DEFIANCE: In defiance of the orders of the Supreme Court and the High Court, Fomento has been continuing to transport ore, claiming it was bought at the auction of seized ore
In a scathing verdict on the PIL filed by Goa Foundation against the Goa Government for permitting transportation of ore long after the Supreme Court’s March 15 deadline was over, Justice Jamdar Patel commented that the Goa government was more interested in the welfare of mine owners than ordinary Goenkars and the ecology of the State
In a hard hitting judgment, Justice N M Jamdar of the Hon’ble High Court of Bombay at Goa minced no words to castigate the Govt of Goa for “the vehemence at which the State has asserted the right of the mining lease holders in these proceedings. The State must keep in mind that it acts as a trustee of the people for the natural resources. In discharge of this duty, it has to keep the interests of the citizens at heart as the first priority” …
A little later making observations on the PIL’s filed by villagers affected by air pollution and water scarcity, the judgement observed “we had to literally push the State on every date to do something to alleviate the suffering of the innocent mining affected.. This sharp contrast in the State response in respect of these two ends of the mining spectrum, the Mining affected and the Mining beneficiaries, is too stark for us not to notice. We write it here because it pains our conscience”.
The State of Goa is blessed with iron and manganese ore rich deposits in its verdant hills which the Portuguese Government granted concession to concessionaires to mine in perpetuity. After Liberation and the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) was made applicable to Goa, the same concessions were abolished and deemed to be mining leases under the MMDR Act. Taking note of the indiscriminate mining of ore in contravention of the MMDR Act, the Forest (Conservation) Act 1980, and the Environment (Protection) Act 1986, the Central Government appointed a Commission headed by Justice M B Shah . His report was damning and on September 11, 2012 all mining operations were banned in the State of Goa. An expert committee was also constituted by the Hon’ble Supreme Court to conduct a macro-EIA (environmental impact assessment) to ascertain what should be the ceiling of annual excavation of iron ore from Goa, keeping in mind the principles of sustainable development, inter-generational equity and other factors. Goa Foundation, an environmental NGO, took all these concerns to the Hon’ble Supreme Court which in two major judgements called out the various illegalities by the lease holders and the total abdication of the State Govt towards the environment and the welfare of Goans, only for a few “crumbs” which it received as royalty from the lessors. Some positives for Goa in these legal battles were:
Fixing a cap on minimum mining extraction in a year
Constituting a ‘Goan Iron Ore Permanent Fund’
A draft mineral policy for promoting a sustainable extraction regime and to streamline mineral based development of Goa was in place
A Special Investigation team and team of Chartered Accountants were constituted to give their report
Vishwanath Anand Expert Appraisal Committee revealed that there is not a single environmental or mining related law or legal requirement that was not violated by one or the other lease holder and that quite clearly the rule of environmental law in Goa had “gone with the wind”
State of Goa was asked to take all necessary steps to expedite recovery of the amounts due from the mining lease holders.
Victory smelt sweet when the Supreme Court held that the 88 mining leases held by the lessors had expired on November 22, 2007. This effectively meant that all the mining operations post this date were illegal. The mineral policy itself notes that the State had witnessed from 2006-07 till 2011-12 the peak of chaotic and unregulated mining activity without any concern for the fragile ecology and environment of the State or for the general well being of the average Goan and no element of social or public purpose. The mining lease holders lost no time in applying for second renewals, and of course the State, always bending backwards to please mining corporates, renewed them for the asking. Once again the Goa Foundation was before the Supreme Court challenging the renewals. The Apex Court while quashing the 88 renewals observed that the State of Goa “showed undue haste and gave the impression that it was willing to sacrifice the rule of law for the benefit of mining lease holder” and further held they should obtain “fresh renewals and obtain fresh environmental clearances from the Ministry of Environment and Forests as “the issue impacting society should be looked at holistically and overall perspective is necessary”.
The Supreme Court reached its zenith in protecting Goa’s minerals wealth for future generations and its environment when it categorically directed “All mining operation to stop with effect from 16th March, 2018”.
Not ready to bow down, frantic discussions were underway between the mining lease holders and the State Govt who prostrates before them, to obviate this decision of the Apex Court and use legal brains to figure out how to twist the judgement to their advantage. The debatable lines was a sentence in the Apex Court judgement wherein the lease holders were given time “to manage their affairs and may continue their mining operations till March 15th, 2018”.
TIMELINE OF RECENT EVENTS
February 7, 2018 – Apex court Judgement quashing fresh leases and stopping mining activity.
