal rights over the entire expanse of the Niyamgiri hills, it was a huge defeat for Vedanta and the Odisha Mining Corporation.

Meanwhile, there were instances of adivasi people from the Niyamgiri hills being accused under various cases and arrested. The people alleged that these were pressure tactics to silence them and their struggle to preserve their forests.

Haribandhu Kadraka, a tribal leader was arrested in October 2014. Drika Kadraka, who had represented the struggle and resilience of the people of the Niyamgiri hills in many public fora, was intimidated by the police and picked up without any charges being filed. Soon after, he managed to get back to his village and committed suicide in November 2015. People say that it was because of the trauma that he was subjected to while in custody.

There have allegedly been many more cases of false encounters and intimidation, which have hardly been reported or acted upon.

Dasru Kadraka, another active youth leader who was at the forefront of the pepole's movement to protect Niyamgiri was arrested in April 2016.

The progress of these cases hardly interests the national media. Despite the atmosphere of intimidation and fear, the people of Niyamgiri stand tall, with their resilience and love for nature, which cannot be quelled. Their resolve to safeguard their homes, not just for themselves but for generations to come, is as strong as ever. Their belief in constitutional and legal forms of struggle is evident in their persistent efforts.

The Odisha Mining Corporation, in an effort to undermine the rights of the adivasi communities residing in Niyamgiri, once again, filed a petition challenging the 2013 resolutions of the gram sabhas. The Supreme Court scrapped the petition on May 6, 2016.

The people of Niyamgiri have won again and they continue to inspire thousands of such struggles across the country for assertion of people's rights over their resources. Hopefully, this will be a lesson well learnt by corporates and entities that look at ways to undermine people’s rights in their lust for profit.

Or is it still a far way off? Meanwhile, let's hope there is more solidarity for people's struggles across the country and we have the courage to stand up and speak, despite all odds.


Industry Aluminium use to rise to 20 MT: Anil Agarwal

The Hindu

27 March 2016

Describing aluminium as the future, Vedanta Resources Chairman Anil Agarwal yesterday said the consumption of the metal will rise to 20 million tonnes (MT) from the present 2 MT going ahead.

"India only has 1.5 MT aluminium production and the consumption is about 2 MT. It is going to be 20 MT. Everything will move to aluminium. Whether railway, construction, aerospace, automobiles," he said replying to a query on setting up small and medium firms in India's manufacturing sector.

Mr. Agarwal, however did not elaborate on the time period. Speaking at a CII event here, he said aluminium as a light metal is being considered as the future of industry and setting up a small and medium enterprise (SME) in the sector will require an "between Rs 25-500 crore".

Vedanta Ltd, part of the London-listed metals and mining conglomerate, through its subsidiary Balco produces Aluminium in India. On loans from banks to SMEs, he said: "It is a myth (that banks cannot lend). They are looking for SME proposals"


Tribal Rights, Mining And Gram Sabha: Tribals Have Power To Reject Vedanta Bauxite Mining

By Zubair Nazeer & Rahul Chimurkar

Countercurrents.org

17 March 2016

Tribal communities in India have to consistently struggle for safeguarding their rights. In this struggle, they not only have to struggle against non-tribals but also government authorities. Post Independence, there have been several landmark legislations with the capacity to empower the tribals in India such as Forest Rights Act (FRA), Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), etc. However, these legislations are used inappropriately by the various state governments to deny tribals their guaranteed rights. It is unfortunate that the main concern of tribal communities is to protect these landmark and friendly acts from constant attack from various state governments as well as the Union government rather than utilizing these legislations to ensure their socioeconomic development. These attacks have been either through legislations, petitions, or in a covert way.

