Natural Resources, Development and Law : Sources and Perspectives

Leo F. Saldanha and Bhargavi S. RaoEnvironment Support Group

Www.esgindia.org

Presented National Law University, Delhi

August 2011

Who Owns Natural resources? Who uses? Who decides? Who benefits?

• The people are the owners and the State is the custodian

• However, in practice, the State has arrogated to itself the power of ownership

• Movements and struggles to reclaim control of natural resources and commons have been patchily successful

“The State shall, in particular, direct its policy towards securing

(a)that the citizens, men and women equally, have the right to an adequate means of livelihood; (b)that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c)that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”

Article 39 of the Constitution of India.

• Right to Life includes Right to Clean Environment and Livelihood

• Polluter Pays Principle• Principle of Absolute Liability• Principle of Intergenerational Equity• Doctrine of Public Trust• Precautionary Principle• Principle of Prior and Informed Consent

But…• These principles rarely guide administrative decisions, and are

often ignored by the Judiciary in enforcing compliance.

Emerging Policies and Trends

Globalisation induced policies promoting high economic growth, push for FDI and private sector participation but has skewed relationships between ownership, use and control of natural resources.

Strong influencing factors:• Govindarajan Committee on Investment Reforms,

2002• National Environmental Policy, 2006• National Water Policy, 2002• National Agricultural Policy, 2000• National Mineral Policy, 2008Trends:• Extractive industries have achieved second highest

growth rates

High growth sectors (Q1 of 2009-10 over Q1 of 2008-09)Mining & quarrying at 7.9 per centElectricity, gas & water supply at 6.2 per centConstruction’ at 7.1 percentTrade, hotels, transport and communication at 8.1 per cent,Financing, insurance, real estate and business services’ at 8.1 per centCommunity, social and personal services at 6.8 per cent. The growth rates in ‘agriculture, forestry & fishing’ and ‘manufacturing’ are estimated at 2.4 per cent and 3.4 per cent respectively

Ministry of Statistics and Programme Implementation

• West Bengal used 2 million hectares between 1947 and 2000 for industrialisation, but committed 93,995 hectares over the past decade.

• Orissa used 40,000 hectares for industry between 1951 and 1995 but planned to acquire 40,000 hectares more in the succeeding decade.

• Between 1996 and 2000, Andhra Pradesh acquired half as much land for industry as it did in the preceding 45 years.

• Goa acquired 3.5% of its landmass between 1965 and 1995. If all its plans go through, it will acquire 7.2% of its landmass in this decade.

• Gujarat has promised land for 27 SEZs, and around 200 SEZs are being planned all over India.

• Almost all of iron ore in Bellary district of Karnataka is being mined illegally and for export to China.

Prime Minister Manmohan Singh

Naxalites have gained influence in over 220 districts in about 20 States of the country, accounting for 40% of India's geographical area, or roughly half the districts in the country.

Prime Minister Manmohan Singh termed Naxalism the biggest internal security threat, though adding they should not be viewed as terrorists.

Is spread of Naxalism a major indicator of disenchantment with current policies and politics of economic development?

Despite the rhetoric Indian Budget provides marginal support for securing Environmental Justice?

Budgetary allocation in 2006 on some sectors:

Min of Environment and Forests : Rs. 12.35 billion (0.58% of India’s government spending)

Dept of Atomic Energy : Rs. 68.9 billion

Ministry of Coal : Rs. 40 billion

Ministry of Commerce : Rs. 19 billion

The situation is no different now.

World Investment Report, 2009

“Government could … promote contract farming between TNCs and local farmers in the direction of enhancing farmers' predictable income, productive capacities and benefits from global value chains.”

However, to deal with the extensive adverse impacts:

“... that deal with the need for international community (to) devise a set of core principles transparency in large-scale land acquisitions, respect for existing land rights, the right to food, protection of indigenous peoples, and social and environmental sustainability”.

Does the Rule of Law empower Peoples’ Access to Justice, Information and

Participation? • There has been some progressive movement in

affirming human rights with enactment of Right to Information Act, Forest Rights Act, etc.

• At the same time, repressive colonial laws continue to play havoc with peoples’ lives. Further, post colonial nationalistic laws, such as AFSPA, torment and torture peoples fundamental freedoms in marginalised regions.

• Overall, though, the high cost of accessing justice (inaccessible courts, high litigation cost, delays, etc.) in judicial and non-judicial forums is frustrating people

• Poor feel victimised by the system, while the rich haven’t had it better ever.

Past experiences: Mining in Kudremukh

• Decision to mine iron ore in the ecologically sensitive Kudremukh region of Western Ghats was taken during the Emergency by promoting the PSU KIOCL.

• Home to variety of endemic flora and fauna, many highly threatened or endangered, and a critical watershed for several principal south India rivers, the lack of internal democracy masked many issues including widespread displacement of tribals and forest dwelling communities.

• The purpose was to mine ore for export to Iran in exchange for foreign exchange to help India tide over a serious forex crisis. Did not work, as the Shah’s regime was overthrown, but the mining continued with little commercial success for over three decades.

• A proposal to declare the region as a National park in 1987 conflicted with ongoing mining and the rights of tribals.

• Wide-ranging protests against continuing mining operations influenced the Supreme Court in shutting down the mine in 2002, based on the Wildlife Act.

• But the Wildlife Act attacked the human rights of tribals, who began to resist the declaration of the area as a National Park with support from Naxal groups.

• Meanwhile, liberalisation of mining positioned KIOCL in an awkward competition with private players, especially in Bellary.

• KIOCL is now fighting for its right to mine against the out of turn allotment accorded to POSCO in Orissa.

