File photo of members of the Orissa Dongaria Kondh tribe conducting a protest against the Vedanta project before the State Secretariat in Bhubaneswar. After the government rejected the proposal to Orissa
With international activists and Congress leader Rahul Gandhi highlighting the rights of the Dongria Kondhs, the case had taken on a high-profile dimension.
Courtesy The Hindu
New Delhi, April 18, 2013
In a landmark judgment, the Supreme Court on Thursday directed the smallest units of local governance to use their powers and take a decision on whether the Vedanta group’s $1.7 billion bauxite mining project in Odisha’s Niyamgiri Hills can go forward or not.
Affirming the decision-making power of the village councils of Rayagada and Kalahandi under the Forest Rights Act (FRA), the court directed these gram sabhas to “take a decision…within three months” on any claims of cultural, religious, community and individual rights that the forest dwellers of the region may have.
“We are, therefore, of the view that the question whether STs [Scheduled Tribes] and other TFDs [traditional forest dwellers], like Dongria Kondh, Kutia Kandha and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha,” said a three-member Bench in its order. “Gram Sabha can also examine whether the proposed mining area Niyama Danger, 10 km away from the peak, would in any way affect the abode of Niyam-Raja. Needless to say, if the BMP [bauxite mining project], in any way, affects their religious rights…that right has to be preserved and protected. We find that this aspect of the matter has not been placed before the Gram Sabha for their active consideration.”
MoEF given two months to decide
Once the gram sabhas have made their decision, the court gave the Ministry of Environment and Forests (MoEF) a further two months to take a final decision on granting a forest clearance for the bauxite mining project being run as a joint venture between a State-owned mining corporation and the U.K.-based Vedanta’s Indian arm. The Vedanta Group declined to make any comment on the ruling.
The Bench gave its ruling on a petition which challenged the MoEF’s 2010 decision to cancel the bauxite mining project’s forest clearance — on the grounds that environment and forest laws had been violated, as well as the rights of primitive tribal groups such as the Dongria Kondh. With international activists and Congress leader Rahul Gandhi highlighting the rights of the Dongria Kondhs, the case had taken on a high-profile dimension.
A victory for
Jubilant tribal activists are also treating the verdict not just as a victory for the Dongria Kondhs against Vedanta, but as a validation of the gram sabha’s powers under the FRA. “The court’s construction of the FRA says that the gram sabha can decide on rights, that decision is final, and the gram sabha has the power to decide on protecting forests and natural heritage,” says Shankar Gopalakrishnan from the Campaign for Survival and Dignity.
“In particular, by sending the matter back to the gram sabha because a key matter has ‘not been placed before it for its active consideration’ the court is treating the gram sabha as a statutory, legal authority at the same rank as, say, the forest advisory committee or MoEF.”
The Bench also made it clear that the FRA “protects a wide range of rights of forest dwellers and STs including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation.”
Mr. Gopalakrishnan argued that “this construction of the FRA is now binding on every High Court and every Supreme Court Bench of less than three judges, as well as on the government.” It could also throw a shadow on recent guidelines drafted by the Prime Minister’s office, which seemed to hold that, under the FRA, gram sabha consent was not mandatory, and that its input was only required in some cases because forest dwellers should be treated “humanely” and to ensure public “consultation.”