Sorry I could not send the notes of the Supreme Court hearings on the Goa matter for days 12 and 13 since we had too many extra meetings and had to complete the rejoinder submissions as well. We will send them in a few days. But the final days proceedings follow: Final (fourteenth day) at the Supreme Court of India in the Goa Mining Case 31.10.2013 The 14 day long hearing of the Goa mining case filed by the Goa Foundation in the wake of the Justice Shah Commission report concluded today at 1.00 pm. The Court has reserved its judgement. Prashant Bhushan argued for the petition till 12.10 pm, after which Senior Counsel Harish Salve addressed the Court as Amicus Curiae on behalf of the CEC. Finally, for a short spell of time, the Karnataka Steel Manafacturers Association made a plea that if the Court was considering allowing the movement and export of 11.60 million tonnes stacked at jetties/leases from Goa, they were opposing the export since they wanted the ore for their own steel mills. To which Adv. Mukul Rohtagi responded that if the Association was willing to pay the price the Chinese were paying for it, they were welcome to have it. The Court fixed 11th November 2013 for passing an interim order relating to constitution of a monitoring committee for overseeing sale of the iron ore stacks at leases and jetties. It would also consider the report of the Indian School of Mines report on the same day and constitute a multidisciplinary committee, if required, to advise the Court on what should be the cap for mining production in Goa considering the demands of the environment and the demands of intergenerational equity (IE). Goa Foundation submitted a list of names for the CAP committee. The Court has requested others including the Goa govt to suggest names as well. Adv. Prashant Bhushan resumed his rejoinder by taking up the issue of dumps outside the mining leases which have been encroaching on revenue lands, private properties and causing enormous environmental damage as the dumps have been hastily erected owing to the large-scale mining. There are no proper safeguards and the run off from the dumps is polluting the waterways and the fields. He referred the Court to the photographs which had been annexed by the petitioner and shown to the Court in the earlier submissions. The river water was red with mining dump rejects. He pointed out that the dumps are in the region of approx. 750 million tons and they are occupying an area of 2200 ha. These overburden dumps (OB) are not stacks of ore but mining companies now want to dismantle these dumps solely for the purpose of removing the ore at the bottom of the dumps. The question however of handling these dumps must be seen in the context of rehabilitation of the mines. The mud from these OB dumps needs to be put back into the huge mine craters which have to be refilled. He pointed out that if the mud from these OB dumps is sent back to the mines this would generate adequate employment for those dependent on mining at least for the next 20 years. People would be employed, trucks would be employed and the OB dumps would be dismantled and mining sites would be rehabilitated. To a query from the Court as to where the money is to come from for this work, he referred to the request of the state govt to sell the 11.60 million tonnes of ore lying at the jetties and leases and that the money from the sale of the e-auction of this 11.60 million tonnes should be credited to the state account and could be used to finance this activity of returning the OB dumps to the mine sites. He also said that this is a requirement under the environment clearance, that the mines are rehabilitated, that back filling is done and that the sites are filled up prior to full rehabilitation. The handling of these dumps for mining ore had to be with the necessary environment clearance. He next took up the issue of capping of the annual production of ore and the principle of intergeneration equity (IE). He stressed that the capping was required to give meaning to IE and that 100 years (three generations) suggested by the petitioner was in fact a compromise as in reality IE principle should extend to several more generations. He also said that the mining companies are doing business to look after the several generations of their own families and providing for them, but this is how they interpret intergenerational equity! The Court said we have to look after the needs of the present generation. To which the counsel for petitioner agreed, but said this must be in turn meet with carrying capacity of the land and protection of the environment. Therefore he said a cap must be fixed to take care of both, carrying capacity and IE. The suggestion for the cap must come from experts who will look at ...... (At this stage, he submitted the list of experts suggested by the Goa Foundation for the CAP committee.) The Court expressed it was keen to ensure that there is a cap fixed for the mining of ore which will ensure that IE is meaningful. Bhushan then linked this to the issue of export of ore, which he said was a natural corollary to the IE principle. And that the 11 million tonnes of ore which is sought to be sold should first be used to meet the needs of the country. He said export would compromise the implementation of any measures under IE. The Court however said these were policy matters which the state govt/central govt can take a decision on and it would not like to interfere and pass orders or directions in this area, keeping in mind the separation of powers. Mr Bhushan next strongly urged the auction of the leases pointing out that the MMDR Act does not absolutely forbid