Friday, July 1, 2016

Nitin Sethi- Modi govt quietly withdraws the Rs 200 crore fine on Adani for environmental damage in Gujarat // Tribal ministry ignores law, regulations and SC orders & permits cancellation of tribal forest rights

NB: Further evidence of the Modi governments' total contempt for statutory protections of popular rights and the environment. Citizens (including state officials) who respect the law should expose and resist this sabotage of the constitution. DS

The Union environment ministry has withdrawn its demand for a Rs 200 crore restoration fund from Adani Ports & SEZ for damage to the environment imposed during the United Progressive Alliance (UPA) government, the biggest penalty for green violations. The ministry also extended the environmental clearance issued in 2009 to the company’s waterfront development project at Mundra in Gujarat. Several stringent conditions the ministry had earlier issued notice for to Adani have been withdrawn as well. These decisions were made in September 2015. The environmental clearance was extended in October 2015.

The Adani waterfront development project includes four ports with berths for dry and liquid cargo, container terminals, yards, a rail siding and 700 hectares for additional construction. It is part of the larger port, SEZ and township complex at the site. Neither Adani nor the environment ministry replied to questions sent by Business Standard on the matter.

In a case against the project before the Gujarat high court, the Union environment ministry in 2012 constituted the Sunita Narain Committee to investigate allegations of destruction of the environment at the Mundra project site. The committee found multiple violation of regulations, large-scale destruction of the local ecology, including damage to creeks and mangroves, and illegal reclamation of land. It recommended a ban on the project’s north port where wide-scale damage had been caused and sought Rs 200 crore (Rs 2 billion), or 1 per cent of the project cost, whichever was higher, as reparation. This was beyond the maximum Rs 1 lakh fine the Environment Protection Act allows.

The ministry accepted the committee’s recommendations in 2013. It issued a show-cause notice to Adani Ports & SEZ and Gujarat officials why action should not be taken against the project developer for the violations. Adani Ports & SEZ denied all claims of wrongdoing and the state administration largely supported the company. After reviewing the replies, the ministry officials concluded the original decision for action against the company, including imposition of the penalty, was valid.

But a final decision was delayed as Jayanthi Natarajan was replaced as environment minister by Veerappa Moily and eventually by Prakash Javadekar of the National Democratic Alliance. Ministry records between 2012 and 2016 accessed through the Right to Information Act by Kanchi Kohli of the Centre for Policy Research-Namati Program show some newly appointed senior officials in the ministry reversed the opinion on Adani Ports & SEZ.

In the course of this reversal, Javadekar also questioned how blame for damage to the mangroves had been ascertained and if all the points raised by Adani in their representation had been addressed adequately. Officials reconfirmed the damage to the mangroves near the project site was proven by satellite data but they now said there was no proof that project was to blame. This finding was approved by Javadekar and the Rs 200 crore penalty was dropped.

There is a law to protect forests, but what is a forest. NDA finds an answer

Tribal ministry ignores SC orders & permits cancellation of tribal forest rights
Reversing the stand of his subordinates, and existing regulations, the secretary, tribal affairs ministry, has said forest land can be diverted for mining and other industrial purposes if no claims have so far been lodged for community ownership by tribals and other forest dwellers under the Forest Rights Act (FRA).

This view of Shyam S Agarwal, the top official of the ministry meant to guard tribal rights, view could lead to large tracts of forest land, till now off-limits, being opened for mining and other non-forest activities. For, a study says 98% of the potential community rights area by tribals and other forest dwellers across the country remained to be settled, as of mid-2015. 

At present, to comply with the FRA, the environment ministry has regulations in place where it verifies that tribal rights have been settled one way or the other on a green patch, before industry or miners get clearance to use the forest, after taking consent of right holders. The Supreme Court order in the Vedanta mining case reinforced the need for such regulations.

Through 2014-15, the tribal affairs ministry repeatedly and strongly opposed any change in these regulations, and the dilution of tribal consent power, when these were proposed by other ministries. However, the view of the secretary, who took over the charge in February 2016, could remove the opposition partially, if his legal interpretation of FRA and regulations is implemented.

The secretary, in a response to Business Standard queries, said: “This (opinion of his) relates to file notings, a part of internal deliberations of the ministry while examining the issue at different levels, and suggestions to the minister of tribal affairs, who after due consideration also agreed to seek the opinion of the state government of Chhattisgarh. It does not involve any over-ruling as such.”

He did not respond to specific queries about his decision contravening the FRA, its regulations, guidelines and orders of his and the environment ministry, which his subordinate officers had pointed out repeatedly. He detailed the sequence of events in the case. 

