India -Orissa- Indigenous people appeal for Justice

To,
The Honorable Chief Justice of India
Supreme Court of India
New Delhi 110001
India

Heidelberg (Germany), 15th of November 2007

Sub: Appeal for Justice to the Primitive Dongria Kandh Tribes of Niyamgiri, Orissa

Honorable Sir,

This is with reference to the case of Bauxite Mining by Vedanta in the Niyamgiri Mountain in Orissa which is awaiting judgment from the highest court of your country. You may be aware that for generations this mountain has been protected by the primitive Dongria Kandh tribes, for whom it’s the sacred mountain of “Niyam Raja.” The mountain has been the lifeline with rich biodiversity for the habitat surrounding it.

This Mountain is now facing the danger of bauxite mining by the Vedanta Company which will cause forced eviction of thousands of indigenous people. After three and a half years of deliberations at various courts and commissioned studies showing the detrimental effects mining would cause to the mountain and the communities threatened, it seems that the company will get a go ahead for mining.

Previous experience of displacement in mining areas has shown that the displaced people end up living in small shacks with no means of livelihood. Open-cast mining would mean the deforestation of the Niyamgiri hills and this will result in damage of the soil which will lose its capacity to retain water. Further consequence will be the drying up of streams and underground water resources, leading to desertification of the area and making the soil infertile. The affected people will therefore not have access to cultivable land nor safe potable water. They are solely dependent on these hills and the forests for their livelihood. Eviction and alienation from their land will lead to hunger and starvation.

This would prove fatal to the indigenous communities and the Niyamgiri Mountain. In the entire court proceedings so far, no scope has been provided to the tribals to present their side of the story although ample time and space seem to have been given to the company itself. This violates the human right of the indigenous communities to a fair trial and a fair hearing in a case which may be decisive to their survival as a community and to their physical survival as individuals. In the last court hearing on 26 October 2007, the lawyer representing the tribals was snapped at by one of the judges in your presence and was never given a chance to present the 200-odd page objection to Vedanta’s mining report.

Presenting below a synopsis of the process for your reference:

It was on the 22nd of September 2004, that the Vedanta Alumina Ltd was accorded Environmental Clearance for its MTPA Alumina Refinery at Lanjigarh. This was challenged by three petitioners i.e Wildlife Society of Orissa, Prafulla Samantray and the Academy for Mountain Environics before the Central Empowered Committee (CEC) constituted by the Supreme Court.

One of the major grounds of challenge was the fact that the Environmental Clearance was granted on a wrong premise that no forest land was involved, whereas in actuality forest land was involved both for the mining component as well as the Refinery. However, Vedanta Alumina Ltd concealed both these facts while seeking environmental clearance for the project. This is a criminal offence.

The CEC appointed a fact finding team to visit the area in December 2004. The Fact finding report confirmed the fact that forest land was cleared in violation of the Forest (Conservation) Act, 1980. It also raised crucial question as to why environmental clearance was granted before the grant of forest clearance to the project.

During the series of hearing before the CEC, the Vedanta Alumina Ltd kept changing its stand. Initially it stated that its refinery plant is independent of its mining project in Niyamgiri and therefore should be considered as an independent project. Later, it changed its stand and stated that the mining project is integral to the project and without it the refinery will be meaningless.

This was not the only instance. The issue of forest land in the Refinery was another instance where the Company shifted its stand. The Environmental Clearance did not state that 58 Hectares of forest land was involved in the project. However, during the pendency of the case, Vedanta sought permission under the Forest (Conservation) Act for use of these 58 hectares of forest land. Suddenly, doing a volte face, they took the stand that they do not require the 58 Hectares of forest land even though the entire area was located within the refinery. An application to this affect was sent by the Government of Orissa to the Ministry of Environment and Forests (MoEF) on a Sunday and the MoEF approved the same the very next day. According to the CEC Report the same was done at an ‘Unusual speed”.