the auction of mining leases and very clearly states that no preferential treatment needs to be given to the previous holder of the lease since section 11 (4) very clearly states that no matter on what date the application for the lease is made, all the applications are to be treated as of the same date and thereafter proceeded upon. Here again the Court pointed out that prima facie it was of the opinion that all leases had come to an end as of 2007. Once that is the case, it is entirely the discretion of the state whether or not to grant the renewal of a case under section 8 (3). Why should we give directions as to how the State is to proceed in this matter without the State first deciding whether to renew leases under Section 8 (3) and to provide special reasons for the same? Let the state first take the decision. You can always come back to us. You can always challenge any decision if it is not in conformity with our judgements on natural resources. For the present, we will not say anything on it. Petitioners counsel next raised the issue of the connivance and collusion of the political class with the miners and the need for an independent authority to regulate mining activities in Goa. The Court observed that the petitioner had indeed made a prayer for such an authority and therefore it would consider this submission. Counsel pointed out that the states submissions as to what it intended to do now that it had a new mineral policy in force was completely unrealiable as actions taken in the past had been given up a few months later. The Justice Khandeparkar Committee had been disbanded after a few months without any work being accomplished. Complaint had been filed with the Lok Ayuktha. Presently there was no Lok Ayuktha in the state. FIR had been filed against some persons, after more than one year of the present govt being in office. Complaints had been filed with the crime branch but no persons had been named. No action was taken against any mining companies or their directors. The AG intervened to say that after the High Court had passed an order for the FIR to be lodged, several mining companies had moved the Supreme Court and had received ex-parte stay of the direction. The FIR now filed by Goa govt was moreover different from the one mentioned earlier. The only action by the state govt that was being tomtomed was de-registering 400 odd traders and reducing their numbers to 47. But even in this case, there was no action against the traders who have all gone scot-free and most important illegal trading could not have occurred without illegal mining. Mr Bhushan strongly emphasized the absence of capacity of the Goa Mines department to regulate mining and prevent illegalities as it is grossly understaffed and is unable to carry out even routine work. The Department of Mines and Geology, Government of Goa, is grossly understaffed to carry out routine work leave alone regulating mining and preventing illegalities. There are in fact on date no senior-grade technical personnel presently in employ. Posts which required technical know-how of mining have been abolished, senior vacant posts have not been filled. The department is under the charge of civil service cadre with no expertise in mining. In a reply to un-starred question in the State Assembly on 11/10/2013, the minister of mines said that the total staff strength of Mines and Geology department was 78 Nos. Many of these are peons, clerks, assistants and typists. This is certainly not enough to regulate 100 odd working iron ore mines, another 300 odd major mineral leases and 200 odd minor mineral leases related to laterite stones and river sand. If even 20 new persons are recruited, there is no space to accommodate them in the present premises, let alone 300. Since bulk will be raw recruits, a minimum of one year’s training will have to be undergone if they have to learn to deal with mining companies and lease-holders who have mined without regulation and fear of authorities for some 50 years. Several staff are under investigation. He then dealt with the submissions made on behalf of the 33 village panchayats which had stated they were strongly in favour of resumption of legal mining. He referred to the State of Orissa which had been claimed in the case of the Niyamgiri Hills mining project of Vedanta that all village panchayats were in favour of the mining project. However, when the Court directed that the opinion of the people be ascertained at a meeting presided over by an ex-judge, the verdict was unanimously against the project in all 12 villages that were consulted. Panchayats can be bought. They are merely 5 people and mining companies can put pressure on them. But the pinion of the Gram Sabhas is a totally different matter and they having suffered the consequences of mining, are strongly opposed to mining at it has been carried out till now. In his rejoinder to the economic data made by the AG for the state of Goa, Mr Bhushan referred to some tables in the rejoinder submissions, pointing out that it was only in 2 years -- from 2010-2012 -- that the mining departments revenue receipts comprised approx 20% of the total revenues of the State. Earlier it was always between 2-6%. Over an 8 year period, the excess profits of the Goan iron ore industry was Rs. 27,563 crores. Over the last 4 years, i.e., from April 1, 2008, the total revenues are estimated at Rs. 62,256, and the excess profit at Rs. 21,257 crores. Over this period, the excess profit alone is greater than the revenue receipts of the Government. He took on the claims of “unemployment” caused by the mining ban. The claim that “thousands of people” became unemployed