The case: His opinion comes in a case where the Chattisgargh government had cancelled the rights of a tribal village to ensure mining by Rajasthan Vidyut Utpadan Nigam Ltd (RVUNL) with Adani Minerals Pvt Ltd. The state government passed an order on January 8, cancelling the community land rights of the tribals in the village, given under the FRA. The government, in the order, stated the villagers had been using their legal rights over the forest land to stop the work of mining in their village, which falls in the Parsa East and Kete Besan coal block.

The state government contended the village, Ghatbarra, had put its claim under the FRA after the government had already allocated the village’s forest land that comes in the coal block. Documents show the village did write to the authorities repeatedly against the mining and only after two years did it finally get the community rights.

The ministry of tribal affairs is in charge of implementing FRA. Documents accessed through the Right to Information Act show the tribal affairs minister received a letter from a member of Parliament, Husain Dalwai, ‘expressing anguish’ over the matter, citing news reports. Other organisations from the state also wrote to the ministry, giving documentary proof of the happenings.

The tribal affairs ministry began an internal assessment of the rare case. The officers in charge concluded the FRA did not allow anyone, including the government, to take away or cancel the rights under the law, once these had been accorded. The officials also noted that under Section 4(5) of the FRA, forest dwellers cannot be evicted or removed from forest land under their occupation till the recognition and verification process (of their rights) is complete.

The officials also noted the guidelines issued under the law “very clearly laid down that diversion of forest land for non-forest purpose cannot be undertaken without the completion of FRA process and certification of gram sabha to that effect”. 

They decided the Chhattisgarh government’s decision was illegal and the officials were liable for punishment under the law. The officials said the ministry, using its legally granted powers, should issue orders to the Chhattisgarh government to restore the village's community rights.   This was agreed upon by a joint secretary-rank officer in the ministry in charge of the FRA monitoring as well.

He wrote, “Both on facts and matter of law, the said cancellation of community forest right is arbitrary and violation of the letter and spirit of the law, i.e. Forest Rights Act.” He noted the land of the tribal village could only be acquired by the government following the process laid down in the Land Acquisition Act, once the rights of the people had already been conferred under the FRA.

Secretary's veto: When the matter came to the secretary, Shyam S Agarwal, in March, he asked for more information on the case. He then put on record a query: “Whether in anticipation of possible CFR (common forest right) under FRA, no other activity/diversion on forest land should be done or not?”

He answered the query himself, right below the question, stating: “To my mind, the answer is no. That is, if no claim as per FRA is lodged, then diversion for other purposes as per existing other statutes.” He highlighted and underlined the word ‘no’ in his paragraph. The file noting show he then went against the advice from his subordinates, to state, “In any case, in my opinion, it is premature at this stage to issue a direction that community forest right cancellation is bad in law.”

He said if in an ongoing National Green Tribunal case, it favoured the clearance given to the mine, then the Chhattisgarh government can continue with taking away the village’s forest rights. If the NGT cancels the permission for mining, then it can hand back the rights to the tribals. He said, “We may as above issue an office memorandum clarifying the position as above. Ask the state government not to cancel community forest rights on undisputed parts (i.e to the extent no mining rights are granted)." Or as an option he said, “Just refrain from doing anything at this stage. This is more so important as the matter is sub judice.”

And, so... Subsequently, the ministry did not order the state government to restore the tribal rights. It instead sent a letter in April, merely ‘requesting’ it to “ascertain the factual position in this regard, along with provision of law under which the cancellation has been made and intimate this ministry at the earliest”.

The secretary justified it, stating, “In any case the matter is sub judice and the reply just received from the state government is under examination. Moreover ,a final view can only be taken by this ministry after the environment ministry passes a reasoned order and final judgement of NGT is pronounced in the matter. The issue has also been taken up by the National Commission for Scheduled Tribes and by the National Human Rights Commission with the state government of Chhattisgah.” 

He was referring to the case where the NGT rejected the forest clearance given to coal mining under the Forest Conservation Act and not the FRA, which concerns community forest rights of tribals and other forest dwellers.  The secretary’s decision, if applied across the board in all cases, could have implications far beyond the Chhattisgarh case. The Washington-based Rights and Resources Initiative, along with Vasundhra and Natural Resources Management Consultants, assessed in July 2015 that only 1.1 per cent of the potential area for community forest rights, adding to 32,198,305 hectares, had been recognised by various state governments.

More articles on the environment by Nitin Sethi