Indigenous peoples, Consultation and Mining: Lessons from the Supreme Court of India

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It is a pleasure to welcome Dr Jérémie Gilbert as a guest poster on ‘Rights as Usual’. Jérémie is a reader at the University of East London and the author of  Indigenous Peoples’ Land Rights under International Law – From Victims to Actors  (Transnational Publishers, 2006). This post is his.

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On the 19^th of April, the Supreme Court of India rendered a significant decision  touching upon the connection between governments, corporations and the rights of local communities in the context of mining. The ruling of the court came after years of legal, administrative and political tinkering over a mining project in the Indian State of Orissa.

The mining project is planned to supply bauxite to Vedanta Aluminium, a unit of Vedanta Group and India’s largest producer of the metal. The project involves the clearance of forest land to allow mining, and touches directly the Niyamgiri Hills, which are part of the traditional land of the Dongria Kondh, a local tribal community.

Back in 2007, the Supreme Court had given clearance to Vedanta to mine but on the condition that the exploitation of the mine would be undertaken under a purpose-built conglomerate which would include the state government, the Orissa Mining Corporation (OMC) and Sertlite, a listed subsidiary of Vedanta Resources, which was to have a 49 per cent stake in the conglomerate. The aim was notably to ensure that the local population would receive a proper “Rehabilitation Package”.

However, following this clearance by the court, two national statutory supervising bodies warned that plans by Vedanta did not respect the environmental planning and were potentially harmful to the local tribal population. Based on these reports, the Ministry of Environment and Forests (MOEF) rejected the clearance for the mine. This decision was based on the fact that the mining would mean clearance of forest land in the Niyamgiri Hills, an area essential for wildlife and the residence of tribes like the Dongria Kondh.

The case before the judges in the Supreme Court concerned a demand by the Orissa Mining Corporation (OMC) to quash the decision of the MOEF and allow the mining. Some of the arguments raised by the applicant are relevant not only in the specific context of the case but also globally, as they touched on issues that have arisen throughout the world when it comes to mining on indigenous peoples’ lands.

The applicant submitted that in the proposed mining area there was no human habitation, an argument often raised by companies when mining is not taking place right where people actually live, but in the vicinity. Another argument raised by the mining company’s lawyer was that while the legal framework regarding the local community offers some protection to individual and community rights, it does not make any reference to religious or spiritual rights. Lastly, the applicant also submitted that the State Government has full ownership over the minerals and deposits beneath the forests and that the local indigenous community could not raise any ownership rights on minerals or deposits beneath the forest land.

Again, this is an argument often raised globally as governments frequently claim their fundamental and absolute ownership of all the mineral resources within their territories. On this issue, while the court acknowledged that the power of the state remains intact when it comes to ownership over natural resources, the judges stressed that consultation of the local authorities and consent of local communities are also vital. Regarding the other claims, the judges highlighted that while the community was not directly living on the concerned land, this land was nonetheless an important part of their culture as it represented a spiritual landmark for the community. As such the judges ruled that the community rights to practice their religion should be protected and considered before the mining was allowed.

Overall, the Supreme Court has not ruled out the possibility of mining, instead the judges have insisted on the importance of the inclusion of the tribal peoples into the decision. Hence the court has ruled that the decision will now rest with the local indigenous communities through the decision of the local council. The court said that the issue of religious rights must be settled by the local Gram Sabha. The Gram Sabha, or Panchayats, are local self-governments established at the village level which shall be consulted before making the acquisition of land for development projects, and before re-settling or rehabilitating persons affected by such projects. In this instance, the judge said that the Gram Sabha should give its views in three months. In turn, this decision will be reviewed by the ministry of environment and forests (MoEF) and a final decision will be taken within the following two months.

The judgement, written by K S Radhakrishnan, further ordered that the state government, as well as the ministry of tribal affairs, government of India, help the Gram Sabha to settle individual as well as community claims. A judicial officer has been put in charge to make sure that the decision of the Gram Sabha is taken independently and uninfluenced either by the project proponents or the central government, or the state government.

The decision is significant not only for India but also globally as it touches on the important issue of the rights of the local communities to be consulted whenever mining is taking place in the area where they live. Significantly, the decision of the judges to make the consultation and the consent of the local population a requirement before the government gives its consent for mining is based not only on specific Indian laws but also on international law. The judges referred to the International Labour Organization (ILO) Convention on Indigenous and Tribal Populations (Convention no. 107), the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Convention on Biological Diversity, and the Rio Declaration on Environment and Development (Agenda 21) to highlight the necessity to respect and promote the inherent rights of indigenous peoples to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands.

This judgement is also an interesting lesson on the potential role of the judiciary within the triangular relationship between governments, corporations and local indigenous communities in the context of mining. In this case the judiciary acted as a fourth independent supervisory partner which over the last few years has been monitoring the process to make sure that all the parties were receiving a fair hearing.

Dr Jérémie Gilbert, Reader, University of East London.