in Goa due to mining closure is vague and made without basis or statistics. Figures provided for employment due to mining are indiscriminately flouted, from 50,000 to 3,50,000. Govt of Goa recently scaled down its figures of persons affected to 50,000 directly affected and 1,50,000 indirectly affected (in a representation to the Planning Commission which is posted at the PCs website.) NCAER, in a study commissioned by Goa mining industry, estimates mining employment of 30,000, and total indirect employment dependent on mining (trucks and barges) at 45,000. However, the 2005 Economic Census in Goa showed only 6,573 mining employees. Further, in 2009-10, Sesa Goa only had 3,891 employees, while it accounted for over 1/3rd of the Goan iron ore industry – as well as operations in Karnataka, and other activities like pig iron, ships, etc. Adjusting for all these, the estimated direct employment in mining works out to 5,416. The Labour Bureau’s annual Employment-Unemployment Survey conducted in 2011 (prior to the mining ban) reported that Goa has the highest unemployment rate (17.9%) among the states of India. This works out to around 104,106 persons unemployed. If the claim of the Goa govt is true, we would expect a massive upsurge in unemployment. This is not borne out in the official statistics. In a reply in the legislative assembly in Mar-2013, the Labour and Employment Minister put the total unemployed at 1,13,277 as on January 31, 2013, or a marginal increase of 7,171 persons since 2011. Similarly, MNREGA data accessed as of 26-Oct-2013 shows that only 1,626 households have demanded employment in Goa under MNREGA for 2013-14. In a reply to un-starred question 3385 in Lok Sabha on 30th August 2013 Minister of Mines stated that the total Manpower in Mining Sector (excluding fuel, power and minor minerals) in Goa was 8000 in 2011-12, 7000 in 2012-13(P) and 3000 in 2013-14(P). Thus the total employment in mining is less than 1% of Goa population of 15 lakh. Prashant Bhushan concluded his rejoinder by reading the prayers in the petition: This Court may be pleased to determine all mining leases in the state of Goa involved in extraction of iron and manganese ore on grounds of operating outside the law, numerous illegalities, violations of Supreme Court’s orders, questionably granted ECs, violations of environment, forest and mining laws and regulations. It is clear from the proceedings till date that the entire mining scenario as it has unfolded before this Hon’ble Court is an unmitigated mess and cannot be salvaged piecemeal except by cancellation of all leases involved and starting on a clean slate. This Court may also be pleased to issue a declaration that all leases in Goa have expired from 21.11.2007 after period of first renewal ended. No “deemed extension” status is therefore available to the mining lease holders after that date. This will enable the Govt of Goa to commence a fresh mining chapter in the State leaving the past behind. This Hon’ble Court may be pleased to direct the MOEF/State of Goa to cancel all ECs/mining leases that fall within the ecologically sensitive areas of Western Ghats as identified as a no-mining zone by the two committees appointed by MoEF itself: 1) the WGEEP (Gadgil Committee) report and 2) High Level Expert Group (Kasturirangan Committee) Report. In Aravalli case and Doon valley case (1989 Supp (1) SCC 504), it was on the need to preserve ecologically rich areas and forests, that a complete stoppage of mining was ordered by this Hon’ble Court. For future, these areas be declared as a no-mining zone, and no fresh lease be granted in these areas. Explicit provision exists under Section 4(A) of the MMDR Act for cancellation of leases on environmental grounds. In the Bellary mining case, this Court has held it can determine leases under Article 32 This Court may direct the authorities to cancel all mining leases that are located within the Madei and Netravalli WLS. This Court may be pleased to direct closure and cancellation of all mining leases within 2 km safety zone of the boundaries of WLS with immediate effect. Similarly, this Court may be pleased to direct that no mining lease will commence operations without the NOC of the Standing Committee of the NBWL. All these simple and direct orders of this Honble Court have been flouted by respondents. This Hon’ble Court may lay down that the principle of intergenerational equity demands that iron ore reserves must last at least a 100 years. This Court may be pleased to direct that no mining will resume in the State of Goa till an expert body carries out a macro-EIA study and is able to arrive at a reasonable cap on extraction/production of iron ore keeping in view the above principle of intergenerational equity. Since exports of fast depleting iron ore reserves are inevitably linked and have a negative correlation with the demand for intergenerational equity, this Court may be pleased to impose a prohibition on export of mineral ore from the State of Goa to foreign countries. Justice Shah Commission has also recommended a ban on export of iron ore. The ban on iron ore exports that is operating in the State of Karnataka under the orders of this Hon’ble Court, ought to be extended to the State of Goa. No leases may be granted without transparent procedure and competitive bidding for maximum revenue to the public exchequer as per the decisions of this Hon’ble Court in its judgement in the 2G scam and Presidential Reference. Justice Shah Commission has also recommended that all leases be given by auction, which would ensure transparency, competition, objectivity and would ensure maximum revenue for