The recent attack on tribal rights is in the form of a new interlocutory application filed by the Odisha government before the apex court on 25th February, 2016. The application has been moved by the state run miner OMC (Odisha Mining Corporation) to challenge the landmark Vedanta bauxite mine judgement of the Supreme Court. The application claims that Forest Rights Act and its rules do not require any consent from the Gram Sabha for use of forestlands if government decides that the rights of people have been settled. The OMC has made this claim on the basis of several arguments. The main argument is that resolutions of Gram Sabha rejecting mining cannot remain perpetually in force. The OMC seeks constant review of decisions of the Gram Sabha on a flimsy argument that members who had taken decisions rejecting mining have passed away. It has also questioned resolutions of the 12 gram sabhas of the Dongaria Kondh, Kutia Kandha and other tribal communities on the basis of technical errors committed during the passage of the resolutions rejecting mining in the Niyamgiri Hills of Odisha. The state government further claims that tribal communities may have exceeded their powers by declaring an entire plateau, situated far away from the abode of Niyam-Raja (the tribal communities traditional god), as sacred.

Basically, Odisha government wants the Supreme Court to set aside these resolutions rejecting mining by reviewing its own ‘Vedanta Judgement of 2013’. The State Government believes that if it succeeds to do so, then it would seek clearance from the Union Ministry of Environment, Forest and Climate Change for the mining project, which they had rejected after the Supreme Court’s ‘Vedanta Judgment of 2013’. The SC heard this plea on 4th March and decided that the matter be referred to a three-judge Bench of the court for consideration. There is a need to understand the powers of Gram Sabha, the intentions of the State Government and their concern for tribal rights. The issue of undermining the powers of Gram Sabha is not specific to Odisha, for other state governments have also made such attempts. Even the activists defending rights of tribal and their institutions have been under attack. Recently, Soni Sori was attacked for defending tribal rights in Bastar region of Chhattisgarh.

One of the important legislations for tribal empowerment is Panchayats (Extension to Scheduled Areas) Act, 1996(PESA). Under PESA, if there is an acquisition of land for development projects, then it is mandatory to obtain the consent of Gram Sabha or Panchayats at the appropriate level. Since Gram Sabha is the most representative institution of any village (as defined by the Act), it is obvious that Gram Sabha has to be consulted. It is the responsibility of the Gram Sabha to prevent alienation of land [Section 2 (c)]. Its decisions have to be sacrosanct and should not be questioned. The Odisha government is basically questioning the “authority” of Gram Sabha which has been deemed powerful, even by the Supreme Court in the Vedanta Mining Judgement. Therefore, the decision to approach the Supreme Court to question the power of Gram Sabha seems questionable and illogical. It is a fact that there is no uniformity in application of PESA by various state governments. Since the implementation of the Act, this has emerged as one major challenge. In Odisha`s case, power of acquisition of land for development projects has been assigned to Zila Parishad, which basically goes against the spirit of the PESA. Moreover, the composition of Zila Parishad is tilted in favor of Government with official representatives having a greater say in the final decision making. In fact, there is a need to review the implementation of PESA in Odisha to transfer powers assigned to the Zila Parishad to Gram Sabha. Even the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), which the State government is using as a tool to challenge decision of 12 gram sabhas, gives utmost power and significance to Gram Sabha and considers it as the most important institution to ensure protection and development of tribal communities.

It is surprising that the state government claims that the decision of gram sabhas needs to be reviewed because those who were members of gram sabhas at that time when resolutions rejecting mining was passed are no more. The argument seems fallacious. It means to claim that members are more important than an institution (Gram Sabha). It is the decision of the institution that needs to be respected by the state government. There is no question that the decisions taken by Gram Sabha can be reviewed. But they can be reviewed only by Gram Sabha itself. There has to be no undue pressure and interference from outside. One has to but question the intention of the state government when it states that the decision rejecting mining in the hills needs to be reviewed because younger tribals have become members of the Gram Sabha. It means that the state government is pre-judging that younger population will give a decision in its favor. This again is an insult to Gram Sabha as an institution and there have been many occasions in various states where pressure has been used to get a favorable decision. On the one hand, Odisha government questions the power of Gram Sabha but on the other hand it wants these gram sabhas to review their decision. There seems to be utter confusion and desperation to get clearance for Vedanta Mining Project in Niyamgiri Hills

