Opinion » Lead

Updated: May 15, 2012 00:44 IST

Of mines, minerals and tribal rights

Brinda Karat
Comment (18)   ·   print   ·   T  T  
The Hindu

The proposed liberalisation of the mining and minerals sector is an assault on the rightful owners of the land and its resources.

Tribal and indigenous communities across the world have been asserting their rights to the mineral wealth often found under the land they own or possess or have traditional rights to. They have been historically denied even a share of that huge wealth, leave alone legal rights of ownership. Under the contemporary deregulated neo-liberal policy framework, the exploitation and plunder of natural resources, including minerals, by domestic corporates and multinational mining companies has intensified. But the resistance by affected communities across the world has also grown and is reflected, over the years, in the establishment of an international framework through ILO and U.N. Conventions, which recognise in varying degrees the rights of indigenous and tribal communities to ownership, control and management of land and resources traditionally held by them either individually or as a community; the right to a decisive role in decision making for development needs in their areas; and the right to prior, free and informed consent to any projects in their areas. While these are encouraging advances won by the struggles and immense sacrifices of tribal communities, what is important is their translation into legal instruments in member countries. The issue has immediate relevance for India, as the UPA government has introduced a Mining and Minerals (Development and Regulation) Amendment Bill, 2011 (MMDRA), which is presently before the Parliamentary Standing Committee.

Promoting privatisation

In India, ownership of minerals lies with the State. However, the Central government which has control over all major minerals like iron ore, bauxite, copper, coal and most State governments which have control over minor minerals like sand, stone, granite, etc., have promoted privatisation through leasing mines to private companies apart from handing over captive mines of iron ore and bauxite to steel and aluminium corporates like the Tatas and Birlas. According to a recent report compiled for the industry by Ernst and Young, of the 4.9 lakh hectares of land given out in mining leases in 23 States by the end of 2009, 95 per cent of the leases comprising 70 per cent of the land were given to private companies.

The MMRDA Bill aims to further deregularise and liberalise the mining sector and encourage privatisation based on the recommendations of the Hoda Committee. It introduces the concept of high technology reconnaissance, prospecting and exploration licences, and easy terms of conversion to mining leases to encourage the entry of FDI and foreign companies. It also gives weightage, in the allocation of leases, to a set of criteria which favour such companies and also allows them activity on much larger tracts of land than previously. This has adverse implications for equity, the environment and growth.

While these aspects need comprehensive analysis, here we focus on those provisions, which claim to address the rights of tribal communities. There is a provision that makes it mandatory for coal mining companies to give funds amounting to 26 per cent of the profits. For other major minerals, an annual amount, which is the equivalent of the royalty paid in the financial year, must be given. While the principle of mandatory payment by companies is necessary, the problem in the MMRDA is that these funds are to be under the control of a district mineral foundation dominated by mine owners and the bureaucracy with a nominal representation of local communities. Interestingly, in the U.S. where the Federal Government had set up trusts to manage funds paid by companies using the land on reserves owned by Native Indians, the government was recently forced to pay a compensation of $1.2 billion to 41 Native American communities for “mismanagement of the assets” of the trust and is expected to have to pay another $3.4 billion in a similar case. When the affected people do not have a decisive say in the management of such funds, as in the case of the proposed district mineral foundation in the MMRDA Bill, “mismanagement” is inevitable. Also, rates of royalties in India are notoriously low. Until recently, for example, the royalty for one tonne of iron ore fixed by the Central government for Orissa was just Rs. 26. With a low extraction cost of only Rs. 250 to 300 per tonne and a high market price around Rs. 7,000 a tonne, mining companies made huge profits. While royalty rates have been recently increased, it is still a pittance compared to the profits companies make.

Patron-client relationship

The very premise of the scheme replicates the patron-client relationship, which has reduced tribal communities into recipients of charity, instead of recognition as owners of the land and its resources. The related provisions of the Bill constitute an outright assault on the constitutional rights given to the tribal communities, in particular in Fifth Schedule areas.

The Bill gives legal sanction to the arbitrary rights of governments, both at the Centre and the States, to give different types of licences and leases from reconnaissance to exploration, prospecting and finally extraction without any procedure for even consulting, leave alone taking the consent of tribal communities. The only reference to “consultation” (not consent), is for the grant of licences for minor minerals (but not major) in Fifth and Sixth Schedule areas where “the gram sabha or the District council, as the case may be shall be consulted.” Thus even the provisions under other laws such as the Panchayat Extension (to Schedule Areas) Act (PESAA), which mandates consultation with the gram sabhas, are violated by the complete absence of any consultative process prior to the granting of lease for major minerals, which are the main sites of tribal deprivation. In another provision for notification of giving leases in forest areas and wildlife areas, the State government has to “take all necessary permissions from the owners of the land and those having occupation rights.” Thus an unwarranted differentiation is made between the rights of tribal communities in Fifth Schedule non-forest areas and forest areas. However even in the case of forest areas there is no provision for what would happen in case the owner does not give permission.