the state. This Court may direct CBI/SIT to investigate all offences connected with the findings of the Shah Commission Report and the CEC Report and take further action as per the findings and after proper investigation. CBI investigations in the State of Karnataka, which were ordered by this Hon’ble Court, have unearthed massive scams, wherein several chargesheets have been filed, several ministers, politicians, officials and mining barons have been arrested. Similar extensive investigation is required in the State of Goa, where the Goa government has admitted that rampant corruption has prevailed in the mining sector for the last several years, however, commensurate actions are yet to be taken. Specific CEC recommendations made in its Interim Report dealing with specific issues be accepted by this Hon’ble Court. There is no Lok Ayuktha as the present incumbent has already resigned. All illegal wealth accumulated by mining actors must be disgorged and persons prosecuted. This Hon’ble Court may direct that evaluation of environmental damages caused by mining activity both within and outside lease areas with adequate rehabilitation plan should be scientifically done with the association of such agencies as the Centre for Environmental Management of Degraded Systems (Delhi University), which has considerable specific experience in restoration of degraded mining areas. Similarly, assessment of damage to ground water aquifers, catchment areas and water reservoirs from mining extraction activity be probed by the Central Ground Water Board in view of CEC recommendations. The Berlin II Guidelines propose association of experts who can deal with environmental problems generated by mining operations and not leave this to lease-holders themselves. State of Goa may be directed to confiscate the ore (not dumps) lying at jetties, stockyards and leases which has been illegally extracted during period of deemed extension. The Govt says the figure of these stocks is nearly 12 million tonnes. Press releases by mining companies immediately after the ban stated these stocks to be in the region of 50-53 million tonnes. CEC may be directed to ensure e-auction of these stocks and put the proceeds in the Goa Govt exechequer. Keeping in view the persistent failure of the MoEF in protecting environment, its collusion with the mining industry, conflicts of interest, the reckless manner in which clearances have been given, the non-implementation of conditions of the clearance, and its lack of independence from the other wings of the government that promote mining activity, this Court may be pleased to direct the constitution of an independent authority for EIA/EC independent of government and the mining companies. Such a body would include experts in ecology, environment and sustainable development and CEC. The process of environment impact assessment would be carried out by agencies appointed and selected by this expert body, and expenses would be paid by the project proponent, instead of the current system where the project proponent exercises significant control over the EIA process and report. This relief further elaborates on the directions of this Honble Court in the Lafarge judgement. In short, this Hon’ble may direct that all the present mining leases in the State of Goa be terminated, fresh leases be given by a transparent process of competitive bidding (auction) in non-ecologically sensitive areas which would then apply for environmental clearances from an independent regulatory body and operate their mines subject to the principles of inter-generational equity. After Prashant Bhushan had completed his submissions at 12.10 pm, Senior Counsel Harish Salve appeared for the CEC and submitted a written note of 10 pages which he read. He said that he was going to mainly refer to the issues in this case in so far as they involved the EPA and the Forest Act. He supported the need for an independent environment regulatory authority made by Prashant Bhushan the previous day. Apart from Article 32, where the Court has the duty to protect the environment, under 3 (3) of the EPA the Court can issue a mandamus as it is has done in the Vellore tanneries case. In 3 (1) of the EPA, the Ministry has the duty to protect the environment which it is already cast upon to do under 48 (a) of the Constitution (Part IV). It is therefore a power coupled with a duty. The moment 3 (1) is read as the duty, 3 (3) is the machinery for enforcing 3(1). Therefore when the Court finds that the Central Govt has not carried out its duty under 3(1), it must direct them to take the necessary steps envisaged in 3 (3). This can by no means of the imagination be called “judicial overreach”. He also ruled out that the proviso to Section 4 of the MMDR Act, excluded the Goa leases from the purview of the Act or some of its provisions. He said this provision applied only for the situation prior to the Act. The Act itself very clearly said from the date of assent, they were all now deemed leases under the Act and therefore the Act in its entirety was applicable to them. He then referred to the recent Vishwanath Anand committee report, serious violations in the ECs based on wrong information, false information, ECs in violations of Courts orders, excess production, unauthorised dump mining, etc and that the Court must take a strict view of these violations because the MMRD Act and all environmental laws apply to Goa since 1987. He submitted that ex-post facto forest clearances must come to an end. There is no question of regularising the illegalities on the ground that huge investments have been made, or people will go unemployed, as it only