The OMC has also questioned the decision of Gram Sabha and belief of tribal communities that Niyamgiri hills are sacred and an integral part of their religious beliefs. The argument that only a small part of the plateau is sacred is questionable. As per the FRA, tribals have right to traditional knowledge and cultural diversity. It is tribal knowledge and their beliefs that have to be given primacy in this regard. Outsiders, including the state government, cannot decide what is religious and sacrosanct for tribal and what is not. Similarly, under PESA, it is Gram Sabha which is central in managing, protecting and preserving the traditional customs of tribals [Section 2 (h)]. Therefore, it seems that in the context of the recent shift in the development paradigm of the state, the traditional beliefs and practices of Tribals seems to be under threat. Gram Sabha is competent to preserve tribal practices and religious beliefs, but it is this institution that has been facing challenges from the state government. In the Samata Judgement (1997), the Supreme Court has given a clear message that if the government allows transfer of land in favour of non-tribals (in this case MNC) and/or leases land for mining in the scheduled areas, it would completely destroy legal and constitutional fabric that is made to protect the tribals. It is rather surprising that the Odisha government has not understood the Samata Judgment and approached the SC with an interlocutory application.

The decision of Odisha government to file an interlocutory application has serious consequences for tribals not only in Odisha but across the country. It weakens the main legislations, FRA and PESA; that are there to protect tribal rights and ensure their socioeconomic development. It challenges the authority of the Gram Sabha as an institution of tribal participation in democracy. Therefore, it can lead to further alienation of tribals from the mainstream. If the decision is given, as it is anticipated by state government then it will set a bad precedent and may intensify efforts to acquire tribal land on one pretext or other and displace a number of tribals. The decision to allow mining in Niyamgiri hills may lead to violence because it will be taken by the tribal community as an attempt to disregard and disrespect their religious views and traditional beliefs. It may intensify the already existing ‘assimilation’ efforts carried out in various tribal areas of India. The prevention of Land mining in the Niyamgiri hills is also ecologically important. Mining in this area would damage its fragile ecology, causing a great loss of biodiversity.There are already apprehensions that the Union Government is trying to dilute the various tribal related acts and legislations especially the ‘consent clause’ of the Gram Sabha. Any decision that supports the position of the Odisha Government will give further credence to these apprehensions.

Under the Fifth Schedule of the Constitution of India, it is the responsibility of Governor to safeguard the rights of tribals.Leaders of Niyamgiri Suraksha Sangram Samiti and Lokshakti Abhijan have sought intervention of Governor SC Jamir to stop the State Government from trying to convene gram sabha meetings again for bauxite mining in the hills. The governor of Odisha should review the decision of the state government to file an interlocutory application. If he fails to do so, then the SC has to ensure tribals that their rights guaranteed by the Constitution would be safeguarded and no such precedent would be set that in any way would erode their rights. It is high time that the concept of ‘penal offence’ be incorporated into the PESA. It would be used as a legal instrument to take action against those authorities and institutions which fail to consult Gram Sabha wherever needed by law or show disregard and disrespect towards decisions of the Gram Sabha.

Zubair Nazeer and Rahul Chirmurkar are Research Fellows in the Department of Political Science, Jamia Millia Islamia, New Delhi. They are working on Tribal Rights and Development in India.


Nyamgiri’s whiplash effect

The Naveen Patnaik govt may again have resurrected its greatest cause célèbre: mining bauxite reserves in the Niyamgiri Hills for eager claimants
 
Sudeep Chakravarti

Livemint

20 March 2016

What is it with Odisha and inviting trouble?

The four-term Biju Janata Dal government of Naveen Patnaik, with an unlovely record of human rights in general and especially with regard to business projects, may again have resurrected its greatest cause célèbre: mining bauxite reserves in the Niyamgiri Hills for eager claimants.

The shadow of conflict looms over these hills in Kalahandi district of Odisha. It isn’t only about the state-run Odisha Mining Corp. Ltd (OMCL) approaching the Supreme Court on 25 February to challenge the decision of 12 gram sabhas, or village councils, in the Niyamgiri area that overwhelmingly voted against bauxite mining back in July-August 2013. Or the fact that the government of Odisha had at the time categorically undertaken to abide by the decision of the gram sabhas that, among other things, kept the ore from OMCL and its majority partner, Sterlite Industries (India) Ltd, a Vedanta subsidiary, to feed a Vedanta-owned alumina refinery in the area.

