Thanks to contributor Shri Dillip Kumar Das
August 16, 2010
By
Dr N C Saxena
Dr S Parasuraman
Dr Promode Kant
Dr Amita Baviskar
Submitted to the
Ministry of Environment & Forests
Government of India
New Delhi
EXECUTIVE SUMMARY
The proposed mining lease (PML) area, which lies on the upper reaches of the Niyamgiri hills, is surrounded by dense forests and is the habitat for diverse species of plant and animal life.
The PML site is largely grassland surrounded by sal forests. This type of grassy meadow eco-system is usually found on lateritic zones on upper reaches at about 700 metres and above. The fact that this ecosystem is mostly prevalent in areas inhabited by the Dongaria Kondh suggests that, besides natural geological and climatic factors, it has also been modified by human actions such as burning for grasses and collection of Minor Forest Produce (MFP) practiced over a long period by the hill tribes. Fires are an annual feature leading to patches of grassy blanks. This retrogression, combined with grazing, adds to the area of the naturally occurring meadows.
Some 20 species of orchids are found in and around the PML. The members of the Dongaria Kondh tribe use these plants as medicines to treat different ailments like scorpion and snake bites, stomach disorders, arthritis, tuberculosis, paralysis, cholera, acidity, eczema, tumours, menstrual disorders, wounds and sores, diarrhoea, dysentery, bone fractures, rheumatism, asthma, malaria, etc.
The Niyamgiri massif is important for its rich biodiversity. In addition, it also plays the critical role of linking forests of Kandhamal district to forests of Rayagada, Kalahandi and Koraput districts. These forests also join the Karlapat wildlife sanctuary in the north-west and Kotagarh wildlife sanctuary in the north-east. They thus have high functional importance in creating an uninterrupted forest tract which is part of a continuous long corridor extending outside the protected area. Such corridors are particularly important for the conservation of wildlife species like elephant and tiger found in this region. The wild life productivity of this habitat is particularly high because it provides the valuable ‘edge effect’ to wild animals with open grasslands as feeding space and the neighbouring trees for shelter and escape.
The forested slopes of the Niyamgiri hills and the many streams that flow through them provide the means of living for Dongaria Kondh and Kutia Kondh tribes. These are Scheduled Tribes, with the Schedule V of the Indian Constitution which enjoins the government to respect and uphold the land rights of Scheduled Tribes applying to the entire Niyamgiri hills region. These tribes are also notified by the government as ‘Primitive Tribal Groups’ and eligible for special protection. While the Dongaria Kondh live in the upper reaches of the Niyamgiri hills, the Kutia Kondh inhabit the foothills. The Dongaria Kondh derive their name from dongar or hill. The Niyamgiri hills are the sole habitat of this group whose distinctive identity is evident in their unique language, agro-forestry expertise, social structure, and religious practices. At least 1453 Dongaria Kondh (20 per cent of the total population of the community numbering 7952 as of the 2001 census) live in villages in and around the Forest Blocks of the proposed mining lease area.
The two communities regard the Niyamgiri hills as sacred and believe that their survival is dependent on the integrity of its ecosystem. The PML site is amongst the highest points in the hills and it is considered especially important as a sacred site. All the Dongaria and Kutia Kondh villagers that the Committee conversed with emphasized the connection between their culture and the forests of the Niyamgiri hills. The proposed mining lease (PML) area is used by both Dongaria and Kutia Kondh and is part of their Community Reserved Forests as well as their habitat, since they depend on it for their livelihoods as well as socio-cultural practices. Their reverence for the hills is rooted in their strong dependence on the natural resources that the mountains provide. Their customary practices in the area include agriculture, grazing and the collection of minor forest produce. The age-old access of Kutia and Dongaria Kondh to the PML area and the surrounding forests has been recognised in several forest settlement reports and Working Plans, and was also confirmed by the forest staff to the Committee members during their field visit.
