Rallying cry: Dongria stand firm against Vedanta mine


13 June 2013, http://www.survivalinternational.org/

Dongria leader Lodu Sikaka has called for an end to the harassment of village leaders and vowed to defend Niyamgiri.

Dongria leader Lodu Sikaka has called for an end to the harassment of village leaders and vowed to defend Niyamgiri.
© Survival

During a rally of defiance, India’s Dongria Kondh have vowed to defend their Niyamgiri Hills against an open pit mine by British mining giant Vedanta Resources, and demanded the release of village leaders ahead of consultations about the mine.

Dongria leader Lodu Sikaka addressed a crowd of thousands determined to save their hills and said, ‘We are not going to let go of Niyamgiri … Let the government and the company repress us as much as they can. We are not going to leave Niyamgiri, our Mother Earth.’

In a landmark ruling in April 2013, India’s Supreme Court rejected Vedanta’s appeal to mine in the Niyamgiri Hills, and decreed that those affected by the mine must be consulted.

But while over a hundred villages will be affected by the mine, only twelve village councils (gram sabhas) around the hills have been invited for consultations, a move condemned by the Dongria and the Ministry of Tribal Affairs, and the final decision about the mine will lie with the central government.

Survival has received worrying reports that police and paramilitaries are exerting pressure on the Dongria by intimidating the residents of the twelve villages. A delegation of Dongria has traveled to the state capital to complain about the harassment and to demand that 150 villages are included in the consultations.

The Niyamgiri Hills are central to the livelihood and identity of the 8,000-strong Dongria Kondh, which could be destroyed by the mine. Recently, their leaders have faced increasing harassment and several have been arrested.

Addressing the rally, Lodu added, ‘We believe in the state, in democracy. Let them release all our people who are jailed and then we go for the gram sabha. Otherwise we will not!’

The Dongria have rallied together in opposition to an open pit mine in their Niyamgiri Hills.

The Dongria have rallied together in opposition to an open pit mine in their Niyamgiri Hills.
© Bikash Khemka/Survival

The Dongria’s struggle has been likened to the Hollywood story of ‘Avatar’ and won them the support of many celebrities including Joanna Lumley and Michael Palin. It resulted in shareholders such as the Church of England and the Norwegian government pension fund pulling out of Vedanta.

Stephen Corry, Survival’s Director, said today, ‘Harassing people’s leaders prior to ‘consultations’ about an invasive mine, which the same people have rejected for years, is neither fair nor democratic. It’s another example of how the language of ‘rights’ and ‘consent’ is now being manipulated by governments and companies bent on stealing tribal lands, at any human cost.’

Note to editors:
– Read the letter by India’s Ministry of Tribal Affairs condemning the lack of villages involved in the consultations(pdf, 492kb)

 

#India – Tribal affairs ministry `turning tables’ on SC order on Niyamgiri mining rights #WTFnews


English: An ethnic Wife of Dhaneshwaran from t...

 

 

, TNN | Jun 4, 2013,

 

NEW DELHI: Despite the Supreme Court‘s order, the village councils, or gram sabhas of the Dongria Kondh tribals may not be able to decide upon their traditional and religious rights against the mining interests of Vedanta. A narrow interpretation of the SC order by the tribal affairs ministry promises to turn the district administration into the final decision-making body and the village councils of the tribals as only a claimant of their rights.

The move could snatch away the village council’s rights to be final arbiters of their traditional and religious rights over the contentious Niyamgiri hills, and leave it in the hands of the state government to take the final call.

The apex court had ordered that the village councils to decide if mining of bauxite would impact the cultural and religious rights, besides impinging on the tribals’ livelihood. It had ordered the Centre and the Odisha government to facilitate a free and fair decision by the affected village councils.

The tribal affairs ministry moved quickly to ask the state government to ensure all village councils get a chance to vote and decide on the matter. The state government whittled down the list of villages involved to only 12, including five and seven in Kalahandi and Rayagada districts, respectively.

Now, the tribal affairs ministry itself has limited the village council’s powers by suggesting that they can only entertain claims from the locals and convey their views, which would then be decided upon by the sub-divisional and district level panels set up under the Forest Rights Act(FRA).

The sub-divisional committee in Odisha consists of sub-collector as chairman, sub-divisional forest officer, three members of panchayat samiti and tribal welfare department officer as member secretary. The district-level committee is headed by district magistrate with divisional forest officer, three zilla parishad members and tribal welfare department officer as member secretary.

The panels are meant to form the three layers that determine the livelihood and land rights of the tribals, but the recent SC order had stated that village councils would decide on their cultural and religious rights and take a call on whether the project would be an impediment towards their privileges.

The subtle alteration in the reading of the order through a ‘training module’, which the tribal affairs ministry has prepared especially for the tribals ahead of crucial village councils’ vote, has vested power in the hands of the Odisha government.

