Category Archives: Goa mining scam

Goa Mining Case Day 8

-Claude Alvares

8th Day at the Supreme Court of India with the Goa mining case

K K Venugopal Photo courtesy: The Hindu

K K Venugopal
Photo courtesy: The Hindu

The mining industry’s lawyers were on their feet the entire day. KK Venugopal, who had not concluded yesterday on behalf of the Salgaoncar Bros., could not attend this morning. Chander Uday Singh took over from where KKV had left off. Chander Uday Singh’s effort to represent the Goa Mining Association was not agreed to by the Court which wished to hear first all those mining lease owners who were in the category of “affected parties” and who had filed Intervenor Applications in 435, or filed challenges to the Shah Commission (which the Supreme Court had transferred from the Bombay High Court on 19th September). After Chander Uday Singh, Sundaram took the wicket on behalf of Chowgule and Bandekar. He ended his innings at lunch. After lunch, Rafiq Dada took charge for Fomento and was still batting when the Court adjourned for the day.

He will resume next on 22nd October, after the Dussehra vacations.

There are still some mining companies and the GMA left to be heard after that. Petitioner’s counsel, Prashant Bhushan, will rejoin before the Court will terminate the hearings. In between, there is still the issue of the buffer zone for all the six wildlife sanctuaries and national park. We do not know whether the Court will rule on that issue, considering hearings in respect of buffer zones have been taking place sporadically in other cases. However, the Court has tagged along with WP 435, WP 460/2004, also filed by the Goa Foundation and IA 1000 (Jambugarh Wildlife Sanctuary matter) where the ban order on activity in 1 km zone of all wildlife sanctuaries was passed on 4.8.2006.

So what did Chander Uday Singh try to plead on behalf of KKV and the Salgaoncar Bros? He went to a map enclosed with their application which showed a road between the Bhagwan Mahaveer Wildlife sanctuary and the mining leases of the Salgaoncars. He said this road, which branched off to Tambdi Surla, went further down and joined the NH. He therefore pleaded that in such cases, if the buffer zone was to be specific to that sanctuary, the road — and not 1 km — should be the limit of the buffer zone.

 Justice Patnaik Photo courtesy: nluo.ac.in

Justice A.K. Patnaik
Photo courtesy: nluo.ac.in

Justice Patnaik interrupted at this stage. He emphasized two things which he said should be distinguished from each other. First, irrespective of the State Government, the MOEF could issue a notification for a buffer zone under the various sections of the EPA and EPA rules. Once such a notification was issued, all activities disallowed by the notification would cease. This would have implications for fundamental rights under Art.19 (i) (g). MOEF would therefore issue a draft notification, invite objections etc., before a final notification.

The second aspect involved the Court’s power and jurisdiction. Irrespective of where the minerals were (on private or state land), State of Goa is the owner of the minerals. Art. 21 obligates the State to protect life and environment. Even if a central govt notification is not there, the State Govt is obligated under Art.21 to maintain life which includes environment and which includes flora and fauna. The State cannot therefore allow minerals to be exploited (since they are its property) — irrespective of any notification under EPA, 1986 — if the action of exploitation affects Art. 21 and the environment. The Court put the mining respondents on notice on this position it was going to take.

A long way ahead.  Photo credit: N. Ravi Kumar Source: The Hindu

A long way ahead.
Photo credit: N. Ravi Kumar
Source: The Hindu

Since the discussion was in context of establishing buffer zones around wildlife sanctuaries, this Court could declare extent of buffer zones if it had to protect Article 21 and the environment. Article 21 is guaranteed by the State. “Under our Art.32 powers we can direct its enforcement by the State.” The Court found this position also affirmed in the Okla Bird Sanctuary case. Justice Nijjar said we could enforce Art. 21 as per the facts of the case of mining in Goa that have emerged before the Court. Court could therefore enforce buffer zones under its own power to enforce Art. 21.

Justice Patnaik referred to the dust pollution affecting the forest vegetation outside mining leases. He said if you live by the side of a road where there is traffic, you can have a layer of dust in your house. Common sense indicated that air pollution would affect a sanctuary’s vegetation. Animals would be eating vegetation contaminated with such pollutants. Such pollutants could travel more than a kilometre.

Counsel for the mining companies however appeared distressed that the Court might direct the extent of a buffer zone. They tried to impress on the Court that the Goa govt had already sent a one km buffer zone proposal to the MOEF. The MOEF was to notify these proposals and put them up for public consideration before finally notifying them. [From earlier reading of documents, it appears the Goa govt., as usual, has suggested a 1 km buffer zone, but with one condition relating to the mines. These will be allowed to operate for 10 years and then phased out. This means the buffer zone would not operate for 10 years. Probably this is the Goa govt’s idea of a bad joke. In court today, however, the counsel informed the Court that the “leniency” period for mines operating in 1 km buffer zones would be 5 years.They appeared to be unable to muster the courage to inform the Court that the truth was actually 10 years.]

Counsel therefore pleaded with the Court that it should wait for the MOEF to declare the buffer zone. “If the govt does its job (in issuing the notification declaring buffer zones), the Court would be relieved of the burden.” Court was unimpressed. It referred to other situations including Sterlite, where notifications were not forthcoming for years, despite Court interventions. The Court could not tell govt to issue notifications and laws where and when the Govt had the power. But if the Court found the Govt would not do so or was delaying, resulting in environmental damage, the Court could go ahead and declare the buffer to protect Art. 21 and the environment.

The Court expressed difficulty with the idea that buffer zones must be sanctuary specific. It said the buffer zone must relate to activity. For example, mining, nuclear reactors, etc., would require a different distancing than a road or habitation.

Chander Uday Singh pleaded: “Let the process of notification be completed! In a few months, you will have the actual notification before you!”