The joint venture, South West Bauxite Mining Company (Pvt.) Ltd, with 26% equity holding with OMCL and the remainder with Sterlite, is now over. According to OMCL documents, the miner—“As per the directive of the Govt. of Odisha”—in September 2015 terminated the joint venture agreement to mine the “Bauxite in Lanjigarh bauxite deposit in Kalahandi & Rayagada districts & supply to the refinery of M/s Vedanta Aluminium Ltd. at Lanjigarh”.

So, on the face of it, OMCL is now going it alone without any public taint accruing to Vedanta—which also claims to be scouting for bauxite reserves as a solo entity.

That is perhaps fortuitous, as on 27 February, two days after OMCL approached the Supreme Court, a teenaged tribal boy, Manda Kandraka, was shot dead by Odisha Police. The police termed it an encounter with a suspected Maoist rebel. Locals, especially the Dongria Kondh who consider Niyamgiri sacred, and remain the force behind the gram sabha voting and resolutions, claimed it was the cold-blooded killing of an innocent. In a media conference in the second week of March, protesters also claimed it was indicative of the Odisha government’s aggressive mindset. Beating and harassing of protesters that was once commonplace had now been replaced by killing—OMCL’s petition and a gratuitous police sweep could hardly be a coincidence, maintained the Niyamgiri Surkahya Samiti, which has for years led anti-mining protests. (The Odisha State Human Rights Commission has issued a notice to the police for a detailed report, but that has not exactly engendered waiting with bated breath for a humanitarian outcome.)

Here’s a cold-blooded business proposition, not emotion-soaked angst about potential loss of livelihood and life: For the government and aluminium producers, there is simply too much bauxite ore to pass up. According to a Vedanta presentation, Lanjigarh and a 60-km radius around it contains reserves of around 900 million tonnes of high-grade bauxite, or around 60% of Odisha’s recoverable reserves. As I have earlier written in this column, it is unlikely that a business is simply going to walk away from more than a billion dollars invested in an alumina refinery in Lanjigarh, and such deposits just a few hundred metres away. Vedanta even partially constructed a conveyer system from the refinery to the base of the Niyamgiri Hills (I took photographs of it as far back as April 2010) in anticipation of mining—its construction began several years before the gram sabhas nixed mining in 2013.

Vedanta’s public face, unlike that of OMCL, is now more lamb than wolf. From displaying belligerence over acquiring mining rights in Niyamgiri Hills as recently as in its 2012-13 annual report, the conglomerate in its 2013-14 annual report repeatedly stated its intention to take the community on board. “From our perspective,” chairman Anil Agarwal was quoted in the report as saying, “we have made it clear that Vedanta will not source bauxite from Niyamgiri bauxite deposit without the consent of the local community.”

Nevertheless, the subsequent Vedanta annual report offered hope. It mentioned that the expansion plans for the Lanjigarh alumina refinery had “reached final stages and environmental clearance is expected soon”, and that three prospecting licences granted by Odisha’s government may soon yield fruit: “We expect to commence mining in the second half of FY2016.”

This is clear distancing from OMCL’s ongoing judicial caper. But there remains a persistent query: If OMCL wins, which alumina refinery, up and running—and expanding—is closest to these hills? There is only one proximate answer: the Vedanta refinery.

Sudeep Chakravarti’s latest book is Clear.Hold.Build: Hard Lessons of Business and Human Rights in India. His previous books include Red Sun: Travels in Naxalite Country and Highway 39: Journeys Through a Fractured Land. This column, which focuses on conflict situations in South Asia that directly affect business, runs on Fridays.


SC dismisses Vedanta plea to build varsity

http://www.orissapost.com/sc-dismisses-vedanta-plea-to-build-varsity/

11 April 2016

New Delhi: The Supreme Court Monday dismissed in an interim order an application filed by Anil Agarwal Foundation to commence construction of the boundary wall of the proposed Vedanta University in Puri. The main petition in this regard will be heard in the third week of July.

A three-member bench of Chief Justice T S Thakur and justices Uday Umesh Lalit and R Banumathi heard the matter.

“Anil Agarwal-led Vedanta Foundation had given an application in Supreme Court to start construction of the boundary wall of the university.

The apex court dismissed the Vedanta plea and asked the party to withdraw the application. The main application in this regard will be heard in the third week of July,” said Uma Ballabh Rath, former MLA and Vedanta Birodhi Sangharsha Samiti convener.