The apex court verdict had given another route for tribals to protect their lands after the Union government shied away from defending the existing norms that require a direct consent from village councils before forestlands can be used by industries. But the precedent-setting verdict of the court could stand substantially diluted in the test case itself.

 

 

 

Anti-Vedanta campaign gathers steam


TNN May 28, 2013, 12.17AM IST

KORAPUT: With the Supreme Court leaving it to villagers to decide the fate of Vedanta‘s mining plan at Niyamgiri hills at gram sabhas, the anti-mining campaign at villages situated in and around Niyamgiri hills has gained momentum.

Hundreds of tribals, including Dongria Kondhs, assembled at Rayagada‘s Parsali village on Sunday and vowed not to allow an inch of Niyamgiri for bauxite mining.

“Niyamgiri is a source of livelihood for thousands of tribals of around 120 villages of Rayagada and Kalahandi districts. Once mining starts, the tribals will lose their livelihood and scores of perennial sources of water will dry up. We will fight tooth and nail against mining at Niyamgiri,” said sarpanch of Parsali Butu Khora.

According to the apex court’s April 18 order, the gram sabhas will also examine the cultural and religious claims of Dongria Kondhs over the hills.

The tribals, who had assembled under the banner CPI (ML), also decided to organize similar anti-mining meetings at all panchayats, which will be affected by the mining, and urge villagers to participate in large number at gram sabhas to oppose mining at Niyamgiri hills

 

Anti-Vedanta cry gets shriller- Tribals made aware of ill- effects of Mining


Satyanarayan Patnaik & Riyan Ramanath V, TNN May 19, 2013, 0

Koraput/BHUBANESWAR: The Niyamgiri Surakshya Samiti (NSS), an organization fighting against bauxite mining at Lanjigarh by Vedanta Aluminium Limited (VAL), is out to woo tribals to rally for its cause. During its campaign, the samiti organized meetings at villages in Kalyansinghpur and Muniguda blocks of Rayagada district and Lanjigarh in Kalahandi district.
Vedanta’s one mtpa alumina refinery closed down on December 5 following acute shortage of bauxite. “Tribals are being made aware of the ill-effects of mining at Niyamgiri hills. The villagers are being urged to participate in the meetings to oppose mining at Niyamgiri,” said advisor to the samiti Bhala Chandra Sarangi.

He said 104 villages in and around the Niyamgiri hills will be covered during the five-day campaign. “On the first day, our teams covered 23 villages. We hope to cover all villages before May 22 when a massive rally of the Dongria Kondhs will be held at Muniguda,” Sarangi said.

Samiti members said at least 36 streams and Nagabali and Bansadhara rivers originate from Niyamgiri hills and mining will dry these up.

The Supreme Court on its April 18 order had left it to the villagers to decide the fate of the Vedanta’s mining project at the gram sabha. The gram sabha will examine the mining proposals, community, individual as well as cultural and religious claims by the Dongria tribes and other forest dwellers. It will also examine the tribal’s rights of worship over the Niyamgiri hills. A spokesperson of VAL, however, said according to para-62 of the SC direction, there should be no prior activities to mould the villagers before the gram sabha.

Recent Supreme Court order in Vedanta case holds hope for tribal community life


 

Published on Down To Earth (http://www.downtoearth.org.in)

 


My god v your resource

Blog Intro:

Recent Supreme Court order in Vedanta case holds hope for tribal community life

Author(s):
Richard Mahapatra

 

imagePhoto: Digpatra

Is a village council qualified to deal with religious beliefs? The answer lies in a recent order by the Supreme Court in the Vedanta case. Gram sabhas (village councils consisting of all voters in a village) in Odisha’s Rayagada and Kalahandi districts will decide whether the industrial activities of Vedanta violate the constitutional right of tribal communities to worship. Translated into practice, the order means voters in a few villages will decide the fate of the multi-billion- rupee project based on their religious beliefs. Though parroted often that religious belief is a private concern, the apex court’s order is exceptional in making religious decision a community one. Those who understand tribal ways of life will vote for this order.

In the past, many orders of the apex court—several of them highly controversial and a few where the court had to issue clarifications—dealt with religion-related issues, including defining Hinduism. In many cases related to religion the judiciary has been cautious and has limited verdicts to ensure the constitutional rights to practice any religion. Going by senior advocates and judicial experts, the Constitution gives more importance to public purpose than to general religious rights. That is why most often the apex court gets to decide on contests between the two.

Though the Vedanta order cannot be clubbed with such cases in a clinical fashion, it is definitely a case related to religion and associated beliefs. There are a few reasons that make this case interesting.

First, it is a perfect case where the government’s power to acquire land for public purpose and having right over minerals are in direct conflict with religious rights of local communities. Secondly, the religious belief in question is that of tribal communities. Unlike many religions, tribal religious beliefs are manifested in tangible living forms like forest, land and water. In this case, the direct conflict between religious belief and public purpose becomes intense as the public purpose acquisitions are the gods and goddesses of the tribals. For the Dongria Kondhs in Odisha, the Niyamgiri hill is the Niyam Raja or god. Thirdly, tribals do not have any supreme religious head or bodies to protect and interpret beliefs. Tribal beliefs are pure functional codes for maintaining the fragile ecology-economy equation that sustains them. This is where the court’s order to assign the village council, that enjoys constitutional powers, to take a call on the religious rights comes as an acknowledgement of the fact that the standard law and religion approach to tribal areas will not work.