Well, it’s upto you whether you want to trust the Court or anyone else, said Justice Patnaik. Chander Uday Singh referred to Dantewada (a Maoist trouble area), and said that if mines were closed and employment was killed, people might turn to similar activity. [Earlier, he had said the Salgaoncar mines whose cause he was now pleading had been shut from 2007, since they lacked forest clearances.]

After this, Chander Uday Singh (who is an old acquaintance of mine and a very decent bloke) tried to address the Court on the IA filed by the Goa Mining Association. Court said he could speak only after all mining lessees had completed their submissions. [It is important to emphasize here that the GMA was only registered as a society some two years ago. The more established association is the Goa Mineral Ore Exporters Association. Interestingly, GMOEA has not filed an IA, since it got itself registered as a Society only this year. Despite being unregistered, GMOEA set itself up as an “Authority” and collected payments amounting to several crores illegally from mining companies ostensibly to approve or legitimise their export contracts. But it was not appearing in the present proceedings at any rate!]

Adv. C.A. Sundaram then took the stage on behalf of Chougule and Bandekars. He first tried to impress upon the Court that mining had a long history in Goa. Chougule was a very old and established name and was upset about being unfairly mixed up in illegal mining charges. They had contributed much to society over 50 years [but he would not say how much they took and put in their own pockets]. His main effort was to try and show there were no illegalities associated with the companies he represented. All that the shouting about illegalities, he said, had produced as a nice conclusion the idea that the industry needed regulation. He admitted, upon Court’s probing, that even if you are fully legal, your activity can be restricted under Art.21.

All figures are in Million Tonnes (Source CEC (Interim) Report) Source: downtoearth.org.in

All figures are in Million Tonnes (Source CEC (Interim) Report)
Source: downtoearth.org.in

He raised 5 points as issues in the petition: 1) the buffer zone issue, already addressed by KKV; 2) the dump issue, addressed by Mukul Rohtagi; 3) the excess mining issue; 4) mining without ECs or Forest Clearances or ECs illegally granted in sanctuaries; 5) carrying capacity and the cap on production. What cap needed to be arrived at was part of regulatory action. Relevant facts necessary to arrive at the cap could be: a) decreasing ground water levels; b) effects of mining on flora and fauna and c) destruction of agricultural lands. (Intergenerational equity could come under capping.)

He said his clients did not do illegal mining. They used state of the art technology and did no damage to the environment. On the issue of dumps as encroachment, he criticised the Shah Commission who had held all dumping outside lease area as illegal. State govt, because of this finding, had issued notices to Chougule and Bandekar and others. Shah Commission never looked at the all the legal provisions connected with dumping outside leases nor examined that the land was privately owned and therefore could be used for dumping.

Sundaram said the Shah Commission had at the most done “prima facie fact finding.” Justice Patnaik agreed, saying that none of these leases had been terminated for any wrong doing, so where was the issue? However, it triggered off, in this case, the entire enquiry that is now the basis of this Court’s intervention. Sunderam repeated Rohtagi’s view that the Shah Commission might not be correct on dumping in view of statutory provisions that allowed it.

Netravali Forest Range Photo credit: Giovanni D'Cunha Source: http://giovannidcunha.wordpress.com/

Netravali Forest Range
Photo credit: Giovanni D’Cunha
Source: http://giovannidcunha.wordpress.com/

After this, Sundaram tried to defend the actions of former Forest Officer, R.A. Mazalkar, who had as Collector excluded several (55) mining leases from the Netravalli wildlife sanctuary, including Chougule’s two leases. He held there was no illegality because the officer had excluded these leases as per the provisions of the Wildlife Act.

The Collector, in that case, said Justice Patnaik, could not say no, because of the big bosses. If you argue the point further, we will go after the Collector who did nothing more than disobey the law and obey the boss. The Collector’s powers are in respect of land rights, surface rights, yes. But so far as minerals and leases are concerned, the Collector has no power!

19 ECs had been issued for leases in Netravalli sanctuary. Justice Patnaik asked, once a sanctuary is notified under section 18 of the Wildlife Act, can ECs be granted?

As far as 1 km was concerned, Sundaram said their activity could not be termed illegal, as their mining plan was approved by the IBM. In that case, said Justice Patnaik, we shall hold IBM responsible! Sundaram told the Court that he was concerned about what should be done in mining in the future. He was interested in the matter “prospectively”. The bench was sceptical and remarked that its earlier “prospective” orders (4.8.2006 and 4.12.2006) had not been implemented.

Afternoon: Rafiq Dada took charge for Fomento Industriale Irmaos. Neither he nor anyone else appeared confident of pronouncing the Portuguese sounding name. Adv. Dada, like Chander Uday Singh, is a very nice gentleman, always courteous, always unflappable. This is how lawyers should be. He tried to argue against the Shah Commission Report. The bench told him quite firmly: argue against the Shah Commission. We will quash the Shah Commission Report, based on your petitions. Then we will order the Shah Commission to carry out the investigation again, after giving you all due notice. Thereafter, you will not be allowed to challenge the Report. Till this is all achieved, the ban will remain in force. Do you want this option? We are trying to sort out this matter expeditiously.

Adv. Dada retreated after Justice Kalifulla advised him to reverse the priority of his arguments. He told him, argue Shah Commission last. So Rafiq Dada took up the issue of Section 24A of the Mineral Concession Rules, 1960, which governs renewal of leases. Suddenly, as the discussion on that progressed, things began to look very bleak for the industry. But about that, in the next post since I now need to sleep.

Advertisements

Goa Mining Case Day 7

-Claude Alvares

Seventh day at the Supreme Court of India on the Goa mining case:

The bench remained firm on its approach to the Goa mining case and the issues it has raised. Private mining companies took the stage for most of the day. A last ditch effort by Mukul Rohtagi to persuade the Court to allow the transport and sale of ore piled up at leases, jetties and stockyards was summarily rejected by the bench which indicated it was hearing the matter fully.

