The Odisha government’s move in the Supreme Court against Niyamgiri’s gram sabha resolutions may have been dismissed, but its revived bid to mine the mountain for Vedanta further alienates local Adivasis.
This February, the Odisha government moved the Supreme Court asking that it annul the 2013 gram sabha resolutions through which 12 villages in the Kalahandi and Rayagada districts opposed bauxite mining in the densely forested Niyamgiri mountain range. It urged the court to set aside the denial of forest clearance to the proposed mine, and/or order for fresh gram sabhas to be held. The state government’s petition marked the latest cussed move in a 15-year-old project, which has become a poster child for the violence and lawlessness that underlie mining and allied industrialisation in Odisha – phenomena that have intensified in Adivasi areas of the state in this period.
On April 1, a three-judge bench asked that the government file a modified petition that impleads the gram sabhas. However, on May 6, the apex court refused to entertain the revised petition, or wade into the issue, ruling:
“We leave it open to all aggrieved parties to challenge the decision of the Gram Sabha and the consequential decision with regard to environmental clearance(s) before the appropriate forum(s), if such parties are so advised. We make it clear that we have expressed no opinion on merits.”
The Odisha government’s hopes to push through a deeply contested mine through judicial fiat have been dashed for now. But the petition’s content merits attention for what it says about the government’s stubborn belief that lucrative mining interests should trump democratic devolution, Adivasi resource rights and even legality.
The petition came nearly three years after Kondh and Gouda (i.e. Adivasi and Dalit) communities in Niyamgiri unanimously opposed stripping a hilltop over a seven square kilometre large area to extract 72 million tons of bauxite ore. In each of these gram sabhas held over July-August 2013, 12 villages explained their opposition to mining in ecological, religious and food security terms. Several more villages, including 104 Dongaria Kondh villages, have customary and religious rights in Niyamgiri, but the state government had limited the gram sabhas to only 12.
In January 2014, based on documents that included the gram sabha resolutions, the environment ministry denied forest clearance to the proposed bauxite mine – significantly, the only case so far where the voices of Adivasi residents have been heeded in this manner in state decision-making around privatising forested commons. It is these resolutions that the Odisha government wanted the court to annul, thus mounting a renewed bid to mine Niyamgiri.
The petition’s timing
A note first on the petition’s timing: why now, 30 months after the gram sabhas took place? The petition stressed that the mining proposal is of “a public sector corporation,” namely, Odisha Mining Corporation (OMC). It omits any mention of the multinational mining firm, Vedanta Resources Plc’s alumina refinery at the Niyamgiri foothills, in Lanjigarh, Kalahandi – a sprawling, gated complex, down the road from a police station, and barracks of paramilitary forces, deployed ostensibly to fight Maoist rebels.
But the irony of a government moving the apex court to annul the voices of some of its most marginalised citizens can only be understood in light of the connections between the state government, OMC and Vedanta. Vedanta’s construction of the alumina refinery at Lanjigarh was prompted by “the availability of huge deposits of bauxite” in the surrounding mountains that would defray the “key cost” of transporting ore. Outlining the “economic assumption of the refinery” Vedanta said it intended to source, via OMC, 150 million tons of ore from the area’s bauxite-rich mountain tops, starting with Niyamgiri. In 2004, OMC and Vedanta signed a joint venture agreement for mining Niyamgiri to feed ore to the refinery.
Intense opposition from Adivasi communities has stymied Vedanta’s bauxite extraction plan from the word go. The joint venture was formally annulled in September 2015. Meanwhile, Vedanta has periodically threatened Odisha (“with a heavy heart,” no less) that it will close down its refinery, and exit the area because of the lack of raw material.
Only, it has simultaneously moved to expand the capacity of its refinery from one to six million tons per annum. At a public hearing on July 30 2014 for environmental clearance for such expansion, government authorities downplayed Kondh voices who pointed out the harmful environmental impacts of such expansion, later portraying such dissent to me as “a small disturbance”. The January 2014 denial of forest clearance to the bauxite mine notwithstanding, several villagers who registered their protest at the July public hearing for the refinery’s expansion had instinctively grasped what would inevitably follow. Talking to me the following week, one of them, Kumti Majhi had said, “We are worried that [the refinery expansion plan] will be followed by pressure on us to consent to bauxite mining in this area”.
That is exactly what unfolded with the government moving the Supreme Court against the gram sabhas. In fact, the petition, though filed by the state government and the OMC, exemplifies the blurred lines between the public sector and private industry, between the elected government and the corporation, when it comes to lucrative resource extraction. As resident Lada Sikkaka evocatively described the Kondh experience of opposing mining in Sanjay Kak’s documentary film Red Ant Dream: “The company has swallowed the government.”
