Author: Dhanushree R 3rd Year B.com LL.B. St. Joseph’s College of Law
ABSTRACT
Tribal communities in India have a long relationship with land and forests. Their rights are often based on customs and traditions which are followed for generations. In modern India, development projects like mining and industrial expansion often lead to affecting these tribal lands. The conflict between tribal rights and state ownership of forest land in the Niyamgiri Hills of Odisha is an important issue for tribal communities. This focuses on the case of Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests (2013) and traces the development of tribal land ownership in India. This includes an analysis of how forests play a vital role in tribal livelihoods, culture, traditions, and identity, as well as the growing influence of the State over the natural resources of tribal communities. These include provisions from the Constitution of India and other laws dealing with indigenous rights, such as Articles 21, 46, and 244 of the Constitution of India, the Fifth Schedule, the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), the Forest Rights Act, 2006 (FRA), the Forest Conservation Act, 1980, and the Mines and Minerals (Development and Regulation) Act, 1957. It also briefly discusses international standards relating to indigenous rights. The proposed bauxite mining project in the Niyamgiri Hills, which posed a serious threat to the livelihood, culture, and identity of the Dongria Kondh tribe, is also considered. The importance of the Supreme Court’s judgment on the rights of the Gram Sabha and the protection of the customary rights of the tribes has been emphasized. Hence, one may argue that even though the judgment in the Niyamgiri case was favourable to the tribes and their customary rights, there is always scope for better implementation of the law.Tribal communities in India have a long relationship with land and forests. Their rights are often based on customs and traditions which are followed for generations. In modern India, development projects like mining and industrial expansion often lead to affecting these tribal lands. The legal recognition of their rights under the Indian law and importance of forest rights and community consent. This puts light to the need to protect tribal land rights while have suitable and sustainable development.
Keywords: Tribal Rights, Customary Rights, Forest Land, Indigenous Communities, Niyamgiri Hills, Dongria Kondh Tribe, Forest Rights Act, 2006 (FRA), Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), Gram Sabha, Scheduled Areas, Fifth Schedule, Tribal Land Ownership, Mining and Development, Environmental Justice, Community Consent, Forest Governance, Tribal Autonomy, Orissa Mining Corporation v. Ministry of Environment and Forests.
- Introduction
I.1. Historical Evolution of Tribal Land Rights in India
For many years, India’s indigenous peoples have enjoyed their customary systems for land ownership and resource extraction from forests. Their beliefs, customs, and traditions, as well as their relationship to both land and forests, are shared through generations. However, British colonial rule and independent India did not formally acknowledge or respect tribal groups’ traditional rights to land and the forests. As a result, increasing numbers of forests/minerals in India were viewed as State properties and were thus placed under government control. The Forest Act of 1927 and the Forest Conservation Act of 1980 granted the government enormous authority over forest land, while drastically curtailing the rights of tribal groups to use these lands in the manner to which they have been accustomed for many years. Consequently, many indigenous peoples have lost access to the resources that unquestionably are the basis of their culture and subsistence.
The Constitution’s Fifth Schedule recognizes the need for special protective measures for tribal areas defined as Scheduled Areas. However, these protections have not been implemented effectively in many places throughout India. The Forest Rights Act, 2006 was created to provide redress for historical injustices suffered by tribal peoples who live on forest land by recognizing their traditional rights to forest land and resources, as well as providing a remedy to the large-scale displacement of indigenous peoples as a result of colonial forest policies and Supreme Court orders in 2001 ordering the eviction of forest dwellers. These events have led to widespread demonstrations and national movements demanding that governments recognize the customary and ancestral rights of indigenous peoples over their territories and forests.
Tribal land rights in India have evolved through ongoing tension between tribal land protection by State method and the government’s increasing influence over natural resources on land occupied by Tribes. Many of the traditional and cultural rights of Tribes are provided for; however there remain multiple regulatory laws which have the capacity to compromise those rights. Additionally, there are several conflicting laws governing mineral rights (that create confusion over authority) an example of such was demonstrated using the Niyamgiri Hills case-study.
