Orissa Mining Corporation v Ministry of Environment and Forests (2013) — the Niyamgiri case

This is the case in which the Supreme Court held that a Gram Sabha, and not the Ministry, must decide whether a mining project extinguishes the religious and cultural rights of a forest-dwelling community — and then made the Ministry's final clearance decision conditional on that decision.

It is also the best available illustration of the public trust doctrine applied to minerals — the Court holding that mines and minerals vest in the State, which "holds the natural resources as a trustee for the people".

| Date | Event | |---|---| | 19 March 2003 | M/s Sterlite (parent of Vedanta) applies to the MoEF for environmental clearance for an Alumina Refinery Project (ARP) at Lanjigarh, District Kalahandi, stating "that no forest land was involved within an area of 10 kms" | | 6 March 2004 | Vedanta applies to the Supreme Court for clearance to use 723.343 ha including 58.943 ha of reserve forest land | | 16 August 2004 | Orissa proposes diversion of 58.90 ha of forest land; later withdrawn | | 22 September 2004 | MoEF grants environmental clearance to the ARP for a 1 million tonne per annum refinery with a 75 MW coal-based captive power plant on 720 ha, "by delinking it with the mining project" | | 24 November 2004 | Orissa informs the MoEF of 58.943 ha of forest land in the project "as against" NIL "mentioned in the environmental clearance", and of a show-cause notice of 5 August 2004 for encroachment of 10.41 acres of forest land | | 28 February 2005 onward | Orissa seeks prior approval under s. 2 of the Forest (Conservation) Act 1980 for diversion of 660.749 ha for bauxite mining in favour of OMC; the Forest Advisory Committee recommends and the MoEF agrees in principle | | 11 December 2008 | Stage-I forest clearance granted | | 28 April 2009 | Environmental clearance to OMC, expressly "subject to grant of forestry clearance" — "No mining shall be undertaken in the forest area without obtaining requisite prior forestry clearance." | | 4 November 2009 | FAC recommends that final clearance "be considered only after ascertaining the community rights of forest land and after the process for establishing such rights under the Forest Rights Act is completed" | | 15 May 2010 | The National Environment Appellate Authority, on appeals under s. 4(1) of the NEAA Act 1997, remits the environmental clearance to the MoEF to revisit | | 29 June 2010 | The Saxena Committee constituted after the FAC, having seen the Usha Ramanathan report, recommends a Special Committee on the alleged violation of forest rights | | 24 August 2010 | Stage-II clearance refused | | 11 July 2011 | MoEF withdraws the environmental clearance of 28 April 2009 |

The order of 24 August 2010 gave three broad factors. Two are quoted in the judgment and are worth learning because they are the clearest official statement of what the Forest Rights Act protects.

(1) Violation of the rights of tribal groups. "The blatant disregard displayed by the project proponents with regard to rights of the tribals and primitive tribal groups dependant on the area for their livelihood, as they have proceeded to seek clearance is shocking." "Primitive Tribal Groups have specifically been provided for in the Forest Rights Act, 2006 and this case should leave no one in doubt that they will enjoy full protection of their rights under the law." The State Government's narrow definition of project affected people "runs contrary to the letter and spirit of the Forest Rights Act, 2006" — "Simply because they did not live on the hills does not mean that they have no rights there."

On the primitive tribal groups: their dependence on the forest being almost complete, "the violation of the specific protections extended to their" habitat and habitations "by the Forest Rights Act, 2006 are simply unacceptable". And this ground "by itself has to be foremost in terms of consideration when it comes to the grant of forest or environmental clearance".

On the Dalits in the area, technically outside the Act, the Committee had said, and the Ministry adopted, that "even if the Dalits have no claims under the FRA the truth of their de facto dependence on the Niyamgiri forests for the past several decades can be ignored by the central and state governments only at the cost of betrayal of the promise of inclusive growth and justice and dignity for all Indians".

(2) Violations of the Environment (Protection) Act 1986. The Committee observed that the company "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 the provisions of EIA Notification, 2006 under the EPA".

OMC assailed the order "as an attempt to reopen matters that had obtained finality", and argued that the order "wrongly cites the violation of certain conditions of environmental clearance by" the Alumina Refinery Project "as grounds for denial of Stage II clearance to OMC for its" Bauxite Mining Project, the two being separate.

The Court did not accept the separation: "there are sufficient materials on record to show that the two projects make an integrated unit", and "it can be strongly argued that the Alumina Refinery Project and Bauxite Mining Project are interdependent and inseparably linked together and, hence, any wrong doing by Alumina Refinery Project may cast a reflection on the Bauxite Mining Project". It expressly declined to decide the point finally, choosing instead to "keep the focus mainly on the rights of the Scheduled Tribes and the" Traditional Forest Dwellers "under the Forest Rights Act".

That choice is the key to the whole judgment: the Court decided the case on forest rights, not on environmental clearance.

• Traditional forest dweller is defined in s. 2(o) as "any member or community who has at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs".
• Scheduled Tribes are not defined in the Act; Art. 366(25) refers to Art. 342, and the Constitution (Scheduled Tribes) Order 1950, Part XII for Orissa, lists at Serial No. 31 the Dongaria Kondh and Kutia Kandha.
• Art. 244(1) and the Fifth Schedule govern the administration of Scheduled Areas, whose object "is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and good Governance in the Scheduled Area", the Court citing Samatha, which had ruled that the clauses "should be harmoniously and widely be read as to elongate the Constitutional objectives and dignity of person to the Scheduled Tribes".

