Kanchi Kohli* The story of mining in Niyamgiri is one of people’s truth, bureacratic lies and judicial failure. It is deeply enmeshed in India’s growth agenda and is symbolic of a world view which puts industrial expansion first, even if it will ravage lives, cultures, livelihoods and natural spaces. On 22 September 2004, Vedanta Alumina Ltd (VAL) obtained environmental clearance (mandatory under India’s Environment Impact Assessment Notification, 2006) to construct an alumina refinery at Lanjigarh in Kalahandi district, Orissa state. This came after a Memorandum of Agreement had been signed between the state government of Orissa and Vedanta’s subsidiary, Sterlite Industries India Ltd (SIIL). The operations of this refinery were closely linked to the mining of bauxite sourced from the nearby Niyamgiri Hills, and the mining was originally considered part of Vedanta’s operations in the area. Before starting work on the refinery, VAL needed to secure more official clearances. These included a forest clearance for both the refinery and the mining areas, mandatory under the Forest Conservation Act, 1980, for the diversion of any forest land for non-forest use. In September 2004, when environmental clearance was granted, a proposal for the diversion of 58,943 hectares (ha) of the forest land for the alumina refinery was pending with the Ministry of the Environment and Forests, and was subsequently approved. The total forest land sought, to be diverted for mining, in Niyamgiri Hills was 672,018 ha (660,749 ha for mining and 11,269 ha for a safety zone). However, VAL began to build the refinery before completing these procedures. This was exposed by three petitioners, R.Sreedhar, Biswajit Mohanty and Prafulla Samantara, in a complaint to the Central Empowered Committee (CEC: a monitoring body set up by the Environment Ministry under directions by the supreme court’s Godavaraman forest case bench; see www.forestcaseindia.org). The petitioners pointed out that the mining proposed in the Niyamgiri Hills was likely to have a devastating impact on forest, wildlife, and the Dongria Kondh tribal community, who had deep spiritual and livelihood associations with their sacred hill. As the case was being heard before the CEC, the project’s proponent came forward and denied that the mining component was an integral part of the project, saying that it was a separate project, for which clearances indeed had to be sought. If he had not done this, the construction of the refinery would have been rendered illegal, as the necessary permissions for mining had not been secured. If the projects were separate, however, as stated, then both environment and forest clearances would be needed for the mining operations. After the presentation of facts before the committee, and a series of discussions, the CEC gave its recommendations to the supreme court’s forest bench on 21 September 2005. It came out clearly against granting a forest clearance for the mining operations, saying that it would have a detrimental impact on the environment of the area and the lives of the Dongria Kondh community. Its report also pointed out that the area came under Schedule V of the Indian Constitution, which prohibits the transfer of tribal land to a non-tribal group. Arguments continued in the supreme court, however. In a complete volte-face, the company lawyers and the Government of Orissa argued that the mining component was essential for the refinery, and without speedy clearances the company would suffer major losses. Faced with these arguments, the court asked the CEC to reconsider its first set of recommendations. But the CEC stood by its refusal to issue the grant of clearance. In October–November 2007, there was an interesting parallel development. The Norwegian Council of Ethics withdrew its funding to Vedanta on the grounds of Vedanta’s irregular practices and misdeeds. This was not only in response to events in Niyamgiri, but also took into account the operations of their subsidiaries in other parts of India. This news spread like wildfire in the international and Indian media, and was not something that the court could ignore. On 23 November 2007, the Supreme Court of India pronounced its judgement. On the one hand it stated that the Court could not risk handing over the mining operations to Vedanta, but on the other it explicitly recognised that there was “no dispute in this case that mining of bauxite deposits is required to take place on the top of Niyamgiri hills”. The judgement completely ignored the CEC report and the illegalities in the clearance procedures, and found, instead, a legal loophole for the company. The judgment allowed SIIL, along with Orissa Mining Corporation (OMC), to appeal for clearance to go ahead with the project by assuring the court of a “rehabilitation package”. This package would require, among other things: The State of Orissa to float a Special Purposes Vehicle (SPV) for scheduled area development of Lanjigarh Project, with State of Orissa, OMC Ltd and SIIL as stakeholders. SIIL to deposit with the SPV 5% of its annual profits before tax and interest from Lanjigarh mining project, or Rs10 crores (US$2 million), whichever is the higher, for Scheduled Area Development. SIIL to pay the net present value (the economic value of the forest being diverted) of Rs55 crores (US$11 million), Rs50.53 crores (US$10.12 million) towards Wildlife Management Plan around Lanjigarh mine, and Rs12.20 crores (US$2.44 million) towards tribal development. The Orissa state government to carry out 16 specific measures, including the demarcation of the lease area; the identification of an area for compensatory afforestation; rehabilitation; the phased reclamation of the mined area; specific and comprehensive plans for wildlife management, and for the development of tribals. Not surprisingly, SIIL, the State of Orissa and OMC Ltd unconditionally accepted this rehabilitation package. Meanwhile, the CEC filed another report on 24 April 2008 with alternative suggestions to those prescribed in the court’s judgement. In an order dated 8 August 2008, the supreme court rejected most of CEC’s recommendations, saying that it did not consider them viable. It confirmed the suggestions made in November 2007, and approved the clearance of 660,749 ha of forest for bauxite mining in the Niyamgiri Hills. A public hearing for the expansion of refinery capacity in Lanjigarh took place on 25 April 2009, amid vociferous protest. Then, in mid-May, the environmental clearance for mining operations in the name of SIIL was granted, though mining has yet to take place in Niyamgiri. * Kanchi Kohli is a member of the Kalpavriksh Environmental Action Group and is based in New Delhi, India. She has worked for the last 11 years in campaigns and advocacy related to environmental and forest clearance of development projects. Going further Living Farms gives regular updates on the Dongaria Kondh. Visit their website at: http://www.living-farms.org Survival International, the international organisation that supports tribal people worldwide, is running a campaign in support of the Dongaria Kondh. For details, go to their website: http://www.survival-international.org/tribes/dongria