The CEC on 21st September 2005 filed its report to the Supreme Court. It was perhaps the strongest report ever to the Supreme Court. It specifically recommended for the revocation of the Environmental clearance to the Refinery. The CEC made strong observation on the functioning of the State, it stated “the casual manner, the lackadaisical approach and the haste with which the…”

When the report was placed and heard by the Supreme Court almost 6 months after the CEC filed it, the MoEF accepted the fact that the studies were not complete and informed the court that the Wildlife Institute of India and CMPDI will be entrusted with the task of ascertaining the impact due to the proposed mining. The Wildlife Institute of India (WII) submitted its report which highlighted the immense significance in terms of biodiversity, water and for the tribals. The CMPDI which is a subsidiary of coal India ltd concentrated on the mitigation aspects.

The Supreme Court started hearing the matter from May 2007. It is pertinent to point out that despite the recommendation of the CEC, the work on the Refinery was completed by the time the issue came up for hearing. The company could thus present a fait-accompli situation.

In the hearing in May, the Government of Orissa, MoEF and Vedanta Alumina and CEC through the amicus curiae were all allowed to speak. The only people not allowed were the three petitioners. When the advocate representing the petitioners rose to speak, the bench stated “NO NGO’s in this case”. Thus the NGO’s who were responsible for bringing up the case were reduced to mute spectators.

The CEC on the orders of the Court submitted a Supplementary report and reiterated its earlier position, that mining should not be permitted and that it would amount to ‘sacrilege if the same was permitted.’

The Supreme Court in its order on May 2007 sought details of other alternative mining sites. The Government of Orissa took the stand that no alternative site exists. Later, the CEC did point out that sufficient alternative sites do exist.

The Supreme Court enlarged the scope of the Petition in September by directing the MoEF to file a report on the impact on forest and tribals if mining takes place in Koraput and Kalahandi. The MoEF took the stand that mining positively impacts the environment as well as the tribal people!

At this time a Writ Petition was filed on behalf of the tribals, the Supreme Court directed that the Writ Petition be numbered as an Intervention Application and the Applicant were permitted to file written objections to the Report of the MoEF. The Applicant filed a detailed 200 page objection.

On the final day of hearing on 26 October 2007, every party was allowed to argue except the one representing the tribal interests. Not even a minute was granted in the one and half hour of hearing to the Petitioners. The hearings are now over and the Judgment Reserved.

In sum, this is a case where:

The Supreme Court is refusing to accept the fact that the Company in connivance with the State has violated all the environmental laws even in the face of irrefutable evidence;

The concealment of information on the existence of forests as well as de-linking of the mining and refinery is still to be highlighted;

The CEC has clearly held that undue favor has been granted and the functioning of MoEF and Government of Orissa does not inspire confidence;

In spite of the clear fact that tribals will be affected, the Court refuses to hear the tribals whereas it continuously hears the company;

The Court is relying on evidence of the State of Orissa and the MoEF in drawing up its conclusion on the impact on mining although these are the two agencies accused of undue favor to Vedanta;

The Court seems to be proceeding on the idea that grating 5 % of the profit will ensure that all wrongs are undone;

The Court fails to recognize that the Government of Orissa fails to protect the right to food of the affected people by not stopping the mining companies to threaten their livelihood;

The Supreme Court doesn’t condemn the actions of the State of Orissa which is actually involved itself in the mining activities and thus isn’t respecting the right to food of the tribal people.

It is in this context, I would like to request you to re-look at the case before the final judgment is given. It is extremely crucial to uphold the indigenous people’s economic, social and cultural human rights. As a state party to the respective International Covenant, India is duty-bound under international law to these rights including the right to feed themselves, the right to house themselves and the right to enjoy their own culture.

Please let me know which measures you will take in order to implement these legal duties of India in the case at hand.

Yours sincerely,

Dr.Flavio Valente
Secretary General
FIAN International