[Reader-list] 'Who will save our Na’vis?'

[Sanjay Kak]

Although I'm a bit tired of this continuing Na'vi comparison
(especially since I haven't even seen the film!) here is a very useful
comment on the judicial biases that underpin the arrogance of
companies like Vedanta
Best
Sanjay Kak

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Who will save our Na’vis?
Times of India / Manoj Mitta, TNN, Aug 29, 2010

http://timesofindia.indiatimes.com/home/sunday-toi/special-report/Who-will-save-our-Navis/articleshow/6453608.cms

Long before they gained currency as the real-life counterparts of the
Na'vis portrayed by Hollywood blockbuster "Avatar", the author of the
Vedanta  verdict — Justice S H Kapadia — had made clear about how he
saw the Dongaria Kondhs, who are officially classified as "primitive
tribal group". Kapadia, now chief justice of India, described this
tribe from Orissa as a people "living on grass".

His unflattering, almost dismissive description came in a 2008
lecture, barely four months after his last order in the case. Given
his choice of words, it is no surprise His Lordship found himself on
the wrong side of history last week. In a bizarre reversal of roles,
environment minister Jairam Ramesh all but overruled Kapadia's
decision to grant the bauxite mining project the right to clear the
forests in the Niyamgiri hills, where the 8,000 Dongaria Kondhs live.

Clearly, the lapses that have come to light go beyond Vedanta and the
Central and state governments. They extend to the Supreme Court as
well. Kapadia did not call the Dongaria Kondhs grass-eaters in either
of the orders he wrote in the Vedanta case. But the fact that he did
so in a public lecture, which was reproduced in full in a law journal,
may underline all that was wrong with the basis of his judgment. In
the modern idiom, he might have seemed to have shown where he was
coming from.

Did he? Why did he call the tribe grass-eaters? He was seeking to
justify the circumstances in which the court had come up with an
economic formula — 5% of the project profits would go to tribal
welfare — ostensibly to balance the conflicting interests of
development and environment. But, as the government-appointed Saxena
committee recently pointed out, the Dongaria Kondhs don't really need
such intervention. Far from living on grass, they are known to be
skilled horticulturists and earn handsome profit from growing
pineapple, mango, banana, orange, lime and ginger.

So much for Kapadia's indiscreet dismissiveness. But it pales when
examined alongside the repercussions of the two SC orders in the
Vedanta case. Ramesh's decision is, after all, limited to scrapping
the mining proposal despite the court's decision to grant forest
clearance to it. He could not do much about the even more damaging
alumina refinery because it has already been built, with the court's
blessings, at an estimated cost of Rs 4,000 crore and is in
production. All that the minister could do is to issue notices seeking
to know why the environmental clearance granted to the refinery should
not be cancelled. The other notice asks why an application to expand
its capacity six times should not be spiked.

The refinery is located in the foothills, in Lanjigarh and was
predicated on the mining of bauxite from Niyamgiri. Since it has been
running for the past three years with ore from sources other than the
Niyamgiri hills, the refinery has already wreaked havoc on its
pristine environs. The air of the ecologically sensitive area is now
polluted, the level of effluents in the Vamsadhara river is at unsafe
limits and the ground water has been contaminated.

So what does all of this tell us? Not just that Kapadia had a
relatively unreconstructed view of forest tribes but that the court
has been shoddy about its self-appointed task of overseeing the
regulation of forests through a special bench and a central empowered
committee (CEC).

l The blunder of allowing the refinery at Lanjigarh could have been
averted had the court taken prompt action on the petition filed before
its CEC in November 2004. The petition was filed well before
construction work began at the site and pointed out that Vedanta had
obtained environmental clearance without disclosing that the Lanjigarh
refinery was predicated on the mining of bauxite from Niyamgiri.

l In September 2005, the CEC recommended the environmental clearance
be revoked but the court properly heard the matter only in April 2007,
by which time the refinery had been built and started to operate.

l When the court passed its first order in November 2007, it declared
that the refinery would be allowed to operate provided Sterlite, a
subsidiary of Vedanta, adopted the rehabilitation package it had
devised. But when Sterlite accordingly came forward with a fresh
application, the court's final order of August 2008 said nothing about
whether the environmental clearance given to the refinery was valid or
not. Instead, the court granted forest clearance to the mining project
on Niyamgiri, although it was an independent issue.

l This led to an anomalous situation. Responding to a query from the
environment minister last month, attorney general Goolam E Vahanvati
was reduced to saying that the apex court's decision to grant forest
clearance to the mining project was not binding on the government.
Reason: the government alone is authorized by law to decide whether
such clearance should be granted or not.

The court's forest bench clearly needs to learn the lessons of the
Vedanta case. Else, how are we to save our 21st century Na'vis?