In Fifth Schedule areas, the law prohibits transfer of tribal held land to non-tribals. Different States have also enacted such laws like 70/1 in Andhra Pradesh, the Chotanagpur Tenancy Act and the Santhal Parganas Tenancy Act in Jharkhand. None of the mining companies that gets leases is owned by adivasis. Presumably this was the reason why in the Samata case, the Supreme Court held that sale, transfers and even leases of tribal land to non-tribals are illegal. It directed that governments should consider a mechanism to include cooperative societies of tribal communities for mining operations. The Bill overrides the Samata judgment. Tribal cooperatives have been disqualified in the list of those eligible to get a lease for mining of major minerals, which can only be companies registered under the relevant laws. It is only for minor minerals and small deposits in the Fifth and Sixth Schedule areas that the State government “may” (not “shall”) consider tribal cooperatives for getting the lease. An earlier draft of the Bill in 2010 had included a provision for a guaranteed stake of tribal communities in mining companies. The provision had said “the company”… “will allot free shares equal to 26 per cent through the promoters quota.” South African law under the Broadbased Black Economic Empowerment Act has a provision of mandatory sale of 26 per cent shares in all mining companies to “historically socially disadvantaged sections.” But in India, caving in to pressure from mining lobbies, the earlier provision has been replaced with a token allotment of “one share per member of the affected family.”

There are other issues such as compensation and compensatory jobs in lieu of lost livelihood which are inadequate and also ambiguous. With cuts in permanent jobs and widespread contractual and casual work in the mining sector, the promise of employment to land losers cannot be taken at its face value. Seen together with the pending Land Acquisition Bill which specifically excludes the issue of leasing tribal land, this Bill not only buries the ownership rights of tribal communities but facilitates the easy entry of international and domestic corporates to Fifth Schedule and tribal-dominated mineral-rich areas to plunder the natural resources of our country. India, which is a signatory to many international conventions on the protection of tribal rights, is violating these conventions and adding to the burden of historical injustice. The Bill, in its present form, should and must be opposed and resisted. Concerned movements should work together for an alternative model which will recognise the ownership and other rights of tribal communities in mining in Fifth Schedule and tribal areas through effective legal mechanisms.

(Brinda Karat is a member of the Polit Bureau of the Communist Party of India – Marxist.)

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"Jameen, jungle, Jaal" right to adivasis must not be challenged or usurped. They are indigenous people of India, that is Bharat or Hindustan or India of today. Brinda has put the facts in simple but in political style on these scores. I strongly feel against -adivasis will continue to suffer at the laws, Constitution, governments, multi-nationals, corporates, industrialists, capitalists for depriving them of Jameen, jungle, jaal. Perhaps by bringing such laws to usurp adivasis of jaal, jungle and jameen,the govt is riding tigers. Instead of improving their lots in last over 60 years, govt and people are victimising poor tribal! Humanity does not teach us such things-one must improbve the lots of adivasis not deprive their traditional jaal, jungle and jameen.For the development ofcountries,there are many ways not only mines andminerals.One should teach these things from the global scientists and also principles of Father of Nation Mahatma Gandhi!
my blog www.kksingh1.blogspot.

from:  krishnkumar singh
Posted on: May 22, 2012 at 18:33 IST

The party, in which Ms.Karat is a member, is opposed to anything and everything. basic facts are a) the states in which such huge mineral deposits are located remain very underdeveloped. eg. Orissa, chattisgarh, bihar, jharkand etc., Industrialisation can bring in the change we need. Hence mining is a must b) Tribals need not remain primitive for ever. they need to join the main stream. should have quality education, better health care, good infrastructure like roads, drinking water, electricity etc., c) any mineral exploitation should result in value addition activities in the same place so that local economy will improve d) we can ban exports of minerals unless we need a quid pro quo from that country like petroleum e) we need balance environmental concerns also.
People like Karat should suggest how to do this, in a more practical way than simply opposing every thing. unless our mindset changes extremism will continue to flourish in these areas.

from:  Sundaram Chellappa
Posted on: May 16, 2012 at 15:01 IST

The ruling Congress party and opposition BJP are united in aspect of looting the natrual resources in India. Most of the states ruled by BJP, incidentally are rich of mineral resources. Not to mention about the rampant looting of mineral done in Karnataka, Madhya Pradesh and Uttaranchal. MINERALS OF INDIA ARE MEANT FOR INDIA ONLY. They should not be allowed to export. The policy adopted by the corrupt Congress party to allow liberalisation in mining will lead to catastrophe and a day wont be far, when India had to beg for mineral from other countries.

