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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.

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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 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.