mm&P

Mines Minerals & PEOPLE

1249/A, Road No: 62, Jubilee Hills,

 Hyderabad 500033 – A.P.  INDIA

Tel/Fax: +91 40 354 2975, 6505974

 Email: mm_p@satyam.net.in

 Website: mmp.n3.net

 

4th October 2000

  Dear Friends

This is an important note on the Andhra Bauxite Issue and moves to amend the 5th Schedule of the Indian Constitution. I request all of you to treat this urgent and respond by sending emails/ Fax of protest to the AP Govt on opening up Bauxite mining

in the pristine hills of the Eastern Ghats and to the Centre for its secret attempts at repealing protective legislations in the tribal areas.

  The Events Leading to this Action Alert

  The Eastern Ghats of India are endowed with many natural resources  - Forests, Water, Land & Minerals. It also happens to be the home of large populations of tribal peole from time immemorial . It has witnessed many revolts in the last 250 years by the tribal people, mostly on the rights over land, water and forests. The legislative history of laws protecting these people and regions dates back to over 150  years.  While framing the Constitution of India two unique Schedules were added namely , the V & VI Schedules, to deal with the tribal areas in order to protect them from undue exploitation of the  mainstream societies.

  We are here concerned with the V Schedule laws in the state of Andhra Pradesh which are the Land Transfer Regulation Act of 1959, Regulation 1/70 and the Ammendment to Section 11(5) of the Mines & Minerals ( R & D ) act of 1957.

  Even while such clear laws exist in AP to prevent alienation of tribal lands , the state government had issued many leases to non tribals ( Juristic or Natural ) to carry on industrial & mining operations since 1952.  These have proved detrimental to the tribal people on the whole.

Move by Samata

Samata, which has been working on the tribal land alieanation issues, found two kinds of alieanation - one by the individual non tribal and the other by the State - in contravention of the Schedule V and the laws under it.

Based on the above violations Samata approached the Supreme Court in a Special Leave Application in 1995 and won a historic judgement in favour of the tribal people of the V Scheduled areas in July 1997.  This is now popularly called the Samatha Judgement. (which is now the law of the land in the words of the Attorney General of India) 

Move by the Supreme Court

Some of the important points laid down by the court are:

a.Government lands, forest lands and tribal lands in Scheduled Areas cannot be leased out to non-tribals or to private companies for mining/industrial operations.

b.Government cannot lease out lands to non-tribals for mining operations as it is in contravention of Schedule V of the Constitution. It therefore declared all mining leases granted by the State Govt. in Schedule V areas and renewals thereof illegal and null and void and aske the State govt to stop all industries from mining operations.

c.Mining activity should be taken up only by the State Mineral Development Corporation or a co-operative of tribals and that too if they are in compliance with the Forest Conservation Act and the Environment Protection Act.

d.the SC also recognised that after the 73rd Amendment and the Panchayat (Extension to Scheduled Areas) Act, under which the Gram Sabhas are competent to preserve and safeguard community resources and reiterated the right of self-governance of adivasis.

e. In cases where similar Acts in other States do not totally prohibit grant of mining leases of the lands in the Scheduled Area, similar Committee of Secretaries and State Cabinet Sub-Committees should be constituted and decision taken thereafter.

f. Before granting leases, it would be obligatory for the state government to obtain concurrence of the Central Government which would, for this purpose, constitute a Sub-Committee consisting of the Prime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the State’s policy would be consistent with the policy of the nation as a whole.

g. It would also be open to the appropriate legislature, preferably after a thorough debate/conference of all the Chief Ministers, Ministers concerned, to take a policy decision so as to bring about a suitable enactment in the light of the guidelines laid down above so that there would emerge a consistent scheme throughout the country, in respect of the tribal lands under which national wealth in the form of minerals, is located.

h.Finally the SC also ruled that at least 20% of the net profits should be set up apart as a permanent fund as part of  business activity for establishment and provision of basic facilities in areas of health, education roads and other public amenities.

This order was given with retrospective effect.

Since July 1997 the State of AP and the central government have been trying to appeal to the Suprme court to modify the order to have prospective effect , but after three years in March 2000, the SC  dismissed the appeals on the basis of merits. Hampered with this the State & Central governments have been trying desperately to REMOVE the LEGAL BASIS of the Samatha Judgement, so that tribal lands can be leased out for mining and other industrial activity to private and Multi National Corporations which is against the interests of  tribals and the nation.