I.2. Background of the Issue
I.2.i. The Niyamgiri Hills: The Niyamgiri Forest lies in southern Odisha (Rayagada/Kalahandi) and is a dense forest area of approximately 1,000 sq. km. It is considered sacred by the locals as it is home to “Niyam Raja” (The King of Laws) on the peak. The Niyamgiri Forest is ecologically rich, supports many endemic plant species, and contains many streams that provide watershed services.
I.2.ii. The Dongria Kondh Tribe: A Particularly Vulnerable Tribal Group (PVTG), lives in and around the Niyamgiri region. The Dongria Kondh people follow a subsistence farming and foraging lifestyle. Their entire cultural identity is closely tied to the Niyamgiri hills, all of their customs, religion, and economy are dependent on the Niyamgiri forest shrine and the resources. Dongria families forage for wild yams, fruits, seeds, and medicinal plants, over 200 different types of useful forest foods, that they consume and use for sale. They consider Niyam Raja as their sacred place, where their ancestors have lived for generations.
1.2.iii. Dependence on Forests: The Dongria Kondhs depend greatly on forests because they obtain almost all their food and earnings through them; according to FRA background documents, Dongria Kondhs obtain “more than 200 types of food” from their forests at Niyamgiri. Besides gathering food, they hunt and have small gardens (or farm) and work as seasonal labourers. Their way of life, including their governing structure (which is called village council or Gram Sabha), is based on conserving the forests that are used communally.
I.2.iv. Threat of Displacement: Open cast bauxite mining over 670+ hectares of Niyamgiri was proposed by Sterlite Industries (a subsidiary of Vedanta) and state agencies during the mid-2000s. This would have involved clearing large forest areas and displacing several families of both Dongria Kondh and Kutia Kondh. Local activists warned of the potential impact of mining on biodiversity in the forests, and that many thousands of people could possibly be relocated from their homes as a result of the mining operation. The Dongria people felt very strongly about the need to protect the land they inherited, the food they hunted, and the culture they had established on the land for many years.
I.2.v. Conflict with Development Projects: A dispute over natural resource development in Niyamgiri is reflective of numerous other situations in India where industrial development (such as mines and dams) conflicts with the rights of tribal peoples over their traditional territories. To date, tribal peoples have alleged that permission for development and acquisition of tribal land have occurred without adequate consultation, which violates laws such as The Panchayats (Extension to Scheduled Areas) Act PESA (which requires the consent of Gram Sabhas in Scheduled Areas) and Forest Rights Act, 2006 (which grants rights to forest-dwelling communities). In Niyamgiri, community members have filed multiple petitions and conducted mass mobilizations to enforce these laws.
III. Constitutional and Legislative Framework
III.1. Constitutional Provisions:
III.1.i. Article 14 and 15: provide a general basis for guaranteeing equal protection of law and prohibiting unlawful discrimination; however, they do not specifically cover issues concerning the ownership of tribal land.
III.1.ii. Article 19(5): provides for the imposition of reasonable restrictions on a person’s rights, such as freedom of movement and residence, in the interests of the general public, and also for the protection of Scheduled Tribes.
III.1.iii. Article 21: guarantees the right to life and personal liberty to all persons; the Supreme Court has interpreted “life” to include livelihood, health, and ecology. When displacement occurs due to the destruction of tribal habitats, such action may violate Article 21.
III.1.iv. Article 46: The State has an affirmative duty to promote the educational and economic interests of Scheduled Tribes and protect them from social injustice and exploitation. The governmental duty to “promote STs, socio-economic interests and protect them against exploitation” is a requirement of Article 46, as explained by the Supreme Court in Samatha.
III.1.v. Article 244: Guidance on how to administer the Scheduled Areas (approximately 7.5% of India) and the Tribal Areas (approximately 7.5% of India), which together are known as Scheduled and Tribal Areas, to provide special governance of these regions for the purpose of protecting the interests of Scheduled Tribes and thus providing constitutional protection to these communities from being exploited or displaced. Article 244 is also important in the Niyamgiri case because it supports the recognition of the right of the Dongria Kondh Tribe to their traditional land and resources.