SG Mohan Parasaran

SG Mohan Parasaran

Mohan Parasaran, SG, began the morning’s arguments. He first presented to the Court a copy of the agreement signed between MOEF and the Indian School of Mines, Dhanbad, in connection with the Regional Environmental Impact Assessment covering the Goa mining industry. A copy of that will shortly be scanned and put up on the Goa Foundation website. The ISM report was to be filed at the end of September, but now the institution has delayed the submission mostly likely to incorporate some of the concerns being expressed by the bench. A whole lot of people are awaiting submission of the final report, which will be in only at the end of October, unless it is delayed further. Parasaran waved an interim report submitted by ISM in April 2012, but said it was not very revealing since it was merely concerned with technical matters.

Parasaran next produced for the court a voluminous report by the Planning Commission on sustainable development in the mineral sector. He did not read any portion of it. A summary will be posted in these columns when we have the time to read it. Such reports are not written by Frederick Forsythe or Arundhati Roy, and often, one has to go through several bouts of dozing before one can complete reading the entire report.

Indian School of Mines, Dhanbad - Jharkhand

Indian School of Mines, Dhanbad – Jharkhand

The third document produced by Parasaran was on the ground water and mining and according to him, dealt with Goa and Karnataka. He referred to new guidelines for the ground water extraction in mining areas issued on 15.11.2012. He was fair enough to inform the Court that the spurt in reports was all happening after the mining scenarios of Karnataka and Goa. He concluded by telling the Court: “Now we have all woken up!”

In relation to capping of production of ore from Goa, he sought to convey that a restriction was indeed placed when the EC was being considered after the EIA process. However the bench was not convinced because it said, it was still seeking answers to whether the cap should be on individual mining leases, area or state-wise. At the present moment, the Court said, once you find ore, you can take out all you want. All incentives are in place for that. Capping has to be done for intergenerational equity and to protect the environment. Parasaran agreed that present mining rules are like that. He finished and sat down.

AG, Goa tried to address the Court, but the Court disallowed that. There was a brief lull. K K Venugopal, who was supposed to lead the private brigade, was on his legs in another courtroom. Eventually, Sesa counsel

Mukul Rohatgi Photo courtesy: The Hindu

Mukul Rohatgi
Photo courtesy: The Hindu

 one of the most high priced lawyers in the country, took over and stayed on his legs till 1pm, when he retired for the day. He spoke for 1.5 hours.

He produced a 3 volume defence (dismay, more reading to do). His first assault was on what he called “the fixed stock theory” on natural resources. He said the theory had been debunked. He quoted an English authority to the effect that “fixed stocks” of minerals was a figment of the imagination, since ore reserves kept being revised upward every few years. The Court however interrupted him and told him not to waste his time on that argument. It said Rohtagi was an interested party, and it needed advice from independent experts.

Rise and Fall of Liberalism by Frederick Clairmonte

Rise and Fall of Liberalism by Frederick Clairmonte

Court asked Rohtagi if he had read a book on the Rise and Fall of Liberalism [written by Frederick Clairmonte?]. The book apparently argued that the business lobby was influencing all thinking across the world, including judicial thinking! I can lend you the book for you to read, said Justice Patnaik. He referred to English thinkers (Hobbes, Locke, Rousseau), the key people involved with the idea of the social contract. All these thinkers wanted laissez-faire policies, and the social contract was to be the given input. It all depends who is talking and his thinking will develop as per his interests! Court again said it wanted independent advice from experts, it could be ISM, NEERI or ICFRE. Rohtagi only objected vociferously to the CEC, saying it did not have the expertise. The CEC had migrated from its original expertis (forestry) now to mining, according to him. He did not refer to the fact that the Court in the Karnataka judgement went almost wholly by what the CEC had recommended.

So Rohtagi was unable to read his submissions on the demolition (according to him) of the fixed stock theory, so he went on to two other issues of great relevance to Sesa Goa: dumping outside the lease area and dump mining. He said he was also supposed to address the court on the buffer zone, but was desisting from doing so because K K Venugopal, batting for Salgoncar & Bro., would be dealing with that.

According to Rohtagi, the Supreme Court judgement in the Karnataka judgement holding that dumps outside the lease area were illegal was itself wrong since its interpretation flew in the face of statutory provisions. He said that dumps were approved in the EIA, EC and also in the mining plan. He conceded dumps were not shown on the lease plan, but certainly on the mining plan. He proposed a new way of bypassing the statutory recognition that the IBM has no authority to approve any activity beyond the sanctioned lease: he proposed to the Court that we must know that the “mine area is larger than the lease area.” He said one could not mine beyond the lease area, that is, the mining pit must be within the lease. However, the dump could be outside the lease. He referred to mines in which the entire lease was mineralised and the pit covered the entire lease area [probably referring to the Cosme Costa lease, illegally operated by Sesa Goa]. In such cases, the dump had to be outside the lease!

A check on greed in the iron age Photo courtesy: business-standard.com

A check on greed in the iron age
Photo courtesy: business-standard.com

The difficulty as I see it: the Karnataka judgement has become the basis for cancelling all those mining leases in which dumping outside the lease area exceeded 15% if the lease area. In Goa, in fact, encroachments outside the lease have touched 2-4 times the area of the lease itself, that is not 15%, but 200-400%. Rohtagi was therefore seeking to denude the Shah Commission’s report on these encroachments.

As far as the second issue is concerned, dump mining, Rohtagi said once the ore had already been removed and dumped somewhere, one did not require a fresh environment clearance to clear the dump. He said some of the dumps had been created 20 years ago [when there was no need to have environment clearance]. The Court wanted to find out if there weren’t any disputes in relation to the ownership of some of these old dumps. Rohtagi said there were no such conflicts in Goa at all! [Of course he was not present in Goa when Sesa Goa and Fomento recruited more than 300 private security guards to claim sub grade belonging to a third party. Or what about the R.S. Shetye ore grab? But lawyers say what they want.]

