SC continues ban on Vedanta’s Niyamgiri project

New Delhi, April 18 (IANS) Vedanta’s bauxite mining project in Odisha’s Niyamgiri Hills got stuck once again as the Supreme Court Thursday asked the state government to go back to the gram sabha to consider the rights of worship of local tribals.

A forest bench of Justice Aftab Alam, Justice K.S. Radhakrishnan and Justice Ranjan Gogoi said: “We are, therefore, of the view that the question whether STs (Scheduled Tribes) and other TFDs (Traditional Forest Dwellers) like Dongaria Kondh, Kutia Kandha and others have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hilltop known as Niyam-Raja, have to be considered by the gram sabha.”

The court noted that the “gram sabha functioning under the Forest Rights Act, read with Section 4(d) of PESA (Panchayats Extension to Scheduled Areas) 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 July 12, 2012”.

Pronouncing the order, Justice Radhakrishnan said: “Gram sabha can 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. Needless to say, if the BMP (Bauxite Mining Project), in any way, affects their religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected.”

“We find that this aspect of the matter has not been placed before the gram sabha for their active consideration, but only the individual claims and community claims received from Rayagada and Kalahandi districts, most of which the gram sabha has dealt with and settled.”

The gram sabha, the order said, “is also free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received from Rayagada and Kalahandi districts”.

Any such fresh claims can be filed before the gram sabha within six weeks from the date of Thursday’s judgment, the order said, adding that the Odisha government, as well as the union tribal affairs ministry, would assist the gram sabha in settling individual as well as community claims.

The court said the proceedings of the gram sabha shall be attended by a judicial officer of the rank of district judge nominated by the chief justice of the Orissa High Court, as an observer. The person appointed shall “sign the minutes of the proceedings, certifying that the proceedings of the gram sabha took place independently and completely uninfluenced either by the project proponents or the central government or the state government”.

Directing the Odisha government to place all the issues outlined by it before the gram sabha, the court said that the “Gram sabha would take a decision on them within three months and communicate the same to the MoEF (ministry of environment and forests), through the state government.”

“Needless to say that while taking the final decision, the MoEF shall take into consideration any corrective measures that might have been taken by the Alumina Refinery Project for rectifying the alleged violations of the terms of the environmental clearance granted in its favour by the MoEF,” the court said.

The court’s order came on the plea of the Orissa Mining Corporation (OMC) challenging the August 30, 2010, decision of the MoEF denying second stage clearance for bauxite mining from the Niyangiri Hills.

OMC is a 26 percent stakeholder in the joint venture with Sterlite Industries owned Vedanta.

The court rejected the Orissa Mining Corporation’s contention that Alumina Refinery Project and the Bauxite Mining Project were two separate and independent projects.

The court said: “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 show that the two projects make an integrated unit.”

“In the two earlier orders of this Court (in the Vedanta case and the Sterlite case) also”, the judgment said that “the two projects are seen as comprising a single unit”.

“Quite contrary to the case of the petitioner, it can be strongly argued that the Alumina Refinery Project and Bauxite Mining Project are interdependent and inseparably linked together and, hence, any wrong doing by Alumina 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,” the court said.

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