III.1.vi. Fifth Schedule: The Fifth Schedule provides a framework for governing Scheduled Areas and recognizing the autonomy and culture of tribes, where possible, in relation to the protection of their social structure and economic well-being. The Governor of each State having Scheduled Areas has the authority under this Schedule to make regulations regarding the transfer of land owned by Scheduled Tribes and to give effect to changes in laws relating to tribal land ownership rights. The Fifth Schedule also establishes Tribal Advisory Councils to provide guidance and recommendations to State Governments about the welfare of tribes in Scheduled Areas. The criteria used to determine whether an activity affects the welfare of a tribe include, but are not limited to, protection of a tribe’s customary rights (Orissa Mining Corporation v. Ministry of Environment & Forests, Niyamgiri case) and the involvement of Gram Sabhas in decision-making regarding the use of tribal land and religious practices (Samatha v. State of Andhra Pradesh), which further reinforce the principles set out above in relation to the use of tribal lands in Scheduled Areas of India.
III.2. Legislative Framework:
III.2.i. Forest Rights Act, 2006 (FRA): As part of an effort to address the “historical injustices” experienced by the forest-dwelling Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs), who are intrinsically linked to the sustainability of forest ecosystems, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA) was introduced in 2006. The FRA has been designed to provide legal recognition of forest land and resource rights of forest-dwelling Tribal and indigenous communities and, consequently, to provide for the recognition of their historical injustices by securing their rights to both their traditional lands and their livelihood (including food security).
The three classifications stated under the Act are, first, individual forest rights such as the right to self-cultivation and habitation; second, community forest rights such as herding, fishing, access to water bodies and biodiversity, conservation of traditional knowledge, and conservation and sustainable use of community forest resources; and third, community forest resource rights, which further strengthen community control over forest resources
The core benefit of the Forest Rights Act is its recognition of and support for tribal communities through the decolonisation of forest bureaucracy and the granting of democratic rights to communities dependent on forests for their livelihoods. It also provides for the formation of Forest Rights Committees at the village level. Additionally, there are specific provisions for in-situ rehabilitation in cases of eviction or displacement.
Although the Forest Rights Act, 2006 has created many new paths for Adivasi (Scheduled Tribe) and OTFD (Other Traditional Forest Dweller) rights to be recognized and enforced, it has many limitations relating to both its content and implementation. One major problem with the FRA concerns the fact that it is inconsistent with other statutes, such as the Van Adhiniyam and the Wildlife Protection Act, which complicates its effective implementation. Also, while MoTA is the nodal agency dealing with all issues related to forest rights act and therefore is responsible for its successful implementation, the Ministry of Environment, Forest and Climate Change (MoEFCC) regulates forest policy, which has resulted in confusion in their administrative roles and in how they conflict with one another when implementing the forest rights act for forestry governance or other activities or services, both as provided by law, on behalf of Adivasi and OTFD people. Finally, there is also no real clarity regarding which tribal people are eligible to apply for recognition under forest rights act since both definitions and eligibility requirements are inconsistent for Scheduled Tribes as compared to other traditional forest dwellers.
III.2.ii. Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA): The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) was established by the Government of India to extend the provisions of Part IX of the Constitution (concerning the Panchayati system) to the Fifth Schedule Areas, giving effect to self-governance and promoting the welfare of tribal communities within Fifth Schedule Areas. The legislation achieves this by bringing together two different systems of governance into a single legal framework: the traditional tribal system of governance, which is administered according to customs and traditions, and the formal State system of governance through statutory law. The Act directs that prior to acquiring any land in any Scheduled Areas or undertaking any resettlement processes, consultation shall occur with the Gram Sabha/Panchayat concerning the land to be acquired. The Panchayat is also granted the authority to prevent any tribal land from being alienated during the acquisition process and restore any land that has been alienated back to the Scheduled Tribes. The Act further stipulates that any law made by the Panchayat will reflect the community’s customs and cultural practices (Section 4(a), PESA) so that its customs and traditions are preserved and respected.
One limitation upon the implementation of Panchayats (Extension to Scheduled Areas) Act, 1996. is that it is not an independent piece of legislation; rather, it is subsumed within various statutes under the Union List, the Concurrent List, State Panchayat Raj statutes, and other statutes under the State List.
III.2.iii. Forest (Conservation) Act, 1980: Protects forests by requiring prior approval from the Central Government for the diversion of forest land for non-forest purposes. In general, the Forest (Conservation) Act does not directly address issues related to the rights of the Gondi, but compliance with the Act depends on other applicable laws relating to the Gondi’s rights over land. As a result, the Supreme Court of India directed the Ministry of Environment and Forests (MoEF) to verify compliance with the FRA before granting a Stage-II clearance to OMC.