The Court responded that it was a policy matter and if the Government decided that dumping mining needed an EC, they had the power to insist on it.

Rohtagi showed the Court pictures of the Sanquelim dump which has been shown by Sesa Goa to every visitor to Goa now for several years. He showed the Court pictures of the Vaghuriem dump without telling them [naturally] that it was in violation of the EC and consent imposed by the Pollution Control Board. When you are with your back to the wall, take the bull by the horns. Even the brazen abuse of the 2003 order of the Bombay High Court restraining companies from raising dumps without explicit permission from the IBM and the Water Resources Dept was turned on its head, claiming the High Court had not prohibited dumping outside the lease area!

Rohtagi then took the court to the MCDR Rules to show that the environment was considered when mining operations were sanctioned. [Despite these regulations, not a single mining lease can show you even a one foot high hill of topsoil which they are to keep aside prior to mining below the surface.] Rohtagi insisted that the system was in place in all respects for environmentally safe mining. The bench noted that all these rules had only been inserted in 2003. However, illegal and environmentally unsustainable mining commenced thereafter.

Rohtagi told the court about the mining bypass project and then disclosed that the bypass would only use trucks that would be five times the capacity of existing trucks. He said present day trucks were too many and caused pollution. When they were replaced by 50 tonne vehicles on the mission byepass road, all problems would be a thing of the past.

Rohtagi concluded by pleading they be permitted to take out the ore laying in stacks on leases, jetties and stockyards. He clearly distinguished this from mining the dumps. He said this material had already been taken out and it was now an environmental hazard. The Court was unwilling to consider his plea. We will allow 50,000 tonnes and they will take 5 million, one of the judges said. In any case, this was not a hearing to vacate any stay, the Court was hearing the petition fully.

K K Venugopal Photo courtesy: The Hindu

K K Venugopal
Photo courtesy: The Hindu

Afternoon, K K Venugopal took over and remained on his feet till the Court adjourned for the day at 4.00 pm.

KKV said he was arguing the case of VM Salgaoncar and Bro. The main objective was to persuade the Court to cancel the rejection that the Forest Advisory Committee had made of 4 Salcaoncar leases that were in the 1 km safety and no-mining zone from the boundary of wildlife sanctuaries. There is a brief history to that which he took time to establish.

Salgaoncar & Bro [together with other lease holders like Prafulla Hede] had approached the Supreme Court with an application in Writ Petition No.460/2004 (another GF petition in the Supreme Court) to direct the Ministry of Environment & Forests to treat Goa as a special case or exemption from the order of the Supreme Court declaring the 1 km zone as a safety zone around all wildlife sanctuaries in the country. The Supreme Court directed the applications to be placed before the Standing Committee of the National Board of Wildlife for its decision. The Standing Committee was divided: the majority allowed the mines to function though they were in the 1 km zone, but restrained them from exceeding the mining pit area. Three non-official members vociferously objected to the proposals. The matter was sent back to the Supreme Court, which seeing the division, referred the matter to the Forest Advisory Committee (FAC) appointed under the Forest Conservation Act, 1980. The FAC said it was rejecting the proposals. The matters have lain there since then and KKV was essentially to resuscitate them and liberate them from the FAC burial. KKV argued that wildlife matters are not touched by the FCA but the bench insisting that wildlife and forest matters are interconnected. ANS Nadkarni tried to intervene to tell the Court the State Government had submitted its proposals for buffer zones for Goa (1 km) and the MOEF was supposed to notify them, which would make the discussion raised by KKV redundant. But the Court told Nadkarni that the most difficult thing is to get the govt to issue final notifications. The Court then rose. Resume on 3rd, at 10.30 am.

[Text in square brackets sourced to CA]. This is not a press note, but a personal rendition of the hearings to preserve my memory so that we are ready for rejoinder when the time arrives.

Goa Mining Case Day 6

-Claude Alvares

Notes on the sixth day of the Supreme Court’s hearings on the Goa mining case

SG Mohan Parasaran addressed the Court the entire day and was on his legs at the time the Court arose. The matter will resume on 1st October and 3rd October (Gandhi Jayanti on 2nd October being a holiday.) The hearing may stretch into 8th October and then the Court will go on vacation.

Supreme Court of India

Supreme Court of India

Advocate General, Goa, ANS Nadkarni appeared in Court today. He told me he went to pay his respects to Lord Ayappan every year on the same days, so this year, the Court fixed the Goa mining case on the same days. He was therefore unable to come to the Supreme Court because Lord Ayappan had not granted special leave. Besides, last week, Datar was on his feet and it was therefore not appropriate to dislodge him while he was presenting Goa’s case.

Court wanted to know the scope of the study being carried out by Indian School of Mines. Did the ISM have environmental experience? Did their study involve issues like carrying capacity and inter-generational equity? Till the time of rising, no one from MOEF could produce the order setting up the ISM study. Yesterday they told the Court the study would be ready by end of this month and would be produced next week. Today they said the ISM report would be ready by the end of October [probably so that they could re-write some portions and pretend they were always conscious of these issues!)

