ORISSA MINING CORPORATION v. MINISTRY OF ENVIRONMENT & FOREST & Ors.

6 S.C.R. 881 ORISSA MINING CORPORATION v. MINISTRY OF ENVIRONMENT & FOREST & OTHERS (Writ Petition (Civil) No. 180 of 2011) APRIL 18, 2013 [AFTAB ALAM, K.S. RADHAKRISHNAN AND RANJAN GOGOi, JJ.] A B Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - Primitive Tribal C Groups - Specific protections extended to their "habitat and habitations" - Bauxite Mining Project (BMP) - Ministry of Environment and Forests (MOEF) rejecting Stage-II forest clearance for diversion of 660. 7 49 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi D and Rayagada Districts of Orissa - Alleged violation of the rights of the Scheduled Tribes (STs) and the "Traditional Forest Dwellers" (TFDs) - Held: STs and other TFDs have a vital role to play in the environmental management and development because of their knowledge and traditional E practices - The State has a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development - STs and other TFDs residing in the Scheduled Areas have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands - Central role of Gram Sabha in determining the nature and extent of "individua/"/'community rights" of the STs and other TFDs and in safeguarding their customary and religious rights under the Forest Rights Act - whether STs and other TFDs, like Dongaria Kondh, Kutia Kandha and others, had any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, to be In the instant case, question G F 881 H 882 SUPREME COURT REPORTS [2013] 6 S.C.R. A considered by the Gram Sabha - Gram Sabha to also examine whether the proposed mining area Niyama Danger, 10 km away from the peak, would in any way affect the abode of Niyam-Raja - Gram Sabha also free to consider all the community, individual as well as cultural and religious claims, B over and above the claims already received from Rayagada and Kalahandi Districts - The State Government as well as the Ministry of Tribal Affairs, Government of India, to assist the Gram Sabha for settling of individual as well as community claims - Gram Sabha to take decision on them within 3 C months and communicate the same to the MOEF, through the State Government - MoEF to then take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in light of the decision of the Gram Sabha within 2 months thereafter - Environmental Law.

D E F Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - Enactment of - Object and purpose - Discussed - Held: The Act is a social welfare or. remedial statute - It intends to protect custom, usage, forms, practices and ceremonies which are appropriate to the traditional practices of forest dwellers - The Act protects a wide range of rights of forest dwellers and STs including customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation. Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - s.6 - Nature and extent of "individua/''!'community rights" of the Scheduled Tribes (STs) and other ''Traditional Forest Dwellers" (TFDs) G and their customary and religious rights - Determination of - Role of Gram Sabha - Discussed - Held: Gram Sabha is the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling STs and other TFDs within the local limits of their jurisdiction - Gram Sabha functioning H ORISSA MINING CORPORATION v.

MINISTRY OF ENVIRONMENT & FOREST 883 under the Forest Rights Act rlw s.4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012 - Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2007 read with the 2012 Amendment Rules - Panchayat (Extension to Scheduled Areas) Act, 1996 - s.4(d). A B c Mines and Minerals (Regulation and Development) Act, 1957 - Right of the State over mines or minerals lying underneath the forest land - Held: The State holds the natural resources as a trustee for the people - s.3 of the Forest Rights Act does not vest such rights on the STs or other TFDs - PESA Act speaks only of minor minerals, which says that . D the recommendation of Gram Sabha shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas - State Government has the power to reserve any particular area for Bauxite mining for a Public Sector Corporation - Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - s.3 - Panchayat (Extension to Scheduled Areas) Act, 1996.

E The Orissa Mining Corporation (OMC), a State of Orissa Undertaking, approached this Court seeking a Writ of Certiorari to quash the order passed by the Ministry of Environment and Forests (MOEF) dated 24.8.2010 rejecting the Stage-II forest clearance for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa and for other consequential reliefs. F G The Stage II forest clearance for the OMC and Sterlite bauxite mining project on the Niyamgiri Hills in Lanjigarh, H 884 SUPREME COURT REPORTS [2013] 6 S.C.R. A Kalahandi and Rayagada districts of Orissa was rejected by the MOEF on grounds of:- 1) violation of the rights of the Tribal Groups including the Primitive Tribal Groups and the Dalit Population, more particularly with reference to the specific protections extended to their "habitat and B habitations" under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [the Forest Rights Act]; 2) violations of the Environmental Protection Act, 1986 and 3) violations under the Forest Conservation Act, 1980 coupled with c the resultant impact on the ecology and biodiversity of the surrounding area.

