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ministry has withdrawn its demand for a Rs 200 crore restoration fund from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ministry had earlier issued notice for to Adani have been withdrawn as well.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.
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.
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