I dont know why both Congress and BJP have become daylight robbers. Previous politicians atleast had some dignity in looting the nation's resources. If BJP comes to power, it may sell the mines, ports and waterways to private companies. Its betweem the deep sea or the devil here for the people of our country to choose.

from:  Syed Kabeer Ahmed
Posted on: May 16, 2012 at 10:37 IST

While this is an interesting view point, the purpose of the Bill is to encourage private investment, foreign technology and lower costs in the mining sector. More mines means more coal is available to power companies at lower costs. More power means electricity for all at lower costs. This will help supply of electricity to tribal areas too and they will be able to get a better education and become more exposed to mainstream issues.

from:  Magan
Posted on: May 16, 2012 at 10:13 IST

1)funds are to be under the control of a district mineral foundation dominated by
mine owners and the bureaucracy with a nominal representation of local
communities---the funds must be controlled by the local community, rather than by bureaucracy
2) Tribal cooperatives have been disqualified in the list of those eligible to get a lease for mining of major minerals,----this is a non democratic clause; tribal cooperative societies must be considered as minor partners(5-15%stake), after all the spirit of private initiatives is to allow competition, not rule it out 3)A certain percentage of shares must be given to the tribals, at least 10 % of the >mining company in addition to royalties----perhaps that more than any thing else will help reduce tribal revolts , when the land owners are made stake holders they don't resort to violent rebellion and both the government and mining companies save the hundreds of thousands of crores that will otherwise be spent on fighting naxal like problems.

from:  rajeev
Posted on: May 16, 2012 at 09:21 IST

1)funds are to be under the control of a district mineral foundation dominated by
mine owners and the bureaucracy with a nominal representation of local
communities---the funds must be controlled by the local community, rather than by beurocrats 2) Tribal cooperatives have been disqualified in the list of those eligible to get a lease for mining of major minerals,----this is a non democratic clause, tribal cooperative societies must be considered as minor partners, after all the spirit of private inititatives is to allow competition, not rule it out . A certain percentage of shares mut be given to the tribals, at least 10 % of the mining company in addition to royalties----perhaps that more than any thing else will help reduce tribal revolts , when the land owners are made stake holders--that is what history repeatedely teaches us, Giving the tribals(either directly or through their local corporative socities) a 10 - 15% stake of share holding of the company is the best way to forward.

from:  raj
Posted on: May 16, 2012 at 08:59 IST

Glad to see politicians making masses aware of their rights.Really we need such politicans who could be fact-finding commissioners and who could represent voices of real stakeholders who are unaware of their rights and who become victims of corporate lobbying.In technology era,we cannot definitely expect a fight between green world and corporate world as both have to go together but what is yearned is sustenable development and 'not daylight roberry of natural resources'as someone has rightly put it.By filing an RTI application at the right time,real stakeholders i.e people could come in between government and corporate bodies by knowing terms and conditions kept in 'memorandum of understanding' and could save themselves from becoming mou-ists as someone has rightly termed it.

from:  Shayesta Nazir
Posted on: May 15, 2012 at 21:24 IST

The wealth belongs to people of India, the tribals cannot lay blanket claim to anything tht lies
under the jungles they roamed in. People like Karat use these arguments to keep the tribals
out of national mainstream by making them dependent on handouts. Let the mining and
metal companies come, Educate and train tribals to work and earn like others do. Just
because these guys roamed over an area does not give hem rights to sit back and demand
wealth or stop others from investing and developing a resource.

