Time to revisit questions around ecological fragility, livelihood, cultural significance of Niyamgiri Hills

niyamKanchi Kohli* 

Niyamgiri is in the news and once again to determine whether or not the bauxite deposits that lay underneath its forest, should be mined. The Odisha government has gone back to court saying that the Gram Sabhas (village assemblies) in the area should be reconvened to consider whether mining can be carried out by the state run unit the Odisha Mining Corporation (OMC).

This hill range that spreads across Rayagada and Kalahandi districts of Odisha, has been under contest for more than a last decade. Hidden from public eye, Niyamgiri ironically rose to being an international phenomenon when logics of home, culture, nature and came to clash with state aspirations for growth and corporate interest in extract profit.

That was 2004, and much water has flown in Niyamgiri hills since then. The idea of this place has been shaped through international campaigns, expert committee reports, street protests, media narratives and directions of the highest courts. Some actors might have changed, but many others remain the same. Till such time there is ore underneath Niyamgiri’s hills, this conversation might not be over.

The first phase of action against Niyamgiri hills had two stages. First, was the fact that, three cases before the Central Empowered Committee (CEC) set up as part of the Godavarman bench hearing matters related to forest violations. The allegations were that company in question Sterlite Industries, a subsidiary of a UK registered Vedanta plc, had initiated the construction of a refinery in Lanjigarh downhill, even as the permission for forest diversion towards the mining component had not been delivered. The raw material had to be dug out and transported via a conveyor belt up from the hills down to the refinery.

The second was the subsequent and masterful delinking of the refinery from the mining process, so as to evade the illegality attached with the construction. The company managed to convince the CEC and the apex court that the refinery could be run without being dependent on Niyamgiri’s bauxite and hence the two projects were separate. It is a different matter the project document and the Environment Impact Assessment (EIA) stated otherwise.

Lanjigarh’s refinery continued to be constructed while Niyamgiri’s future went on to be debated in the Supreme Court on both legal and ecological grounds. At the same time the importance of this place had only begun to be revealed. Starting from it being the home of Niyam Raja, the creator of the Dongria Kondhs, to the livelihood and food cultures of several tribal communities, and further on to presence of wildlife, origins of water streams were all repeatedly documented and presented through audio, video and written formats.

In 2007, following the CEC’s report being debated, the Supreme Court ordered that Vedanta, the international company could not be allowed to carry out mining. This was primarily because some of its funders, including the Norwegian Council of Ethics had withdrawn its support on the grounds on poor reputation of environment and human rights compliance. The court’s order however presented a solution that mining operations could be possible if Vedanta’s subsidiary Sterlite were to enter into a Special Purpose Vehicle (SPV) with the OMC.

A few months and a handful of expert committee meetings after, the SC sent back the decision to the Ministry of Environment and Forests (MoEF) to take a call on this matter “in accordance with law”. By now, what was in place is popularly known as the Forest Rights Act, 2006. The discourse that followed questioned the possibility of displacing the Dongria and Kutia Kondhs from the proposed mining area, even as their rights were yet to be recognized by the governments. Executive orders in the form of circulars and guidelines both from MoEF as well as the tribal affairs ministry, emphatically stated that no legal diversion of forest land, like in the case of Niyamgiri, till the recognition of rights is complete. In 2010, based on the recommendations of its Forest Advisory Committee (FAC), the minister himself directed that the forest diversion couldn’t be approved in favour of mining in Niyamgiri hills.

This decision was challenged before the Supreme Court by OMC and Vedanta to say that orders of the environment ministry were not “in accordance with law”, as directed by the SC in 2008. It is in this case that the 2013 judgment was passed by the SC, the outcome of which is now back in court. It is in this April 2013 judgment that the SC had in a very detailed set of observations broadly concluded that cultural and religious rights are part of forest rights of the people of Niyamgiri hills.

Further, the judgment said that “Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act…” Following this they directed the government to place the issue  of forest rights and its safeguarding , including those related religion and culture before the Gram Sabhas. Once this is done, the ministry of environment would take a final decision on whether or not to grant its final approval for mining. Just to recall, this is the same approval that has already been rejected once before. Twelve Gram Sabhas unanimously say no to mining, when the matter is place before them for consideration. Based on this, the ministry says no to mining.

Zoom to 2016, the OMC is back before the SC. News reports indicate that the state owned corporation has argued that as per the FRA or other legislations like the Panchayat Extension to Scheduled Areas (PESA) Act, the gram sabhas had no powers to decide on whether mining can be carried out in Niyamgiri. Other reports indicate that OMC wants gram sabhas to be reconvened because they believe that the verdict is likely to be different this time, especially because a government company would be carrying through the mining activity, and not Vedanta. The decision they say cannot be in perpetual force, and requires review.

The court’s verdict on this is yet to be out. But it is important to note is that the permission for diversion was finally refused by the MoEF, under the Forest Conservation Act (FCA). The SC had also directed the MoEF to take the final call. If OMC seeks to mine Niyamgiri again, it would need to go through the requirements for all environmental approvals again. We would be back to the 2004 when the first set of legal challenges had raised several questions around ecological fragility, livelihood importance and cultural significance of Niyamgiri Hills. The discourse was as much about all of these issues, as much it was about what is or should be legally acceptable.

Till such time yet another court verdict is in, not everyone is likely to sit back, relax and enjoy the “fight”. Niyamgiri is once again back on the streets, in the courts and in writings such as this!

*Researcher and writer. This article has also been published in “Civil Society” (April 2016)

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