FINALLY VINDICATED!At the release function of Claude Alvares and Rahul Basu’s book chronicling the Goan people’s fight for justice vis-a-vis mining horrors… Justice Khandeparkar did the honors of releasing the book, at the same time complimented Goa Foundation and mining activists for a victory justly earned. On the dais are also Claude Alvares, Rahul Basu and Sandesh Prabhudesai who compered the event. According to Claude Alvares Rs500 crore were deposited in the Permanent Mineral Fund but after the e-auctioning of four mines now Rs32,805 crore will be deposited in the fund.
THE Goenchi Mati Manifesto is a good idea, an idea ripe for execution for the common good of Goa – but will Chief Minister Pramod Sawant’s government be able to swing it? More so will the people of Goa be able to bring pressure upon the government to do good for the larger interests of Goa and its long-suffering people? To begin at the beginning Goa’s mining problems have been long-standing and steeped in litigation for a decade and for a just cause when in 2012 the Supreme Court judgement brought it to a halt till all the problems plaguing it were sorted out and then perhaps mining could begin on a clean slate in Goa.
To come to March 15, 2023 it was a momentous day for the Goa Foundation and mining activists and the people of Goa, when Justice (Redt) RMS Khandeparkar released the book “The Supreme Court and Intergenerational Equity: The Goa Mining Case” by Claude Alvares and Rahul Basu at Sanskruti Bhavan in Panaji. Here is an amazing account of the mining story in Goa which should be read by everyone who is concerned, about how the natural resources of Goa and the country should be exploited along equitable lines, so that the people do not suffer or lose out – in any true democracy or even mother of all democracies which India is claiming to be!
Justice Kandeparkar, who as advocate pleaded on behalf of the government during the long-drawn out cases fighting for justice (the cases being filed by Goa Foundation, a non-governmental organisation which as much loved as hated!), in his address complimented Goa’s mining activists for fighting their battles for justice up to the Supreme Court. He said their hard work and patience has paid off – fighting the Goa Foundation way is the right way to fight. Getting all the facts together and presenting them in such a way so that everything and everyone was clear about how justice should take its course.
In fact, this was Goa Foundation’s victory day and both its founders Claude Alvares and advocate Norma Alvares’ may feel vindicated. It is the Goa Foundation’s perseverance and never say die spirit which carried on the good fight against some powerful opposition. You may read up in detail in the book. It is also in the fitness of things that the book is “Dedicated to Shankar Jog, Ramesh Gauns, Rama Velip, Sudeep Tamankar, Hanuman Parab and all social activists in India involved in the hard task of getting mining lease-holders to adopt fair and environment-friendly practices, especially when governments invariably look the other way, or worse, become active partners in the push to commandeer public resources for private enrichment at the expense of communities and future generations.”
It is an amazing story of how a small, publicly funded environmental monitoring group successfully fought for years to bring Goa’s privately owned mining industry to public accountability and responsibility. The Supreme Court in a final hearing mooted the creation of the Goa Iron Ore Permanent Fund and Rs494 crore have already been credited to it reportedly – according to Goenchi Mati Principles defined by the writers of the book, this money may not be touched by the government for “it belongs exclusively to future generations” of Goa.
IT’S an idea whose time has come and it is based on the “Intergenerational Equity Principle, law of the land” wherein it is the people who are the custodians of all natural resources, including the mining of minerals such as iron ore, bauxite, manganese, etc. In this case the Goa government is a trustee of the state’s natural resources on behalf of the people, as detailed in Supreme Court judgements and verdicts.
According to several speakers public ownership of natural resources is now accepted as the practice in several countries across the world today and India cannot do better than emulate this principle. The principle of right of ownership and citizens getting a dividend on profits accruing to the Goa Iron Ore Permanent Fund (Goenchi Mati Permanent Fund) is akin to the old comunidade’s “zonn” but this will be paid to everyone (Art.14 Equality).
