Govt Extends Mining Reform Consultations by a Week as Criticism Mounts

Bengaluru:On September 5, the Ministry of Mines posted a revised version of its proposal for mining reform on its website, extending the deadline for comments from the public, state governments, and industry stakeholders to September 10. This is an extension by a week, from the earlier deadline of September 3, and extends the period of public consultations from 10 to 17 days on the proposal that was first made public on August 24.

While the proposal with the earlier deadline remains available online, no mention of it could be found on the Ministry of Mines’ website,mines.gov.in. According to activists closely following the matter, while links to the earlier proposal were removed from the ministry’s website on September 3, the revised proposal dated September 3, with the extended deadline was only posted on the website on September 5.

The decision comes after the ministry faced sharp criticism from activists and members of civil society on its August 24 proposal, detailed in a previous article on NewsClick.The extension of the deadline, however, has failed to address their concerns, and attracted renewed criticism and calls to scrap the entire process in order to hold wider consultation.

In a letter sent to the ministry, the Mineral Inheritors Rights Association, an association of multiple civil society organisations, termed the extension as “strange and self- defeating” and an “unfair approach...ignoring the law and procedures,” noting that despite the short extension, the proposal continues to be in violation of the Right to Information Act and the government’s Pre-Legislative Consultation Policy. Also, it excludes the communities most affected by mining, particularlyadivasis.

Criticising the ministry’s decision, Indu Netam, convenor of Adivasi Jan Adhikar Manch (Forum for Adivasi Human Rights),and a steering committee member of the association, said that by failing to provide translated copies of the proposal in local and regional languages, the government was “not consider(ing) adivasis as citizens of the country” and was seeking to “snatch away our constitutional rights (without) consult(ing) us.”

Multiple Issues with the Proposed Reforms

The proposed reforms being hastily pushed through, have wide-ranging implications, and have attracted a range of criticism from members of the civil society, activists and other stakeholders.

A submission to the ministry sent by Ramamurthi Sreedhar, managing trustee of Environics Trust, a Delhi-based non-government organisation focused on environmental issues, has called for a “completely different conceptualisation of mineral resources, based on learnings from the world over, of how revenues from mineral extraction and use are apportioned for now and for the future generations.”

“Mining has a low contribution to the economy. Mining has never exceeded 5% of the GDP (gross domestic product) even after liberalisation,” the submission says, and is “one of the most environmentally and socially destructive economic activities...that engenders enormous and widespread conflict.”

The submission notes that mining in India, that used to be dominated by the public sector until it was liberalised through the introduction of the National Mineral Policy 1993, saw slow pace of foreign direct investment and a lack of enthusiasm in prospecting from the domestic private sector. This led to a review of the situation and another National Mineral Policy in 2008, offering further concessions to investors while also expressing the need for environmental and social safeguards.

Following this, the note states, there was a “long and protracted process of consensus-building on the legal framework” that concluded with the promulgation of the Mines and Minerals (Development and Regulation) Amendment Act, 2015. However, the current proposed amendments, the submission states, tend to “largely set aside the earlier efforts...making it easier for continuing indiscriminate mining, engendering poor corporate governance and grossly ignoring the concerns of the people.

1. Legalising “Illegal Mining”

The submission states that mining activities are “extremely poorly regulated” with “over 80,000 illegal mines in the country against about 10,000 legitimate leases, with only a third of the legal mines reporting to the Indian Bureau of Mines, the mining regulator, and only a tenth are regularly inspected.”

Calling for “rationalising and regularizing on-going mining activities on a war footing” the submission calls for “the unacceptable situation of illegal mining” to be “put to an end” by ensuring “zero-tolerance” and “enhancing the efficiency of mining activities and generating more resources from brown-field expansion rather than opening up new green-field areas.”

In a report for Scroll.in, journalist Supriya Sharma notes that one of the proposals implies that the definition of “illegal mining” will be “narrowed down” from extraction of minerals in violation of laws and regulations to extraction done outside mining lease areas where companies have been granted mining rights. This, according to the report, will be a “bonanza” for mining companies, as the government – which is entitled to 100% of the value of minerals extracted illegally – will no longer be entitled to make such claims on violations, such as over-extraction of minerals beyond the mining plan and violations of environmental and forest laws, as these will no longer be considered “illegal mining.”