from:  Siddharth
Posted on: May 15, 2012 at 20:05 IST

This effort by Ms.Karat to bring light to a situation where the habitats of those traditionally living there are taken over by the companies who pay pittance to G.o.I for the ore they take out and virtually drive Out the people who live there- paying virtually nothing.The Americans destroyed the natives of the country by forcefully Re-Locating them in places which were alien to their culture and environments.In India the poor people are uprooted without any hope for their future by Commercial minded people with the Govt Agencies NOT caring for them.These are the people who are falling in to DEADLY TRAP set by the NAXAL HARDCORE. Unless and Until the Exploitation is stopped and the people who suffer ARE PROPERLY REHABILITATED NAXAL MENACE WILL EXTEND THEIR TENTACLES FAR AND WIDE

from:  Arackal Narayanan
Posted on: May 15, 2012 at 18:18 IST

Masterpiece Brinda mam. I wonder why not grabbing of tribal land there by depriving them of living resources, pure air && fresh drinking water is not violation of Article 21 of Constitution. Does the state can create an alternate forget about similar, at least 20% worth of the ecosystem these tribal people are having earlier? If state cant guarantee that state does not have the right to deprive them of that. If per say the resources extracted are for the betterment of state or its people cant state first draft out a bill to monitor and publish how the resources extracted have actually benefited the country? this is important because at one side we are hurting a big balanced forest ecosystem at least we should be knowing what the pain is worth of.

from:  Venu Gopal Reddy Muvva
Posted on: May 15, 2012 at 17:51 IST

Leasing Mining rights to Tribal cooperatives is a laudable idea, but it may also lead to exploitation by a selected section of the people and there are also chances of formation of Mafias (similar to land mafias).
Can someone opine if the following mechanism would work? Grant the leasing license to MNCs but give the Gram Sabha/Cooperative shares (stocks) of the Mining Company in a proportionate manner. The dividends declared can be shared according to the proportion of land given up!

from:  Madan Panathula
Posted on: May 15, 2012 at 17:00 IST

Privatizing infrastructure is always tricky. On the one hand, government does not have the money to invest into exploitation of natural resources. On the other hand, private investors are known to be absolutely unscruplous in their pursuit of maximum profit, especially in the field of mineral extraction etc. where the profit margins are generally very small.

The best solution may be to assign nominal ownership to tribal populations as a
collective or co-operative, forbidding sale of land but only allowing them to lease
the land for usage, say 10 years at a time. This way, the land cannot be sold off for
other purposes and a 10-year lease time permits correction of leasing prices

But this requires a lot of bureaucratic groundwork to clearly permit ownership
definitions such as land survey to define plot sizes/value, IDs to tribals to ensure
that the right people are getting the money, legal assistance in negotiations,
setting up a functional co-operative etc.

from:  Vivek
Posted on: May 15, 2012 at 15:28 IST

Mining companies making huge profits, most of Indian tribals are suffering lost
Government supporting these companies and fighting with our own tribal people, it's call INDIAN Democracy!

from:  faisal Anodiyil
Posted on: May 15, 2012 at 14:42 IST

"The royalty for one tonne of iron ore fixed by the Central government for Orissa was just Rs. 26......Mining companies made huge profits."
Where the hell all the money going to? Can't the Government control the Profits for Mining Cos levying heavy taxes? Atleast that tax amount could be used to pay the Land losers, many of who are Tribals.

from:  Vishnu Kumar
Posted on: May 15, 2012 at 13:09 IST

I think there remains no harm in acquiring the tribal land and
compensating in return but of the equivalent value. After all, the resources belong to the country and it could be used for welfare purposes,it's utilization either by the state or the private owners has to be for the nation. But indeed the schemes that have been penned down by Miss. Karat, draw a full consideration for the Tribal in other states but not in out nation,its a pity! And thanks to MMDRA I wish reasonable compensation made to the Tribal on acquiring their lands that does belong to them but it could be used for the welfare of our nation.

from:  Hina Fatima Khan
Posted on: May 15, 2012 at 12:26 IST

The companies should be required to, instead of just PR campaigns, implement widespread reforms. Large MNC groups must invest in education and healthcare facilities along with setting up businesses. We don't need "tough" laws but "humane" laws.

from:  Himanshu Gupta
Posted on: May 15, 2012 at 11:34 IST

There is no comparison between "native Americans" and Indian tribals. This confusion has purely to do with the use of the discredited term "tribal" for these peoples in different contexts of imperialism. Secondly, Karat's only solution is to keep these people on welfare. That solution has only made their situation worse over the course of decades. The write-up is totally uneducated.

from:  Aman
Posted on: May 15, 2012 at 09:42 IST

"The very premise of the scheme replicates the patron-client relationship, which has reduced tribal communities into recipients of charity, instead of recognition as owners of the land and its resources."
Thank you for bringing up this point.Industrialists are taking up the resources belonging to the tribals and their PR guys use the news channels to project it as a favor to the poor.

from:  Sachin
Posted on: May 15, 2012 at 02:11 IST
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