The article is written by Harmanpreet Kaur of Amity University, Kolkata. The article is written to analyze the case of Vedanta Alumina Ltd Orissa India case.
Introduction
There have always been efforts made by foreign investors in the developing countries with an aim to increase the economy of that particular country either by way of investing in extractive industries or in the organization. The increase in the economy is important but at the same time, the protection of the environment should not be compromised. The mining sector in India contributes to 4 percent of the gross domestic product. The mining sector in India is already plagued by several environmental and health hazards. One such case that can be cited is that of the Kudremukh Iron Ore Limited mining company, which caused environmental damage by inflicting damage to the hills, causing pollution and the Kudremukh national park was affected causing damage to the plant and animal species. The mining operations have adverse effects on the environment and so the laws were implemented to prevent the environment from damage. Consequently, the protection of the environment should be of primary concern.
The Indian judiciary has obviously played a very important role in environmental protection by applying the principles of sustainable development while deciding the cases, but at the same time, the citizens of India have also responded and contended to the environmental crisis caused by the indiscriminate quarrying, mining and stone crushing near the polluted areas and national highways and felling of trees and cause pollution resulting in the deforestation and other environmental degradation.
The case of Vedanta is one such case that has had great impacts on the environment in the Niyamgiri Hills of Orissa and the setting up of a mine would have violated the principles of environment protection and degraded the environment.
The certainty that led to the dispute
The dispute arose in 2003 between Vedanta Aluminium Limited (VAL) and the state of Orissa. Vedanta Aluminium Limited(VAL) is one of the subsidiaries of Vedanta resources. Vedanta resources is one of the registered mining corporations with its headquarters in the UK. It is one of the leading diversified and globally recognized companies of natural resources in the world. The company has its operations expanded all over the world in the nation-states of South America, Ireland, the UK, and the USA. The group is recognized for its bewildering innovations that have been done to improve the development in developing nation countries around the world. The group had shouldered various greenfield and brownfield expansion projects throughout the world and has consequently been successful in completing capital expansions at subordinate expenses. The company has already extended its operations in India. It has two operating subsidiaries in India namely: Sterlite India Private Limited in Mumbai and Vedanta Aluminium Limited in Orissa.
The cause of action arose when in 2003 Sterile India Private Limited proposed a plan for opening the aluminium mine in Orissa. Based on that recommendation, an agreement was signed in 2004 between Vedanta Aluminium Limited(Val) and the Orissa Mining Operation (OMC). The agreement conferred on the opening of an aluminium mine that would produce bauxite in the Niyamgiri Hills of Orissa. The purpose of the setting of the mine and the refinery was for the mining development and the proposed mining lease included a scheme for extracting bauxite from the Niyamgiri Hills. Due to the lack of informative resources, the people residing in the area were unaware of the establishment of the mining development and the bauxite refinery in the Niyamgiri Hills of Orissa. Resistance to the Vedanta operation was first observed in the year 2002 when the company started acquiring land for its mining operations. The resistance grew among the tribal communities when the company started construction activities on the lands of the indigenous people and the tribal communities residing in the Niyamgiri hills leading to adverse effects on their sustainability and livelihood.
Impact of the setting up of the aluminium mining plant
The setting up of the mine and its refinery would lead to the development of the region but the area chosen for conducting the proposed plan would lead to adverse effects on the environment and the sustainable living of the tribal communities.
- The operations of the mine i.e, acquiring the land, construction of the road, and other development plans in the Niyamgiri hills in Orissa threatened the tribal communities i.e., Dongria Kondh residing there.
- The aluminium refinery that was also a part of the proposed plan would cause air and water pollution in the region thereby causing respiratory problems to the people.
- The Niyamgiri hills was not only the region inhabited by the tribal communities but was also home to the tigers, leopards, elephants, sloths, and others, some of them which are already under the list of the endangered species.
- The Niyamgiri hills would destroy various plant species and the felling of trees, thereby causing serious threats to the environment.