III.2.iv. Environment (Protection) Act, 1986: Empowers the government to regulate industries for environmental protection and provides for Environmental Impact Assessment (EIA) procedures, which require public consultation for projects that may significantly impact the environment; however, certain projects may be exempted from strict compliance. Therefore, Dongria villages did not receive statutory hearings. The Supreme Court held in the Orissa mining corporation case that non-compliance with environmental impact assessment. Standards were a factor weighing against the issuance of a mining permit.
IV. International Legal Framework
The International Legal Framework provides support for Indigenous Peoples’ rights to land as well as their right to consent (even though India has little obligation under any treaties). The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP, 2007) is a non-binding UN declaration. It states that Indigenous Peoples have a right to their lands, resources and cultures as well as the requirement that Free, Prior and Informed Consent (FPIC) is received before any project affecting Indigenous Peoples’ lands, resources, or culture can proceed (Article 32). In accordance with ILO Convention 169 (1989), Indigenous Peoples must also be consulted and involved in decision-making before the government allows any development on their territory. Although India has not ratified ILO 169 or legally incorporated UNDRIP into its law, India’s courts have looked to the concepts of FPIC when considering these international instruments. For example, Amnesty International has commented that “the concept of [FPIC] is recognised by the UNDRIP” and has urged Indian authorities to adopt [FPIC] into the law. ILO Convention 107 (1957) – which has since been superseded – was ratified by India in the past and was considerably less stringent regarding Indigenous Peoples’ rights than ILO Convention 169 or UNDRIP. The Convention on Biological Diversity (1992) also requires that Indigenous Peoples’ knowledge be considered by anyone conducting or supporting any project affecting Indigenous Peoples’ land. Both the ICESCR and ICCPR protect the cultural rights of Indigenous Peoples. It can be inferred that ICCPR and ICESCR support tribal claims based on Articles 27 and 15 respectively since both Articles 27 and 15 expressly provide cultural rights to ethnic minorities. While the ICESCR and the ICCPR may not be able to be used in Indian courts to obtain enforcement of their terms, the conventions help establish globally recognised norms and have been cited through NGO commentary and by the Supreme Court of India in the Niyamgiri case.
V. Relevant Case Law
V.1.i Samatha v. State of Andhra Pradesh & Ors. (1997) : The Constitution of India was violated by the State of Andhra Pradesh when it tried to lease State government-owned land located in Scheduled Areas to private businesses and other non-tribals (i.e., non-tribal persons). Leases made by the State to the private sector or individuals for government or forest lands in Scheduled Areas have been declared unconstitutional, void, and of no legal effect. These rulings were based on a construction of the Fifth Schedule of the Constitution.
According to the Court, the purpose of the Fifth Schedule was to protect tribal land located in Scheduled Areas from being exploited and/or alienated by non-tribals and to preserve tribal peoples’ autonomy, culture, and livelihoods. Therefore, any transfer of tribal forest land to non-tribal people is prohibited by law and is thus relevant to the Niyamgiri case.
V.1.ii. Banwasi Seva Ashram v. State of Uttar Pradesh (1986) : The Supreme Court affirmed the need for a framework to survey and resolve the claims of people living in forest areas in Uttar Pradesh. It found that Adivasi people depend on forest land and stated that they could not be evicted or declared as having lost their status as inhabitants of the land unless they have been compensated through a fair and just process.
The Supreme Court has also provided guidance that all land held under (occupancy) rights can be regularised. Banwasi Seva Ashram v. State of U.P. emphasised that “tribal land cannot be taken from tribal inhabitants or users of the land without rehabilitation,” and that simple notification should not extinguish traditional rights claimed over the land. Further, the Supreme Court confirmed the principle of maintaining “status quo” pending resolution of claims, as well as establishing clearly defined, transparent processes for settlement of claims through the creation of settlement boards. The Court’s decision provided the basis for the development of the Forest Rights Act.
