Niyamgiri Calling - From The "mountain Of Law"

NIYAMGIRI CALLING - from the "Mountain of Law"

5th May 2006

Among the darkest aspects of Vedanta's Lanjigarh project is the seeming subversion of the Law. A potent irony, since Niyamgiri, which Vedanta plans to mine, means "Law mountain", and the presiding deity of the area for Adivasis and non-tribals alike is Niyam Raja - Upholder of the Law. So maybe it is fitting if the Lanjigarh case calls into question how well the Law is being upheld.

The CEC (Central Empowered Committee - advisory body to India's Supreme Court) has written an extremely strong Report against the whole project. In its conclusions:

"The CEC is of the considered view that the use of the forest land in an ecologically sensitive area like the Niyamgiri Hills should not be permitted.

The casual approach, the lackadaisical manner and the haste with which the entire issue of forests and environmental clearance for the alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the State Government and the MoEF [Ministry of Environment and Forests] to deal with such matters keeping in view the ultimate goal of national and public interest.

Keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this Hon'ble Court may consider revoking the environmental clearance dated 22.9.04 granted by the MoEF for setting up of the Alumina Refinery Plant by M/s Vedanta and directing them to stop further work on the project." (CEC Report 21st September 2004)

Despite this recommendation, the SC has repeatedly delayed judgement. This has allowed the refinery to be constructed nearly to completion, under contract with the Australian firm Worley-Parsons, which is assumed to have has strict penalty clauses in the case of delay. Are the commercial needs of foreign companies dictating the implementation of Indian Law?

And why is Vedanta so confident that permission to clear the Forest on top of the ridge and mine there is only a matter of time?

A quick survey of the company's first Board of Directors suggests why. It included an ex-UK High Commissioner to India, and men who had been or were about to become senior figures in the Indian Government, including P.Chidambaram, the present Finance Minister. It seems that "Revolving Doors" between company and Government office guarantee that Vedanta has the highest backing. It is strongly suspected that one of the three SC Judges on the Vedanta case, Arjit Pashayat, has virtually promised Vedanta a favourable judgement. He is also known to have been pro-active in bringing archaic "contempt of court" against anyone who dares to question the integrity of how the Supreme Court functions. But what if it functions badly, upholding vested interests over and above the Law of the land?

Repeated delays to "allow Vedanta to comply with regulations" imply such vested interests are at work For now, Vedanta is not mining bauxite from Niyamgiri's summit: it is trucking in a limited amount of bauxite from a new mine at Bodai-Daldali in western Chattisgarh, whose legality is also questionable, since the company inherited this lease from Balco, now 51% owned by Vedanta. Balco was granted this lease on the grounds that it was a Public Service Utility (PSU), but this status ceased when it was bought up by Sterlite/Vedanta in 2001.

So Vedanta's state of the art bauxite conveyor belt up Niyamgiri's side stands unfinished, waiting for forest clearance. In its last order, the SC actually ignored the CEC report and called for a new study by the MoEF, thus rejecting the CEC's arguments, and ignoring its function as the nation's watchdog on implementation of forestry protection legislation.

From the other side, the Govt. of Orissa (GoO) has drafted a critique of the CEC's Report, casting doubt on its recommendation against the project. The main points of this document and their refutation is as follows document:-

i) It asserts that tribal people would benefit from the in-flow of funds into the

Lanjigarh area through two mechanisms - a 5% preferential equity share in the company and a condition that 5% of the net profit be spent within 50 km. radius of the project.

However the community of Lanjigarh's tribals has already been split into those for and against the company. Funds in the company's control ensure a system where those currying favour with company officials thrive at the expense of those who do not "play the game". Studying the situation at Nalco's Damanjodi refinery (Orissa's one working refinery), shows that promises of compensation and jobs have been systematically betrayed.

ii) The GoO asserts that people moved voluntarily and happily from their villages on Vedanta's refinery site, and that all 103 displaced families are either being given jobs or shops or one time cash compensation as per their eligibility and their wishes. That all displaced persons were not interested in availing compensatory land for the land acquired by the company, and that Vedanta has granted them a very generous compensation package of cash and rehabilitation in the beautiful colony of Vedantanagar.

It may well be that within officials' hearing those displaced will only say what officials wish to hear. What the same people have said to human rights researchers on many other occasions is quite different - namely that they are devastated by the loss of their villages and land, above all because they can never grow their own food again, and that "even their gods were destroyed" because the sacred stones were also bulldozed. They were not given the option of land for land. Displacement has made them landless, and dependent on the Company's goodwill to give them jobs, and it has started a process of destroying their traditional culture and community.

iii) The GoO asserts that local Councils were properly consulted and gave their unequivocal approval for the project (Gram Sabha, Panchayat Samiti and Zilla Parishad).

This is at variance with what local people say: basically that their village Councils were ignored when they did not support the project, and that in general they were manipulated and pressurized into agreeing.

iv) Answering objections that the project violates the Samata Judgement of 1997, which forbids the appropriation of indigenous land by non-tribal persons including private companies, the GoO's sub-committee's decision is quoted not to allow this judgement's validity in Orissa.