The PML is locally known as Aonlabhata for the large number of Amla (Phyllanthus emblica) trees to be found on its edges, the fruit of which is harvested for medicinal use and for sale. The PML and the neighbouring forests are also known to be the source of many other forest products including edible mushrooms and honey, items that are important sources of nutrition in the Kondh diet as well as marketable commodities that fetch them a good income.
The tiny community of the Dongaria Kondh, who live in the upland areas of the Niyamgiri hills, depend on the hills intensely. Their distinctive cultural identity is intrinsically linked to the Niyamgiri hills and they have crafted a diverse and intricate agro-forestry system that uses mountain slopes and streams to great advantage. Dongaria Kondh cultivate patches of land cleared from the forest that are rotated to maintain soil fertility. Since their population is very small, they regard land as plentiful and leave most of it forested. They are renowned for their skill in horticulture. The fruit that they grow on forest plots fetches them a handsome income throughout the year. In addition, they collect a variety of forest produce and also rear chicken, pigs, goats and buffaloes.
Ecological Costs of Mining
Mining operations of the intensity proposed in this project spread over more than 7 square km would severely disturb this important wildlife habitat. The entire Niyamgiri hills will suffer major ecological damage if mining is allowed in the PML area.
Several perennial springs flow from below the top plateau, which is a part of the proposed mining lease site. It appears likely that the PML could be one of the main sources of Vamsadhara river. If this is true then mining in this plateau will be hydrologically disastrous.
• As many as 1,21,337 trees will have to be cut in case the mining lease is granted. Of these trees approximately 40 per cent would be in the mining lease area while the remaining 60 per cent would have to be removed to construct the access road and other mine related planned activities.
• Given that more than 1.21 lakh trees have to be felled; and since the number of shrubs and large herbs in a rich tropical forest are at least thrice the number of trees, it can be reasonably concluded that more than 3.63 lakh shrubs and ground level flora would also be cleared under the project.
• The PML (and the Niyamgiri Hills habitat) is highly productive in terms of wildlife since it provides the valuable ‘edge effect’ to wild animals, with open grasslands as feeding space and neighbouring trees for shelter and escape.
• The grasses are breeding and fawning ground for Four-Horned Antelope (Tetracerus quadricornis), Barking Deer (Muntiacus muntjac), as well as Spotted Deer (Axis axis). A rare lizard, Golden Gecko (Callodactylodes aureus), is found on the proposed lease area.
• The value of Niyamgiri hill forests as an important elephant habitat is well recognized; therefore this habitat has been included within the South Orissa Elephant Reserve. Mining on the scale proposed in this habitat would severely disturb elephant habitats, and threaten the important task of elephant conservation in south Orissa. That mining causes severe disturbance to elephant habitats has already been demonstrated in Keonjhar district.
Human Costs of Mining
The PML area falls under four different administrative categories of forests. Though there are no villages inside the PML area itself, there are four villages inside the boundaries of the four forest blocks, as per the topo sheet, and 12 villages inside these four blocks as per government notification. In addition, there are 27 villages adjoining to the four Forest Blocks as per the topo sheet.
Mining, if permitted, will directly affect a substantial section (almost 20 per cent of their entire population in this world!) of the Dongaria Kondh community. An impact on such a significant fraction of the population of the community will have repercussions on the community’s very survival, the overall viability of this group and its biological and social reproduction.
All the 104 Dongaria Kondh villages are linked by marriage, since the member of a clan must seek a spouse from another clan. The circulation of women and bride-price between villages is essential for maintaining the social and economic integrity of the community. The mining operations will also have significant adverse impact on the livelihoods of these communities for three reasons.
• The mining operations will destroy significant tracts of forest lands. Since the Dongaria and Kutia Kondh are heavily dependent on forest produce for their livelihood, this forest cover loss will cause a significant decline in their economic well-being.
• Their cultivation lands lie in close proximity to the PML area. Mining-related activities such as tree-felling, blasting, the removal of soil, road building, and the movement of heavy machinery will deny them access to their lands that they have used for generations.