Whether this is practical or not is of course another matter for as one of the speaker’s observed, “then the rest of India will come to settle down in Goa!” It is useful to understand how the mining system worked in the past. Over 8 years (2004-2012) of the Goa mining boom, “we lost 95% of the value of the minerals that were mined and exported. State of Goa was paid less than 5% of the value as royalty. Even this trifling amount that was received was spent, with nothing saved for our future generations. They got absolutely nothing, only 100% loss. The total loss to Goa was enormous, nearly twice the state revenues, over 25% of per capita income, three times the poverty line. The loss in effect worked out to a tax of Rs3.7 lakh, levied equally on every Goan without her consent. A few miners became enormously rich, basically from our children’s inheritance. The wealth was transported to Singapore banks, and off shore colonies like the Cayman Islands…”
Ask the promoters of Goenchi Mati Principles: Do the people of Goa want that state of affairs to continue? Or should mining in Goa happen equitably and with an understanding between miners (to whom the mining blocks are now auctioned for 50 years) and the people who own the land and resources, benefit tangibly for the larger good of Goa and its economical and environment-friendly development? If the answer is yes (and to a question put by Norma Alvares at the release of the book pretty much everyone in the audience put up their hands) then the people of Goa must come together to work on the Goenchi Mati Permanent Fund campaign
AMPLY RICH FUND
WITH the recent auction of four blocks of mining it looks like mining ore in Goa is back on track and the good news is that more or less Rs5,000 crore deposit in the Goa Iron Ore Permanent Fund is a vindication of the people’s long fight in the Supreme Court to clean up the rapacious story of mining in Goa. It was more than a decade long fight led by the Goa Foundation seeking justice for the people of Goa who have suffered the most — affected by livelihood and health tragedies of open cast mining in Goa.
This has undoubtedly been a historic fight by the people for the people and of the people led by Claude Alvares’ Goa Foundation, he is supported generously by his wife advocate Norma Alvares. The question arises now: Has it all been vain or will the government of the day honour the Supreme Court’s judgement and put mining operations on the road to recovery on a new slate of justice? The sordid story of the exploitation of the land along with exploitation of the people of the land – so that a few colossally wealthy mining barons could buy and sell every government of the day – be put to a final rest?
In all this is wrapped up many things: For one thing will enough number of Goans come together to put public pressure on the government to adopt the Goenchi Mati Manifesto so that all future mining may happen on a happiness index of the people rather than a new generation of miners seeking fortunes from the bowels of Goan land! It’s left to be seen what happens in the near future.
The book by Claude Alvares and Rahul Basu with a Preface by Prof Upendra Baxi is bound to go a long way towards defining the future course of mining natural resources in the country. Hopefully! The book very meticulously documents Goa’s horror mining story with all its legal history…till the Supreme Court called for all mining to cease in 2012. The post-Shah Commission investigations called upon the state to take cognizance of human rights violations in the business of mining and the mega profits earned by a handful of old and new lease owners.
Various speakers in a lively panel discussion after the book was released included Gomantak editor Raju Naik, Blaise Costabir, Prashanti Talpankar, Prof Savita Kerkar, Vithal Gauns, Rahul Basu and a few more. It was a packed event very ably conducted by journalist Sandesh Prabhudesai on behalf of the Goa Foundation and its family of activists – undoubtedly for the larger cause of sense and sensitivity in public life in Goa.
Excerpted from `The Supreme Court and Intergenerational Equity, The Goa Mining Case’ by Claude Alvares and Rahul Basu…
9.Ownership of Natural Resources and Intergenerational Equity
The SC judgement dated 21.4.2014 in the Goa Foundation mining case establishes a unique precedent by directing that every mining lease holder will deposit 10 of the value of every invoice drawn to sell mineral ore he/she has extracted from the soil into a Permanent Fund for future generations. For the first time on the globe, a Permanent Fund has been set up consequent to a judicial order. This is not some arbitrary diktat emanating from a specific bench bereft of judicial acumen or tradition.
Over the past two-three decades, the issue of intergenerational equity in matters involving disposal or use of natural resources and benefit sharing from the proceeds obtained from such alienation has occupied the attention of several benches of the Supreme court of India, any preceding the one which delivered the Goa Foundation judgement of 21.4.2014.
