Mining on Forest Land: Niyamgiri and the Gram Sabha

In one line

The Supreme Court sent the question whether a hill could be mined to the twelve villages that worship it, and all twelve said no.

In the wording a student can write in an exam: in Orissa Mining Corporation Ltd v. Ministry of Environment and Forest, (2013) 6 SCC 476, the Supreme Court held that the question whether the proposed bauxite mining on the Niyamgiri hills would affect the religious, cultural and community rights of the Dongaria Kondh and the Kutia Kondh was for the Gram Sabhas to decide under sections 4 and 6 of the Forest Rights Act, 2006, read with PESA, 1996; it directed the Gram Sabhas of the Kalahandi and Rayagada districts to consider all claims within three months, in proceedings attended by a judicial officer of the rank of District Judge nominated by the Chief Justice of the Orissa High Court to certify that they took place independently and uninfluenced; and the Ministry was then to take its final decision.

The facts

Facts. The Orissa Mining Corporation, working with a private company, sought to mine bauxite on the Niyamgiri hills in the Kalahandi and Rayagada districts of Odisha to feed an alumina refinery at Lanjigarh. The project required the diversion of forest land, and the Ministry of Environment and Forests rejected the forest clearance after reports that the hills were the habitat and the sacred landscape of the Dongaria Kondh, a particularly vulnerable tribal group, that the area was a wildlife habitat and part of an elephant corridor, and that the rights of the forest dwellers under the Forest Rights Act had not been settled. The Central Empowered Committee had objected on the ground that the refinery would be wholly dependent on bauxite from Niyamgiri and that the project would obstruct a proposed wildlife sanctuary and the residence of the Dongaria Kondh. The Corporation challenged the rejection.

The holding

Held. The Court held that the Forest Rights Act recognises and vests rights that already existed and were not recorded, and that among them are the community rights in section 3(1), including the right to protect, regenerate, conserve or manage any community forest resource, and the right of access to biodiversity and community rights to intellectual property and traditional knowledge; and that the Act protects, in section 3(1)(e), the rights, including community tenures of habitat and habitation, of primitive tribal groups and pre-agricultural communities.

It held that the question whether the community's religious and cultural rights, including their right to worship their deity Niyam Raja, would be affected by the mining was a question the Act itself assigns to the Gram Sabha, section 6(1) making the Gram Sabha the authority to initiate the process of determining the nature and extent of individual and community forest rights.