POSCO• South Korean giant POSCO signs an MOU with

Orissa in 2005 to set up the single largest industrial and infrastructure project of the world and also the largest FDI in India.

• Project consists of a 12mtpa Steel plant, 1000 MW captive power plant, the country’s largest captive mine and a massive captive port in ecologically sensitive coastal and forest regions of Orissa

• Under pressure from PMO and Finance Ministry, MoEF grants speedy Environmental, Forest diversion and Coastal Zone clearances without any proper appraisal and in patent violation of laws.

• Protests by local communities against the project prevents land acquisition

• A remarkable feature is the affirmation of rights under the Forest Rights Act 2006, which creates various problems for Government.

• Project will displace several thousands and destroy the ecologically sensitive habitats highly threatened Oive Ridley turtles and Horse Shoe Crabs

• Government appointed independent investigations have rejected project clearances, yet MOEF has controversially approved clearances

• Battle continues in project affected areas and in Court

Bellary to Beijing• Between April 2006 and July 2010 the Karnataka lost at least

Rs. 12,228 crores in revenue due to illegal mining.• Karnataka contributes about one-fourth of the country’s annual iron

production, which is 245 million tonnes. Sixty per cent of this comes from the state’s Bellary district which has 124 mines, most of them within forest area.

• JSW Steel Ltd owned by the Jindal Group, Adani Enterprises Ltd, Sesa Goa Ltd (Vedanta group) and MSPL Ltd owned by the Baltoda Group—were the major players, besides the National Minerals Development Corporation (NMDC), India’s largest public sector iron ore producer. Not to forget the mining empire of Reddy 'brothers'.

• The National Agricultural Cooperative Marketing Federation of India Ltd (NAFED), which otherwise deals in procurement of oilseeds, pulses and cotton, traded in iron ore through dubious means.

• The activities were carried on in violation of many laws, including the Mines and Minerals Development and Regulation Act (1957), Forest Conservation Act (1980), Environmental Protection Act (1984), Foreign Exchange Management Act (2006) and Panchayati Raj Act, to name but a few.

• This was in connivance with the departments of police, mines, forest, revenue, weights and measurements, commercial taxes, transport, labour and environmental regulatory agencies.

A lawless country• Papinayakanahalli is a tiny village in the foothills

of the mountain ranges in Hospet taluka of Bellary district, the nerve centre of corrupt iron ore mining in India.

• People here have stopped cultivating and begun to dig up the earth for iron ore.

• This fetches them more handsome returns in a short period, than agriculture ever can.

• Papinayakanahalli now has freshly built concrete houses, and some own tippers and earth movers to help expand mining. There are 200-odd trucks in the village now.

• As in this village, everything has turned red across Bellary, and surrounding districts: trees, crops, streams,.....

• Unbelievable pollution has affected health and the environment and agriculture is worst hit.

• Women and children bear the brunt of all the mining impacts

Bribing the Gods: Bellary BaronsBellary mine baron Gali Janardhan Reddy with an

offering of a diamond-studded crown worth Rs 42 crore [US$8.8 million], became the biggest donor to Lord Venkateswara at Tirupati since the Vijayanagara kings 400 years ago.The 20-kg stunner was a "thanksgiving" gesture, the minister said. Sources added that 32kg of `aparanji (pure)' gold went into its making, besides 70,000 diamonds weighing 4,000 carats. The 2.5-ft crown has a huge 890-carat emerald from Africa engraved in the centre which alone costs around Rs 10 crore.

• Governments are increasingly privatising management of lakes and urban commons due to pressures from business and financial lobbies•ESG with support from vigilant public and the media have fought against such illegal policies and worked to secure Access for All to the commons•High Court of Karnataka has supported ESG’s PIL against privatisation of lakes and held that accessing public commons should not become a privilege of the rich and wealthy.

Bt Brinjal Biopiracy

• Monsanto, Mahyco, UAS Dharwad, TNAU and Sathguru consultants have accessed 10 varieties of brinjal in Karnataka and Tamil Nadu without any prior and informed consent from the National Biodiversity Authority, State Biodiversity Boards and applicable Local Biodiversity Management Committees as required by the National biological Diversity Act 2002.

• Such a rigorous process of appraisal is mandatory to protect loss of biodiversity due to misuse or overuse, theft of biodiversity and to secure biodiversity from contamination when transgencis are involved.

• In addition, the law mandates that when biodiversity is to be accessed in any manner for commercial, research and other uses, local communities who have protected local varieties and cultivars for generations must be consulted and if they consent benefits must accrue to them per the internationally applicable Access and Benefit Sharing Protocol.

• Based on nation-wide public consultations, Indian Environment Minister Jairam Ramesh placed a moratorium on the environmental release of India’s first GMO food-crop: Bt brinjal

• Developed by Monsanto-Mahyco the GMO project was supported by USAID and Cornell Univ. In collaboration with Univ of Agricultural Sciences – Dharwar (Karnataka) and Tamil Nadu Agricultural University.

• While the moratorium has bearing on the health and environmental implications of Bt Brinjal, the Ministry has completely ignored major violations of Convention on Biological Diversity – 1992 and Biological Diversity Act – 2002.

• ESG raised formal complaints before statutory authorities and an investigation is now underway into charges of theft of genetic wealth of India.

• At stake in this precedent legal action are Access and Benefit Sharing Rights of local communities, seed sovereignty of farming communities and securing genetic diversity against corporate commoditisation and commercialisation.

There has been widespread debate and protest against such dilution of environment norms and laws from peoples' movements, environmental groups and leading Parliamentarians

Campaign for Environmental Justice – India organised a series of campaigns including Protest Action against the Indian Environment Ministry through events such as MoEF Suno! and MoEF Chalo! in 2005