reinforces the illegalities. We emphasize that mining has been prohibited not just within the sanctuaries but in 1 km zone around the sanctuaries and request the Court to direct and clarify that in such areas, mining is prohibited and all statutory approvals including ECs must be revoked in all such cases. He castigated the MOEF for its decision/proposal to permit mining within 1 km “for the next five to ten years” as being contrary to the Honble Courts order and said that no one can take liberties with the SCs orders, not even the MOEF. If there is any party aggrieved, let them approach the Court first, but such decisions should not be taken by the MOEF if they violate the Courts order. While referring to the 10 km issue, he said that the MOEF has taken the correct decision that all ECs whether pre 4-12-2006 or post 4-12-2006 must be placed before the NBWL and he requested the Court to issue a clarificatory order and direction that the 10 km buffer zone would apply. He said that there has been serious violation of the Forest Conservation Act in Goa as mining leases with forest on them have been operating without obtaining forest clearances on the ground that the mining operations are not on the forest portion of the lease. This is totally wrong he said. The Ministry has made it clear that the EC and FC must both be obtained in cases where forest is part of the lease area and mining plans are approved for the entire lease area, yet mining has commenced without the forest clearance and only on the strength of the EC. In the light of such malpractices he requested the Court to direct that ECs will become effective only after grant of approval under the FCA. On dumps, he was categorical that mining operations can be conducted only in the leased area and mining of minerals from OB dumps outside the sanctioned lease area is not permissible. If the lessee intends to explore the OB dumps in order to locate the ore therein, such activity is considered as mining and therefore all the laws including obtaining EC will apply. In future the OB dumps must be located within the leases themselves and if they are to be outside the leasehold then the EC and the mining plan must provide for the same and all statutory permissions also secured. On the excess of ore that has been mined in Goa from 2007 to 2011, he suggested that the Court may direct the State to first ascertain the lease wise details of ore produced from the returns that have been filed qua the details of ore exported and that the Chief Secretary be made responsible for carrying out this exercise as recommended by the CEC. He supported the appointment of an expert committee to consider what should be the cap for total annual production of ore in the State of Goa. The Court asked whether the suggestion of the Goa Govt of 45 MTA should be referred to this Committee for consideration, to which he replied in the negative and said let the Committee arrive at its own findings – the State can always depose before the committee. On the large scale encroachments observed by the Shah Commission he suggested that the procedure followed by the State Govt for the DGPS survey that it was carried out following due procedure be verified by the CEC who should file its report before the Supreme Court. On the sale of 11.6 MT of ore which the State Govt has requested be permitted to be sold, the Amicus suggested that the procedure to be followed should be that a committee (on the pattern of the Monitoring Committee constituted for Karnataka) be made responsible for verifying the stocks at the various locations, sale through e-auction and the proceeds of the sale to remain in the custody of a Nationalised bank and be released only after a final decision is taken regarding the legality of this iron ore and the Court approves of the same. The Monitoring Committee may comprise: a senior officer of the Mines Dept, Dr. U.V. Singh, member, Monitoring Committee of Karnataka and the Addl. PCCF, Regional Office, MoEF Bangalore. He also adverted to the issue of depletion of water in mining areas and suggested that as a rule mining below ground water should not be permitted and only as an exception it may be allowed provided it is conclusively established that such mining will have no adverse effect. Finally, he supported the request of the petitioner for a strong and independent monitoring mechanism to ensure that the conditions on which statutory approvals for mining are granted are strictly ahered to and do not remain only on paper. Mining operations may be permitted to be resumed only after follow-up action on the Vishwanath Anand Committee is completed, macro-EIA study is completed and decision taken thereon, lease-wise R&R plans are prepared, all statutory approvals are obtained and the details of legal production qua exports and local sale is verified. The court may therefore fix a time limit for these exercises to be carried out and may also direct an interim report to be filed on the sustainablity / cap issue so that some mining operations can be permitted to start in the interest of providing employment to the mining-dependent people. He proposed that the State be declared as receiver for the mines, that some mining be allowed to resume, that monies generated could be deposited and the money disbursed later on. The court said that what is important is that the message must go loud and clear to all that “sub kuch chalega” is no longer acceptable. (This is only a report of the Courts proceedings and does not purport to be a press release from the Goa Foundation.)
Posted on: Thu, 31 Oct 2013 11:34:45 +0000
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