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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.

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Goa Mining Case Day 3

-Claude Alvares

Third day of the Goa mining case in the Supreme Court. Prashant was present, but AG Goa was not found in the Court room the entire day. Hearings were halted at 4 pm, and will be resumed next Tuesday. Court has indicated it will hear the matter till the end and pass judgement. Good news for all.

Goa Foundation Logo

Goa Foundation Logo

First thing the Court did in the morning was to pass an order transferring around 10-12 writ petitions filed by mining companies and lease holders in the Bombay High Court (Panaji bench) against the Justice Shah Commission of Inquiry Report to the present bench to be heard and disposed of with the Goa Foundation petition. The Bombay High Court was directed to produce the record of all the petitions in the Supreme Court in one week.

Advocate appearing for Goa Paryavaran Suraksha Samittee (GPSS) informed the Court his client had filed over one hundred claims against over 100 mining companies for damage done by their individual mines before the NGT. Some of the companies had filed appeals against the NGT order entertaining his petition there, and they were listed in the office report of WP No.435. He therefore asked to be heard during the proceedings as well. Court assented.

The hearings commenced around 11.30 am with ADN Rao explaining the various findings of the CEC report (you can download the main text of the CEC report from www.goafoundation.org). That took the matter till 4 pm. The Court will resume ADN Rao on Tuesday morning before it goes to the Ministry of Environment and the Ministry of Mines. Goa government will be heard last.

Breach of Sesa Goa mine site at Mulgao Photo Courtesy: Goa Foundation

Breach of Sesa Goa mine site at Mulgao
Photo Courtesy: Goa Foundation

Lawyer for the Ministry of Environment was present in the morning, but disappeared in the afternoon. Court was extremely annoyed. Asked for officers from both ministries to remain present from Tuesday onwards to answer questions. Ministry of Environment is acting like a cat on a hot tin roof, periodically doing the disappearing act.

Court came down heavily on destruction of bureaucracy. It said earlier the bureaucracy provided the steel frame for governance. Now officers were writing notes to favour decisions. The bureaucracy had been shattered and its backbone demolished. It was referring to the questionable decisions taken with the support of bureaucrats who should have advised their masters properly. It found several legal opinions drafted by Advocates General of Goa which actually legitimised illegal decisions or made illegal actions into legal ones.

Encroachment by V.M Salgaocar & I.Ltd of Vasco da Gama in Surla village

Encroachment by V.M Salgaocar & I.Ltd of Vasco da Gama in Surla village

As per the findings of the CEC report, 19 environment clearances were issued for mining in the Netravali wildlife sanctuary despite Supreme Court orders; another 23 were granted environment clearances in the 1 km safety zone from the boundaries of wildlife sanctuaries and another 120 had been given environment clearances in the 10 km zone without reference to the National Board of Wildlife despite the Supreme Court’s order dated 4.12.2006 in an earlier Goa Foundation petition No.460/2004. This may turn out to be a massacre. Goa may never be the same again.

Met Christopher Fonseca and Suhas Naik during lunch. Christopher said this bench would pass a judgement that would put right what had gone wrong in the mining industry in the State.

The judges were extremely concerned about the impact of mining around the wildlife sanctuaries and implementation of the provisions of the Wildlife Act, 1971. They asked for the penal provisions to be read, if persons were found damaging the wildlife habitats.

 Justice Patnaik Photo courtesy: nluo.ac.in

Justice Patnaik
Photo courtesy: nluo.ac.in

Now we rest till Tuesday next, but it is a pleasure to be in this courtroom. The presiding judge, Justice Patnaik, has a great sense of humour and keeps the people quite entertained and relaxed. Bye for now!

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.