V.1.iii. Narmada Bachao Andolan v. Union of India (2000): In the landmark Sardar Sarovar case, the Court provided that (a) environmental clearances were to be granted only after strict R and R conditions had been met, and (b) each affected person has a right under Article 21 of the Constitution to reside and earn a living in their own community, and therefore all future submergence would not be allowed to occur without complete R and R. The Court also stated that any land acquisition without fair R and R would be unconstitutional. This case was a clear statement that development projects cannot come at the cost of the fundamental human and environmental rights of affected persons; and this continues to be true in Niyamgiri.
VI. Customary Rights versus State Control: Critical Analysis
VI.i. Conflict between Development and Tribal Rights:
The conflict between development and indigenous peoples’ rights is widely characterised by Niyamgiri. It represents an ongoing pattern; many state and company resource development projects are in opposition to indigenous peoples’ cultural and economic ways of life. Proponents argue that projects promote economic growth and benefit India as a whole. In contrast, the tribes assert ancestral rights and rights to environmental justice. The legal system is intended to resolve this issue, as on paper the two Acts, Forest Rights Act, and The Panchayats (Extension to Scheduled Areas) Act, favour the requirement for tribal consent to developing a project, while on the other hand there are also other legal frameworks such as environmental and land laws that support the development of a project. The issue of friction between the parties to the development arises out of the actions of government departments. In Orissa Mining Corporation v. Ministry of Environment & Forests (2013), the Court determined that the behaviour of project developers in relation to their treatment of the indigenous people was appalling. The failure to follow the process laid out in law, including a lack of regard for the requirement of Gram Sabha approvals and FRA claims, continues to exacerbate the current conflict.
VI.ii. Ownership vs. Resource Control: Customary Rights versus The Control of Resources: Communities are presumed to be the rightful owners and managers of forest resources through customary rights, while the ultimate owner of the land and all minerals beneath it is the State (under Indian law). While tribes may have title to the land they occupy (i.e., under the Forest Rights Act, 2006), they do not have title to those minerals (i.e., in the subsoil); thus, under Indian law, the State claims the right to extract the minerals as its property. The key question is whether mere possession (e.g., possession of tribal habitation) is sufficient to prevent the State from using the land. The Court in Orissa Mining Corporation held that it could; it held that, regardless of whether any member of a tribal community “lives on the hills,” the Forest Rights Act provides tribal members with rights to that land. This judicial decision changed the law regarding the rights of customary users to prevent or interfere with access to minerals found beneath the surface of the land. However, it is unclear how claims to actual ownership of the land can be converted into legally enforceable veto powers (the Court stopped short of granting a veto power, but did require the State to obtain consent).
VI.iii. Customary Law and Formal Systems: Villages have traditionally managed land according to their own councils and customs. There have been attempts to create a modern legal framework, including the Panchayats (Extension to Scheduled Areas) Act (PESA) and the Forest Rights Act (FRA), but these attempts have not fully fulfilled this goal. The Forest Rights Act, for instance, is intended to record claims from the Gram Sabha (village assembly) only; the Supreme Court has held that all authority (i.e., to grant forest rights) is vested in the Gram Sabha. However, there is much confusion in implementing these provisions, as most governmental authorities are used to implementing standard revenue and forest procedures. The Niyamgiri case showed that there can be a significant amount of conflict when determining who qualifies as “affected people” as defined by the State, which affects the number of rights recognised or disregarded, and illustrates the disparity between traditional rights-based usage of land and official records.
VI.iv. State Sovereignty over Natural Resources: The government’s ability to use its land and mineral resources is based on the doctrine of sovereignty; thus, it frequently cites its right to extract resources from the earth. Article 297 and the Mines Act create a legislative presumption as to the State’s right to control mineral resources. One court stated that an order halting mining could “deplete” the State’s ability to take advantage of other resources; however, in Samatha, the Court found that the State’s claim of public good and the conflict regarding the use of those resources were significant, but ultimately, the majority of the Court found that the protection of the Tribes is paramount to any claim by the State. In addition, the current legal reality is that State development objectives will not necessarily supersede Tribes’ title to property, even in communities with recognised title to property.