“We are not eating the government’s wealth, the government is eating ours.” A Dongria Kondh resident of Niyamgiri voices community anger over the government’s recent Supreme Court petition against their gram sabha resolutions. Video courtesy: Samadrushti Television
Undercutting the FRA
The Niyamgiri gram sabhas of 2013 were held under the landmark Forest Rights Act (FRA), 2006. They followed an April order by the Supreme Court, which upheld the role of gram sabhas under FRA in safeguarding customary and religious rights. The FRA departs from colonial-era legislation to belatedly acknowledge that India’s forest-dwelling communities have long-standing habitation, usage and conservation ties to forests. Further, the act offers Adivasi and forest-dwelling communities the only formal space for participation and consent, with regard to state decision-making around the enclosure and destruction of their forests for mining. FRA-mandated gram sabhas are thus a critical avenue for democratising decision-making around forests, and potentially making such far-reaching processes more ecologically informed, participatory and just.
The state government’s petition in the Supreme Court argues that the 2013 gram sabhas are “not lawful” because the villagers made “various general claims of worshipping all the hills in the Niyamgiri range…” and “were unanimous in their opposition to the Bauxite Mining project.” Further, the petition says, the gram sabhas “did not identify any precise area which might be needed to carry out essential religious functions or offer any justification for claiming an embargo on mining in the 25 km long and 10 km wide Niyamgiri range.” The petition thus argues that the gram sabhas should be struck down because they went “beyond the provisions of FRA.”
A 2010 environment ministry-constituted committee has already detailed the sustained contempt with which the state government treated the FRA, with regard to Niyamgiri. Officials consistently ignored claims and resolutions filed by local communities, including for areas falling within the proposed mining lease, junked participation and consent provisions, and even falsified certificates mandated by the FRA, to obtain clearance for the project. Far from redressing these wrongs, the government reiterates its disdain for the law in the Supreme Court petition.
By drawing an artificial distinction between mountain and forest that lies within the mining lease from that which lies beyond, the government seeks to disrupts the integrity of a singular ecosystem (the only habitat for the estimated 8000-strong Dongaria Kondh community, as well as a site of extraordinary biodiversity, including various rare and endangered specifies of flora and fauna).
Local residents revere the Niyamgiri range as an integrated landscape, in which their lives, spiritual identities and multiple rights are embedded. As several villagers articulated in the gram sabhas, Niyamgiri encompasses sources of forest foods and marketable produce, podu (hill) cultivation of indigenous crops, perennial mountain streams and the origin of important rivers, grazing lands on the plateau, wildlife, as well as vital sacred sites of clan deities, and the revered God, Niyam Raja, the ‘giver of law’. Niyamgiri, they asserted, blessed their lives, and provided for their very survival. As Felix Padel and Samarendra Das write in their book Out of This Earth, the lease area is so densely forested because of “the Dongarias’ taboo on cutting trees on the summit, seeing it as Niyam Raja’s abode, and aware of ‘a magnetic force’, which the forest exerts on the whole region’s fertility.”
Rather than “going beyond FRA” then, the gram sabhas exemplify the recognition this law intends to provide to pre-existing ties between communities and forests. To quote the environment ministry committee’s 2010 report: “Through their traditional practices, beliefs and customs, these forest dwellers have preserved intricate ecosystems. This customary stewardship only reinforces the authority vested in them by Section 5 of the FRA, wherein these very forest dwellers are the custodians of their forests. Section 5 of the FRA empowers the right holders to protect the wildlife, forest and biodiversity of Niyamgiri hill top and surrounding areas… This also places a duty on the State to seek their informed consent before permitting any diversion of the forest land under the Forest Conservation Act (FCA).”
In fact, in line with Section 3 of the FRA, which provides for habitat rights for particularly vulnerable tribal groups, Kondh villagers have been demanding a habitat title for their customary territory, in the name of Niyam Raja. As Rabi Kumruka of Rajulguda village told visiting researchers in 2015, “If the government was ready to give rights to the company over the mountain, then why not to Niyam Raja?” But district officials have taken no action to recognise these habitat claims.
The state government’s petition not only mocked the intent of the FRA, it also candidly misrepresented the legislation and its rules. To quote from it:
“That undisputedly, the FRA including the rules do not require any consent from the gram sabha as a mandate before any diversion of forest land for non-forest use, provided the process of recognising, verification and vesting of forest rights as per FRA has already been completed.”