March 6, 2018 – Deputy Director of Mines and Geology issued instructions to stop mining operations and for directions on inspection and identification of stacks.
March 7, 2018 – Director modifies Order and permits mining operations till 15th March.
March 13 – Meeting attended by Regional Controller of Mines, Indian Bureau of Mines, and representatives from the Pollution Control Board, Forest dept, and Director of Mines and Geology — record that all transportation should stop and security arrangement should be made to ensure that no ore from lease areas is stolen, being property of the State government.
March 21 – Principal secretary to the chief minister referred to an opinion by the Advocate General of Goa that, transportation of royalty paid ore taken out of leasehold areas, could continue, and based on this, the State Govt decided to permit transportation beyond March 15 of ore extracted till March 15 and on which royalty was paid.
In view of this decision transportation activity continued at a frantic pace and ore which belonged to the people of Goa was allowed to be taken away in contravention of the spirit and order of the apex court. Approximately 6.1 MMT was transported during the period between February 7 to March 15 by approx 6,000 trucks a day with sometimes trucks making 25,000 trips a day!
The Goa Foundation challeneged this decision of the State government and once again the Court stood firm.
The Apex Court had expressed it anguish and strong concern in the reckless mining activity in Goa and the impact on Goa’s environment.
Some extracts of the Supreme Court February 7 judgement:
*rapacious and rampant exploitation of our natural resources is the hallmark of our iron ore mining sector- coupled with a total lack of concern for the environment and the health and well being of the denizens in the vicinity of the mines.
*the sole motive of the mining lease holders seems to be to make profits (no matter how) and the attitude seems to be that if the rule of law is required to be put on the backburner so be it.
*State conveniently forgets that development must be sustainable and equitable development and not otherwise.
*Effective implementation and in some instances circumvention of the mining and environment related laws is a tragedy in
*laxity and sheer apathy to the rule of law gives mining lease holders a field day, being the primary beneficiaries, with the state being left with some crumbs in the form of royalty.
*the implementation machinery needs a tremendous amount of strengthening while the law enforcement machinery needs strict vigilance. Unless the two marry, we will continue to be mute witnesses to the plunder of our natural resources and left wondering how to retrieve an irretrievable situation.
*laws and report presented must be considered “in the larger context of constitutionalism, the rule of law, environmental jurisprudence, as well as the right of the people of Goa to have clean air and protection of the fragile ecology.
HIGH COURT CRITICISM
Looking at the totality of the Supreme Court judgment, which was a clear indictment of the State government’s role in protecting Goa’s minerals and environment, the High Court held:
— that the interpretation of the State on the opinion of the Advocate General to permit “transportation” of ore would definitely not be in tune with the spirit of the Supreme Court judgement and thus the decision of March 21, 2018, was bad in law and,
— that such ore was “public property”!
The Hon’ble High court thus concluded that the Supreme Court allowed the lease holders five weeks to ‘arrange their activity’ only as an indulgence and for ‘winding up’ and definitely not for full fledged mining activity as the State interpreted it to mean. Even though the State tried to convince the High Court that its transportation activity was monitored with a vehicle tracking system, 44 barges of MV Fomento Versha had no data in the public domain of how much ore it was carrying per barge. The High Court stated that “in principle, the State asserts transparency, but when it comes to implementing it in reality, it does not seem to be living up to its own standards”. The High Court noted huge discrepancies between the State figures for iron ore production and those supplied by the Indian Bureau of Mines.
What has to be done with the ore illegally extracted? The State government suggested that the lease holders would ensure its safety. This is like keeping the cat in charge of the cheese! The State government just threw its hands up saying that they do not have the machinery, equipment or personnel to take care of mine safety. Before parting the Hon’ble High Court made a few pertinent observations:
The State can sell the ore and the amount can be deposited in a permanent ‘iron ore fund’ to be utilised for safety measure in mines, for workers affected by closure, and for the ecology of Goa
It said, “we got a feeling that the dividing line between State and the mining lease holders was blurred. A neutral balanced and measures response by the State would have been more appropriate and commensurate with its role”
180 crores were collected by the state of Goa in last two years in ‘District Mineral Fund’ for the mining affected, but not a single rupee was spent.
Earlier Justice Gautam Patel had beautifully written that Goa is a State “worth fighting for” and now the High Court’s clear indictment of the State government in the mineral exploitation warms the cockles of the heart of every person living in Goa who has watched Goa change to “burnished orange deserts where once all was verdant” as Hartman de Souza describes so eloquently in his book ‘Eat Dust — Mining and Greed in Goa’.