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Niyamgiri mining ban to stay, SC says gram sabha will decide if project hits tribals' religious, cultural rights -Utkarsh Anand
-The Indian Express


The Supreme Court on Thursday ruled that the Vedanta Group's bauxite mining project in the Niyamgiri Hills of Orissa will have to get the gram sabha's clearance on whether it affects the cultural and religious rights of the tribals and forest dwellers living in Rayagada and Kalahandi districts.

While the gram sabha's nod is compulsory under the Forest Rights Act, the court made it clear that the Act confers powers on the gram sabha to "protect the community resources, individual rights, cultural and religious rights".

"Gram sabha can also examine whether the proposed mining area, Niyama Dangar, 10 kms from the peak, would in any way affect the abode of (deity) Niyam Raja. Needless to say, if the bauxite mining project, in any way, affects their religious rights, especially their right to worship their deity, that right has to be preserved and protected," said the bench comprising Justices Aftab Alam, K S Radhakrishnan and Ranjan Gogoi.

The gram sabha will examine the proposals, juxtaposing them with the community, individual as well as cultural and religious claims by the tribals and forest dwellers, including their right of worship in the Niyamgiri Hills, said the court.

The bench directed the Orissa government to place all the issues before the gram sabha, with an intimation to the union Ministry of Tribal Affairs. The gram sabha, which will have a nominee from the state high court as an observer, must take a decision within three months and communicate it to the Ministry of Environment and Forests (MoEF) .

"The MoEF shall take a final decision on the grant of Stage II clearance for the bauxite mining project in the light of the decision of the gram sabha within two months thereafter," said the court.

The project ran into rough weather after the MoEF refused Stage II forest clearance in 2010 for diversion of 660 hectares of forest land for bauxite mining in Kalahandi and Rayagada districts, based on the Forest Advisory Committee's (FAC) adverse views on violation of rights of the tribal groups and impact on the ecology and biodiversity of the area.

The project was planned to supply upto 150 million tonnes of bauxite to Vedanta Aluminium, a unit of Vedanta Group and India's largest producer of the metal, for a one-million-tonne a year plant. A special purpose vehicle (SPV) with Sterlite, a listed subsidiary of Vedanta Resources, having 49 per cent stake and the remainder shared by the state government and Orissa Mining Corporation (OMC), a state undertaking, was set up for the purpose.

While continuing the ban on mining, the bench today gave liberty to the OMC to rectify alleged violations in the alumina refinery project. The OMC had moved the court against the MoEF's decision to reject Stage II clearance, alleging it amounted to overruling the apex court's 2007 and 2008 orders on the allocation of Niyamgiri bauxite mine to Sterlite. It contended that the SPV was granted clearance by the court for diversion of forest land to undertake bauxite mining in the Niyamgiri Hills. Subsequently, the MoEF granted Stage I clearance.

However, the MoEF said there was apparent violations of the Forest Rights Act and the Panchayat (Extension to Scheduled Areas) Act (PESA), and that several rights of forest dwellers, including community rights, first needed to be settled.

Agreeing with the MoEF, the bench held that tribes and forest dwellers residing in the scheduled areas "have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands."

The state claimed it held ownership over the mines and mineral deposits beneath the forest land, and the tribals could not raise any claim over them, nor did the gram sabha have any right to adjudicate such claims.

But the bench said that state held minerals only as a trustee for the people. "They (tribal) have a vital role to play in the environmental management and development because of their knowledge and traditional practices. State has got a duty to recognise and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development," it noted.