Village councils are the new institutions that governments are targeting for effective service delivery. They are fast emerging as tools to turn representative local governments into participatory ones. Whether to identify a beneficiary for a programme or to prepare a village water security plan, at least technically, people have direct say over local development decisions. There are many ways to interpret a court order, but the current order has immense ramification for this institution; it may open up a new front for direct intervention by voters in contentious issues. Never ever have voters been mandated to mediate in such a case. In tribal areas, it is a judicial order to get back to their age-old participatory and commune system of governance.

But here comes the challenge: will the government accept the apex court order in the right spirit?

There is no dearth of cases where village council meetings are engineered to get favourable decisions. Applying all possible tricks, projects that have adverse local impacts, including the case of Vedanta, have handed over dubious consents. Studies carried out across the country show that people hardly attend village council meetings because they never work out in their interests. The court’s interpretation of tribal right to worship and the right to decide on it in general village meeting applies equally to all tribal areas, the hotspots of industrial and mineral development. Though the court upheld the government’s right over the country’s 85 billion tonnes of mineral resources, it also upheld the right of tribal communities over gods and goddesses residing over the resources.

In the next one fortnight, the tribal communities of the two districts will vote not just on their right but also on a mini but crucial plebiscite on the government’s will to implement the court order. Closely, and with vested interests, India’s tribal population will be watching.


Source URL: http://www.downtoearth.org.in/content/my-god-v-your-resource

 

Vedanta HQ in London mobbed by Protesters, as SC gives Gramsabha Powers to decide


Header image alt text

Protest at Vedanta HQ as Supreme Court decision announced

Indian Supreme Court judges today handed the final decision on Vedanta’s Niyamgiri mine to the Dongria Kond tribe and farmers living around the mountain. Two Gram Sabha’s (village councils) or local self-government within 10km of the proposed mine should announce their decision to the Ministry of Environment and Forests within three months1. The decision will have a major financial and reputational impact on Vedanta and may force them to close their Lanjigarh refinery, costing them billions.

In London, activists from Foil Vedanta and other grassroots groups descended on Vedanta’s nominal Mayfair headquarters later today celebrating what they see as a victory for local self-determination, but calling for thorough independent oversight of the decision making process which they say is wide open to abuse by Vedanta officials and state police. They held a loud noise demonstration, and held a banner stating ‘MoEF: No u-turn on Niyamgiri’ while shouting slogans with a large megaphone. The protesters again called for Vedanta to be de-listed from the London Stock Exchange for poor corporate governance and human rights crimes.

Protesters in London today staged a loud protest at Vedanta’s headquarters in reaction to the Supreme Court’s judgement to leave the final decision on Niyamgiri to the people affected, which they see as a victory for self-determination and tribal rights. They again added their voice to demands by parliamentarians and financiers that Vedanta is de-listed from the London Stock Exchange for its poor corporate governance, illegal operations and major human rights violations such as those committed at Niyamgiri.(1)(2) In January Foil Vedanta handed documentation on a variety of abuses to the Financial Services Authority who are now investigating the company’s abuses and the case for de-listing2. In February David Cameron again used his India visit to pressure Indian PM Manmohan Singh to allow Vedanta’s Niyamgiri mine.

Foil Vedanta’s Samarendra Das says:

For ten years Vedanta has harassed local people and committed major abuses and illegalities in its attempt to push this flagship project through. For ten years farmers, Dalits and Adivasis living around Niyamgiri have fought to save their traditional communities and their sacred mountain, from a mine which would give just four and half years worth of bauxite for the 6 million ton per year refinery as planned by Vedanta Aluminium.

The Supreme Court is right that decision on the mine should be with those affected by it – the ancient inhabitants of the mountain. But the Dongria and others have stated their disagreement over and over again through Gram Sabha’s and mass rallies. We know that Vedanta officials have been very active in lobbying the judges leading up to this decision, and are concerned that the villagers will be under heavy harassment from Orissa state and Vedanta officials. We call for many independent observers to oversee this crucial process.

We demand that Vedanta is now de-listed from the London Stock Exchange in recognition of it’s proven abuses of law and Human Rights.”