Moves by the Government of A.P

The state Govt of AP has been unwisely and undemocratically trying to amend the AP LTR Act of 1959 & the Amendment to Sec 11(5) of MM(RD) Act of 1957 by forcing the Tribes Advisory Committee (TAC) to pass a resolution for amending the LTR Act so that the tribal areas can be opened up for mining to MNC's.

This has led to wide spread protests from various political parties, NGO's and tribal mass organisations. The Chief Minster of AP, nevertheless, issued a statement before the start of the State Assembly session in August this year that the government has no plans of amending the Tribal Act but is going ahead inviting mining companies, discreetly. The state government has gone ahead leasing out large tracts to APMDC ( A state undertaking ) for bauxite mining in the Agency areas of Vishakhapatnam District.

Subsequently, the AP Government has written to the Ministry of Environment & Forests( MoEF) asking for forest clearance and has also applied for a  No Objection Certificate (NOC) from the AP Pollution Control Board !

People's Protests

Recently on 24th, 25th & 26th of September, a team from MoEF regional office at Banglore visited the proposed bauxite areas for the above purpose. We came to know of this visit just on time and organised massive protests and public demonstrations all over the hills of Visakhapatnam tribal area effectively conveying the people's opposition to such a venture of the state government.  Around 20 different tribal groups consisting of students' unions, community groups and NGO's have handed over memoranda expressing their objections to the proposed amendments and mining projects in the area.

Since these protests and campaigns, we have been facing threat of harassment from the state government and there is a very close surveillance on us.  We do not know to what extent the government would go to repress this opposition but considering its seriousness on bauxite mining, we fear further repression in the immediate future.

Moves of the Central Government

If the state government of A.P is undemocratic, the Centre is not far behind.  On the contrary, it has much more draconian plans of amending the Vth Schedule of the Constitution itself!  The Central Government, through its Ministry of Mines, has moved a

note which is classified as SECRET on 10th July 2000 ( No.16/48/97-M.VI) to the Committee of Secretaries putting forward a reactionary view to the Samata Judgement. It proposes to amend the Vth Schedule itself to remove the LEGAL BASIS for the Samata Judgement and getting it passed in the parliament by a simple majority!!!

(" Displacement is Not The Issue" Article in The New Indian Express - 21st Sept 2000). The attitude of the Govt is best summed up in its active endorsement of the Attorney General of India that the way forward is to "effect the necessary amendments so as to overcome the said SC judgement by removing the legal basis of the said Judgement"

The note repeatedly expresses with deep concern and anguish how the judgment will adversely affect mining and industrial activity. It does not even once venture to think or consider that the judgement and its provisions can actually be enabling and empower the adivasis in their quest for social and economic justice. The note is totally biased in its treatment of the judgement and makes it out to be against the interests of adivasis while in reality it only reasserts claims that are being made by adivasis round the country.

The MoM note proposes that an explanation be added after para 5(2) of in the V Schedule removeing prohibition and restrictions on the transfer of land by adivasis to non-adivasis for undertaking any non-agricultural operations including prospecting and mining (para 18).

This one sentence at a stroke would completely defeat the very intentions and spirit of the V Schedule of the constitution and open the floodgates for unfettered alienation of adivasis from their land, water and forests. In essence it spells virtual doom for the adivasis, as the last measure of protection will be removed leaving them at the mercy of an uncaring state and ruthless commercial interests.

The proposed amendment flies in the face of constitutional guarantees and safe-guards for the poor and vulnerable of the country and is in complete violation of the spirit of the fundamental rights. It also exposes where and with whom the Govt. stands. Rather than explore ways and means to implement the directions of the court in the Samata judgement in its enabling spirit and provisions especially concerning the involvement of tribal co-operatives and profit sharing, the secret MoM note only exposes how the Union Govt. is actually searching for ways and means to nullify it or get it quashed. The proposed amendment is just a legal cover to divest adivasis of the rights guaranteed by the Consititution in order to pander to mining industries.

We request you to respond to this urgent situation and write immediately to the concerned authorities as a protest against such moves.  On the issue of Andhra bauxite, we, from Samata, have already written to the MoEF and various other ministers in the state and central governments.  We are giving below a copy of our letter as a reference for you to frame similar letters of protest adding any other information you may have with you.

