The draft national mineral policy was published for public comment early last month. This draft would replace the existing National Mineral Policy of 2008 which was in urgent need for revision given the problems of illegal mining and land related conflicts. This draft was an opportunity to revise the parallel legal regime that governs mining operations and harmonize it with the requirements under the Land Acquisition, Resettlement and Rehabilitation Act,2013 and the Forest Rights Act,2006 (FRA). This opportunity was however missed.
The vision for the policy reads as follows
“Minerals are nature’s endowment which we need to leverage in a fair and transparent manner to sub-serve the common good. Mining needs to be carried out in an environmental sustainable manner keeping stakeholders interest in mind. It shall also be ensured that the regulatory environment is conducive to ease of doing business with simpler, time-bound procedures or obtaining clearances.”
As we read this vision Adivasi and other local communities across India struggle to assert their right over land and resources. Without obsessing over semantics, one cannot help but notice that stakeholder’s interests will be kept in mind while it shall be ensured that the regulatory environment is conducive to the ease of doing business. This vision begs the question- will Adivasi communities continue to sub-serve the common good? Do simpler and time-bound procedures mean no due-process?
RIGHTS OF ADIVASI COMMUNITIES- A LIMITED INTERPRETATION OF THE FOREST RIGHTS ACT,2006
In point 6.12 (c) where it deals with questions of the welfare of tribal communities, the policy states that its decision in granting mineral concessions in scheduled areas will be merely guides by laws like the Panchayat Extension of Scheduled Areas Act,1996 (PESA) and FRA. It reduces the applicability of the FRA to scheduled areas. This limited understanding of the applicability of the FRA creates an artificial prioritization in the demand for compliance, where it restricts the requirement of compliance to Scheduled Areas only.
The policy emphasizes on issues of relief and rehabilitation of communities impacted but does not address compliance with the procedural requirements of free, prior and informed consent. The policy alludes to the Sustainable Development Framework (SDF) which is a framework prepared by the International Council on Mining and Metals. It is interesting to note, that the Federation of Indian Mineral Industries is a member of the Council. This framework was tailored to the Indian context by Environmental Resources Management (ERM) who were the appointed consultants. After the final report was submitted by ERM in 2011 not much has happened over the SDF. The deeper questions of democratizing decision making and actively addressing conflict are left to the SDF to dealt with. The SDF in turn shifts the responsibility back to the Ministry of Mines (MoM) to draft guidelines on meaningful consultation and obtaining the consent of the communities impacted by mining operations which is yet to done.
AN INTER-MINISTERIAL MECHANISM FOR SUSTAINABLE DEVELOPMENT WITHOUT THE MINISTRY OF TRIBAL AFFAIRS AND MINISTRY OF PANCHAYATI RAJ
In point 11 the policy aims to set up an inter-ministerial mechanism for sustainable development which would include the Ministry of Mines (MoM), Ministry of Earth Sciences and the MoEFCC. It excludes the involvement of the Ministry of Tribal Affairs and the Ministry of Panchayat Raj which are the nodal ministries mandated with the implementation of the Forest Rights Act,2006 and PESA. The exclusion of these ministries from a mechanism on sustainable development emphasizes the perspective that these laws are not seen as an essential in a policy concerning mining. As conflicts continue to dot the Indian subcontinent due to existing and new mines these difficult aspects cannot be cast aside.
The involvement of the two nodal ministries will ensure that these conflicts become a part of the conversations about sustainable development. The infusion of these two laws in decision making around sustainable development in mining can provide an avenue to proactively deal with conflicts on the ground.
THE RISK OF DIFFICULT CHOICES BEING MADE SIMPLE
The draft policy urges for a regulatory environment where ease of doing business is prioritized. The urge for speedy clearances will only reinforce the perception that processes of public participation in environmental decision making are seen as hurdles. The difficult choices of dispossessing a community of their land and resources, rehabilitating them to another area and polluting the surrounding environment are now being pushed to be made simple. The danger of making these difficult choices into simple processes is that claims by impacted communities will continue to be delegitimized while business interests are seen as the panacea of legitimacy. These difficult choices need to be dealt with in a manner that is reflective of the stakes involved and simplicity a desired regulatory goal will compromise the constitutional and democratic principles of due process.