The judgement states that the decision making process at local councils will be overseen by a judge appointed by the Orissa High Court. Vedanta officials and police have been repeatedly accused of trying to force villagers not to oppose the project in the past. As Dongria Kond activist Lado Sikaka states:

“We will continue our fight even if Vedanta gets permission. Are these Judges above the Law? In effect, they act as if they are. Niyamgiri belongs to us. We are fighting because We are part of it. Our women are harassed and we are called by the police and threatened not to go to rallies. Last month they have been working like Vedanta’s servants.3

The ultimate decision will now rest with the Ministry of Environment and Forests who will accept the local council’s decision within three months(3). The Ministry banned the mine in 2010 after the N.C. Saxena committee warned that mining in Niyamgiri will severely affect the ecology and the habitat of the primitive Dongria Kondh tribe that lived on the mountain slopes. In February the Ministry again stated that they would not allow the Niyamgiri mine as Solicitor General Mohan Parasaran told the Supreme Court “We are completely against the mining operations.4

Senior Counsel, Sanjay Parikh, who has fought the case for the Dongria Kond said today:

“The historic judgement delivered by the Supreme Court today recognises the community, cultural and religious rights of tribals. The Dongria Konds can now establish the abode of their Niyam Raja. The Supreme Court verdict is significant as it recognises the rights of tribals against mighty mutlinational corporations”.

Vedanta is currently at a shareholder confidence low, as Societe General downgraded their shares to BB- or ‘sell’ status several weeks ago and suggested that they are unlikely to get permission to mine Niyamgiri5while Standard and Poor have also downgraded Vedanta’s shares to BB6. Societe General’s recent report states:

‘Niyamgiri bauxite reserves were central to Vedanta’s aggressive expansion plans in aluminum…Vedanta’s management was overly confident and committed too much capital without getting all the relevant clearances7.’

Vedanta are also in more trouble as a major acid gas leak earlier this month led to mass protests at Vedanta’s copper plant in Tamil Nadu, India, which have forced the plant to close until the National Green Tribunal has made a recommendation on whether it should be allowed to re-open at all. Their report is expected on 29thApril8.

The Niyamgiri project has been racked with controversy from the start, as a spate of recent coverage points out: The Lanjigarh refinery built to process the bauxite from the hills was illegally constructed, the court case presided over by a judge with shares in the company, and the refinery should never have been given permission without including the associated mega mine in impact assessments9. A cover story in major Indian glossy Open Magazine in December details evidence of corruption and collusion between Vedanta and the Odisha state government, local officials, judges and the police to force the project through10.

See the video of today’s demo here, and another short clip here.

More photos on demotix here.

See video of celebrations on Niyamgiri mountain as the verdict was delivered and an interview with Kumuti Majhi here.

Press Coverage:

SC grants Gram Sabha power to decide the fate of Vedanta refinery

 

SC slams brakes on Vedanta’s Niyamgiri project #GOODNEWS #tribalrights #PESA


NDTV , April 18, 2013

New DelhiThe Supreme Court has continued a ban on bauxite mining in the Niyamgiri Hills in Odisha considered sacred by tribals.

In a verdict that appears to recognize the rights of forest-dwelling Dongria-Kondh tribals to have a say in  projects that affect their habitat,  economic development and culture,  the Supreme Court has said that it’s up to  the  gram sabhas or local self-governments to decide if the Niyamgiri Hills are home to their deity. They have been asked to share their decision within three months with the union Environment Ministry.

The mining project is  a joint venture between UK-Based Vedanta Resources which is controlled by billionaire Anil Aggarwal  and the state government.  It is meant to supply bauxite, the main raw material for aluminium, to an alumina refinery it has set up  at Lanjigarh in the Kalahandi district, about 450 kilometres from state capital.   The refinery was shut in December because of a shortage of bauxite.

In 2011, the union government had refused environmental clearances to the mining project.

The Odisha government had challenged the centre’s decision in the Supreme Court, because it stood to lose thousands of crores in investment.

 

 

Almost 42,000 hectares of forest land diverted in Odisha


,Jayajit Dash  |  Bhubaneswar  March 26, 2013 BS

Land diversion for mining, irrigation, power, roads, railways, industries & defence

Forest land to the tune of 41,891.25 hectares (or 1,03,515.53 acres) has been diverted in Odisha till March 6, 2013 since the enactment of Forest Conservation Act-1980 by the Centre.
The forest land diversion has been effected for various sectors like mining, irrigation, power, roads, railways, industries and defence.Almost all standalone mine lesses and industrial players with end-use projects like National Aluminium Company (Nalco) have benefited from forest land diversion in the state.

Forest land diversion has been carried out in the state in accordance with Section 2 of Forest Conservation Act, forest minister Bijayshree Routray said in a written reply in the state assembly.

On compliance to Forest Rights Act and the August 2009 notification of the Union ministry of environment & forest, he said, “The proposals submitted to the MoEF are processed in accordance with the guidelines dated August 3, 2009 issued by the ministry in the matter of compliance of Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act-2006.
Certificate on five terms complying to the provisions of the above circular of MoEF is submitted by the collectors of the concerned districts who head the district level committee for settlement of Forest Rights and are annexed to the forest diversion proposal while recommending the diversion proposal to the ministry. The certificates along with the resolution of the gram sabha duly signed by the members present and its English version are sent to MoEF for consideration.”

