Two Supreme Court judgments on mining last week provide important pointers, and lessons, on the future of mining in the country. While the immediate reaction to the Supreme Court allowing around 100 category B mines in Karnataka to restart operations—18 category A mines, where the violations were the least, which produced 7 million tonnes of iron-ore, were allowed to reopen last September—was one of relief, the events that led up to the judgment and the judgment itself have important lessons for the government. And not just in Karnataka but also in Goa where there is a similar court-imposed ban on mining. Given that the Karnataka mines, which have been allowed to restart, produced 25-30 million tonnes of ore, it is clear the ban was a big setback for India’s exports as well as for the local industry and those working in these mines. The larger lesson for the government, of course, is that if it doesn’t get its house in order, the courts will step in and their intervention can well be a lot harsher than anyone may imagine—had the government been firm in monitoring mining violations, none of the mines needed to have been shut down. One of the expert reports on mining in the state found, for instance, that between FY04 and FY10, as much as 305 lakh tonnes of iron-ore was exported without valid permits—of this, 71 lakh tonnes in FY10. The MB Shah Commission in Goa found similar irregularities in 90% of the 340-odd mining licences. Given the number of permissions required to mine, to transport ore and the sheer number of trucks involved, it’s difficult to see how the government didn’t know what was happening.
In the Vedanta case, while the company still has to go back to the gram sabhas to see if the rights of tribals and other traditional forest dwellers to worship their deity Niyam Raja will get compromised if mining is carried out at a site 10 km away, the Court has put forward some important clarifications—these are important even if the Orissa Mining Corporation (OMC is to supply bauxite to Vedanta’s refinery) doesn’t get the gram sabha’s permission. While OMC had got a conditional environment clearance in April 2009, its stage 2 clearance got stuck when, in November, the Forest Advisory Committee decided to set up expert committees to ascertain whether community rights had been dealt with properly under the Forest Rights Act (FRA). Since one of these committee said they hadn’t, the clearance was cancelled—other violations were also cited. The Supreme Court has now clarified that even under the Forests Act the state has the rights over mines and minerals. The Panchayat (Extension to Scheduled Areas) Act—another one cited—makes the pre-approval of the gram sabha vital before granting a mining lease but this applies only to minor minerals. As for the rights of individuals under the FRA, the judgment says, these have largely been dealt with by allocating other lands to them. The judges then come to religious rights and opine that the right of tribals to worship Niyam Raja is absolute and this is where the gram sabha comes in. OMC/Vedanta may still not be able to convince the gram sabha to approve mining, but there can be no doubt the state’s right over minerals has been reaffirmed.