• These activities will also adversely affect the surrounding slopes and streams that are crucial for their agriculture.
It is clearly indicated that if the economic and social life of one-fifth of Dongaria Kondh population is directly affected by the mining, it will threaten the survival of the entire community - mining would destroy their economic, social and cultural life.
Enforcement of the Forest Rights Act
The entire PML area falls in the category of Community Forest Resource (CFR) as defined in section 2(a) of the Forest Rights Act (FRA) for the tribals living in the villages inside or surrounding the four forest blocks, the list of which is given in section 2.B.i. In addition to these villages, there are several villages within one to five km aerial distance from the proposed mining lease (PML) area. The entire PML area (including the area of all the four forest blocks) is clearly the habitat of the two Primitive Tribal Groups and their villages, as defined in section 2(h) of the FR Act.
These villages have been vested with recognizable community and habitat rights by GoI under section 4(1) of the FRA, and the procedure laid down in section 6 of the FRA must be followed by the district authorities. These rights should have been formalized by now, as the Act came into being more than two years ago on the 1 January, 2008. As holders of these rights, the entire Dongaria Kondh community and Kutia Kondh living close to the four forest blocks are empowered under section 5(c) of the Act to ensure that their habitat is preserved from any form of destructive practices that affects their cultural and ecological heritage. The state government cannot take any action that appropriates a part of their habitat without following the due process of law.
• As per the Preamble of the FR Act, forest dwellers are ‘integral to the very survival and sustainability of the forest ecosystem’. Therefore, in law, forests now include forest dwellers and are not limited to trees and wildlife. Since the MoEF is charged with the responsibility of implementing the Forest Conservation Act, it has to ensure that both forests and forest dwellers are protected.
• As far as forest rights are concerned, the Forest Rights Act, is a special law and therefore the authorities specified under it override those recognized by the Forest Conservation Act, a more general law. Section 5(c) has authorized the Gram Sabhas to ensure that their habitat is preserved from any form of destructive practices affecting their cultural and natural heritage. MoEF, as the authority under the Forest Conservation Act, cannot override the statutory authority under the Forest Rights Act, viz. the Gram Sabhas. MoEF would in fact be guilty of violating the FR Act, if it ignores the wishes of the Gram Sabhas.
• The FR Act does not provide for modification of rights for any purpose other than conservation of critical wildlife habitats. The Section 5 of the Act vests the Gram Sabhas and the forest dwellers with statutory rights to their habitats, where they have the authority to conserve, protect and manage forests, biodiversity, wildlife, water catchment areas and their cultural and natural heritage. The rights conferred under the Forest Rights Act automatically imply that free, prior and informed consent of forest dwellers such as the Dongaria and Kutia Kondh is a prerequisite for the diversion/destruction of the forest that they inhabit. The consent of these communities is required before any damage or destruction of their habitat and community forests is authorized. This is independent of the fact whether the Gram Sabhas submit their claims for the PML area or not.
• Appropriation of land over which tribal and other inhabitants of these habitats have well-recognized ownership and access rights, without due process of law and without consulting the villagers themselves, would not only violate the Forest Conservation Act, but would also forcefully evict forest-dwelling Scheduled Castes and Tribes from their lands and prevent them from exercising their rights under FRA over their habitats.
• According to section 4(5) of FRA, there can be no removal or eviction of people from forest land unless the tribal rights under FRA have been recognized and the verification procedure is complete. In order to ensure the compliance of this section, MOEF, vide its circular F.No. 11-9/1998-FC (pt) dated 3 August, 2009, asked the state government to submit a number of certificates to GoI, before its proposal for diversion under the Forest (Conservation) Act, 1980 can be considered. These certificates included letters from each of the concerned Gram Sabhas, indicating that all formalities/processes under the FRA have been carried out, and that they have given their consent to the proposed diversion. The District Collectors did not attach any of these letters from the Gram Sabhas in their certificates given in March 2010.
