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Asserting “rights” for the deprived of Kalahandi — Saxena committee kills a prospect

The four member expert committee headed by NC Saxena has set aside a project which would benefit not only the state of Orissa but also the Nation as a whole by using the rich bauxite assets in the hills of Niyamgiri and making India a leading producer of aluminum.

The project which had received the Indian Supreme Court’s verdict in favour will now stand cancelled as per the ruling of the four wise persons.
According to Saxena the project violated the Forest Rights Act. “The FRA is visionary in its scope”, said the report and this vision ended the vision of Naveen Patnaik. First take a look at the four objectives of FRA that the Committee found relevant to the case.

* First, it corrected a historical injustice by recognising that forest dwellers were treated as encroachers in their own ancestral lands and accepted pre-existing rights. As a result, it was applicable in retrospect.

* Second, the Act differentiated between individual claims, community forests and habitat. In doing so, it aimed at developing a holistic understanding of the rights of forest dwellers as individuals, as users of the resources of these eco-systems; and as existing within these environments. As a result, it recognised that natural resources can be claimed by communities, as well as by individuals. It also recognised that displacement was not just the loss of homestead land for forest dwellers, but also access and control over the environment that is forests, pastures, rivers in which they live in.

* Third, the Act recognised that the governance of the eco-systems must be led by local governance structures. In keeping with this principle, the Act constituted local governance structures (Gram Sabhas) as authorities to file claims for village forest lands and individuals. The act also laid down clear procedures to verify these claims.
* Four, the Act clearly recognised that free, informed, prior consent of the communities is essential in governing these eco-systems and therefore laid out clear and transparent administrative procedures for obtaining this consent. In framing the issue of consent, the Act clearly indicates that the community had the rights of refusal, if the proposed development project was injurious to their well-being.

After elaborating its intent the four wise persons went on to argue that the FRA recognised the pre-existing rights of forest dwelling communities. It recognised the concept of “Community Forest Resources” — this they opined “is broader in scope than current definitions. These current definitions are limited and only consider the area actually occupied by the village homesteads as the sole basis for determination of rights and claims.

The inclusion of customary boundaries of usufructory rights, which includes Reserve Forests to which the community had traditional access, is a significant shift; since it recognises that a community’s rights to its environments is not merely to be limited to the area that its actually lives on, but also includes holistically customary access to eco-systems where peoples’ lives are embedded.”

The elaborate preamble had set the unavoidable conclusion. The entire forest belongs to the tribals living around it. No other law can take that right away. Since the acquisition of forest land took place without the concurrence of the Gram Sabhas even the officials who had facilitated the transaction had been guilty, which should be punished.

But Saxena and his team members were generous and did not recommend any action against the officials. After all, they felt, officials had been carrying out instructions of higher authorities including the political bosses.

The Congress Minister Jairam Ramesh acted fast and cancelled the project accepting the opinion. Cynics might ask if the action would have been equally prompt had it been a dispute in the Eastern Ghat region of Andhra Pradesh, a state where Congress party rules. But that is a “leading” question. Just take a look at the fact of the case.

First and an important one is that before becoming geography for dispute, the region came in the limelight when reports of starvation death in the district of Kalahandi came in the public domain during the Rajiv Gandhi government. The rich forest land; its abundant resources did not help the tribes receive adequate food then. Since then much water has flown through the region with the intervention of civil society and without any roadblock called FRA or its interpreting wisemen. The area is a major rice growing area.

The second wave of development intruded this forgotten forest land when Vedanta came here for mining bauxite. The tribal people whose antiquity the committee is so keen to preserve saw establishment of schools, health care facilities and other amenities. All these started coming in even before Vedanta started mining in the region.

“We have not started a single inch of mining on the hill top at Niyamgiri Bauxite mining project at Niyamgiri,” said Dr Mukesh Kumar, Chief Operating Officer of Vedanta Aluminium Limited.

Clarifying about mining activity in Niyamgiri hill at Kalahandi district, he informed that “We are waiting for the clearance and I have ensured many time even in the past that no mining activity has commenced on Niyamgiri Hills and the mining will commence only after obtaining all the necessary approvals from Government of India and Government of Orissa.”

The fact is that the mining on Niyamgiri Hills will be undertaken by a Joint Venture (JV) company between Orissa Mining Corporation (OMC) & Sterlite Industries India Ltd (SIIL), and not by Vedanta Aluminium. Mining will be executed by the JV Company as per the directives of Hon’ble Supreme Court dated 8th August 2008. The question of mining by the Joint Venture Company does not arise at all till all the clearances are obtained, he added.

The company confirmed that the Supreme Court’s directive was followed for the project. As per the directive, there has been a special purpose vehicle (SPV), titled as ‘Lanjigarh Project Area Development Foundation’ (LPADF) with participation of SILL, OMC and Government of Orissa. Revenue Divisional Commissioner (South) is the Chairman of the SPV.

SIIL has deposited `20 crore in the SPV as its contribution for Scheduled Area Development of Lanjigarh Project. LPADF has initiated several development projects in the areas of health, education, drinking water, livelihood, infrastructure development for the tribals. The alumina refinery is being operated with all necessary environmental and other statutory clearances.

Interestingly, the issues raised in the Saxena Committee report had already been reviewed by the Supreme Court. After considering all the technical reports, given by reputed expert bodies like Central Mining Planning and Design Institute, Wildlife Institute of India and views by MoEF (Govt. of India) and Govt. of Orissa, the Hon’ble Supreme Court had approved the mining project on August 08, 2008.
The project has already received environmental clearance from Government of India in April 2009. Stage 1 that is in principle forest clearance had been obtained for the mining project. OMC has already complied with all stipulations laid down in the in-principle clearance letter.

SILL has already deposited funds to the tune of `121 crore with the state government towards various statutory payments for diversion of forest land such as NPV (Net Present Value for diversion of forest land), compensatory afforestration, implementation of wild life management plan, tribal development and creation of safety zone around the mining area etc.

The company is now awaiting final that is Stage-2 forest clearance from Government of India for diversion of forest land to undertake mining activities.
It seems the wait will be longer than expected thanks to the developments in the last few days in Delhi.

Naveen Patnaik, the Orissa Chief Minister, now will feel his isolation badly. He does not even have a helping political ally to offer him support in Delhi and take up the issue of biased decision of the central government head long. Meanwhile the tribes of Kalahandi will have to wait till the pundits in Delhi give up their pretension of helping them out of the abject poverty they live in.

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