Orissa Mining Corporation v. Ministry of Environment & Forest & Others
Writ Petition (Civil) No. 180 of 2011
18 April 2013
Main Instrument(s) Cited:
International Labour Organization (ILO) Convention No. 107 on Indigenous and Tribal Populations
International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples Convention 1989
Forest Act 1927 and Forest Rights Amendment Rules 2012
Environmental Protection Act 1986
Constitution (73rd Amendment) Act 1992
Biological Diversity Act 2002
Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006
Rio Declaration on Environment and Development 1992
United Nations Declaration on the Rights of Indigenous Peoples 2007
The company Sterlite Industrial sought permission to construct a bauxite ore mine on forrest land in Niyamgiri Hills, in Orissa, a region inhabited by a local indigenous tribe called the Dongria Kondh, numbering 8,000 people including many children. The Ministry of Environment and Forests granted provisional environmental clearance, to be made final subject to an assessment of the planned construction’s impact on the Dongria Kondh community.
Subsequent impact studies conducted by various official bodies concluded that the proposed construction would interfere with the Dongria community’s rights and should be rejected. However, the project was already embarked upon and a refinery was built at the bottom of the Niyamgiri Hills by Vedanta.
The Ministry officially rejected Sterlite’s application for environmental clearance, stating that the venture had displayed a blatant and shocking disregard for the rights of the tribal groups concerned, which are protected by the Forest Rights Act. In the present case, the company is asking the Court to overturn the Ministry’s rejection.
Issue and resolution:
Business and human rights. Whether the decision to reject environmental clearance for the construction of a mine because of its impact on indigenous tribes is lawful. The Court upheld the rejection on the basis that some places can – and must – be off limits to mining activities.
The Court considered the entitlement of tribal people to land which is owned by the company. However, the Court went on to clarify that the State holds the natural resources as a trustee of the people; as such, local populations must give consent to any efforts to extract these resources. Following a series of 12 village consultations regarding the Vedanta project, the Dongria unanimously rejected the proposal.
The Court noted that agriculture was the only source of livelihood for the tribes concerned, apart from the collection and sale of minor forest produce to supplement their income. The tribes had great emotional attachments to their lands. The United Nations Declaration on Rights of Indigenous Peoples notes that tribal forest dwellers have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands.
Vedanta had repeatedly argued that their project would help bring ‘development’ to the Dongria, a mainstream line about the beneficial impact that such a venture would have on a ‘backward or primitive tribe’. However, the construction of an open-pit mine would have devastated their habitat, resulting in negligible ‘development’. The mine’s accompanying initiatives were also all geared towards the permanent alteration of the Dongria’s way of life and independence.
The UK-based NGO Survival International brought a complaint against the Vedanta - a parent company to Sterlite Industrial - regarding the company’s planned mine construction through the OECD Guidelines for Multinational Enterprises grievance mechanism. Read CRIN’s summary.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.