• The Chief Secretary, Orissa in a general direction dated 24 October, 2009, to all District Collectors, had instructed that proposals for diversion of forest land should be put before the Gram Sabhas, and their consent or rejection should be attached. This directive was also ignored by the district administration of Rayagada and Kalahandi: the letters from the Gram Sabhas were not attached with the certificates given by the Collectors.
• The district authorities have failed to provide maps and electoral rolls to the Gram Sabhas as provided in rule 6(b) of the FR Rules. Hence they have violated these FR Rules. In addition, they have also failed to act under rule 12(3) of FR Rules. This rule mandates that if a forest area is used by more than one Gram Sabha, the Forest Rights Committees of the respective Gram Sabhas shall meet jointly to consider the nature of enjoyment of such claims, and submit the findings to the respective Gram Sabhas in writing. As the PML habitat may be common to a large number of villages or an entire tribal group, it was incumbent upon the district administration to call a meeting of multiple concerned villages. In fact, by failing to record the community and habitat rights of the Kondh, these officers are guilty of violating the law. They should not forget that they could be punished under section 7 of the FR Act for contravening the provisions of the Act and the Rules. However, we are not recommending their prosecution, but we will suggest that they be sent for a specially designed training programme on ‘Forest Rights Act and Tribal Development’.
• From the meeting with the senior officers and the Chief Secretary, it was apparent that the district administration has been reluctant to act fairly and firmly under section 6 of the Act to formalize the rights of Kondh over the PML area, as the state government has already decided to transfer the said land for mining. Hence, it was not keen to recognize community and habitat rights of the Primitive Tribal Groups over the PML area. This is in spite of the undisputed fact that, as dictated by the FR Act, government authorities have no discretionary rights to ignore these rights. Not only is the transfer of community resources for mining without seeking their informed consent unfair, it is also illegal after the enactment of the FR Act. The administration has also failed to consult the PTGs and other forest dwellers about the impact of mining on their lives after the passing of FR Act. Their consent for diversion of land has not been taken.
• Claims from Gram Sabhas for the PML area - Despite the reluctance of the district administration and state government, several Gram Sabhas have already passed resolutions claiming community and habitat rights over the PML area under various sub sections of section 3, such as (1)(b), (c) and (e), and forwarded the same to the SDLC, as provided in section 6(1) of FRA. For instance, the resolution of the Gram Sabha of village Kendubardi demanding rights over Aonlabhata (one of the local name for the PML area) has been received in the SDLC in Aug 2009. Similarly, the Palli Sabha resolution dated 8 January, 2010, from village Phuldumer, which was visited by the chairperson, states, ‘We use Aonlabhata (Badabhatta) the area of Niyamgiri which is the proposed mining lease area of Vedanta’. Rather than process such applications as under law, the district authorities chose to give a false certificate in March 2010 (annexure 1) that there have been no claims from the Gram Sabhas for the area covered under mining lease.
• After the visit of the committee members to village Khambesi, their Palli Sabha too passed a resolution on 30 July, 2010, stating, ‘It was unanimously decided that as the proposed area is the primary source of our life and livelihood as well as the basis of our culture, the mining would be protested. Through this Gram Sabha resolution this message would be conveyed to the committee constituted by the Ministry of Environment and Forest, Government of India, not to allow the VEDANTA company for the extraction of bauxite from the Niyamagiri reserve forest, Proposed Khambesi reserve forest, proposed Nimagiri reserve forest and other adjacent forest areas’.
• There is yet another formality to be completed by Orissa government. Since in district Rayagada the formalities of section 6 onwards under the Orissa Forest Act in respect of Khambesi and Nimagiri PRF have not been completed, it is clear that the condition (xvii) imposed by GoI in its order dated 11 December, 2008, has not been fulfilled.