Effectively, the petition argues that once the state has formally recognised the traditional resource use and conservation rights of individuals and communities through FRA, it can forcibly extinguish such rights for industry. What meaning would recognition hold then for Adivasi and forest communities?
The above paragraph also misleads on the issue of consent. The September 2012 rules for the FRA issued by the Ministry of Tribal Affairs, the nodal ministry for the legislation, outline in detail the process for securing community rights, participation and consent before forest area can be given away to industry. Further, an August 2009 circular by the environment ministry, delineates the gram sabha consent process and allied evidence that must be included in a forest clearance proposal. The circular was issued after the then Environment Minister Jairam Ramesh received multiple public representations drawing attention to how the FRA-mandated recognition of traditional rights of Adivasi and forest-dwelling citizens was being officially jettisoned, while handing over forest areas to industry.
The petition to the Supreme Court included other creative interpretations of the validity of FRA-mandated gram sabhas. After stating that gram sabha consent has no place in forest diversion (it criticises Niyamgiri villages for hav(ing) “purported to act as authorities to determine whether or not mining activities should be determined”), it goes on to argue that fresh gram sabhas need to be convened. Its arguments for this include the following: “…as of now, several new members would be entitled to participate as members of the gram sabha. Some of the adult members who had participated in the gram sabha in 2013 many have ceased to be the members of the Gram Sabhas.”
In moving the apex court so, the state government perhaps believes that holding fresh gram sabhas will yield a contrary outcome from that of 2013. However, locals have steadfastly opposed mining. Anger against the government and Vedanta still ran high when I revisited Niyamgiri the following year. It had been three months then since the environment ministry had denied forest clearance to the mine, but wary villagers continued to speak as if the threat of mining still held good. As the state government’s move against them in the Supreme Court indicates, their fears were not unfounded.
In fact, Adivasi anger has only spiked with news of the government reviving efforts to mine Niyamgiri. Villagers have held protests in the area asking ‘What is this farce of repeated gram sabha hearings?’ and opposed the government’s move in a letter to the Odisha Governor on March 8. There is also the worrying development of renewed state violence against villagers, which has taken the form of multiple arrests and the killing in a ‘police encounter’ of 20 year-old Dongaria Kondh youth, Manda Kadraka on February 27. These state excesses are playing out in the name of countering “the Maoist spread” in this region, which the Ministry of Home Affairs ironically links to growing disaffection over bauxite mining in the Eastern Ghats of Odisha and Andhra Pradesh.
Which brings me to the final argument in the petition, the ultimate fait accompli deployed to justify all kinds of injustice against Adivasis, namely, ‘development’. The petition argued:
“It is very unfortunate for the growth and development of the state of Odisha as well as the country that the Bauxite Project has not been given due clearance.” It also wants us to believe, “the project area, one of the remotest/backward areas of the country, which could not see much of development in the last 50 (sic) years of post-independence India and which has just about started witnessing substantial development process, now runs a risk of such development activities coming to an end..” (a thinly veiled reference to Vedanta’s refinery). And finally, “the benefits of industrialisation process are being themselves severely handicapped and affected by preventing the development which is possible by usefully and gainfully utilising the resources of the state.”
The government embarrassingly exaggerates the deliverance to Odisha (and India) that a single bauxite mine would bring, especially one that would meet the requirements of Vedanta’s expanded refinery for a mere four years. More fundamentally questionable is the notion that mining benefits locals, and heralds benign development.
As the 2012-13 findings of the Justice M. B. Shah Commission of Enquiry on Illegal Mining outlined, mining has served as a resource curse for the state’s Adivasi communities. They have borne its livelihood, social and environmental costs, while a sliver of economic and political elites were enriched by proceeds of the ensuing loot. More crucially, there is no price to be paid for the widespread breaking of laws – evident in the fact that recovery notices issued to miners for over 59,000 crore rupees, over three years ago, haven’t resulted in a single rupee returning to the public exchequer yet.
For now, by dismissing the government’s petition, the Supreme Court might have recognised that the voices of local communities are inescapable to decision-making around Niyamgiri. The government’s next move to push mining remains to be seen. For Niyamgiri’s beleaguered residents, however, this petition has only served to reinforce their deep mistrust of the “company”, and their even deeper alienation from the “sarkaar”.
Chitrangada Choudhury is an Orissa-based multimedia journalist and researcher, and a Fellow with the Open Society Institute. She can be reached via email on firstname.lastname@example.org.