REPORT BY CLAUDE ALVARES - Ninth Day in the Supreme Court of India on the Goa mining case: Adv. Rafiq Dada from Mumbai referred to the 4.12.2006 (where all Environment Clearances had to be sent to the Standing Committee of the NBWL for its NOC) and argued that the order made it clear that only MLs prior to 4.12.2006 were directed to be sent by the Court to the NBLW. There was no need for the ECs after that date to be sent to the NBWL. Even the advertisement or public notices issued by the MOEF in 2009 specified that environment clearances from Feb 2002 to Dec 2006 needed to go to the NBWL and this is how the Ministry understood and also the CEC understood it. Because the CEC in the Western Hills Foundation case (also from Goa) put a restriction only on one km as per the order dated 4.8.2006, but said the State of Goa could allow mining activity beyond 1 km and did not say that the leases had to go to the NBWL in that report. Therefore, mining companies like his clients were not at fault. He took pains to declare they should not be held to be doing illegal activity on that count. They have worked within the parameters of law and it is not that they have been lawless in this regard. Had they been correctly informed that they had to go to NBWL, there was no reason for them not to have done so. The second issue that Adv. Dada raised was that ecosensitive zoning had to be notified under the Environment Protection Act and this was made very clear in the Noida Park matter because the SC specifically said in that judgement that such notification had not been issued and the activity was therefore permitted. The Court then said it is correct that the ecosenstive notification has to be issued by the Central Government under the Act and such a notification would affect a large number of people, hence first a draft notification is called for so that the public has an opportunity to comment on the notification. However, the Court reiterated, mining is an activity of the State which is allowed to be carried out by private parties. It is the duty of the State to enforce Art 21 which includes environment. Regarding the 10 km ESA, much will depend on the kind of activity which is carried out in that area. Art 32 empowers the SC to enforce fundamental rights, it is a power given by the Constitution. We dont need any authorisation from Parliament. But while giving directions under Art 21 we cannot be oblivious to Art 19 which is the freedom to carry out any occupation. Therefore in respect of 1 km zone, we have the power to prohibit because an activity like mining does affects the environment, but if we prohibit activities upto 10 km, everyones trade would be affected and then there is no balance and hence we will refrain from taking such a stand. Adv. Dada next went on to argue in favour of the dumps being located outside the lease area. He said, if we look at the EC, dumps have to be kept separately and even further, subgrade ore has to be kept separately from waste, so the mining law itself insists that the dumps are to be kept separately. Once the ore is extracted, it ceases to be a mining activity. And so where it is dumped becomes a matter of arrangements one makes. Earlier the threshhold limit was 55 fe. Since now it was 45 fe, we are able to remove what was kept separately as subgrade ore and we are able to remove that also and export it. In that context, Adv. A.D.N. Rao read out official reply given out by IBM under RTI on dumps, where the IBM has specifically said that dumps shown on the mining plan outside the lease area are only for indicating material balance. The IBM does not give any approval for activity of dumping outside the mining lease. Adv. Dada informed the Court that mining dumps had to be kept separately so that they did not collapse into the mining pit and if the dumps were kept on the lease, people would have to go through the dump in order to go to the mining pit(!) If they were kept on the lease in that case, they would be an environmental hazard. After Adv. Dada concluded, Senior Adv. Ravi Shankar Prasad of the BJP (and TV favourite) commenced his arguments on behalf of sarpanches of 33 village panchayats from mining areas in Goa. RS Prasad concentrated solely on livelihood and employment issues. He told the Court some 1.5 lakh people were dependent entirely on mining. He made a strong plea that livelihood was a part of Art 21, which also included economic empowerment. He said that intergeneration equity is also integral to Art 21. Moreover there is no deadlock between development and environment and hence the expression “sustainable development”. Total investment made by truckers is Rs.3250 crores and they have outstanding loans of Rs.1600 crores. Revenue from mining is important for the State to fulfill its obligations under Art 21. The Court interrupted at this stage and said that during the interregnum ban period, nature in Goa had also regenerated and we have to also look at that. RS Prasad informed the Court that large number of pople have invested in trucks and taken loans for the purpose because mining has been the most important industry for employment generation, livelihood and growth of the economy. He said they were decidedly against illegal mining, but there should be no ban. The Court then asked, if there had been revenue from mining even when international prices were not so high. Counsel answered, yes, it has been the most important revenue earner for Goa for a very long time. RS Prasad deal for some time showing the Court how intergenerational economic improvement of families and individuals had been possible because of mining employment. He read out some case histories showing individuals employed in mining over three generations. Wealth from mining was making these things possible. The Court expressed the view that difficulty was the more the growth, the more the concentration of wealth. It was not getting distributed. That was their worry. Situation was not changing. RS Prasad insisted that workmen have a right to life and it springs from the continued need to earn a livelihood. The right to employment, he said, quoting a judgement, is a fundamental right. The Court queried him: Can any person enforce this right to employment, saying I do not have a job, so give me one? Prasad tried to make a distinction. He said if someone did not have a job, he could not get one as a fundamental right, but if he had a job it could not be taken away from him, and if it was, he certainly could come to ask for it to be restored. He said made 4 points in conclusion: a) There was no blasting in Goa, it was very different from Orissa, Chattigarh, Karnataka, etc. So there is no disturbance to wildlife. b) He asked the Court to ensure that gram sabhas are part of the monitoring mechanism for mining activity because environment is a community resource as is mining for the people in those villages close to the mines. c) Cap on mine production should not lead to a complete halt of mining. d) If there is a buffer zone to be fixed around WLSs, let there be a wall built between the WLS and the mining areas so both can live and let live and there are no violations. He then read several judgements including the Supreme Courts judgement on the Koodankulam nuclear plant case. He said the Court had held that in such a severe case of fears of radiation pollution potential, certain acceptable levels of radiation are permissible because economic activity of supplying badly needed power was more important. He referred to the judgements in the Narmada Bachao Andolan case, the Olga Tellis case on pavement dwellers rights and other judgements to emphasize his arguments that means of lifelihood is a right to life in itself, that economic empowerment is also a part of Art. 21. Thus, one also gets to see real life TV personalities performing in Court. Some compensation that! Senior Adv. Ranjit Kumar took the floor on behalf of Pandurang Timblo Industries (PTI). He first attenmpted to complete the arguments legitimizing dumping outside the lease made by earlier lawyers by calling the attention of the Court to Rule 33 of MCDR, 1988. He then settled down in the buffer zone and remained there for the rest of the day and the following day as well (that is, 23 October) till post lunch 2.20 pm. He began by referring to the CEC report on buffer zones dated 21.9.2012, which is the next report on the matter after the order dated 4.12.2006. He said CEC had made 4 categories of buffer zone distances in that report: WLSs in category 1-3 would have a buffer zone of 100 metres from the boundaries of the WLS. WLSs in category 4 would have a buffer zone of 500 metres. WLS in category 5, 200-500 sq km would have a 1 km buffer zone WLS in category 6, more than 500 sq km would have a buffer zone of 2 km Amicus curiae in that matter (Adv. Harish Salve) agreed with the CEC on all the categories except for the 200-500 sq km category, where amicus said it should be 2 km (and CEC 1 km). Union of India reply did not agree with the CEC because it felt the CEC buffer was too little. Ranjit Kumar, criticising the 10 km buffer zone, gave the example of Sikkim. With a 10 km buffer, 83% of Sikkim would be out of development, including the Sikkim High Court bldg., which was within 10 kms. The Supreme Court observed: “These are only nightmares.” (End of Ninth Day Proceedings)
Posted on: Sat, 26 Oct 2013 07:27:16 +0000
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