• From the evidence collected by the Committee, we conclude that the Orissa government is not likely to implement the FR Act in a fair and impartial manner as far as the PML area is concerned. It has gone to the extent of forwarding false certificates and may do so again in future. The MoEF is advised not to believe the Orissa government’s contentions without independent verification. GoI should therefore engage a credible professional authority to assist people in filing their claims under the community clause for the PML area with the state administration. Even if the applications for habitat and community rights are filed, there is the danger that these can be arbitrarily rejected. Hence the authority established by GoI must follow these applications through each stage, and inform MoEF immediately of violations of the Act and its Rules. Similarly any certificate given by the district and state authorities regarding the consent of Gram Sabhas to diversion of forest area for mining must be subject to independent scrutiny by this authority. Based on these objective reports, the GoI has to draw its conclusions about the intent and actions of the state administration and act appropriately.
• It is established beyond any doubt that the area proposed for mining lease (PML) and the surrounding thick forests are the cultural, religious and economic habitat of the Dongaria Kondh. Section 4 of the FRA recognizes these rights, and these facts are undisputed. The Government of Orissa and the district committees have to complete the procedure as given in section 6 of the Act, and formalize the rights of the indigenous communities and correct its administrative records. The rejection of the claims of the Primitive Tribal Groups on any grounds whatsoever is illegal on the part of district or sub-divisional committees. If such action is taken against the PTG by the Orissa Government, GoI has to conclude that provisions of FR Act have not been followed by the state government. Based on this, it must withdraw the stage one clearance given under FCA for the said area.
In sum, the MOEF cannot grant clearance for diversion of forest land for non-forest purposes except if:
1. The process of recognition of rights under the Forest Rights Act is complete and satisfactory;
2. The consent of the concerned community has been granted; and
3. Both points have been certified by the Gram Sabha of the area concerned (which must be that of the hamlet, since this is a Scheduled Area).
All of these conditions, not any one, must be satisfied. This is irrespective of the fact whether people have filed claims or not. In short, the circular of 3 August, 2009, by the Ministry of Environment and Forests, which lays down these conditions has articulated the correct legal position. The Ministry should enforce its circular with all the authority at its command. There are already a large number of Palli Sabha resolutions from Kalahandi and Rayagada districts, where people have applied for forest rights on the same area that is proposed to be given on lease for mining. Some Palli Sabhas have explicitly opposed the diversion of their forests for mining. The Sarpanch of Parsali (district Rayagada) gave such an application personally to the Chairperson which was handed over to the Collector on the 9th July. Therefore there is incontrovertible evidence that the three conditions listed above are not satisfied, and therefore the application of Orissa government for diversion of forest land should be rejected.
If mining is permitted on this site it will not only be illegal but it will also:
• Destroy one of the most sacred sites of the Kondh Primitive Tribal Groups
• Destroy more than seven square kilometers of sacred, undisturbed forest land on top of the mountain that has been protected by the Dongaria Kondh for centuries as sacred to Niyam Raja and as essential to preserving the region’s fertility.
• Endanger the self-sufficient forest-based livelihoods of these Primitive Tribal Groups
• Seriously harm the livelihood of hundreds of Dalit families who indirectly depend upon these lands through their economic relationship with these Primitive Tribe Groups,
• Build roads through the Dongaria Kondh’s territories, making the area easily accessible to poachers of wildlife and timber smugglers threatening the rich biodiversity of the hills
Violation of Forest Conservation Act
• The company is in illegal occupation of 26.123 ha of village forest lands enclosed within the factory premises. The claim by the company that they have only followed the state government orders and enclosed the forest lands within their factory premises to protect these lands and that they provide access to the tribal and other villagers to their village forest lands is completely false. This is an act of total contempt for the law on the part of the company and an unbelievable degree of collusion on the part of the concerned officials.
• For the construction of a road running parallel to the conveyor corridor, the company has illegally occupied plot number 157(P) measuring 1.0 acre and plot number 133 measuring 0.11 acres of village forest lands. This act is also similar to the above although the land involved is much smaller in extent.