SG Mohan Parasaran

SG Mohan Parasaran

From Parasaran’s account it appeared that the Court had indeed been fooled into hearing the petition. Court wanted to know how they had been persuaded to hear the petition in the first place and why it was being blamed for the stay on Goa mining considering the following facts that became clear during the hearing:

a) ISM study, disclosed to the Court at the last minute, would not be ready till the end of October 2013. (Please note that the study would then be copied, made available to petitioner and all respondents and they would all have rights to comment on the report and whether they accept or reject it, since it was not ordered by the Court itself.)

b) Ministry informed the Court it had set up an Expert Appraisal Committee (EAC) to review all the 139 environment clearances given for Goa mining
leases. The EAC already had three meetings. (Though the Court requested last week, MOEF did not produce the minutes of the 3 meetings.) Parasaran informed the Court the final meeting of the EAC would take place on October …. After that Dussehra. Then the Ministry would get the report and decide on whether the ECs should be cancelled. To do that, all the lease owners affected would hve to be given a personal hearing. Imagine a personal hearing for nearly 139 ECs! Then the MOEF would take a final decision and place its report before the Supreme Court. [This lengthy process would probably not be completed before December.] After that, petitioner would have a right to agree or challenge the decisions taken. So would the individual mining lease holders. Till all this was done, stay would remain in place. In fact, even if the Supreme Court vacated its stay today, mining could not resume because the review process had first to be completed.

c) The Court was also informed that the buffer zone issue was being finalised. [Apparently, a team of people including the Environment Minister Natarajan is presently in Goa on this issue.] The buffer zone issue has been complicated further because of the Madei Tiger Reserve proposal. If that is accepted, the buffer zone would be 25 km. The report on buffer zones would also take some two weeks for completion, according to Parasaran.

d) The Goa Govt had asked the Indian Road Congress to do the carrying capacity of Goa’s roads in connection with the load of mining trucks permissible. That report was yet to come in…….

The Court therefore said it would have been better if this petition had been put up for hearing in November. At least all these reports would have been in by then. [The Court cannot give a judgement right now without the reports since these are all related to the issues raised in the petition.] Obviously till these issues are resolved, no vacation of stay. In fact, the Court is not hearing any plea for vacation of stay. In fact, Goa govt has been asking for dismissal of the petition, which has been rejected.

Parasaran read out a prepared note. In the note, he told the Court 5 mining leases had been ordered to shut down in August 2012. He told the Court the Goa govt refused to carry out the requests of the MOEF to stop work on leases that were found to be without NBWL clearance. He said he agreed with the CEC that 43 mining leases fell within the wildlife sanctuaries and within 1 km of the wildlife sanctuaries. He listed around 30 leases in whose cases the need for a wildlife clearance was not even stated in the environment clearance. He also listed several cases where NBWL/wildlife clearance had not been obtained despite this being a requirement. He said only 10 mining leases fell outside the 10 km range (but even these could be having other violations).

About the continuing violations he told the Court, referring to the Goa govt: “They are to be blamed, but we too are to be blamed.” He informed the Court that though the MOEF suspended the environment clearances in September 2012, the EAC to examine the cases was set up only six months later, in March 2013! Justice Kalifullah wanted to know whether the terms of reference for the EAC doing the review included the damage these mines were causing to the environment. Parasaran said no. Justice Kalifullah a second time expressed his firm conviction that maybe mining should be shut down forever. Justice Pathak reformulated the proposal to say that there were two economic models: one in which mining was permissible and the other, in which mining was banned.

Parasaran agreed that leases given out by government could be construed to be a largesse and therefore must be in accordance with law.

The bench spent considerable time on the amount of ore that could be extracted from Goa. It wanted to know why Justice Shah had recommended a cap of 12.5 million tonnes. It wanted to know from Parasaran on what grounds the MOEF had granted ECs for extraction of 66 million tonnes annually. The Court examined the provisions of the MMDR Act, and came to the conclusion that the Act had no guidance and no limits and no environmental concerns in respect of the quantity of ore removable from the earth. It was concerned merely with mining. It encouraged mining. It disclosed no concern for exhaustion of resources or that anything should be left for future generations. Chapter V of MCDR, 1988 laid down some environmental dos and donts, but these were after a mining plan was approved. The mining plan was not based on placing any restrictions on the amount of ore that could be removed from the ground.

The Court was told that market demand also played a role. This was not taken kindly to by the bench. It said clearly that meeting market demand and the requirements of environment protection did not go together.

Goa Mining Case Day 5

-Claude Alvares

Notes on the fifth day of the Supreme Court’s hearings on the Goa mining case

The entire day was taken by the poorly briefed lawyer appearing for the Goa government, Arvind Datar. He specialises in customs and tax matters, and was reduced to reading from the affidavit, while brief by several people who kept whispering in his years. One of the persons assisting was one Shripal, who apparently is the Vice President of a mining company and who, according to people in the know, actually runs the Department of Mines and Geology.

book

Mr Datar spoke till 3.25 pm when he finally sat down, relieved it was all over. He is a decent bloke, one of the few honest lawyers in the business, but even he was unable to save the day. No AG in court even on the 5th day, even as the Goa government’s case was clearly floundering.

Datar first addressed the court on its query of the previous day, about how it had arrived at the cap of 45 million tonnes given in its draft mining policy. He again admitted the figure was ad-hoc, but the 20 million fresh extraction was based on average of mine extraction from 2001 to the 2004 period, when it was between 18 to 21 million tonnes. so the govt took the average of 20 MT. He could not give any reason for the 25 million from dumps.

However, he informed the court of a new development. He said that the Dhanbad-based Indian School of Mines (ISM), a “deemed university”, had been recruited by the MOEF to do a macro EIA of Goa State and that its report would be ready by the end of September. Though he said he had not seen the report, he appeared to be keen to rely upon it. As if on cue, Mukul Rohtagi, appearing for Vedanta, immediately popped up to sing the virtues of the ISM. He ended his singing of the praises of this institution by saying he was saying all this because he knew the “other side” was going to object to the ISM report. Obviously, the entire mining industry appears to be in the know of what the report is going to say. Probably it is going to also promote the figure of 45 million tonnes. More about the ISM study when it is handed over to us in Court on the 1st of October. Court said we are not interested in the reputation of the “deemed univ” or any of its attributes that you are describing but only in the substance of the report.