VI.v. Environmental Justice Concerns: Dangers to the Environment: Numerous indigenous tribes inhabit Earth’s most fragile ecosystems. Some tribes inhabit areas that are under attack from mining operations, such as Niyamgiri, where threats include deforestation, destruction of the habitat for local animals, degradation of the water supply that has affected tribal communities, and loss of spiritual and cultural sites. The Supreme Court in India recently used the “precautionary principle,” a regulatory principle enumerated by the courts, to ensure the survival of the indigenous tribes of the Niyamgiri region. The Court has interpreted that the “government must exercise the precautionary principle so that no irreparable harm can happen to the geographic area being affected and to the indigenous people.” This concept requires more than compensation for damages or injustices; it also requires that the indigenous people be permitted to fully participate in decisions affecting them. The Niyamgiri project was viewed as unjust because of the lack of participation of the Gram Sabhas and the limited due diligence in the environmental assessment.
VII. Critical Analysis and Findings
VII.i. Effectiveness of the FRA (2006): The Forest Rights Act (FRA) was a key step forward in providing legal recognition to forest-dwelling people who were previously considered illegal occupiers of forests. In Niyamgiri, the FRA played an important role; the Supreme Court issued repeated rulings indicating that all claims to forest rights under the FRA must be resolved before any approval for the diversion of forest land can occur. However, the FRA has not been successfully implemented in many areas, with very few communities having had all of their claims adjudicated and with long bureaucratic delays associated with the process. In Niyamgiri, the local governments (Gram Sabhas) recorded and processed hundreds of individual claims to forest rights by 2010. The Supreme Court recognised these claims, including some claims for land that was included in the mining leases, and many claims (including those for community-based forest rights) have yet to be resolved. The Supreme Court indicated that no eviction of an FRA claimant could take place until all of their claims had been “fully and finally” resolved. However, the need to bring actions to enforce FRA rights suggests systemic gaps in the administration of the FRA.
In particular, a 2009 Ministry of Environment and Forests (MoEF) Circular required that the settlement of FRA claims be documented prior to approval for a project that required the diversion of forest land. However, many projects have been approved without providing the required documentation for FRA claims. In summary, the FRA provides strong rights, but in Niyamgiri, the assurance of consent and final settlement is an example of the strong enforcement of the FRA through the courts rather than a result of the automatic and routine enforcement of the FRA by the government.
VII.ii. Role of Gram Sabha: Gram Sabhas’ Role: The Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) and the Forest Rights Act, 2006 (FRA) both give Gram Sabhas authority to initiate and make decisions about rights. Dongria Gram Sabhas were, for all intents and purposes, the natural decision-makers regarding how Niyamgiri would be used. The Supreme Court of India extended that authority to these Gram Sabhas as well. The Supreme Court established the two Gram Sabhas to determine whether mining would violate the villagers’ religious and cultural rights and whether it would violate their rights of access to the forest. Crucially, the Supreme Court required that the Gram Sabhas meet in a “free and genuine” manner, without influence from the proposed project, the government itself. The ruling was the first true environmental referendum in India. In August 2013, the two Gram Sabhas voted unanimously against mining. The evidence showed that, when empowered, the Gram Sabhas were able to uphold tribal consent in an effective manner. However, true Gram Sabha processes are unlikely to be repeated. This means that, in the wake of Niyamgiri, legislation continues to lack the mechanisms needed to compel or monitor the participation of Gram Sabhas early in the development of a project
.
VII.iii. Balance of Development and Indigenous Rights: The Balance Between Development and Indigenous Rights: Orissa Mining Corporation v. Ministry of Environment and Forests, an important case, reaffirmed that development does not mean an unrestricted right to violate the rights of tribal people. The Court stated that, as part of the requirement that there be “a harmony between” the requirement for Environmental Clearances/Land diversion, there would be “harmony between” the needs of the Tribals. Conditions imposed in the Vedanta and Sterlite cases had already formed the basis for the Niyamgiri proponents to address those conditions. When weighing competing interests, the Court found that the need to protect tribal rights and to preserve them is paramount; this led to the Court’s denial of the Stage II clearance for OMC/Vedanta, effectively forcing them to rely on obtaining the consent of the Tribals.
In such instances, the judiciary has indicated that a Precautionary Principle will apply and there will be a presumption in favour of the Protection of Vulnerable Communities. Therefore, it appears that all major projects will be able to proceed only if certain social and environmental conditions have been met.