The state government is sitting over 431 proposals of forest land diversion across sectors like irrigation, industry, mining, energy, railway, roads & bridges and human habitations.

Mining sector tops the list with 205 proposals pending for diversion of forest land.

Other sectors with forest land diversion proposals in the pipeline are irrigation (27), industry (29), energy (44), railway (21), roads & bridges (37), human habitations (2) and miscellaneous (66).

It may be noted that mining activity alone has resulted in diversion of 8,194.86 hectares (or 20,249.94 acres) of forest land in Keonjhar district.

 

Inside report from the Supreme Court Niyamgiri case against #Vedanta #mustread #mustshare


Dongria demonstrate at Lanjigarh, 6th Dec 2012

This report comes from Foil Vedanta’s friend in the court room as the Niyamgiri case continues…

19th February 2013, foilvedanta.com

Last week, the Union Ministry of Environment and Forests (MoEF) filed an affidavit in the Supreme Court in the ongoing Vedanta case, saying the government and not the tribals and forest dwellers will have the final say in diversion of forestland for mining projects. FRA states that forest dwellers cannot be resettled from forestland unless their traditional rights over such land are recognised, and a 2009 order of MoEF had made it mandatory for all the projects which require forestland diversion to obtain consent of the affected gram sabhas (village councils). In December last year, the ministry stated in the court that the forest dwellers protected by FRA cannot be displaced except for protection of wildlife. However, in a change of stance on February 15, the ministry said in the court that consent of the people will be required only in cases where displacement of large number of people is involved and which affect the quality of life of the people. While the ministry did not even mention its 2009 order in the affidavit, it said the mining proposal should not be allowed because Dongria Kondh tribals have been protecting and worshipping Niyamgiri hills for centuries as their sacred deity. Mining on that land will undermine the customary rights of Dongria Kondhs to manage their own affairs in the matter of religion and fundamental right to conserve their culture. This stance provided the Orissa Mining Corporation (OMCL) and Sterlite Industries (the Indian arm of Vedanta) fodder and weakened the case against Vedanta. Clearly, the ministry has backtracked when asked to take a stand on the issue by the court.

The day started with Mr.Sundaram laying arguments for Orissa Mining Corporation (OMCL) and Sterlite Industries, and making a desperate case for why mining should be allowed in the Niyamgiri hills. He stated that the question of ecology and environment had already been tackled in previous judgements in November, 2007 and August, 2008 which had considered all the alleged violations under the EPA and FCA. Hence, this need not be discussed further and the only thing that the counsel needs to counter is the accusation of violation of FRA. Mr.Sundaram stated that there are no individual claims under FRA remaining and all claims had been settled — except 185 pending cases, which however, are not under the ambit of the proposed mining area. At this point, Justice Aftab Alam interjected to say, “Mr.Sundaram, this statement of yours that there is no claim remaining in the mining area is rather suspicious”. To this, Mr.Sundaram went on to rapidly quote a whole string of data about claims which have been settled and about land allocated. Then he said that 6 community claims were made to the Gram Sabha. Out of the 6 cases, 3 cases were claims on “pinpointed” areas and those claims had been settled and 16055 acres were allotted. However, the remaining three claims are for the whole mountain as a sacred hill, which Mr.Sundaram tried to say is not valid, and he went on to make a whole host of ridiculous arguments to prove it. The fact that FRA mandates that forest dwellers cannot be evicted from the land under their occupation till the recognition and vesting of rights under the Act is complete applies to the land under occupation only and not to the undefined territories used by the communities, he said.“Recognition of community rights can be a continuous process”, screamed Mr.Sundaram, “besides, the project is not evicting the tribals from the land under their occupation; the vesting of individual rights is already complete”. He went on to explain how the meaning of “habitat” under the FRA should be read only as occupational right, and not as usage rights to a whole area, in this case, the whole mountain. Territorial right under the FRA, Sundaram claimed, has to be with “holding the land of occupation”, and community right as the “right to specific identified areas”, as in the case of the 3 community claims that have been settled. He further argued that only in the case of occupation, forest rights need to be recognised at the advent. Hence, according to the counsel, the 3 community claims to the whole mountain, “have no merit”. To this, Justice Aftab Alam said that this decision had to be made by the concerned gram sabha. Sundaram vehemently replied, “one gram sabha cannot hold state to ransom” —– “I am the State government, it is my mine and my minerals, my usage cannot be prevented by one gram sabha!” he asserted.