Letter No 1

Please send this letter to:

1.      The Chief Minister of A.P.      email: cmdirect@ap.nic.in

      Secretariat Buildings, GoAP, Hyderabad

2.      The Minister for Forests A.P      email: min_frst@ap.gov.in

Secretariat Buildings, GoAP, Hyderabad

3.      The Minister for Tribal Welfare A.P email: min_triw@ap.gov.in

Secretariat Buildings, GoAP, Hyderabad

4.      The Minister for Forests GOI email: mef@envfor.delhi.nic.in

Paryavaran Bhavan, CGO Complex, New Delhi-110002

5.      The Minister for Tribal Welfare GOI email: dirtdb.wel@sb.nic.in

      Shastri Bhawan New Delhi –110001

6.      The Minister for Social Justice & Empowerment GOI email: gandhim@parlis.nic.in

Shastri Bhavan, New Delhi-110001

7.      The Regional CCF, MoEF, GOI, 4th Floor, E&F Wings, Kendriya Sadan, Koramangala, Bangalore-34

 

Place

Date

 To,

  

 

  Dear Sir

                        Sub: - Objections to the proposed mining activity in Visakha Agency

& issue of permission for non forest activity against Forest Conservation act ,   LTR Act of 1959 and EP Act of 1986

  1. We have come to know that Government Order of Andhra Pradesh is considering grant of mining leases through Andhra Pradesh Mining Development Corporation to some Foreign investors from Dubai for mining Bauxite at the Following locations    in Visakha district.

i. Rakthakonda ML in Anantagiri-II RF, S.Kota Range  113.80 Ha

ii. Galikonda Ml in Sunkarmetta RF, Araku R                     97.88 Ha

iii. Chittam Gondi ML in Muliyaguda RF, Araku R               154.16 Ha

                                                                        Total                365.84 Ha

  2. According to the Project Proposals prepared by APMMD Corporation the critical details are :

  (a) Peak labor employment   --- 260

  (b) Expected waste/soil overburden  -- 17000 M.T/Annum

  3. The areas proposed for mining are located in ecologically fragile ecosystems and the mining activity would destroy large tracts of virgin forest particularly in the Rakthakonda area. The forests vary from small evergreen patches in valleys to moist deciduous to dry deciduous tracts. The mining areas occur in top plateau regions of steep hills. The steep hillslopes are clothed with forests, and destruction of forest while laying approach roads, movement of labor, and to meet daily needs of firewood would lead to drastic changes in micro-climate and erosion of soil and the flooding of streams would follow as a chain reaction.

  4. The mining area also falls in the catchment area of Machkund and Sileru rivers and their tributaries and of Gosthani and Sharada rivers. The Rakthakona mining area located at the highest point of 1400 Mts. is the origin for over eight watersheds feeding Sileru. Destruction of forests on these hills will have serious adverse affect on the water flow in these watersheds.

  5. The very mining areas in Rakthakonda are the bedding sites of the remnant fields of Indian gaur in these hills. These animals take shelter on these hilltops during day and go into the valleys in daytime for food and water. 

  6. The mining areas of Galikonda and Chittiam Konda are the home of one of the rarest endangared species of bird Athera   Blewitti (Blewitts forest spotted owlet). This was discovered (after its last reported sighting 100 years back). In a recent bird survey by Orissa birds and Biocultural survey party, besides this rare find, the entire area from Sileru to Lammasingi to Paderu    and Aruku is an important bird area with relictual, endemic birds (losps) and other 15 species of northern migratory birds.

  7. In a recent seminar in Eastern Ghats Conservation (March 1988) considering its ecological importance and fragile nature, the entire area was recommended for establishment of a Biosphere Reserve.

  8. The area is also home to several tribal populations belonging to Bhagata, Khond, Konda Reddi, Samantha and other communities. The founding fathers of our nation have provided special provisions for their protection in the Fifth Schedule to the Constitution of India. Their special status has been reiterated in a landmark judgement by the Supreme Court in Samata Versus State of Andhra Pradesh in 1997.

  In the majority decision of the Supreme Court in the Samata case it has been held:

  a. In the Andhra Pradesh Scheduled Area Transfer Regulation, 1959 ‘person’ includes the State Government; and ‘transfer of immovable property’ includes ‘the prospecting licenses and mining lease;

  b. All transfers of land belonging to the State Government at any time in the past or present in “scheduled area of Andhra Pradesh”, to non-tribals, and of mining leases/prospecting licenses whensoever granted by the State Government in such areas   to non tribals were absolutely void and impermissible; and

  c. All mining operations in the scheduled areas of Andhra Pradesh by industrialists may be stopped forthwith. The highest court of the country has held that tribal rights take precedence over all other considerations.