The report notes that this stance is a “policy U-turn” by the Ministry of Mines, which had supported an expansive interpretation of “illegal mining” in an affidavit submitted to the Supreme Court, in a case in which the apex court had ordered the recovery of Rs 17,576 crore from mining companies that had “extracted iron ore and manganese in Odisha in violation of environmental laws”, leaving the mining companies “alarmed.”

2. Risks of Seeking Private Investment via Auctions

One of the proposed changes seeks to promote the entry of private sector mining companies in prospecting and exploration of mineral resources, by allowing for auctions of partially explored mineral blocks under a newly created “prospecting license cum mining lease” regime.

On this, the submission by the Trust notes that the more fundamental question at stake in relation to exploration is the need for India to “develop and nurture a huge knowledge base...and develop a widespread understanding of the strategic value of different minerals and ensure conservation of requisite quantities of such minerals, and [make] specific efforts...to conserve minerals essential for the country’s future.”

The note said “exploration investment in the country is abysmally low and does not even constitute two per-cent of the global exploration investments” adding that there was need to “increase State investments on exploration of all resources...through non-invasive technologies.”

The submission elaborates on the unsuitability of speculative venture capital for such needs, stating that “since science and particularly geo-science is not a “coin-in-the-slot” operation, depending upon speculators with short term interests and contractors, including what seems to be the favoured model of MDO (Mining and Development Operators, a system whereby private companies are contracted to operate a mine by public sector licensees)...will lead to grave uncertainties both in terms of governance and optimal utilisation of resources and to be able to knowledgeably deal with crisis situations.”

The submission adds that there is a need to“develop a widespread understanding of the strategic value of different minerals and ensureconservation of requisite quantities of such minerals must be recognised, and specific efforts must be made to conserve minerals essential for the country’s future.”

Minerals, such as bauxite, titanium, several heavy metals which will be crucial for future development of materials “need to be assessed for our long term needs rather than for profits to corporates in the current period or even economic returns for the current generation,” it adds.

Arguing against the policy direction seeking further privatisation of mineral resources, the submission says “ifas a country, we continue to tread this path with the same ambition, few successive governments can auction away the entire resources of the country, significantly undermining any ideaof self-reliance.”

3. Legacy issues with Existing Leaseholders

A Mongabay India report by Mayank Aggarwal, S Vijay Kumar – a distinguished fellow at The Energy and Resources Institute,and aformer secretary of the Ministry of Mines – notes that the ministry’s proposals are vague on the specifics of up to 500 mines that are stuck in various stages of litigation, that it seeks to set up a committee to resolve, and which it intends to open up for auction, disposing of existing rights of first refusal held by the current concessionaires.

“It is no secret that in many cases the concessionaires...[are stuck because] state governments failed to take a decision for one reason or another,” says the report, adding that “to arbitrarily close the doors and put the concessions to auction may not only be unfair and open to legal challenge but may shake global confidence in the Indian mining regime itself.”

4. Legacy and Issues of Displacement, Rehabilitation

While the government proposes to resolve legacy issues relating to mines that are blocked in ongoing litigation, the submission by the Environics Trust points out that it neglects legacy issues relating to issues of alienation, displacement, and livelihood loss faced by mining affected communities, and ecological damage. This point has also made by Kanchi Kohli, a senior reseracher with Delhi-based Centre for Policy Research, in Mongabay India’s report.

The submission states that any new initiatives must be preceded by “assuaging” the “sense of betrayal and abandonment” of adivasi communities, calling for an extensive survey of mining areas to ascertain past displacement and the status of the communities, prioritising immediate relief and proper rehabilitation.

The submission also calls for the involvement of local communities in mining by means of production-sharing mechanisms to encourage control of illegal mining, and to channel revenues and penalties collected toward the District Mineral Foundations that are intended to facilitate development in mining affected regions.

Airing similar concerns, Netam says: “We, adivasis, are not being considered as ‘citizens’ of this country. The government has rejected us. We just exist to face the brunt of such anti-people policies in the name of ‘development’. The truth is the government doesn’t want to consult us at all and is rather snatching away our constitutional rights.”