Violation of the Environment Protection Act (EPA)
• The company M/s Vedanta Alumina Limited has already proceeded with construction activity for its enormous expansion project that would increase its capacity six fold from 1 Mtpa to 6 Mtpa without obtaining environmental clearance as per provisions of EIA Notification, 2006 under the EPA. This amounts to a serious violation of the provisions of the Environment (Protection) Act. This expansion, its extensive scale and advanced nature, is in complete violation of the EPA and is an expression of the contempt with which this company treats the laws of the land.
Violation of conditions of Clearance under EPA granted to Refinery
• The refinery was accorded clearance under the EPA on the condition that no forest land would be used for the establishment of the refinery. But now it is clearly established that the company has occupied 26.123 ha of village forest lands within the refinery boundary with the active collusion of concerned officials. Hence, the environmental clearance given to the company for setting up the refinery is legally invalid and has to be set aside.
Very limited relevance to the expanded Refinery:
• The mining activities in the PML site will have limited relevance to the refinery now under its six fold expansion as the 72 million ton ore deposit here would last only about four years for the increased needs of the expanded refinery. In balance against this are the severe adverse consequences on the primitive tribal people, environment, forests and wildlife that inhabit these forests.
Non-implementation of the Panchayats (Extension to the Scheduled Areas) Act (PESA)
The concerned area is a schedule V area where PESA is applicable. Thus, in addition to the implementation of FRA, the state government also has to ensure the compliance of the following provisions of PESA:
Section 4(i): The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects.
section 4(d) : every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;
section 4(m) (iii), according to which Gram Sabha has the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe.
Recommendations
• On the basis of oral and documentary evidence collected by the Committee it is established beyond dispute that Dongaria and Kutia Kondh have had traditional, customary, and often formalized access to the PML area as well as to the surrounding thick forests on the slope to collect various types of forest produce. These rights would be extinguished if the area is transferred for mining.
• The Ministry of Environment and Forests cannot grant clearance for use of forest land for non-forest purposes because the legal conditions for this clearance as laid down by its circular of 3 August, 2009, have not yet been met. These include the following: the process of recognition of rights under the Forest Rights Act has not been completed; the consent of the concerned community has neither been sought nor obtained; and the Gram Sabhas of the area concerned (hamlets in a Scheduled Area) have not certified on both these points as required.
• Mining will severely degrade the Niyamgiri hills ecosystem which is a rich wildlife habitat and an important and recognized elephant corridor, endanger the Dongaria Kondh’s self-sufficient forest-based livelihoods, and lead to the extinction of their culture over a period of time.
• More than 7 square kilometres of the sacred undisturbed forest land on top of the mountain that has been protected for ages by the Dongaria Kondh as sacred to their deity, Niyam Raja, and essential for the region’s fertility, will be stripped off its vegetation, soil and rendered into a vast barren exposed land.
• Mining will build roads through the Dongaria’s territories, opening the area to outsiders, a trend that is already threatening the rich biodiversity of the hills.
• The mining at the proposed mining lease site will provide only 3Mtpa of ore out of the total annual requirement of 18 Mtpa of the Refinery after its ongoing expansion from the existing capacity of 1 Mtpa to 6 Mtpa (for which they have already nearly completed the work even before getting permission). The proposed mining site thus has low relevance to the future of the Refinery and is not critical at all for its functioning as is being claimed by the Company and the state officials.
• The Vedanta Company has consistently violated the FCA, FRA, EPA and the Orrisa Forest Act in active collusion with the state officials. Perhaps the most blatant example of it is their act of illegally enclosing and occupying atleast 26.123 ha of Village Forest Lands within its refinery depriving tribal, dalits and other rural poor of their rights.
In view of the above this Committee is of the firm view that allowing mining in the proposed mining lease area by depriving two Primitive Tribal Groups of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well being of the entire country.
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