Development’s Avatar day Tribe to decide fate of giant’s mining project

Two actors portraying the Na’vi, an imaginary humanoid species in the film Avatar, take part in a London campaign against the Niyamgiri bauxite project in 2010. Picture credit: Survival International

New Delhi, April 18: The Supreme Court today ruled that non-ferrous metals giant Vedanta cannot resume bauxite-mining in Odisha’s Niyamgiri Hills before an elected body of local tribals decides whether the project violates their religious and cultural rights.

The court order injects clarity into one of the most vexatious issues facing the country as it seeks answers to the development question and how natural resources can be exploited to feed the voracious appetite of industry without alienating populations with centuries-old association with the land.

The court order means that although the State enjoys rights over resources under the ground, the voice of the local stakeholders must be heard and their concerns addressed.

The order does not make the task of industry any easier but sends out a loud message that investors and their end-consumers must prepare themselves to pay a price, however high it might be, to bring on board local populations without browbeating them.

If Nandigram and Singur had proved that the might of the State counts little before a politics-fuelled backlash from the ground, Niyamgiri was a test case because of the religious and cultural sensitivities involved.

Similarities between the issues raised by the Dongria Kondh tribe in Niyamgiri and the theme of Avatar, the James Cameron blockbuster, gave the Odisha movement an international profile and piled agony on the London-based Vedanta Resources, the parent of Vedanta Aluminium that was earlier known as Sterlite.

A three-judge bench today ruled that all claims by local forest dwellers relating to the project, ranging from livelihood to religious issues, must be filed within six weeks before the gram sabha, a body elected by the tribals from among themselves.

It must decide the claims in three months and send its recommendations to the Union environment and forests ministry. If the gram sabha gives its approval, the ministry must decide in two months whether to revoke its earlier decision to withdraw its clearance for the mining project.

The court said the gram sabha proceedings should be attended, as an observer, by “a judicial officer of the rank of district judge, nominated by the chief justice of the high court of Odisha”.

This observer will sign the minutes, certifying that the gram sabha proceedings “took place independently and completely uninfluenced either by the project proponents or the central government or the state government”.

Mining had stopped in August 2010 when the Union ministry cancelled the Stage II clearance, deciding the company had failed to meet environmental norms.

The Dongria Kondh people living in the Niyamgiri range -— stretched across the Rayagada and Kalahandi districts -— protested against the mining of their hills, the abode of their deity Niyam Raja. Rights activists backed them and Congress leader Rahul Gandhi told the tribals he would be their “sipahi in Delhi”.

The Niyamgiri mines were to be jointly operated by Vedanta and the state-run Odisha Mining Corporation. The mined ore would have fed Vedanta Aluminium’s 1-million-tonne refinery at Lanjigarh on the foothills of the Niyamgiri.

Today’s judgment by the bench of Justices Aftab Alam, K.S. Radhakrishnan and Ranjan Gogoi invoked the Forest Rights Act, 2006, as well as Articles 25 (freedom of conscience and free profession, practice and propagation of religion) and 26 (freedom to manage religious affairs) of the Constitution.

The court described the Forest Rights Act as “a social welfare or remedial statute” and said it was “not restricted merely to property rights or to areas of habitation”.

“(The) legislative intention is, therefore, clear that the act intends to protect custom, usage, forms, practices and ceremonies which are appropriate to the traditional practices of forest dwellers.”

Tushar Dash, a researcher with the Bhubaneswar-based NGO Vasundhara, said the Supreme Court judgment would serve to remind the states not to bypass gram sabhas while allowing projects in tribal areas.

Like the Forest Rights Act, the Panchayats (Extension to the Scheduled Areas) Act too says that gram sabha consent is necessary if land is to be taken up in a tribal area for mining or other projects. But governments hardly implement the provision.

But the court clarified that the Forest Rights Act does not take away or interfere with the State’s rights over mines or minerals lying under forestland. It added that the “State holds the natural resources as a trustee for the people”.