However the validity of this argument is negated by legal experts, since the Samata Judgement was made by India's Supreme Court, based on Schedule V of India's Constitution. The mining lobby has sought in various ways to dilute the application of Schedule V and the Samata Judgement. This cannot be done without destroying the fundamental right of Adivasis: their inalienable right to remain the owners of their land according to India's Constitution.

v) With regard to impacts on biodiversity, the GoO alleges that the CEC hasn't taken into account that only 20 hectares will be mined in any given year; that concurrent land reclamation will take place through compensatory re-afforestation; that the mountain top has no streams within 50 meters of the plateau top; that the bauxite bearing area is practically devoid of vegetation, and that Niyamgiri is a forest area with flora and fauna like many other places in Orissa where mining has been allowed normally. The petition also attacks the Donagria Kondhs' practice of shifting cultivation and blames them for destroying the biodiversity of the whole Niyamgiri range. The report says that there ARE no rare and endangered species in the forest area applied for diversion. It attacks the CEC's contention that mining will affect the water regime. It takes the example of NALCO and says that water still flows from the hill ranges in the mining site of NALCO and that ITS quality is as pristine as before. It also says that the bauxite mining site presents a bright example of how dense forest can be created in a mined out area after excavating bauxite. The track record of NALCO is shown to be excellent in maintaining the environmental quality of the mining area.

The distortions here are considerable-

1. Compensatory re-afforestation is no substitute for original primary forest such as exists in abundance in the mining lease area and around it. Nalco's attempts at afforestation in mined-out areas on Panchpat Mali are derisory.

2. Excellent streams start from Niyamgiri's flanks at around 50 metres from the top. It is well known that bauxite, where covered, as on Niyamgiri, by abundant vegetation, has a porous quality which means it plays a vital role in holding water on the summit and releasing it throughout the year, in the hot season also. Tribal people living all around Panchpat Mali assert that Nalco's mining operations have seriously disrupted and polluted these streams.

3. Vedanta representing its mining lease area as "practically devoid of vegetation" is a most serious distortion, as is the criticism of the Dongrias. Dongria religion actually requires them to refrain from cutting forest on the summit, because it creates a "magnetic force" which ensures their lands' fertility, and is the abode of Niyam Raja. Their patches of shifting cultivation are on the hill-sides, never the summits. This is why there is excellent Sal forest right on the summit Vedanta plans to mine.

All these points about the impacts of mining Niyamgiri and about impacts on society could be cleared up by a proper,independent survey of Nalco's operations at Panchpat Mali and Damanjodi.

vi) Last but not least the GoO document imputes that those resisting the project are working for the interests of the international aluminium cartel which will be undercut by Orissa's lowest cost production of aluminium.

This argument can be shown to be spurious: when his company was Sterlite, Anil Agarwal was accused of tax evasion by spiriting profits out of India via his Mauritius-registered holding company, Twinstar. Vedanta Resources is a London-registered Company. Its major shareholders include several leading European banks, such as Barclays, Deutsche Bank and ABN Amro. In other words, whatever the status of the international aluminium cartel, Vedanta is part of it.

Producing aluminium cheaply in Orissa involves extreme forms of exploitation for Orissa's inhabitants through pollution, lack of proper compensation for those displaced as well as those injured in work accidents. It involves heavy subsidies in the price of electricity, water, and transport. The European Banks (Barclays, Deutsche Bank and ABN Amro) which are financing Vedanta's projects in Orissa and Chattisgarh ensure that the main profits will be made outside India, especially in London where the holding company Vedanta Resources is registered on the London Stock Exchange. Anil Agarwal is in the latest Forbes list as number 245 among the world's billionaires, and he owns a multi-million pound home in London.

For Adivasis, Mountains are spiritual entities, at the apex of the Natural Order that sustains them. Niyamgiri represents Konds' mythical origins and identity - in short, the continuity of everything they hold as sacred. Who is to say they are wrong about the forest on Niyamgiri creating a "magnetic force" that ensures the land's well-being for miles around? A generation ago this might have been looked on as superstition, but advances in anthropology as well as environmental awareness now reveal the accuracy and wisdom in this conception. Adivasis sustain themselves without using up the natural resources around them. They understand better than any geologist or engineer that these Mountains give Life to all the surrounding areas, through the streams which start from their sides. The Water which emerges out of these Mountains is pure and rich in Minerals, especially in aluminium itself, and this accounts for Orissa's outstanding fertility and Forest. Bauxite has a deep connection with abundant plant-life, and Bauxite-rich areas include most of the world's best tropical and sub-tropical Forests.

But what's in a name? Advaita Vedanta is the non-dualistic philosophy which inspired great thinkers in India from Vedic times to Gandhi. What kind of cynical mockery of India's tradition uses this name for a company which assaults the Mountain of Law?

[This article was written by a resident of Orissa who has studied the impacts of bauxite mining, and in particular the operations of Sterlite/Vedanta, for some years.]