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.
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.
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
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.
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!
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.
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.