Initiatives adopted by the organizations against the mining operations
The setting up of the aluminium mine in the Niyamgiri hills raised concerns on constitutional rights, human rights, environmental rights, and several damages to the health of the people residing there. There were few initiatives taken by the various organizations and public interest litigations were filed to create public awareness. Some of them were:
- Niyamgiri Suraksha Samiti or Niyamgiri Protection Society was formed in 2004 with an aim to protect the interests of the tribal communities. The society became more organized, persisting in opposition to the formation of the mine.
- The Adivasi tribal movement was initiated by the leaders to contend against the mining operations in Orissa. Orissa has a population of about 41.9 million and 25 percent of them constitute the tribal communities and are mostly engaged in forest produce collection, hunting, gathering etc.
- Several unaffiliated Orissa based activists took action against the mining operations as soon as the agreement was signed between Vedanta aluminium limited and the state government of Orissa for the opening of the aluminium mine. The Odisha based activists consisted of various graduates, lawyers, environmentalists who voiced their opinion against the mining operations and cited it as the reckless industrialization policies by the government, thereby causing a serious threat to the environment.
- In 2006, the Delhi Solidarity group was formed with an aim to address the issues of the environment and grant justice for the same and was aimed to provide solidarity to the social movements in Delhi. With regards to Vedanta, the group provided information to the activists and in 2007 also supported the Adivasis in order to save the Niyamgiri mountains.
- The Wildlife Society of Odisha was formed in the year 1994, with an aim to conserve forests and wildlife in the state of Orissa and also to control pollution-related activities. The initiative was taken by the society and the complaint was filed against Vedanta aluminium refinery and its proposed mining operation to the Central Empowered Committee (CEC), on the grounds that Vedanta limited violated the forest and environmental laws.
- Mines, minerals and PEOPLE is an alliance of the individuals and other social communities who take actions against the mining operations conducted in the states. The alliance played a very important role in establishing relationships between the tribal communities and the legal advocates so that the issues can be addressed to the legal fraternity.
- Prafulla Samantra, an environmentalist and the convenor of the National Alliance of People’s Movements took initiative and filed a petition against the mining operations in the CEC of the Supreme Court.
- Ritvick Dutta, an environmentalist and an advocate of the Supreme Court filed a petition in the Supreme Court on behalf of the Dongria Kondh, a tribal community of Orissa
Violation of the laws
Violation of Schedule V
Schedule V of the Constitution of India has been introduced to provide justice to the citizens of India in terms of social, economic, and political conditions. The schedule specifically deals with the administration and control of scheduled areas and the lands of the scheduled tribes and is designed to protect the lands of the Adivasis and the tribal communities. It has stated that the private companies cannot seize lands of the scheduled castes without the prior consent of the scheduled tribes, as it would amount to the infringement of the laws of the land. The same happened in the Vedanta dispute, wherein the land of the Niyamgiri hills was seized without the prior consent of the scheduled tribes i.e Dongria Kondh.
Violation of Article 21
Article 21 of the Consitution of India states that the citizens should be guaranteed life and personal liberty and there should not be any discrimination based on the caste and scheduled tribes. The Article has been widely interpreted and also includes the right to livelihood, right to shelter, right to a clean environment, and right to water within its ambit. The construction of the roads and other activities violated the basic fundamental rights of the tribal communities as they were deprived of their livelihood and shelter.
Violation of the Forest Rights Act, 2006
The Scheduled Tribes And Other Traditional Forest Dwellers Rights Act, 2006 was introduced to recognize the rights of the tribal communities and the forest dwellers regarding land, and other necessities of life that they are mostly dependent on in terms of livelihood, habitat, and other socio-cultural needs. The aluminium mining operation conducted by the Vedanta was going against the rights as the land of the tribal communities was being illegally used by the company and it was also claimed that the land was acquired by force and corruption, thereby infringing the rights of the scheduled tribes under the Act.