Senior advocate P Chidambaram had appeared for Anil Agarwal Foundation whereas KK Venugopal and Prasanta Bhusan appeared for the government of Orissa and Vedanta Birodhi Sangarsha Samiti respectively.

It may be noted that the Orissa High Court had earlier quashed the land acquisition process and termed the process illegal. The project was opposed by the anti-land acquisition campaigners.


 Chhattisgarh’s gold diggers: Adivasi rights versus industry interests

Namita Kohli

Hindustan Times

11 April 2016

In Sonakhan, all that glitters is gold. But residents of this gold-rich village, a two-hour drive from the capital city of Raipur in Chhattisgarh, have never cared much for it. On a good day, a family here can make a few hundred rupees by sifting the blackish-yellow flecks of gold from the sand in the river Jonk that flows close by.

Villagers say the gold is everywhere — in the ground beneath their homes, in the thickly forested hills in the area, and in the waters of the Jonk. This sifting of gold, however, happens only in the rains. Sonakhan residents, mostly adivasis, earn their livelihood from the forests (picking its flowers, fruits and leaves), and by working on their own small farms, or those of others.

With the government struggling to decrease its reliance on imports, and augment its production of the yellow metal, the focus is on the reserves in Sonakhan. This February, the country’s first gold mine was auctioned, and the lease was won by mining giant Vedanta.

Vedanta plans to dig about 2,700 kg of gold from the mine, spread over 608 hectares. For now, only two villages are mentioned in the company’s plans — Baghmara and Devpur. But local activists claim that mining activity is bound to affect at least 24 villages that lie in the range of 40-50 km. As news of the auction trickles in, residents of Sonakhan, and neighbouring Baghmara, find themselves confronting the big question: do they want this mine?

Sonakhan has a legacy of protesting the mining of their gold. When the British tried, they were prevented from doing so by adivasi landlord Narayan Singh in the 1800s. Singh was imprisoned by the British, after he advised drought-struck villagers to loot grain stocks from the rich. In 1857, Singh escaped prison and organised an army of adivasis to resist the British, say villagers. Singh lost, and was executed by the British. His legend was resurrected in the 1970s, when labour union leader Shankar Guha Niyogi travelled to Sonakhan to piece together this story of resistance.

The burden of his legacy, however, rests uneasy on the frail shoulders of those in Sonakhan, as they begin to calculate their stakes in the upcoming project.

Outside a village grocery store, a group of men, sitting idle on a hot afternoon, say the mine will not affect them. However, local activist Rajim Ketwas, who works with the NGO Dalit Adivasi Manch, disagrees. “People don’t have clarity about when they will start digging, how much land will be acquired. Officials from the district administration claim they don’t know much either,” she says.

As she speaks, Rajim begins to get agitated. “Some villagers say that company officials have told them that they will only dig up the hills, not the villages. But people worship the hills, pick flowers and leaves from the forests. If they are gone, what will be left?” she says.

In mineral-rich Chhattisgarh, this is not a new dilemma — rights of tribals (comprising about 31 per cent of the state’s population) who have been traditionally dependent on the forests for their livelihood, are in conflict with the interests of mining companies, both state and privately-owned. The gold mine at Sonakhan is only the latest flashpoint in a state where adivasis have been facing loss of livelihood and a traditional way of life, as mines, steel and power plants replace their forests and fields.

In north Chhattisgarh alone, in several districts such as Korba, Raigarh, Janjgir-Champa — Champa might soon have the highest number of power plants in any one district in the country — villagers lament the loss of trees, land grab by mining companies through local middlemen, the cracks in the walls of their homes caused by blasts in the mines, and the mounds of sand dumped on their fields.

Life is not the same any more, they say.

Power games

The road to Baghmara village, about an hour’s drive from Sonakhan, is lined with sky-high sal trees. Thickly forested hills mark village boundaries.

This is where the mining activity is slated to begin.

Despite being in a majority in Baghmara, the adivasis are dominated by the Patels, who own more land, and employ the adivasis on their farms. At a meeting in his house, influential landowner Ghasi Ram Patel claims that the village doesn’t care about the mine “as long as their lives are not affected”. Rajim, who has been mobilising villagers for anti-mining agitations, claims that the Patels are not supporting the movement as they feel it concerns “only the adivasis.”