VII.iv. Implementation of Judicial Decisions: Enforcement of Judicial Decisions: Implementation lagged after judicial decisions were made. The Supreme Court’s orders (FRA compliance, Gram Sabha process, wildlife protection, etc.) required ongoing vigilance for compliance and follow-through on the implementation of directions given in judicial rulings. In Niyamgiri, the Ministry of Environment and Forests and the State eventually supported the rejection of the mine after extensive litigation, and independently of each other. Amnesty International and other groups indicated that independent oversight (“a judicial officer, as prescribed by the Court” and international observers) should be provided during Gram Sabha meetings, and found that even though the process of the Niyamgiri Gram Sabha occurred as directed by the Court, the process occurred only under extensive scrutiny from the Courts and various non-governmental organisations. Without this level of scrutiny by the Courts and non-governmental organisations, it is unlikely that future projects will be foreclosed from further implementation pending input by the Tribes.
VII.v. Gaps in Legal Protection: Legal Protection Gaps: Numerous gaps still exist today. Most significantly, the absolute veto power of tribal consent is not codified in any legislation. The Ministry of Mines’ 2009 ,Forest Rights Act, 2006 (FRA)
circular clearly established that tribal consent must be obtained prior to the issuance of a permit for mining or exploration, but this requirement has yet to be codified by either the Ministry of Environment and Forests (MOEF) or any new legislation. The Mines Act (governing major minerals) does not provide any explicit mention or definition of the role of Gram Sabhas with regard to major mineral developments (the Panchayat Extension to Scheduled Areas Act-PESA (governing minor minerals) does provide such a role). A lack of resolution exists as well regarding lands of tribal villages located on the outskirts of “clustered” tribal villages (i.e., the Majhi Kondh villages located at the base of the Niyamgiri Hills) that were not included as “Indian land” (i.e., not included in the “reserved forest” designation) at the time of designation. Although tribal land rights are recognized under applicable laws, they are rarely enforced unless there is substantive proof of a violation. Furthermore, as no mechanism exists for enforcing compliance or conducting independent audits, communities will continue to be subject to exploitation (although the Dangaria Kondh victory is cited as a rare example of success resulting from extensive community mobilization efforts, the vast majority of other tribes and communities are unable to gain a hearing before the Supreme Court of India).
IX. Suggestions and Recommendations
IX.i. Strengthen Community Participation: Empowering Communities to Take Part: Develop a legal basis for giving effect to the principle of free, prior and informed consent. Amendments could be made to the Mines Act and the Forest Conservation Act, specifically making the approval of the Gram Sabhas essential for major projects in Scheduled Areas, as has already been established for minor mineral projects. To that end, the new law will require approved resolutions from the Gram Sabhas for every approval phase (Environmental Impact Assessment, Forest and Environmental Clearances). There is strong support for this approach from the Supreme Court and Amnesty International. Judicial supervision mechanisms should be developed to ensure independence during meetings of the Gram Sabhas and to ensure that women are represented at meetings and that members from under-represented communities are included.
IX.ii. Effective Implementation of the Forest Rights Act, 2006: To Successfully Implement the Forest Rights Act, 2006 (FRA), Central and State Governments must speed up claim settlement under the FRA. Claims for Individual and Community Forest Rights that are currently pending with the respective State Governments need to be prioritized, especially if they are located in areas such as Niyamgiri. State Forest Departments must work collaboratively with the Gram Sabhas and Tribal Welfare Departments, and not continue to appeal against settled rights of claimants (dubious or otherwise) or ignore certain claims altogether. Regular monitoring of claims by a High Power Committee (such as in Banwasi) could help establish the final settlement of claims. No project proposal shall be submitted without consideration of the Forest Rights Act, 2006. The Ministry of Environment and Forests’ 2009 directive (in which the Ministry of Environment and Forests will not provide project clearances until FRA compliance is proven) needs to be implemented.
IX.iii.Recognition of Customary Land Ownership: Beyond the Scheduled Areas, customary practices exist, and recognition of these practices will aid respect for the way tribes view the land and its stewardship, such as through providing land tenure for community forests and sacred groves (as a different legal tenure in accordance with the laws surrounding the conservation of forests), as well as specifying the first right of refusal (to be allowed compensation at replacement cost) for tribals in respect of any land in the Scheduled Areas that is required for public projects.