The Petitioner assailed the order of MoEF dated 24.08.2010 as an attempt to reopen matters that had obtained finality and further submitted that the order D wrongly cited the violation of certain conditions of environmental clearance by "Alumina Refinery Project" as grounds for denial of Stage II clearance to OMC for its "Bauxite Mining Project". The contention was based on the premise that the two Projects were totally separate E and independent of each other and the violation of any statutory provision or a condition of environmental clearance by one cannot be a relevant consideration for grant of Stage II clearance to the other. F Disposing of the writ petition, the Court HELD:

The Petitioner's assertion that the Alumina Refinery Project and the Bauxite Mining Project are two separate and independent projects, cannot be accepted as such, since there are sufficient materials on record to G show that the two projects make an integrated unit. In two earlier orders of this Court (in the Vedanta case and the Sterlite case) also, the two Projects are seen as comprising a single unit. Quite contrary to the case of the petitioner, the Alumina Refinery Project and Bauxite H Mining Project are interdependent and inseparably linked ORISSA MINING CORPORATION v. MINISTRY OF ENVIRONMENT & FOREST 885 together and, hence, any wrong doing by Alumina A Refinery Project may cast a reflection on the Bauxite Mining Project and may be a relevant consideration for denial of Stage II clearance to the Bauxite Mining Project. However, in this Judgment, this Court, does not propose to make any final pronouncement on that issue but B would keep the focus mainly on the rights of the Scheduled Tribes (STs) and the "Traditional Forest Dwellers" (TFDs) under the Forest Rights Act. [Para 30] (921-G-H; 922-A-C] c STs and TFDs:

Scheduled Tribe, as such, is not defined in the Forest Rights Act, but the word "Traditional Forest Dweller" has been defined under Section 2(o) as any member or community who has at least three generations D prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs. Article 366(25) of the Constitution states that STs means such tribes or tribal communities or parts of or groups within such tribes or tribal E communities as are defined under Article 342 to be the Scheduled Tribes. [Para 31] (922-D-E] Constitutional Rights and Conventions:

3.1. Article 244 (1) of the Constitution of India which F appears in Part X provides that the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) shall be according to the provisions of the Fifth Schedule and Clause (2) states that Sixth Schedule applies to the tribal areas in G Assam, Meqhalaya, Tripura and Mizoram. Evidently, the object of the Fifth Schedule and the Regulations made thereunder is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and H 886 SUPREME COURT REPORTS [2013] 6 S.C.R. A good Governance in the Scheduled Area. [Para 33] [922- H; 923-A-B] 8

3.2. Section 4 of the Panchayat (Extension to Scheduled Areas) Act, 1996 [PESA Act] stipulates that the State legislation on Panchayats shall be made in consonance with the customary law, social and religious practices and traditional management practices of community resources. Clause (d) of Section states that every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their C cultural identity, community resources and the customary mode of dispute resolution. [Para 36] [924-H; 925-A-B] o international conventions.

3.

The customary and cultural rights of indigenous people have also been the subject matter of various International Labour Organization (ILO) Convention on Indigenous and Tribal Populations Convention, 1957 (No.107) was the first comprehensive international instrument setting forth the rights of indigenous and tribal populations which E emphasized the necessity for the protection of social, political and cultural rights of indigenous people. India is a signatory to the ILO Convention (No. 107). [Para 37] [925-E-G]

3.

Apart from giving legitimacy to the cultural rights F by 1957 Convention, the Convention on the Biological Diversity (CBA) adopted at the Earth Summit (1992) highlighted necessity to preserve and maintain knowledge , innovation and practices of the local communities relevant for conservation and sustainable G use of bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also encourage the promotion of customary practices conducive to conservation. The necessity to respect and promote the inherent rights of indigenous peoples which derive from their political, H ORISSA MINING CORPORATION v. MINISTRY OF ENVIRONMENT & FOREST 887 economic and social structures and from their cultures, A· spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas have B a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands. [Para 38] [925-G-H; 926-A-C]

3.

STs and other TFDs have a vital role to play in the environmental management and development C because of their knowledge and traditional practices. The State has got a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development. [Para 39] [926-E-F] D