Photo courtesy: indologygoa.files

Photo courtesy: indologygoa.files

Back to the mining policy: the Court asked for details of the staff of the mining department. Datar mentioned 300 persons were being recruited. The Court raised the issue of their training, since they would be all new. So they would not really be available to do any monitoring or work till that time.

Court once again referred to the Berlin 2 Guidelines on Mining and Environment and expressed its view that they had to get proper scientists to get rehabilitation work done.

When Datar insisted that all the damage had occurred due to the corruption of the previous govt., the Court stopped him and advised him that they were not impressed with the argument. Government is a permanent institution. Whatever party was in power was of no concern to them. In fact, referring to Justice Shah and CEC, the Court said they were non-political people, so their view was better considered. The Court asked, what are your remedial measures? The Court was only concerned with the limits set down by the Constitution. The environment had to be protected. The economy too had to be protected, people needed work. There was a need to balance.

A board informing the suspension of mining operation outside the Sesa mining at Bicholim in Goa. The Supreme court of India has issued an order halting all mining actvities in the state of Goa on the basis of the Justice M.B. Shah Commission report which estimated a whopping Rs.35,000 crore loss to the state due to illegal mining over the years. Photo courtesy: igep.in

A board informing the suspension of mining operation outside the Sesa mining at Bicholim in Goa. The Supreme court of India has issued an order halting all mining actvities in the state of Goa on the basis of the Justice M.B. Shah Commission report which estimated a whopping Rs.35,000 crore loss to the state due to illegal mining over the years.
Photo courtesy: igep.in

Datar however objected to the miners being labelled as “mafia”, as “vultures”. He said this was an instance of “metaphysical exuberance” not based on facts. He said “things were bad” but now the new government was keen to make a fresh beginning.

Court responded: “Handsome is who handsome does, not handsome looks.” They wanted action on the ground. What had been offered so far were only theoretical.

Justice Kalifulla interjected at this stage to ask about the 3 Rs: reclamation, rehabilitation, restoration. He wanted to know what the Goa govt had done on the 3 Rs. Govt said they were going to recruit NEERI. The discussion was now about how could aquifers and mountains be rehabilitated? At this stage, Ranjit Kumar, senior counsel for the respondents, told the court how in the Aravalli mining case (where he appeared as amicus) entire mountain had been removed by miners. Justice Nijjar interjected at this stage that the mountain were not disappearing, they were being taken from here and could be found in China.

Mine at Colamb Photo courtesy: Save Goa

Mine at Colamb
Photo courtesy: Save Goa

After Datar read out portions of the mining Policy which stated that they are going to rehabilitate the mines and then give the land to poor farmers for agriculture and horticulure and allied activities Justice Kalifulla asked how are you going to rehabiitate these mines ? Its not so simple. We have seen the pictures. There are huge pits. can you rehabilitate them? He asked Datar why they were proposing to give these lands to tribals and poor people for farming. He asked whether it was possible to fill the pits and use them for agriculture. What study have you done for rehabilitation of these pits? Was there any scope for rehabilitation of the mines?

Datar referred to rules in place governing rehabilitation and attempted to read them. Justice Patnaik intervened. He said the ideas were all there, also the statutory rules, but all were given the go-by because of other considerations. Things would only improve if these things were implemented. If government wanted to implement rules, nothing could come in its way. Justice Kalifulla said that ecology was important, and maybe they should close the mines for good if this was the situation and find other ways of finding a living. (At this stage, one of the lawyers for the respondents was heard saying loudly that 80% of the population of Goa was dependent on mining!)

Justice Patnaik: This country is for everyone. It is for tribals, for farmers, for labourers, traders, govt servants, etc. But the country cannot be exploited to enrich a few. We must have inclusive growth. Everything we do must subserve the common good. Referring to the manner in which money power, elections, etc were destroying the rule of law, he told the courtroom in his sternest admonition ever in these proceedings: “This must stop! This must stop! This must stop!” We are here, he said, to uphold the Constitution and Article 21 (Right to Life). Only the rich can afford the best of counsel, he remarked.

Supreme Court of India

Supreme Court of India

 

He admonished the govt for not thinking of people besides miners. He said the govt must protect the rights and interests of all. It must think of the common people, the tribals, etc. He once again asked Datar to address the court on how mining could be combined with the common good. He remarked that the lawyers in the Court were being responsible only to their clients. The Court however could only act to uphold the constitution. He said he was aware of Art 19 and that the Court also had to strike a balance. The Supreme Court, he said, cannot fail the next generation. If Supreme Court fails, what else will remain for them? Justice Patnaik said the petition was not an ordinary litigation anymore, a very serious matter.

Justice Kalifulla: It is difficult to shut our eyes. (The judges referred to the photographs annexed to the petition.) Court said even when the Court introduced sanity, the sanity was soon disturbed. There was a system failure. Everything had collapsed, despite mining policy, despite rules. Justice Kalifulla again said somethings could be reversed, but others could not. Scope for restoration of environment in mining was difficult. Justice Patnaik said we were talking of a cancer, which was terminal and for which there was no remedy. How can we revive ecology?

The Court was concerned that with nothing substantial in place, if mining was allowed to restart without an independent and strong regulator, the past would recur.

Datar made a proposal. He said that till an independent regulator was appointed, the Goa Lokayuktha could be asked to function as one and he could file reports on implementation periodically before the Supreme Court. The Court was not in favour, since it was unnecessarily burdening the Lokayuktha. The issue was this problem must be handled by a permanent system of regulation of which there was not much in evidence. You must have your own regulatory system in place, the Court said. The independent regulator must be a tough guy, not amenable to influence, empowered to shut down mines for any infraction. The problem is whether the Goa govt would allow such a person or accept such a person.