Even more ridiculous than the above arguments was when Mr.Sundaram sought to put forward the case for why the community claim to the mountain as a place of worship is not valid. Mr. Sundaram claimed that the FRA nowhere talks about religion, and hence sacred rights cannot be interpreted into the Act. He said that the FRA is not where scared rights come from, but from Article 25 and other provisions of the Constitution. At this, Justice Aftab Alam asked, “Why are you trying to split up rights? Sacred rights are as much part of identity as any right, which makes it a question of survival. You cannot tell the tribals take your God to another place.” Mr.Sundaram went on trying to desperately prove his point with statements such as this, “Religious right is different. Does your right to believe in all pervasive lord be taken to imply that even the building that we are arguing at this moment is an intrusion into God’s space?”; “Religious right gives you the right to worship, but not the right to property”; “there needs to be atleast a shrine or something, when one’s belief is so intangible and nebulous as in the case of the Dongria Kond, one cannot take it to the extreme in the forms of rights”; “there is anomaly, when you say this mountain is my God and then also graze cattle there”; “these community claims to the whole mountain were instigated by NGOs, it never came from the people”; “the question is how far we can stretch religious rights? Does FRA prevent development?”. This line of argument was also made possible by the weakened stand taken my MoEF in its affidavit in the court, which basically reduced the whole issue of compliance with FRA to the violation of sacred rights of Primitive Tribal Groups (PTGs).

After arguing that religious rights do not include rights to property and that there needs to be tangible limitations to what right to worship encompasses, Mr.Sundaram very cunningly tried to make the case for how the “wrong hilltop” was being talked about. Presenting a map to the judges, he showed to the them how the highest peak of the mountain is not Niyamgiri, but Nimagiri, which is not under the proposed mining area —- “Nimagiri is the abode of their god and there is also some sort of concrete structure of worship at that peak”, he claimed. He talked about how the Saxena committee report had got it all wrong because it says that the Dongria Kond worship the highest peak, which in their report is Niyamgiri, which is factually incorrect. Mr.Sundaram thus, made the submission that the mining site is not the abode of God for the Dongria Kond, as it is not the highest peak. At this point, the bench asked, “So since Nimagiri is the highest point, are you trying to infer that it is the sacred peak and abode?” Mr.Sundaram also gave the judges copies of a 1986 publication by the Socio-cultural Research Institute in Bhuwaneshwar. He read out various passages from this book by ‘experts’, to show that “Niyam Raja is obsolete”, and since there are small structures dedicated to Niyamraja outside every village hut of the tribals, “it is in their houses that the gods are”. Here, Justice Aftab Alam made a very pertinent point, when he said, “Mr.Sundaram, it has happened so many times in history that some learned persons have told people – this is your religion, this is what your belief should be. We have to clarify what the tribals see as their belief.”. It is important to mention here, an exchange that took place in court during this conversation. Mr. Sundaram proclaimed, “Belief is not sacrosanct”. At this Justice Aftab Alam asked, “Bauxite is sacrosanct then, is it?”, to which Mr.Sundaram replied, “No, but Economic Development is sacrosanct. We are talking about one of the most backward districts in the country here.”

During this hearing, Mr.Sundaram also again reiterated the Orissa state government’s grievances on the Saxena Committee report. He mentioned how one hour after the state government had met with Jairam Ramesh raising objections to the report, Mr. Ramesh had gone on to announce the cancellation of mining based on the report. Mr.Sundaram complained that the report was biased, “I only had one meeting with NC Saxena, where he appreciated the implementation of FRA in Orissa as the minutes show”. The counsel also challenged the CEC’s calculation that with expansion of the refinery, bauxite from the mountain will run out in 4years — instead, they argued that it would last for the next 25years. The counsel also brought up the issue of the Mines and Minerals Act, and said how the FRA cannot neutralise the provisions of this Act, as the FRA itself states that it is in addition to, and not in derogation of other Acts. They also argued that the issue of expansion of the refinery is not relevant, as it is a separate matter from mining. The case was also made for rehabilitation and compensation, and about how the mining process will and has already generated employment in the area, while bringing in development and infrastructure in the form of schools, hospitals, roads etc.

20th February

The hearing started with the Solicitor General Mohan Parasaran laying down his case. He stressed how the compliance with FRA needs to be “independently” acknowledged, and final clearance cannot be considered only after community rights have been secured. He also stated that Vedanta was guilty of not only non-compliance, but also of violation of numerous conditions. On being asked by the bench, the Solicitor General Mohan Parasaran listed in a detailed manner a series of 13 violations by Vedanta. Mr. Parasaran said that the court by its Aug 8, 2008, order had granted the clearance only for stage one of the project and the automatic clearance for stage two did not flow from that and it could not be reduced to a mere formality. Mr. Parasaran said the court by its order had itself said that the Ministry of Environment and Forest would decide clearing the stage two of the project in “accordance with law.”

