The Mines and Minerals Amendment Bill 2015 contains no provisions for consent from tribals for mining operations, but strengthens the rights of private sector mining companies

Even as countrywide protests against the land ordinance gain momentum, Adivasi communities living in mineral-rich areas are apprehensive of what awaits them as the Mines and Minerals (Development and Regulation) Amendment Bill 2015 (MMDRA) has received presidential assent and the government has drafted Rules for some clauses of the Act.

The principal Act of 1957 is as draconian a law for Adivasis as was the Land Acquisition Act of 1894 for all farmers. But, shockingly, except for resistance by the Left parties and the Congress in the Rajya Sabha, this anti-tribal Bill got easy passage after regional parties such as the Trinamool Congress, the Bharatiya Janata Dal and even the Samajwadi Party came to a deal with the government. The main flaw in the Act is that it does not address the critical issue of the rights of those (mostly from Adivasi communities) who own or occupy the surface land beneath which minerals lie. The Act has no provision for consent or even consultation with gram sabhas which would be affected by mining operations. Adivasis are described in the law as “occupiers of the surface of the land.” As “occupiers”, they have the right to compensation, but as enunciated in the Rules, if they do not agree to the mining plan or to the amount of compensation, the “State Government shall order the occupier to allow the licensee to enter upon the said land and carry out such operations as may be necessary.” (Part V under General Provisions.)

Rights of Adivasis

It is under this provision that lakhs of Adivasi families have been displaced, turned into migrants or, at best, into daily contract labourers in mines that have destroyed their forests, lands and water. Adivasi movements have been demanding amendments to ensure that before such leases are given, their informed consent is taken and they have a share in profits from mineral wealth. Governments have refused to heed this democratic demand. In India, the state has all rights over minerals, but over the years it has acted as a front to hand over mineral resources for private profit. There have been substantial amendments to the Act since 1957, but they have been to strengthen the rights of mining companies further, not to strengthen the rights of Adivasis. This despite the Supreme Court Samatha judgment of 1997, which upheld Adivasi rights to informed consent and to a share in mineral wealth. The judgement ruled that under the Fifth Schedule (administration and control of scheduled areas and scheduled tribes in these areas) and laws in different States, since Adivasi lands can neither be transferred nor leased to non-Adivasis, mining activities in tribal-dominated areas should involve the tribals themselves. Since 1997, other laws such as the Panchayat Extension to Scheduled Areas Act (1996), the Forest Rights Act (2006), and the Wildlife (Protection) Amendment Act (2006) have helped establish the rights of Adivasis and gram sabhas. The more recent Vedanta judgment by the Supreme Court struck down the agreement reached between the company and the State government because it did not have the consent of Scheduled Tribes whose “traditional rights” were affected.

There is no dispute that a country’s mineral wealth should be mined and used for development. However the predominant understanding of ‘development’ by ruling governments at the Centre have privileged profit, in this case of mining companies, over the more sustainable and equitable use of minerals in partnership with local communities. This would also require a sane assessment of the amount of minerals required during a specific period of time with consideration being given to intergenerational equity instead of reckless loot in the name of development.

In 2010, in partial recognition of the Adivasi demand for a stake in mineral wealth, the United Progressive Alliance government had moved an amendment to the 1957 Land Acquisition Act. The Act stated, “any person or persons holding occupation or usufruct or traditional rights over the surface of the land will be allotted free shares equal to 26 per cent through company’s quota, or an annuity equal to 26 per cent of the profit (after tax paid)…”. It mandated “annual compensation as may be mutually agreed.” It also made other provisions towards the welfare of Adivasi communities.

However, the UPA government soon succumbed to opposition from mining companies and replaced the amendment with a much more diluted version in the 2011 MMDRA Bill.

Amending a diluted Bill

Even these diluted provisions have been scrapped by the Narendra Modi government. The government has brought 22 substantial amendments, each one to strengthen the rights of private sector mining companies in the name of attracting investment. For instance, in the 2011 Bill, it was incumbent on State governments to obtain all necessary permissions from the owners and occupiers of land for major minerals, and consult with gram sabhas in Fifth and Sixth Schedule areas for minor minerals. The Bill also mandated that all environment and forest clearances under the Forest (Conservation) Act, Wildlife (Protection) Act or any other law in force be taken before a lease was given. It made tribal cooperatives eligible for the grant of leases for minor minerals in Fifth and Sixth Schedule areas. The 2015 Bill neither mentions tribal cooperatives nor contains provisions for consent, consultation or clearances. This is an attempt to bypass gram sabhas and environmental norms in the name of “speedy clearances” and “ease of doing business”.

Further, the 2011 Bill proposed the setting up of a District Mineral Foundation (DMF). The 2015 Amendment also includes this, but the scope of it and the funds required for it have been drastically reduced. Instead of a contribution of funds equivalent to the full amount of annual royalty paid to the State government, companies will now have to give only one third. Coal companies were mandated to give 26 per cent of profit to the DMF, but the Modi government has scrapped this provision altogether.

The 2011 Amendment Bill was already inadequate, but what the Modi government has pushed through is nothing but a betrayal of Adivasi India. Leader of the Trinamool Congress in the Rajya Sabha, Derek O’Brien, who acted as the proxy spokesperson for the Modi government in support of the Bill, said, “See the glass as half full, not half empty… let’s not be negative. The government had accepted a suggestion to make local communities, including tribals, partners in the development of the mines neighbourhoods.” Mr. O’Brien should know that it is not a question of “making” tribals partners in development of “neighbourhoods”, but in recognising them legally as rights holders with stakes to a share in mineral wealth. Prior informed consent from Adivasis is mandatory before mining leases are given. The glass is full for the corporate lobbies and empty for the Adivasis.

The Modi government has made a mockery of democracy by not consulting those who are going to be most affected by the amendments. Adivasis will make known their opinion when mining companies come into their areas without their consent, soon enough.

(Brinda Karat is a member of the CPI-M Polit Bureau.)