Laws seeking Adivasi consent for mining or land acquisition are regularly flouted in India

coal1Amnesty International has released a new report on the impact of coal mining in the country’s coal belt – consisting of territories of Chhattisgarh, Jharkhand and Odisha.  Titled “India: When Land is Lost, Do we East Coal? Coal Mining and Violations of Adivasi Rights in India”, the report is based on research conducted between January 2014 and June 2016, which includes several interviews with members of Adivasi communities, activists and government officials. Excerpts:

Coal is an important part of India’s economic growth story. Nearly two-thirds of India’s electricity is derived from coal, and the country is the third largest producer and consumer of the mineral in the world. The Indian government now plans to nearly double annual coal production by 2020 to meet growing energy requirements. However coal mining in India also has a different cost, borne by the communities affected by these mines, who are rarely meaningfully informed or consulted when their land is acquired, their forests decimated, and their livelihoods jeopardised.

Crucial to India’s coal plans is the role of the giant Coal India Limited (CIL) – the country’s primary state-owned coal mining company and the world’s largest coal producer. CIL aims to increase its output to 1 billion tonnes annually by 2020, primarily by increasing production in existing mines. Nearly 93 per cent of CIL’s total production is through surface, or ‘opencast’, mines. About 70 per cent of India’s coal is located in the central and eastern states of Chhattisgarh, Jharkhand and Odisha, where over 26 million members of Adivasi communities live, nearly a quarter of India’s Adivasi population. Adivasi communities, who traditionally have strong links to land and forests, have suffered disproportionately from development-induced displacement and environmental destruction in India.

A raft of domestic laws requires Indian authorities to consult, and in some cases seek the consent of, Adivasi communities before acquiring land or mining. International human rights law and standards also guarantee the right of Indigenous peoples to take part in the decisions that affect their lives and territories. However, these requirements are regularly flouted.

Mining in three mines in three different states run by three different CIL subsidiaries – which are all seeking to expand production – have breached Indian domestic laws, and India’s obligations under international human rights law. CIL as a company has failed to meet its human rights responsibilities. The three coal mines are South Eastern Coalfields Limited’s Kusmunda mine in Chhattisgarh, Central Coalfields Limited’s Tetariakhar mine in Jharkhand, and Mahanadi Coalfields Limited’s Basundhara-West mine in Odisha.

coal2Adivasi communities in these areas complain that they have been routinely shut out from decision-making processes around their traditional lands, rights and resources. Many have had to wait for decades for the compensation and rehabilitation they were promised. The violations of their rights to consultation and consent – around land acquisition, environmental impacts, indigenous self-governance, and the use of traditional lands – has led to serious impacts on their lives and livelihoods.

LAND ACQUISITION: COAL BEARING AREAS ACT, 1957

Land acquisition for coal mining by the government is carried out under the Coal Bearing Areas (Acquisition and Development) Act (CBA Act). The Ministry of Coal is responsible for monitoring the implementation of the Act. Under the Act, when the government is satisfied that coal can be obtained from a certain area, it declares its “intention to acquire” the land in the official government gazette. There is no requirement to consult affected communities, or seek the free, prior and informed consent of Indigenous peoples, as stipulated by international law. Anyone who objects to the acquisition and who is entitled to claim compensation must file written objections within 30 days of the notice of acquisition to the office of the Coal Controller, under the Ministry of Coal which goes on to make recommendations to the central government.

After considering the recommendations, the central government can issue a declaration of acquisition of the land and all rights over it. These rights can then be transferred to a government company such as CIL. There is no requirement for authorities to pay compensation before taking possession of land. The law has no provisions for ensuring that human rights impact assessments are conducted prior to land acquisition proceedings. There are no requirements to consult with non-landowners who may be affected by land acquisition, such as landless labourers.

The law also does not offer adequate protection to communities from forced evictions. The CBA Act undermines communities’ security of tenure and creates the legal basis for CIL to operate without due regard for the impact of its operations on human rights. The procedure for notification of acquisition under the Act does not amount to adequate notice as set out by international human rights law and standards.

Kusmunda is one of India’s largest coal mines, covering about 2382 hectares in Korba district. South Eastern Coalfields Limited (SECL), which operates the mine, increased production capacity from 10 mtpa (million tonnes per annum) to 15 mtpa in 2009, to 18.75 mtpa in 2014 and 26 mtpa in early 2016. In 2014, SECL said that it was planning to expand production at the mine by up to four times. The expansion would involve the acquisition of additional land in the five villages of Amgaon, Churail, Khodri, Khairbawna and Gevra. Over 13,000 people live in these villages.

On 20 July 2014, the Ministry of Coal published a notification in the official government gazette declaring its intention to acquire 1051 hectares of land, including the entire villages of Amgaon, Churail, Khodri, and Khairbawna and part of Gevra. The government invited objections to be submitted within 30 days by those who were entitled to claim compensation if the land was acquired. Adivasi communities in the five affected villages who stand to lose their homes and agricultural fields said they have not received any information about the rehabilitation and resettlement they would be entitled to.

