Follow Us:

Court to the rescue again

Harsh Vardhan Bhati |

(“How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them?”

Chief Seattle, the Chief Seattle&’s Speech 1854)

In the 21st century, protecting indigenous communities presents a timeless issue of environmental concern on both national and international levels. During work on my LL.M. degree at Lewis & Clark Law School, I studied the issues of protection of tribes’ sacred sites in Niyamgiri Hills in India under the Indian Constitution. 

The management of forests in India, a democratic nation, has a significant influence on the lifestyle of millions of indigenous people. State appropriation of forest land has deprived many communities of their rights. Forest rights on ancestral lands and protections for wildlife habitat were not adequately recognized in the re-distribution and consolidation of State forests during India&’s colonial period, nor have these rights been adequately honoured in independent India. This resulted in historical injustice to forest dwelling scheduled tribes (STs) and other traditional forest dwellers (TFDs), who are integral to the very survival and sustainability of forest ecosystem. To undo these injustices, Parliament enacted the Forest Rights Act (FRA) in 2006 as a mean to recognize and vest forest rights and occupation in forest land to forest dwelling STs and TFDs who have been residing in the forests for generations. The FRA aims to recognize the pre-existing rights of India&’s STs and TFDs through a transparent and democratic village assembly (gram sabha) based process. This would effect a major re-distribution of control over forests and their resources, particularly in favour of forest-dependent communities.

Some of the decisions issued by the Supreme Court have belatedly brought out the real implication of the FRA. The Act recognizes the rights of indigenous communities to govern, use, and conserve forests where they have been living for centuries, enabling these communities to manage their resources in a sustainable way. The Supreme Court recognized the power of the indigenous communities to provide or withhold consent for a development project in Orissa Mining Corporation v. Ministry of Environment & Forest, a dispute centered on Vedanta Resources Industries’ (United Kingdom based mining company) proposal to mine in the Niyamgiri Hills. On April 2013, the Supreme Court determined that the alumina refinery project violated the Forest Rights Act, 2006, international conventions for the protection of indigenous communities and Articles 25 and 26 of the Constitution of India.

The Supreme Court decided that the construction of the project would not only take away the rights of the indigenous communities to religious freedom to worship Niyam-Raja, but also concluded that the project would have a negative influence on bio-diversity of the area. The Court directed the government to hold the gram sabha (village assembly) to ascertain the effects of the mining project on the Dongria Kondh and Kutia Kandha tribes’ right to worship their deity Niyam-Raja, and on effects to the wildlife habitat surrounded by the Niyamgiri Hills.

The Orissa government selected twelve villages in the Niyamgiri Hills, and all twelve villages’ gram sabhas unanimously rejected the controversial mining proposal in 2013. After rejection of the mining project by all 12 gram sabhas, the Ministry of Environment & Forest rejected stage II forest clearance for Vedanta&’s mining project.

It is almost unheard of that a State government would give up on a lucrative deal the size of Vedanta Resources’ mining project, especially in developing nations such as India. In February 2016, the Orissa government-owned Orissa Mining Corporation filed an interlocutory application to re-open the Supreme Court&’s decision in this case without making the gram sabhas a party. In April 2016, a Supreme Court bench headed by Justice Ranjan Gogoi decided that the plea cannot be entertained without the Court hearing from all the affected and interested stakeholders, including tribes and twelve gram sabhas.  On 6 May 2016, a Supreme Court bench headed by Justice Gogoi decided that local gram sabhas cannot be reconvened to reinvestigate whether or not mining in the locality can take place, finding that such an action “would [be] tantamount to infringement of the religious, community and individual rights of local forest-dwellers.” The Supreme Court determined that it was not inclined to entertain the application.  Senior Counsel appearing for the Orissa government argued that gram sabhas had failed to take into account the court&’s directive to consider the cultural and religious rights of the tribes and forest dwellers living in Rayagada and Kalahandi districts of Orissa, but had gone beyond their mandate by deciding against mining in the Niyamgiri hills. However, the Supreme Court decided that “that is in your perception and not in Court&’s” that gram sabhas had failed to take into account the court&’s directive to consider the cultural and religious rights of the tribes and forest dwellers. The Supreme Court concluded that “indigenous tribes do not want mining and thus the stage II forest clearance cannot be given.” Once again in 2016, the Supreme Court of India stood firm and ruled in favour of indigenous tribes, and refused to entertain the State&’s development interest.  In the 21st century, climate change and global warming threats are not rumours anymore — they have become concrete facts. In these circumstances, forests have the best chance to survive when indigenous communities participate in their conservation. Indigenous communities have a symbiotic relationship with forest ecosystems through spiritual ceremonies and their vast ecological knowledge. Other developing nations should adopt effective statutory and policy changes from India that not only protect biodiversity and forest ecosystems, but also protect the knowledge and cultural identity of tribes so these valuable resources can be accessible to future generations.

(The writer is a recent LL.M. (Environmental, Natural Resources, and Energy Law) graduate of Lewis & Clark Law School)