He added: “How do they expect adivasisor any forest dwelling community in a remote corner to access their website where it is displayed in English? It is very obvious that they are serving corporate interests only. While posters and pamphlets on ‘Ujwala scheme’, ‘Swacch Bharat Abhiyan’, ‘Digital India’ are displayed in villages with a huge photo of the Prime Minister, why can’t they ensure that such critical information also reaches us? If they cannot do that, then they better scrap such policy processes!”

5. Implementation of Panchayat (Extensions to the Scheduled Areas) Act, 1996

The submission from the Trust also draws the ministry’s attention the 2009 Report of the Committee on State Agrarian Relations and the Unfinished Task in Land Reforms, prepared by the Ministry of Rural Development. The report calls for “urgent” action on “key concerns” relating to the Panchayat (Extensions to the Schedules Areas) Act, or PESA, the “most radical” of the Acts of Parliament that is applicable to the nine states under Schedule V of the Constitution that have “stringent laws protecting the corpus of tribal lands which, however, continue to be...the main target of mining/industrial zone/protected forest reserve after denial of rights/access of local community.”

In the landmark report, that was “unique to the extent that it contextualizes the issue of land reforms into the wider spectrum of land issues which constitute the framework of Indian politics today, such as the land acquisition of agricultural land for non-agricultural perspectives”according to political scientist Valerian Rodrigues, the committee said that “the tribal people have been the biggest victims displacement due to development projects, and though constituting only 9 per cent of the country’s population, the tribal communities have contributed more than 40 per cent to the total land acquired so far.”

Stating that PESA “restores the community’s command over the natural resources and empowers theGram Sabhato identify and restore the alienated tribal lands and to protect the tribal way of life,” the committee report described it as an attempt to protect tribal lands from “massive transfers of agricultural and forest land for industrial, mining, and in the name of development or infrastructural projects [that] have created rural unrest and distress migration in those areas” and “continued erosion through the institution of money lenders, collusive title suits, illegal permissive or forcible possession, unredeemed usufructuary mortgages, fraudulent transfers, abandonment and making of incorrect entries in the records-of-rights.”

Calling upon the ministry to “carefully reflect upon some of the crucial aspects” in the committee report, the Trust’s submission says “merely brushing aside such concerns will result in the creation of impediments for the aspired “Atmanirbhar Bharat.”

Renewed Criticism

In a letter to the ministry sent before the earlier September 3 deadline, the Mineral Inheritors Rights Association had pointed out that even in “local level public consultations” a 30-day period for public consultations is the norm. It added that period provided by the ministry was “not even enough time to seek information under the Right to Information Act to evaluate the proposals meaningfully.”

That letter also drew the ministry’s attention to Section 4 (1) (c) of the RTI Act, 2005, that provides that “every public authority shall publish all relevant facts while formulating policies or announcing decisions which affect the public,”saying that all the source data, calculations, and conclusions should have been made public prior to asking for comments.

In addition, the letter suggested that it would have been appropriate for the notice to have been made available in regional languages, particularly those of the mineral resource-rich states.

With the 10 days now extended to 17 days for public consultations, the Association’s second letter to the Ministry says: “We had (in the earlier letter) also indicated on the lack of information in the document, which is a statutory requirement under the Right To Information Act. In addition...in a recent order the courts mandated translation into several languages and wider access to information so that meaningful participation could be enabled. None of these points...have been reflected in the revised notice.”

The Association has called for the “scrapping of the proposed mining reforms till the stated concerns are completely addressed.”

Considering the range of issues at hand, the Environics Trust’s submission says it isthe “onus” of the ministry “to be able to present a rationale for opening up new mines.” It demanded that the ministry issue “a schedule for translation, communication and outreach in different areas so that primary stakeholders are able to understand and respond in the spirit of the best practices that the Government aspires.”

It remains to be seen whether the government, which is now seeking to push through a number of policy proposals, including the Draft Notification on Environment Impact Assessment 2020 with scant public consultations, and the Draft Data Management Policy of the National Digital Health Mission among others, responds positively to the stakeholders’ suggestions and criticism.

The author is an independent journalist based in Bengaluru.