For the purpose of clarity, what is the definition of a “natural resource” as understood by the authors here? A denotative definition would be most easy to understand: natural resources would include the air, water, ocean waters and shores, rivers and river banks, forests and biodiversity, and material substances like iron, manganese, zinc ores, etc., found under the soil (sub-surface). As understood, such resources are not created by human beings. They are part and parcel of the natural environment of Planet Earth and have evolved with it. Nation States however claim domain over them and the sovereign right to use them for the benefit of their citizens (or voters).
The next question one can legitimately ask, follows: Is the State which claims domain or sovereignty over these natural endowments also their legal owner? That question has already been answered by the Supreme Court which has ruled that the state is at a “public trustee.” The natural owner, in face in law, are the citizens of the state or nation. They may set up arrangements or delegate agencies like the State to manage the use of these resources which they collectively own However the management or alienation of all such resources is subject to the principles of IE, SD, PP, PPP and PTD and can be reviewed on any or all of these grounds, as all these principles of law have been declared “law of the land” by the Supreme Court in one judgement or the other.
For the purpose of the discussion found in this book – and from the vast class of natural resources the country is endowed with – we are focusing here mainly on sub-soil minerals which appear in the form of mineral ores. If what is proposed and agreed to about such mineral assets becomes clear from the viewpoint of IE, one can confidently assume that similar arguments or qualifications would apply to the other classes of natural resources as well, including for example, forests, beaches or lands owned by public agencies including the government. We have restricted this discussion on mineral resources here within the context of IE in view of the specific research and work of the Goa Foundation and the petitions and arguments it has advanced in the matter. So our or approach is based on specific experience and expertise.
Rationale for a
Permanent Fund for Goa
Under the Constitution of India, the State of Goa owns the sub-soil minerals within its boundaries. In the Fomento Resorts and Hotels Limited appeal (2009)3 SCC 571), which also arose from a Goa Foundation petition and was hence argued by the Foundation’s lawyer Indira Jaising – the Court held that “natural resources, including forests, water bodies, rivers, sea shores, etc., are held by the State as a trustee on behalf of the people and especially the future generations.” Mineral wealth is therefore a part of the commons, with every citizen in the State as well as future generations owning inalienable equal share in principle.
Intergenerational equity can be simply stated as the principle that future generations must inherit at least as much resources as the present generation, since they are equally entitled to the protections of Articles 14 and 21 of the Constitution of India. As custodians over natural resources for future generations, the present generation must first ensure that future generations inherit at least as much as we did. If we fulfil this duty and responsibility, we may enjoy the fruits of our shared inheritance. A loss is a loss to all of us and to all our future generations.
In fact, we derive the sustainable development principles from intergenerational equity – after all, what are we trying to sustain and for whom? The answer is that we are trying to sustain the productivity of the resources inherited by us so that succeeding generations can also inherit them.
Goa has a long standing connection with the original development of the Intergenerational Equity principle, though this is not well known. Intergenerational equity became a part of the discourse with the Brundtland Commission report “Our Common Future” in 1987. Around the same time, Dr Edit Brown Weiss headed a group of six eminent jurists from different continents, the Advisory Group set up by the United Nations University as a part of the Project on “International Law, Common Patrimony and Intergenerational Equity.” Asia was represented by the then Chief Justice of the Supreme Court of India, R. S. Pathak. The final meeting, held on 15.2.1988 in Taj Aguada, Goa, adopted the Goa Guidelines on Intergenerational Equity….
(Supreme Court on Intergenerational Equity)
Fomento Resorts & Ors v. Minguel Martins & Ors. 2009 (3) SCC571
Summary of issues:
The state government acquired land and handed it over to a hotel to set up sports and recreational facilities for use by the public. No buildings or structures on the land thus acquired were permitted. However, the resort built structures for all sorts of purposes. The state government did not monitor. Finally, the HC ordered the demolition of the illegal structures.
There was a separate issue of public access to the beach. There was a traditional path that had been blocked by the hotel. Quoting the public trust doctrine, the HC ordered that the path must be opened and kept free of all obstructions like gates. These were endorsed by the Supreme Court on appeal. In a classic statement, the Court declared: “We reiterate that natural resources including forests, water bodies, rivers, sea shores, etc., are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the Court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems.”