ENVIRONMENTAL IMPACT: ENVIRONMENT (PROTECTION) ACT, 1986

As part of the environment clearance process under India’s Environment Protection Act (1986), state-level pollution control authorities are required to set up public consultations with local communities likely to be affected by the environmental impact of projects to give them an opportunity to voice any concerns. The Environment Impact Assessment notification, 2006 (amended in 2009) requires the concerned pollution control authority to advertise the hearing widely, including by publishing notice of the hearing in at least one major national newspaper and one regional language newspaper.

In areas where there are no newspapers, authorities are required to use other means such as drum-beating and radio/television advertisements to publicise public hearings. Prior to the public hearings, the concerned company is required to submit copies of the draft Environmental Impact Assessment (EIA) report, and summaries in English and the relevant local language, to various district-level authorities. These authorities are in turn required to provide publicity about the project and make the documents available for public inspection.

EIA reports frequently use extremely technical language – there is unfortunately no requirement for either the concerned company or the pollution control board or any other authority to simplify the content of the EIA. The EIA reports prepared are also supposed to involve social impact assessments. These are almost never carried out. Expert committees at the Ministry of Environment, Forests and Climate Change (MoEFCC) are supposed to consider applications for environmental clearances, and are supposed to submit them to ‘detailed scrutiny’.

coal3SECL applied to the MoEFCC to expand the Kusmundato expand production from 18.75 mtpa to 62.5 mtpa. The CECB called for a public hearing for this expansion on 11 February 2015. Over 13,000 people live in the five affected villages of Khodri, Gevra, Amgaon, Khairbawna and Churail. However many members of local communities, including heads of village councils of Pali and Khodri villages, said that this had been inadequate, as there had been no other public advertisement of the date of the hearing, or any explanation of the project’s potential impacts by project or government authorities.

At the hearing, a large number of security force personnel were present at the hearing, which appeared to have intimidated locals from raising their concerns. People raised concerns regarding rehabilitation and resettlement, compensation and employment, the impact of the mine on air quality, groundwater levels and agricultural activities, and the lack of information about land acquisition. Of 38 people who spoke at the public hearing, only one spoke in favour of the expansion. He was a CIL employee. Yet, on 3 February 2016, the MoEFCC granted environmental clearance to SECL to expand capacity at the Kusmunda mine to 26 mtpa.

INDIGENOUS SELF-GOVERNANCE: PANCHAYAT (EXTENSION TO SCHEDULED AREAS) ACT, 1996

Amendments made to India’s Constitution in 1993-94 conferred powers in relation to local development to elected village councils (or ‘panchayats’). In 1996, the Panchayat (Extension to Scheduled Areas) Act was enacted to extend these amendments to Scheduled Areas: certain Adivasi regions identified under the Constitution as deserving special protection. The PESA Act requires that panchayats or gram sabhas be consulted before land is acquired in Scheduled Areas for development projects, and also before the resettlement or rehabilitation of people affected by such projects.

SECL has stated that land acquisition for CIL subsidiaries only has to follow the CBA Act, which does not require any form of consultation. In March 2013, a local activist from Pali village, filed a Right to Information application asking for details about the project’s compliance with the PESA Act. SECL responded that in cases of land acquisition under the CBA Act, the “PESA Act is not applicable”.

RIGHTS OVER TRADITIONAL LANDS: FOREST RIGHTS ACT, 2006

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was enacted to correct the historical injustice faced by Adivasi communities in India and enable them to gain legal recognition of their rights over their traditional lands. Under a 2009 order issued by the MoEF, for industrial projects to receive forest clearances from the Ministry, state governments have to obtain the consent of gram sabhas for any diversion of forest land. The gram sabhas are required to have a quorum of at least 50 per cent, and have to be recorded on video.

The people affected by the Kusmunda mine include members of the Kawar, Gond, Rathia and Agaria Adivasi communities, who are all recognized officially as Scheduled Tribes under India’s Constitution. Traditionally agrarian and dependent on the land and forest for their livelihood, these communities have lived next to the Kusmunda mine for decades. State governments are responsible for obtaining certificates from gram sabhas declaring their consent.

However, SECL wrote directly to the head of the Pali village panchayat in May 2011 and again in February 2012, asking her to conduct gram sabhas seeking consent for diversion of forest land for the mine. The villagers did not agree. In a subsequent gram sabha conducted on 29 December 2013, villagers opposed the expansion, instead demanding that rehabilitation and compensation be given to those who had been evicted from their homes in a nearby village.

On 8 February 2016, the Block Development Officer, Katghora, issued a notice for the conduct of three separate gram sabhas on 16 February in Pali, Padaniya and Khodri villages to seek the consent of villagers for the diversion of forest land for the expansion of the Kusmunda mine. Government officials claim that three gram sabhas were accordingly conducted on 16 February. However, local villagers said that the gram sabhas did not meet important requirements and two of them were invalid.

Villagers in Pali, including the head of the village council and her son, said that the gram sabha in Pali had only 42 attendees, when the quorum should have been about 800. Activists, media persons and ten villagers from Padaniya, including the head of the village council, said that the gram sabha in Padaniya had been called off following opposition from the villagers who had attended, and nobody had consented to the diversion of forest land. They said that the gram sabha had not been recorded on video.

Download full report HERE

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