Violation of the Wildlife Protection Act, 1972
The Wildlife Protection Act, 1972 was passed by the Parliament under Article 252 of the Constitution and one of the aims included that the protection should be provided to the endangered species regardless of their location and areas. The Niyamgiri hills were not only a cultural site for the scheduled tribes, but was also home to the various animals that are red-listed under the international union for conservation of nature namely tigers, leopards, elephants, sloths, and sambar deer, etc. the Niyamgiri hills are also part of the migration corridor for elephants. So the setting up of the mines would make the endangered species homeless, thereby violating the provisions of the Act.
Violation of the Forest Conservation Act, 1980
The Forest Conservation Act, 1980 was passed for the companies to check deforestation that had caused ecological imbalance and thus led to environmental deterioration. Section 2 of the Act stated that the forest land cannot be used for non-forest purposes i.e., if the forest land is declared as a reserved forest or that the ministry and the central government has given permission to use that land for non-forest purposes or that any land should not be used without the approval of the government. By setting up an aluminium mine, Vedanta violated the provisions of the Act as it did not seek permission from the government authorities and the tribal communities as it was their owned lands and they were dependent on the lands for their livelihood.
The Supreme Court verdict
Role of the Central Empowered Committee
Section 3 of the Forest Conservation Act gives the power to the central government to constitute committees for the conservation of forests when and where required The applications were filed by social organizations, non-governmental organizations, and other environmentalists before the Central Empowered Committee stating that the setting of the mine was against the laws. The supreme court in 2005 directed the committee to investigate the matters and seek reports on the validity of the environmental clearance granted by the Ministry of Environment and Forest.
The committee investigated and conducted meetings with the Ministry of Environment and Forest and the Vedanta accepted that the setting up of the mine involved the use of the forest land. The committee thereby asked the ministry to issue ‘stop orders’ on the setting up of the mining operations and consequently submitted its reports to the Supreme Court stating that the acts of the Vedanta violated the provisions of the Forest Conservation Act,1980
The Supreme Court thereby passed the orders under Section 4 of the Forest Conservation Act to terminate the mining project and also proposed the establishment of a Special Purpose Vehicle (SPV) to administer development through consultation and to develop rehabilitation packages for the Niyamgiri mine project.
Company’s appeal to the orders
The Vedanta Aluminium Limited was against the decisions and the investigations of the Central empowered committee and filed a statement of appeal in the Supreme Court of India.
The Supreme Court thereby on the statement passed an order that the forest can be used for the mining project for sustainable development, but the protection of the environment should not be compromised.
National and International NGOs and organizations
The national and international NGOs filed applications that the forest should be granted an order for clearance as it violated the Forest Conservation Act,1980 of India and the guidelines of the Organisation for Economic Co-operation And Development. However, Vedanta refuted the allegations that were filed by the social activist groups, and the case was further referred to the Supreme Court for its further orders.
The intrusive function of the Saxena Committee
The Saxena Committee was formed and appointed by the Ministry of Environment and Forests on the orders of the Supreme Court to investigate the matter after a report was submitted by the Central Empowered Committee. The Saxena Committee was composed of experts and environmentalists. It was formed because the state government was not giving accurate facts of the dispute and the reports were actually “tainted in the favour of the industry”. The observations of the committee were:
- The company used illegal methods to acquire the land when they were not granted permission for the usage of land for commercial purposes thereby threatening the lives of the tribal communities
- The proposed mining lease, where the operations were to be conducted, was situated on the Niyamgiri hills, which was surrounded by dense forests and was a habitat for the plant and animal species.
- The ecological costs of the mining operations with the proposed intensity would spread more than 7 square km that would disturb the wildlife especially the elephants because it was a migration corridor for the elephants.
In 2010, based on the recommendations, the Ministry of Environment and Forests decided that Vedanta should not be allowed mining in the Niyamgiri hills as it violated the provisions of the Forests Rights Act, 2006 and the Forests Conservation Act, 1940. The Supreme Court passed a judgment and the gram sabhas were given the authority to decide on the continuation of the proposed mining lease.