Amend the Land Acquisition Act so that communities are informed and have a voice in how their land will be used in new ways. Examples would be to give responsibility for co-ownership and/or revenue-sharing to Gram Sabhas regarding any new development projects on their land; this would assist in creating alignment between the benefits of development and the best interests of the local community.
IX.iv.Protection against Forced Displacement: When acquiring land in a legally recognized manner, rehabilitation must be given priority. The principles of the Narmada case should be considered, which state that no resettlement may take place without prior acceptance from communities and an adequate package of resettlement support. States will be required to develop their Resettlement and Rehabilitation (R&R) policies to include timely compensation, different types of housing, and support for livelihoods. In addition, a mechanism for handling grievances (such as a tribunal or an established Ombudsman) that has independence from government control should be established for the sole benefit of the affected Adivasi (indigenous) communities.
IX.v. Protection against Forced Displacement: When acquiring land in a legally recognized manner, rehabilitation must be given priority. The principles of the Narmada case should be considered, which state that no resettlement may take place without prior acceptance from communities and an adequate package of resettlement support. States will be required to develop their Resettlement & Rehabilitation (R&R) policy to include timely compensation, different types of housing, and support for livelihoods. In addition, a mechanism for handling grievances (such as a tribunal or an established Ombudsman) that has independence from government control should be established for the sole benefit of the affected Adivasi (indigenous) communities.
IX..vi. Improved Monitoring of Mining and Environment: Better monitoring of both mining operations and their impacts on the environment should occur, with independent oversight bodies (with tribal and NGO representation) being able to monitor the compliance by way of audits concerning compliance with environmental and social criteria; for existing projects, completing regular audits concerning both the impacts to forests and communities will assist in preventing violations (the Court indicated an audit of Vedanta Refinery Pollution). Environmental Clearances should be reviewed at regular intervals and be revoked when the current conditions (including community conditions) are not complied with. Technology (e.g., satellite imagery monitoring of forest cover, and e-Governance portals to track clearances) can provide transparency to all parties involved with the mining operations and their impact on the environment.
IX.v. Strengthening the Role of Gram Sabhas: Gram Sabhas should be responsible for more than just approving the work of projects; they should also take on the responsibility of managing community resources. Rules set forth in State laws (under the Forest Rights Act, 2006 (FRA) and Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)) should give Gram Sabhas the authority to mark off community forest rights, manage common property resources (such as nistar lands), and regulate access to those resources. Funds generated from fee revenues collected from CSRs, and any other means, as these go to tribal development, must be disbursed by the Gram Sabhas and therefore should be accountable to them, and reflective of the priorities and needs of that particular village. Lastly, it is necessary to provide education to the villages regarding their rights and how they can exercise them legally.
IX.vi. Balancing Development with Tribal and Environmental Interests: Policymakers must realize that in order to achieve a sustainable type of long-term development, both the ecosystem of forests and the culture of tribes must be protected and maintained. All future projects developed near or on tribal lands must not only enhance the quality of life but also not create harm to the environment in a way that will negatively affect the ecosystem in a permanent manner. All impact assessments that are conducted must include consideration of the social and cultural impact that is likely to occur from the development, as was highlighted by the Niyamgiri petitioners regarding the potential for cultural and religious impacts in the region. Where suitable and feasible, developers should use alternative development strategies (community-based grown and harvested timber, eco-tourism, and creating value-added items from timber), instead of a method of developing the area based on the practice of mining.
X. Conclusion:
The Niyamgiri case (Orissa Mining Corporation v. Ministry of Environment & Forests.) illustrates just how much tension exists between the traditional rights of Tribal peoples (in this example, the Dongria Kondh) and the control that the State has over natural resources. While there are very robust protections for Indigenous peoples’ constitutional and legal rights within India’s statutory framework, it is only through the effective implementation of these laws and true grassroots participation that those protections become meaningful. The Supreme Court’s decision in 2013 confirmed that the consent of Tribals and the recognition of Forest Rights should form a fundamental basis for any resource development activity that takes place within Scheduled Areas. The lessons learned from Niyamgiri must now be incorporated into future policies and institutional reforms. If both governments and corporations take the rights of Indigenous peoples seriously (meaning respect for the Gram Sabha and the full and informed participation of Indigenous communities in the development process), then it may be possible to resolve the conflicting objectives of development and Indigenous welfare.
References:
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