The Court was next addressed on encroachments found by the Justice Shah Commission. Datar produced a table to show that Justice Shah Commission had made several errors which had been found when the Govt carried out a fresh DGPS survey of the boundaries. He said if these errors were admitted, the Shah Commission figure of Rs.35,000 crores loot was bound to be an exaggeration. Court asked Dater: what was the PAC finding? Datar said it was Rs.3500 crores.

The Court was next shown a report from the Central Ground Water Authority which showed that whilst in Delhi and other parts of the country, groundwater was critical or overexploited, the situation as described in 11 talukas of Goa (based on 11 samples) was normal and quite safe. Court found it difficult to accept this when it had on file several reports of ground water depletion and pollution and said much depended on where the samples had been taken.

Datar next took up the Shah Commission report. Court asked him whether the Goa govt was taking action based on the Shah Commission’s findings or on its own findings. Datar indicated the latter. If so, the Court said, it would not have to consider objections to the Shah Commission report. In any case, the Court was not bound by what was said in the Shah Commission report. It had report of the PAC, which was a report of the Legislature and also the CEC report. The Court said it would not listen to individual complaints. If that were allowed, the petition would not be disposed of for six months! Even as far as the petition was concerned, the Court said it was looking at it as a source of information. If you disagreed with the Shah Commission’s findings, the Court asked Datar, why didn’t you challenge the findings yourself? Datar said the Commission of Inquiry could not have functioned without giving the government notice. That is a statutory requirement.

The Court finally advised the Goa govt counsel to put down in a document, its findings on Shah Commission, CEC and the writ petition.

Datar finally told the Court that the State Govt had the right to act, implying that the Supreme Court should leave the matter of implementation to the State Government. Please leave us alone to act by ourselves, he pleaded. We have just come to power.

On the issue of auction of mining leases in the context of the presidential reference in the 2G judgement, Datar told the Court that auction was not contemplated in the Act, the Presidential Reference in fact referred to the MMDR Act as an example of allocating natural sources through route other than auction. He said the scheme for allocating of mining leases was laid down in detailed in the MMDR Act and was in force for several years.

Datar concluded by saying the writ petition filed by Goa Foundation was “premature”. He said he would address the Court on intergenerational equity. Justice Nijjar expressed the view that the Constitution of India was essentially a document infused with principles of intergenerational equity. Justice Patnaik said he had just read an article which said that President Obama was struggling to return America to a welfare state, but we in India were moving towards a laissez faire state.

Solicitor General Mohan Parasaran addressed the Court on behalf of the ministry of mines and MOEF. He began by admitting to some actions that were indefensible. He also supported the position that the Presidential Reference did not mandate auction of natural resources like mineral ore. He commenced explaining the EIA process to the Court, but soon it was time for the Court to rise for the day.

Parasaran will address the Court tomorrow. If he finishes, the miners and intervenors will address the Court on 1 and 3 October. The petitioner may file rejoinder submissions and be heard on 8th October, which will be followed by one week of Court vacations.

Goa Mining Case Day 4

-Claude Alvares

Fourth day at the Supreme Court of India in Court Room No.6. The case: mining in Goa.

CEC continued and concluded its arguments by 12.30. ADN Rao read out all the various recommendations made by CEC in its report. (You can download the CEC report from www.goafoundation.org/mining.) He submitted a fresh formulation of the CEC’s arguments for enforcement of section 37 (the provision that only leaseholders can mine their lease and cannot subcontract it to anyone else).

Supreme Court of India

Supreme Court of India

Goa government counsel Arvind Datar started arguments at 12.30. His first plea was that the Court should dismiss the Goa Foundation petition. He argued that the GF had not disclosed in its petitions all the actions that the Goa government had taken ever since the Parrikar govt had come to power in March 2012. The Court however said he should not raise narrow technical grounds, whether these were correct or not, in a petition dealing with violation of environment laws and Art 21 of the Constitution. If he wanted to argue thus, the Court would dismiss that objection in just a single para. The Court therefore rejected the plea to dismiss the petition. It did not find any serious infirmity with the conduct of the GF.

Photo courtesy: Goa Foundation

Photo courtesy: Goa Foundation

Adv. Datar then went on to read various parts of the first counter affidavit filed by the Goa government in the matter. He read all the annexures annexed to the affidavit, to show that the state government, after it had taken charge, had taken several actions. (The Goa govt’s counter affidavit and annexures can be downloaded from the Goa Foundation website.) The Court wanted him to explain to them how mining had carried on without a proper regulatory system in place. The Govt counsel blamed the situation on the past government.

The Court asked him if all the actions had indeed been taken by the new government, were they indeed effective? If effective, then where was the need to temporarily suspend all mining by executive order on 10.9.2012. This meant the Shah Commission had substance.

At the moment, the Court appears convinced of the need for imposing a cap on production in the interest of Goa’s environment and intergenerational equity.

Photo courtesy: Goa Foundation

Photo courtesy: Goa Foundation

The Court asked: what is the cap on production for Goa state? What is the state’s environment’s carrying capacity?

The Goa Govt informed the Court that it too was in favour of a cap. It said it had arrived at 20 million tonnes extraction and 25 million from dumps in its draft mining policy. The Court asked Adv. Datar whether any study had been done by any expert agency to arrive at that figure. It said it would only accept a figure which would would be environmentally sustainable. It said it had the power to enforce such a cap under Art 21 and the Directive Principles. Adv. Datar admitted the figure of 45 million tonnes was ad-hoc. CEC counsel ADN Rao informed the Court that in Karnataka, production at the time of the mining ban there was 86 million tonnes, but the cap imposed by the Court was 25 million tonnes. Production in Goa when it was stopped in 2012 was 45 million tonnes, therefore cap could not be the same, as this would be business as usual. In fact, everyone had agreed that 45 million tonnes was the result of large scale reckless mining and by violation of all norms. Adv.Norma Alvares told the Court that macro-level EIA study in Goa had already been done for the Western Ghats sector by the Gadgil Panel and it had recommended closure of 49 mines. Even if one went by the Kasturirangan report, the figures of mines for outright closure by both committees was 38.