Mr.Parasaran argued that since the meaning of habitat is ambiguous under the FRA, “it should be given the widest possible meaning, so as not to restrict the scope of the right, especially when it is a remedial right. He then elaborated on the ‘integrated’ way of life of the Dongria Kond, and the forms of their livelihood which included grazing, horticulture etc. — making the case for why access and usage rights to the mountain range is important to the tribals in numerous ways. Territorial rights under the FRA thereby, needs to be interpreted “beyond just village boundaries”. During this argument, Justice Aftab Alam asked, “But will tribals continue to be tribals all life? If offered the benefits of the modern age, will they not accept it? Will they live for ages and ages on grazing for their livelihood?”. Here, the Solicitor General, pointed out how the FRA provides for infrastructure and amenities such as schools, hospitals, roads, aaganwadis, drinking water, minor irrigation facilities, tanks, fair-price shops etc. Justice Alam was not convinced, and commented, “These amenities are beneficiary in nature to be provided by the state, what about generation of employment?”. There were other statements such as there from the bench “What if the tribals don’t want to continue how they are living and they want modern facilities?; If 5000 of the 7000 Dongria Kond say that they want development, you cannot tell them that – no you cannot have these modern amenities, as that is not what the FRA expects you to do.; What is it that the tribals really want?”. The bench also commented that it will have to be ascertained how much of the infrastructure and development espoused by Vedanta is actually there on the ground. They acknowledged the possibility that the tribals may want these developmental benefits, but still not want the company Vedanta to be there. To this, Mr.Sundaram from the company’s side interjected saying, “There is NO objection from tribals, my Lord”.

The Solicitor General also read out various sections from the NC Saxena Committee report, which included testimonials from individuals of the Dongria Kond who would be affected by the mining. When one of the testimonial was being read out, Justice Alam expressed confusion saying, “Why are people saying ‘we cannot leave our land’? Why this apprehension that they are going to be displaced, when the company says that there would be no displacement for mining? If the consequence of mining operation is that it will displace the tribals, that is a very serious matter and it demolishes Mr.Sundaram’s arguments from yesterday”. Mr.Parasan responded that even if mining might not be directly displacing the people, it has a severe impact on their lives. To this, Justice Radhakrishnan remarked, “By that logic, we would have to stop all mining in the country”. The Solicitor General argued that it does not always have to be the case, but sought to explain how with respect to Vedanta the consequences of mining would be disastrous on the Dongria Kond. He further read out the section on “Impact of Mining” from the NC Saxena Committee Report to support his argument.

Mohan Parasaran then went on to make the case for how religious and sacred rights come under the ambit of the FRA. He pointed out to clause 3.1.(j) which states “rights….which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State” and to clause 3.1.(l) which states “any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers……….”. He reasoned that religious right in the form of right to their sacred mountain for the Dongria Kond has to be read as a customary and traditional right, which falls under the jurisdiction of the FRA. To this, Justice Radhakrishan enquired, “But the clauses you mention are under the heading of Forest Rights, why include religious right in an Act such as this?”. The Solicitor General responded saying that, “The FRA should not exclude any right for a forest-dweller.” He also referred to a previous court judgement with regard to a case involving Shias and Shunnis, that mentions “customary right to perform religious practice”.

The afternoon session of the hearing started with the Mr.Parasaran reading out the summary of the NC Saxena report, on request by the bench. When he was reading out the paragraph in the report that talks about how no consultations where conducted with the gram sabhas about this project, Justice Alam remarked how it was “a completely opposite picture” to what Mr.Sundaram had presented the day before. When the question about the the fact that the process of determination of rights under FRA had not been completed at the level of the gram sabha, the bench enquired if “the union can vest gram sabhas with such powers that the powers of the State government is nullified”. To this, the Solicitor General pointed to specific articles in the Constitution that empowered gram sabhas in this manner. He also mentioned that given that the mining area is notified as a Scheduled area, gram sabhas here especially have a strong mandate. Vedanta was hence, also guilty of non-implementation of PESA. Also he clarified that MoEF cannot grant clearance unless FRA procedure is fully complete, irrespective of the fact if people have filed claims or not.