She says that landowners such as Ghasi Ram want to preserve the status quo in the village, and see the empowerment of adivasis as a threat. The Patels, however, counter her claims, and when Rajim informs them that mining activity will affect everyone — “Outsiders will come to work here, what about the safety of your women then? Where will they dump the sand from the mine? On your fields. Think of the noise and the dust” — they promise their support. But Rajim insists that the Patels play a role in preventing the adivasis from securing land titles.

This power play has implications for what lies at the heart of the debate — ownership and management of forests in a mineral-rich state such as Chhattisgarh, which contributes almost 13 per cent of the total value of minerals produced in India.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, recognises adivasi rights and determines the process of diversion of forest land for non-forest purposes.

But unless legal claims over their land and forests are established, the adivasis cannot exercise their rights . Thirty-something Madhai Bai says her family depends on forest produce and her one-acre farm which could beacquired once mining starts. “If we had the papers, we could at least get compensation money. Or we stand to lose everything,” she says.

There are other issues that prevent adivasis from filing their claims — lack of awareness about relevant laws, procedural difficulties and corruption. Local activists claim that the influential and the corrupt in the village are often “bought over” by mining company officials to convince villagers to give their consent and quell any dissent.

In Baghmara, for instance, there are whispers about its sarpanch supporting the mining company “for money”. Even consent can be manufactured — according to prevailing laws, the gram sabha’s (village assembly) consent is required before a project begins. But in several villages in the state, mandatory public hearings for consent can be “staged” and documents forged.

Canary in a coal mine

It takes a seven-hour drive from Raipur to the Hasdeo-Arand forest area in North Chhattisgarh’s Surguja district, to find that sometimes, even securing the rights on paper is not enough.

For the first time in a decade after the Forest Rights Act came into force in 2006, community forest rights that were granted in 2013 have been revoked. This January, villagers in Surguja’s Ghatbarra village, were told by the district administration that their rights granted in 2013 had been cancelled, because they were “obstructing mining work”.

The region, it seems, has a history of being caught in legal quagmires. In 2012, forests located in the Parsa East and Kante Basan coal block, were handed over to Rajasthan Vidyut Utpadan Nigam Ltd for coal mining. Mining operations were to be carried out by Parsa Kante Colleries Ltd, a joint venture with Adani Mining Ltd. However, the residents of Ghatbarra and a few neighbouring villages said that they were against the project.

Moreover, the diversion of forest land had taken place before the settlement of their rights, a violation of existing laws.

The 2012 approval for mining was rejected by the National Green Tribunal (NGT), citing the biodiversity of the region. This judgement was then challenged in the Supreme Court. The apex court stayed a part of it. In essence, mining was allowed, “until further orders from the environment ministry”.

However, the forest advisory committee that was to review the situation in this area, has not done so, says Raipur-based Alok Shukla of Chhattisgarh Bachao Andolan. Shukla says that even the Ministry of Tribal Affairs, the nodal agency for implementing the Forest Rights Act, has not taken the matter seriously. “We had sent the ministry a letter on the issue about a month back. But we haven’t heard from them yet,” he says.

Back in Ghatbarra, adivasi activist Jai Nandan Porte says the mine is taking away their water, and their trees.

Another adivasi resident of the village, Rameshwar Lakda, 40, who works as a cook at the coal mine, says villagers only get low-end jobs at the mine that pay no more than Rs 5,000-6,000.

A few villagers, however, are ambiguous about their support to the anti-mining agitations. Dinesh Kumar Yadav, 40, who owns a grocery store and some land in the village, says, “Do they really think that mining will stop? Instead, we should negotiate for a better price for our land when they come to acquire it.”

Yadav has another grouse. Since mining began, the only school in the village has been shifted to another village, he says. The work of the Mahatma Gandhi National Rural Employment Guarantee Act has also stopped.

“The poor tribal in this village is surviving on ration rice. We don’t have proper sanitation. I don’t care what happens to the mine, but does the administration think we have stopped living, eating and shitting?”

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