Role of the Gram Sabha
In 2013, the Supreme Court-appointed the gram sabha to investigate the matter of the Vedanta dispute and to submit the reports to the court.
The gram sabhas are the lowest level decision-making bodies that have been provided with the power to perform functions at the village level under Article 243 A of the Constitution. The gram sabha is the foundation of the Panchayati raj system and consists of persons registered in the electoral polls relating to the village within the area of panchayats at the village level. The gram sabha is a localised decision-making body and has granted the broad franchise to the adult community members. There were many controversies in the appointment of gram sabhas by the state government of Orissa, but the process demonstrates a number of advantages to the dispute of Vedanta. On behalf of the Supreme Court, meetings were conducted in thirteen villages in Orissa that would be affected by the proposed mine to ensure justice and integrity. The advantages of the gram sabha are:
- The authorities granted the right to vote to all the adult members in the village.
- The meetings were conducted in the villages where the communities were affected by the proposed mining lease.
- They were empowered by the laws of India and acted accordingly. They are enormously enrooted in the local institutions. The case gave them the power and the authority to decide the case for the welfare of the tribal communities.
- They performed all their investigations with utmost transparency and scrutiny
- They were free, fair and impartial in making the decisions.
The Ministry of Environment and Forest finally concluded by stating that the Vedanta Aluminium could not be allowed to conduct mining operations as it acted against the violations of the forest and environment laws. The Supreme Court gave the verdict in the favour of the Niyamgiri hills and quashed the petitions for the allowance of the proposed mining lease operation in the Niyamgiri hills.
Policy regulations that must be adopted by the government related to mining
According to the Ministry of Coals and Mines, the officials stated that the situation on mining leases has improved considerably, but the foreign investment has been delayed. The central government has taken numerous initiatives to improve the FDI inflows in the mining sector so that the damage to the environment should be prohibited, have speeded up the environmental clearance of foreign and domestic investment proposals and effectively implemented legislations of the environment. Some other measures must be adopted by the government to control the mining operations:
- Permission should not be granted by the central and state government for mining operations in ecologically sensitive and rich areas and environmentally fragile areas. It should ban mining in those places and should considerably prepare reports and submit them to the authorities to take action.
- Environmental legislations and laws should be implemented effectively and the companies engaged in those proposed projects should be punished.
- Environmental indicators for mining should be developed so that state governments may better manage the environment in mining regions.
- It should be made mandatory to obtain environment certificates by the mining companies.
Conclusion
The Vedanta case is a landmark case that proved that environmental protection should be considered of prime and supreme importance. Bhakta Charan Das, a member of the Indian Parliament stated that the Vedanta case is a prime precedent of a ‘Voiceless people’ being given a voice. Though the case has been cited as a success story it can also be considered as a cautionary tale. The tribal communities of the region face harassment and threat from the government. Thus, the judiciary in India has played a vital role in interpreting the laws in the case of Vedanta, but the case achieved success when the local citizens and the non-governmental organizations and authorities voiced their opinion against the setting up of the opinion.
It can be concluded by saying that the principle of sustainable development plays a very important role in deciding the cases and the disputes related to the environment have raised concerns of the judiciary, which have led to the creation of an ‘environmental jurisprudence’. It is true that in developing countries like India there have to be developments made but that development should have to be in the closest possible harmony with the environment as otherwise there would be development but no environment which would be resulting in total devastation. So, there must be a proper balance between the development and environment so that both can coexist but without affecting each other.
References
- https://m.economictimes.com/industry/indl-goods/svs/metals-mining/vedanta-denies-mining-at-niyamgiri-hills/articleshow/6339640.cms
- https://www.oecdwatch.org/wp-content/uploads/sites/8/2017/05/Tribal-claims-against-the-Vedanta-Bauxite-Mine-in-Niyamgiri-India.pdf
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
The post Analyzing the Vedanta Alumina Limited (VAL) Orissa India case appeared first on iPleaders.