The next submission of the day was by Advocate Sanjay Parekh who is representing the tribals in the case. He first expressed his grievance that he had not yet been allowed to present his case, given that the tribals ought to be the main affected party in this case. Mr.Parekh began his submission by quoting a paragraph from the book “Out of This Earth” by Felix Padel and Samarendra Das, where to the question of “What is your religion?”, the Dongria Kond tribal replies, “Mountains”. In fact, the OMC lawyer objected to the reference from this book, saying that it was written by academics and activists who are politically motivated and have led a campaign against Vedanta. Mr.Parekh used this instance to illustrate how we have to understand and be sensitive to the culture and beliefs of the Dongria Kond, as it is very different from the mainstream perceptions of our society. He argued that the determination of the rights vested in this context has to be done by the gram sabha. Just a few minutes after Mr.Parekh had started his submission, the bench bombadred him with a whole host of questions that were steeped in a very poor understanding of tribal issues and values, and also displayed a highly patronising narrative. Some of those questions were – “Have the tribals been made aware of the material benefits that will come to them under the orders of this court? Only once they are aware of this, can they give conscious and informed consent!; Can you read out any section in the NC Saxena Committee report where they have specifically rejected the modern benefits?; The tribals have been living this way of life for hundreds of years, you want them to do that for hundred more years? They cannot remain primitive forever; Are you Mr.Parekh, of all people, trying to say that they are destined to live in poverty for the next hundred years also?; They are being told all negative impacts of mining, the FRA does not ban them from choosing modernity, if they see it as better for them”; As long as this court is there, how can their land be taken away? By an order of this court guaranteeing the benefits of modernity, wouldn’t we undo some of the historical injustice you refer to Mr. Parekh?”. Justice Aftab Alam emphasised that “this court will take utmost cognisance of the wish of tribals, but the wish must be conscious after being made aware of the good and bad impacts of mining”, although he said that “it will not be determinative”. To these various statements, Mr.Parekh tried to make the case for how the bench is using the wrong lens to look at the matter. “If we ask critically, development benefit has gone to whom, My Lord?”, asked Mr.Parekh. He argued how we cannot use the same parameters used for mainstream society to decide on what the tribals want – for instance, for most tribal communities, happiness is not derived from material wants, but from a sustainable way of life that lives in harmony with nature. “This integrated way of living should be protected”, said Mr.Parekh. Mr.Parekh also presented some individual tales of Dongria Kond tribals and their opinions about the adverse effect that the proposed mining will bring to their way of life. At this, the bench interjected to say, “I am sure the other side can present 15 affidavits from members of the Dongria Kond, along with photos, stating how the mining activity will change their lives for the better. One or two incidents cannot demonstrate the larger picture – which is what we are interested in”. Here, Mr.Parekh talked about the pollution of ground water caused by the refinery, and as well as how if the mining started, the source of the rivers at the top of the mountain, which allows for their livelihood and survival will be destroyed. These he claimed are gross and large scale violations of rights which has and will put the survival of the Dongria Kond at stake, and also provides us with a larger picture. Given the unethical practices of Vedanta so far, the Dongria Kond cannot trust the company at all. Mr. Parekh pointed out that “it is the responsibility of the state to provide and facilitate for development. The state has not been doing that, and how can we expect a private company to come in now and do this?”. He also mentioned that even in the case of the Jarava tribes of the Andamans, it was the same debate with regard to development through tourism. In this case, the court decided in favour of protection of the tribals.

The session ended with a short submission by the representative of CEC, Mr. Raj Pajwani, who argued that once mining starts, there might not be physical displacement, but the habitat of the Dongria Kond will be destroyed – “once you cut off the source, then what happens to rivers and agriculture?”, he said. The CEC’s submission also reiterated the various violations of procedure committed by Vedanta.

21st February

I was not present in Court this day. The day started with Mr.Parekh finishing his case on behalf of the tribals from the day before. The CEC also made another submission. It ended with OMC and Vedanta side presenting a response. The final arguments for the case have been laid down now. The bench has reserved judgement on the matter.

 

#India -Tribals oppose alternate mine to Vedanta #indigenous


       BS Reporter  |  Kolkata/ Bhubaneswar  February 19, 2013

Niyamgiri Suraksha Samiti (NSS), an outfit of tribals agitating against the alumina refinery of Vedanta Aluminium (VAL) at Lanjigarh in Kalahandi district, on Tuesday sought Congress vice-president Rahul Gandhi’s intervention to overturn the Odisha government’s plan to allocate alternate sources of bauxite to the project, which is reeling under acute shortage of raw material following denial of permission to mine in Niyamgiri Hill by the Union Ministry of Environment and Forest.

The Samiti aired its views through a 35 page memorandum addressed to Gandhi. A four member team of the tribals’ body later submitted the memorandum to Gandhi at Cuttack through their district congress president, Sadashiv Tripathy.

Raising slogans against VAL, Jairam Bariha, a Dongria Kondh of Ambaguda village in Kalahandi district said, “We oppose state government’s decision to allow mining in Niyamgiri or any other nearby hill as these hills are homes to scores of Dongria Kondh and Kutira Kondh tribes.

Bariha said, “We came to know that government is trying to arrange alternative sources of bauxite for Vedanta”.

He said, mining should not be allowed in the nearby Kandurumali, Sijumali, Sasubahumali, Karlapat reserves as these provide livelihood to the tribals inhabiting these hills.

“The effluent discharged by the company has led to deaths of our livestock and the government’s decision will destroy the numerous perennial streams. These reserves should not be given to any company including Vedanta”, said Bama Kadraka, another member of NSS. Gandhi had expressed his solidarity with the tribals, who were opposing Vedanta’s plan to extract bauxite from the Niyamgiri hill for use in its alumina refinery during his visit to Kalahandi district in 2010.

It may be noted VAL, which has shut down its one million tone alumina refinery in Lanjigarh since December 5 for want of bauxite, had entered into a pact with the state-owned Odisha Mining Corporation (OMC) for bauxite supply from Niyamgiri. However, this was red flagged by MoEF, which scrapped the stage-II forest clearance of the mining project on August 24, 2010.

Unable to find bauxite reserves VAL has urged the state government to expedite processing of OMC’s pending applications, especially for those bauxite leases that fall in non-forest areas.

 

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