ORISSA MINING

CORPORATION
V
MINISTRY OF ENVIRONMENT
AND FOREST

BY
VISHAL JAIN
2015137
 BACKGROUND

• The Niyamgiri Hills near Hundaljaliin Rayagada and Kalahandi districts in State of Odisha are religious
shrine or abode of God Niyam Raja for the Scheduled Tribe (ST) and Traditional Forest Dwellers (TFD) of
the region. These tribe and TFD have been worshipping the hills for many decades and had been using the
resources of the hills for their live hood for centuries having cultural and traditional rights over the region
that have been already recognised under the Scheduled Tribe and other traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 or the Forest Rights Act, 2006.

The bauxite mining project requires forest clearance in these hills which have been natural habitat of this
tribe for years and shall also be having an adverse impact on the biodiversity and environment of the
region which is religious shrine for them. The mining activity in the hills shall also interfere with their
customary and traditional rights that been vested in them by virtue of custom and the Forest Act. This
project on the other hand is also essential as it is supporting the Aluminium refinery Project of Sterlite
Industries which has been largest manufacturer of Aluminium in the country.
 FACTS
• 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.
• Orissa Mining Corporation (OMC), a State of Orissa Undertaking, has approached this Court seeking
a Writ of Certiorari to quash the order passed by the Ministry of Environment and Forests (MOEF)
rejecting the Stage-II forest clearance.
 ISSUE

• Whether the decision to reject

environmental clearance for the
construction of a mine because of its
impact on indigenous tribes is lawful?
 OBSERVATIONS BY THE APEX COURT
• The question whether STs and other TFD like Dongaria Kondh, Kutia Kandha and others have got some
religious rights i.e. rights of worship over Niyamgiri hills, known as Nimagiri, near Hundaljali, which is
the hill top known as Niyam-Raja, have to be considered by the Gram Sabha.
• "Gram sabha can also examine whether the proposed mining near Niyama Danger, 10 km away from
peak, would in any affect the abode of Niyam-Raja and in case, it in any way affects their religious
rights to worship deity, known as Niyam-Raja, in the hill top of Niyamgiri range than the right is to be
protected and preserved".

The Court took note of the important role that Gram Sabha plays under the law with respect to any
development projects in the scheduled areas. The court observed various provisions of PESA and
observed that Gram Sabha are required to be consulted before any area is given to mining lease or
mining activity. The Apex Court also observed PESA empowers Gram Sabha to determine the nature
and extent of the rights of the Tribal group and also provides it to be the authority before whom the
tribal group submit their claims of rights which are accordingly decided by them wherein the Gram
sabha verify and consolidate them and delineate the area for their exercise.
 HELD

• The Apex court thus issued direction to the state of Odisha to refer the question of
existence of 'rights' to Gram Sabha and directed the Gram Sabha to decide on the
same within 3 months. The Apex Court also directed MoEF to decide the question of
the grant of forest clearance in the hills in accordance to the decision rendered by
Gram Sabha. The Court also directed that proceedings of the Gram Sabha shall be
attended by observer who shall be district judge and shall be appointed by the Chief
Justice of Odisha High Court. The court also directed that observer should sign the
minutes of the meeting so as to certify that the meeting was held independently and
was completely uninfluenced either by project proponents or by central government.
 HELD

• The apex Court thus held that the rights of ST and TFD should be respected and protected
and held that the Gram Sabha was empowered under the PESA to decide on the questions
of rights of the tribes over the hills and also decide on the impact of the forest clearance
on the rights of the tribe. The Apex Court directed that all claims of rights over the hills
should be brought before the gram sabha which shall decide on the same accordingly.

The apex court also issued direction that MoEF should rely upon the decision of Gram
Sabha for granting approval to forest clearance for the Bauxite Mining Project and also
directed Aluminium refinery project to rectify any violation that had been committed by it
and observed further that rectification by the company in Aluminium refinery Project shall
be considered as consideration for the grant of approval to forest clearance in Bauxite
Mining Project.
 CONCLUSION

• The Apex Court thus pronounced a landmark judgment wherein it not only upheld
and recognised the rights of Schedule Tribe and traditional Forest dwellers that have
often been marginalised in the wake of development projects but also recognised the
importance of big infrastructure projects which not only provide platform for
'development' but also provide opportunities of employment and cannot be
disregarded completely in view of 'rights'.