The rights asserted were pitched at s. 3(1)(e), which "recognizes the right to community tenures of habitat and habitation for" primitive tribal groups, together with the Dongaria Kondh's rights of grazing and collection, and "customary right to worship the mountains in exercise of their traditional rights". It was said that mining "would destroy more than 7 sq. Km. of undisturbed forest land on the top of the mountain which is the abode of the Dongaria Kondh and their identity depends on the existence of Niyamgiri hills".

Here the Court decided against the objectors, and the passage must be given if the answer is to be accurate:

"The Forest Rights Act, neither expressly nor impliedly, has taken away or interfered with the right of the State over mines or minerals lying underneath the forest land, which stand vested in the State. State holds the natural resources as a trustee for the people. Section 3 of the Forest Rights Act does not vest such rights on the STs or other TFDs. PESA Act speaks only of minor minerals, which says that the recommendation of Gram Sabha shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas."

So the State "has the power to reserve any particular area for Bauxite mining for a Public Sector Corporation", following Amritlal, in which it had been held that in the absence of any law or contract to the contrary "bauxite, as a mineral, and the mines thereof, vest in the State" and no person may exploit it otherwise than under the Act and Rules.

The distinction to hold on to: the mineral belongs to the State; what the community holds is a set of forest rights over the surface, including habitat, worship, grazing and produce. The Gram Sabha's power arises from those rights, not from ownership of the ore. Note too that PESA s. 4 makes a Gram Sabha recommendation mandatory only for minor minerals; bauxite is not a minor mineral, which is exactly why the Court had to route the community's protection through the Forest Rights Act instead.

Under s. 6, "Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both" within its local limits: it receives claims, consolidates and verifies them, prepares a plan delineating each recommended claim, passes a resolution and forwards it to the Sub-Divisional Level Committee. An aggrieved person may petition that Committee, and under s. 6(4) may appeal to the District Level Committee; s. 6(7) enables a State Level Monitoring Committee.

The claims actually made, which show how small the settled rights were beside the size of the project:

| District | Claims | |---|---| | Rayagada | 185 individual claims; 145 considered and settled by granting alternate rights over 263.5 acres; 40 pending, relating to areas outside the mining lease. No community claim received. | | Kalahandi | 31 individual claims settled by granting alternate rights over 61 acres; 6 community claims, of which 3 settled by granting an alternate area of 160.55 acres, 3 pending |

"Religious freedom guaranteed to STs and the TFDs under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands." Those Articles guarantee the right to practise and propagate "not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved."

Section 13 provides that the Act is "in addition to and not in derogation of the provisions of any other law for the time being in force", saving PESA; and PESA s. 4(d) says that "every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution". Read together, a Gram Sabha functioning under the Forest Rights Act "has an obligation to safeguard and preserve the traditions and customs of the STs and" "other forest dwellers, their cultural identity, community resources etc."

The holding:

whether the Dongaria Kondh, Kutia Kandha and others "have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha". The Gram Sabha "can also examine whether the proposed mining area Niyama Danger, 10 km away from the peak, would in any way affect the abode of Niyam-Raja". And "if the BMP, in any way, affects their religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected."

The Court found that this had never been placed before the Gram Sabha — only the individual and community claims had been.

1. The Gram Sabha "is also free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received"; fresh claims to be filed within six weeks, with the State Government and the Ministry of Tribal Affairs assisting.
2. The State of Orissa to place these issues before the Gram Sabha with notice to the Ministry of Tribal Affairs; the Gram Sabha "would take a decision on them within three months" and communicate it to the MoEF through the State Government.
3. "On the conclusion of the proceeding before the Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the Gram Sabha within two months thereafter."
4. The Alumina Refinery Project "is well advised to take steps to correct and rectify the alleged violations by it of the terms of the environmental clearance", and the MoEF is to take any corrective measures into consideration.
5. The safeguard that made the decision real. The proceedings of the Gram Sabha "shall be attended as an observer by a judicial officer of the rank of the District Judge, nominated by the Chief Justice of the High Court of Orissa who shall sign the minutes of the proceedings, certifying that the" "proceedings of the Gram Sabha took place independently and completely uninfluenced either by the Project proponents or the Central Government or the State Government."

1. Diversion of forest land under s. 2 of the Forest (Conservation) Act 1980 cannot be finally cleared until the process of recognising forest rights under the 2006 Act is complete.
2. Mines and minerals under forest land vest in the State, which holds natural resources as a trustee for the people; the Forest Rights Act does not vest minerals in Scheduled Tribes or traditional forest dwellers, and PESA's mandatory Gram Sabha recommendation extends only to minor minerals.
3. The Gram Sabha under s. 6, read with s. 13 and PESA s. 4(d), is the authority to determine not only individual and community claims but cultural and religious claims, including rights of worship protected by Arts. 25 and 26.
4. Where such rights are affected, "that right has to be preserved and protected", and the Ministry's clearance decision must be taken in the light of the Gram Sabha's decision.
5. Where a refinery and a mine are interdependent and inseparably linked, wrongdoing by one may be a relevant consideration in clearing the other.