 9. Bauxite is not one of the essential minerals for national progress. We have enough   of it  for country's needs. The present proposal is to feed foreign investors demand and the states ever increasing demands for funds. Fragile areas may be subjected to mining pressure if such minerals are of importance to national survival or national security. The state cannot ride roughshod over the cultures of primitive tribes and fragile ecosystems to meet its insatiable demands for funds. 10,000 people belonging to tribes will be uprooted because of this project and join the over 50 million refugees from the countries development policies.

  10. The best mining practices do have a serious repercussions on the environment and people . Bauxite ore is confined to the plateau tops. Once the stability of these tops is disturbed the rate of erosion accelerates ten fold.

  Mining is associated with deforestation and environmental imbalance. In Open cast mines the damage is tenfold. mechanized  mining generates more of mine dust affecting the adjoining forest species and crop plants through leaf encrustation, stomatal plugging and solar radiation interruption leading to change in radiation balance; this reduces the chlorophyll content which in turn  reduces the total phytomass increasing  leaf injuries leading to necrosis or degeneration and death of epidermal cells which are   most common. The topsoils are invariable mixed with overburden resulting in burying of rich topsoil.

The rainwater carrying the nutrient deficient overburden spreads over adjoining slopes making them unfit for forest regeneration. Stunted trees, crooked stems weakened vigor of seedlings are the result. Because of constant trampling by labor and movement up vehicles the area becomes hard and the hard soil prevents regeneration.

  11.  The adverse changes in climate and micro-climate, increased libido, constant dust in    the air lead to a general degradation of the entire region to over 5 to 10 km radius.  The mining project will no doubt fill the pockets of the investor and the democratic Government, the people’s government at  Hyderabad.   But the forests the people the rivers, the dams, the animals and the crop lands will be condemned to slow and painful death, flood, disease, poverty and loss of natural resources.

  We request you to take all the above points into consideration before any sanction of non forest activity is given in these pristine areas, which only create chaos. We demand that the Government should be transparent to provide all required information to the would be affected people before any decision is taken. We once again urge you to differ the proposed mining activity in the interest of our Nation.

  Thanking you

  Sincerely

Letter No 2

Please write to the following in protest against the amendment to the Vth Schedule:

1    Shri K.R.Narayanan

The President of India

RASHTRAPATI BHAVAN

NEW DELHI - 110004

2.   Shri Atal Behari Vajpai

The Prime Minister of India

  PMO, South Block,

   Raisina Hill, New Delhi, India-110 011.

 (Telephone: 91-11-3012312. Fax: 91-11-3019545 / 91-11-3016857.)

3          Shri Jual Oram

The Minister for Tribal Welfare,

            Shastri Bhawan

            New Delhi

            Phone No. 3387444

            email: dirtdb.wel@sb.nic.in

4          Shri Dilip Sing Bhuria

The Chairman

National Comission of SC & ST

            5th floor, Lok Nayak Bhavan

            Khan Market

            New Delhi 110003   

5.         The Secretary Ministry of Mines GOI,

 Ministry of Mines

            A-Wing, 3rd Floor

            Shastri Bhavan, New Delhi (India) - 110001

            email: secy.dom@sb.nic.in

To,

We strongly protest against the secret moves being made by the government to repeal/amend the Vth Schedule of the Indian Constitution as a result of the Samatha Judgement of the Supreme Court nullifying mining leases to industries in the scheduled

areas. (Note of 10th July 2000 (No.6/48/97-M.VI) to the Committee of Secretaries by Ministry of Mines). This is also with reference to the editorial article of The New Indian Express dated 26.09.2000 - Displacement is Not the Issue. We are extremely shocked that the government should even contemplate such a move which is against the democratic, welfare, socialist principles of the Constitution laid down by the founding fathers of the Nation and which would result in total injustice to the tribals of the country.

This would, at one stroke, completely defeat the very intentions and spirit of the V Schedule of the Constitution and open the floodgates for unfettered alienation of adivasis from their land, water and forests. In essence it spells virtual doom for the adivasis, as the last measure of protection will be removed leaving them at the mercy of an uncaring state and ruthless commercial interests. It also exposes where and with whom the government stands and we do not approve of the government being pressurised by mere commercial lobbies. Rather than explore ways and means to implement the directions of the court in the Samata judgement in its enabling spirit and provisions especially concerning the involvement of tribal co-operatives and profit sharing, the secret MoM note only exposes how the Union Government is actually searching for ways and means to nullify it or get it quashed.

Therefore, we demand that such moves should be immediately withdrawn by the government and request that the government protect the interests of the marginalised sections like the tribals and also the mineral wealth of the country for long term posterity.

Thanking You,

Yours Sincerely,

 

 
Communities Command Over Natural Resources