Photo courtesy: indologygoa.files

Photo courtesy: indologygoa.files

It therefore appeared obvious that a) first thing to do was to find out the cap on production on expert grounds, since the Goa govt did not appear to have done any study in this connection. b) This cap might be arrived at after the macro level EIA study which would establish the carrying capacity for the state. c) After that, the court would have to be assured that the regulatory agency was in place before mining could begin.

Court adjourned at 4.00 pm. Adv. Datar will resume tomorrow morning.

The Court will also be hearing a batch of petitions challenging the Justice Shah Commission report.

Goa Mining Case Day 2

-Claude Alvares

Second day of the mining case continued without break till 4.00 pm. Prashant Bhushan was still on his legs till 3 pm, when he concluded arguments, leaving the stage open for Adv. A.D.N Rao, amicus curiae for the Central Empowered Committee. He held till 4 pm. Matter will resume at 11.00 am tomorrow. If CEC finishes tomorrow, Ministry of Environment and Forests and Ministry of Mines will take time, before handing over to State of Goa. Atmaram Nadkarni was not in Court for the second day running: surprising. This is Goa’s most critical case, but their principal law officer is gone to Sabarimala. Is it because they feel that only propitiating god will save them at this juncture?

Adv. Prashant Bhushan Photo Credit: Yasbant Negi

Adv. Prashant Bhushan
Photo Credit: Yasbant Negi

Bhushan concluded his arguments by insisting that the SC judgements in the 2G scam and the Presidential Reference precluded any further renewals of leases of Goa’s mines. He said the leases had all to be terminated, evaluation of the environmental and social situation should be done by an independent group of persons, who would decide how much time the ore will be in the ground for the benefit of the coming generations. He insisted that at least 3 generations of Goans should have access to the ore, so the extraction should be spread over a minimum of 100 years. All benefits from the sale must go to them and not to a few companies.

The Court was told that it had granted a suspension of mining operations only after the operations had been stayed by both the State and Central Governments. Justice Patnaik wanted to know why then was the Court being blamed for the stay and what indeed was the need of hearing the petition at all at this stage? Mining companies then jumped into the fray to claim they had challenged the orders of the State Government and the Central Government staying the mining operations and challenging the suspension of their environment clearances. Many claimed they had challenged the Shah Commission Report as well. These petitions had been filed in the Bombay High Court at Panaji, and several transfer petitions had been filed to bring them to the Supreme Court.

Mine at Colamb Photo courtesy: Save Goa

Mine at Colamb
Photo courtesy: Save Goa

One proposal that even emerged was that the challenges to the Shah Commission Report, the state government’s order dated 10.9.2012 and the MOEF’s suspension order dated 14.9.2012, together with the Goa Foundation petition on buffer zones (460/2004) should also be brought to the same bench and heard, since they were all interconnected. If this happened, Justice Patnaik said, the Goa government would have to defend its order dated 10.9.2012 ordering temporary suspension, while the MOEF would also have to defend its order suspending all the ECs!

This dismayed the mining industry representatives: if that happened, the hearings might stretch into months, since there were so many petitions, some even challenging the CEC report, the Court would have to spend weeks and weeks on unravelling the mess. The Goa Foundation would have to be given copies of all the petitions and would then seek time to file responses. So instead of the present petition being heard and disposed of in two weeks for the benefit of all (which is what the Goa Foundation itself wanted), the companies have now ensured, without even wanting it, that there will be endless delay and no chance of the suspension of mining being lifted. This appears to be the natural consequence of filing too many petitions and having too many lawyers. I could of course be completely wrong and something else might emerge, so treat this as loud thinking, that’s all.

Of course, the court never decides anything in haste. It has said it will look at all this tomorrow morning when it assembles. What tomorrow brings, only God knows!

Today, significant portions of the PAC report itself were read in the Court by Prashant Bhushan. He also introduced the Court to the Gadgil Panel report, and read a good bit of the August 2013 report of the Standing Committee (Lok Sabha) Coal and Steel, which had recommended a complete ban on all iron exports from the country.

The Goa Foundation also presented a composite table showing how every mining lease in Goa was involved in either on or other violation or illegality, and some were involved in several illegalities.

Goa Mining Case Day 1

-Claude Alvares
Breach of Sesa Goa mine site at Mulgao. Photo courtesy: Goa Foundation

Breach of Sesa Goa mine site at Mulgao.
Photo courtesy: Goa Foundation

The Goa Foundation petition in the Supreme Court on the Goa mining scam commenced today at 10.30 am and went on the full day in a packed court room. Prashant Bhushan was on his legs the entire day with a one hour stop for lunch. Judges heard the matter patiently and with great sympathy. They appeared to be touched by the photographs produced by petitioners on the environmental destruction by mining. Prashant was brilliant. Norma also addressed the Court on specific issues when asked by Prashant. That way the Court is quite liberal.

Central Empowered Committee Member Secretary Jiwrajka also made significant interventions though he is not an advocate. I had a place in the front row with the seniors, so I could assist with the documents. A copy of the written submissions have been sent to all the media. The matter will resume tomorrow. Prashant may argue till noon, after which the counsel for CEC will take over to argue the CEC report.

Though Goa government wanted to make out its case that it was doing everything and the petition should be dismissed, the Court insisted on hearing the Ministry of Environment and Forests before them. The State of Goa is not represented by its Advocate General, Sushant Nadkarni. They have recruited a counsel from Chennai.
More tomorrow.