Kudremukha mining: closure in sight?
On 31 December 2005, the curtains are set to come down on the Kudremukh Iron Ore Company Ltd's long disputed mining operations in the protected Kudremukh National Park. But ensuring an end to mining in one of the most stunning landscapes of the country has not been easy. Pavithra Sankaran provides a telling narrative.
December is always a time of closure. Whether one works by the financial or academic year, the month signals the end of another chapter in history, in our lives, in the world around us. So too, this year, December is set to bring the departure of the Kudremukh Iron Ore Company Limited (KIOCL) from one of the most stunning and most disputed landscapes in Karnataka.
Granted permissions and a 30-year lease in 1969, KIOCL took over 3703 hectares of forest land in the western ghats of southern Karnataka to extract iron ore, entirely meant for export. On 25 July 1999 the company’s lease ended, but operations did not. Functioning under a “temporary working permission” granted by the Ministry of Environment and Forests, the company continued its mining operations, until a petition in the Supreme Court sought to put an end to it all.
Remote sensing imagery had also shown that in the period between 1999 and 2002, after the lease had expired, KIOCL had opened up a further 56 hectares of land in total contravention of existing laws.
• T N Godavarman vs Union of India
In 1987 the wealth of biodiversity that is Kudremukha received a first notification towards being declared a National Park. That brought the area under the purview of the Wildlife (Protection) Act of 1972, which disallows any non-forestry operations, including mining, within a protected area. In consideration of the lease granted two decades earlier, the company was able to continue functioning until 1999. The lease expiry date came and went, but iron ore continued to be extracted from the shola-grassland heart of Kudremukha. When there seemed to be no indication that the company would end mining, and when appeals to the government not renew the lease proved unsuccessful, K M Chinnappa, a retired Forest Officer and Trustee of the NGO Wildlife First!, filed an Interlocutory Application (IA) with the Supreme Court in 2001 in the momentous Godavarman Thirumalpad vs. Union of India case. Chinnappa appealed for the mines to be closed and the leased areas to be included in the National Park.
A nearly two-year long court battle ensued, during which the defense produced evidence establishing lasting damage not only to environmental of the Kudremukha region, but to the Bhadra river and reservoirs, to agricultural land downstream, resulting from mining operations. Millions of farmers dependent on the river were in peril due to the impact of sediment from the mines brought down through the river. Remote sensing imagery had also shown in the period between 1999 and 2002, after the lease had expired, KIOCL had opened up a further 56 hectares of land in total contravention of existing laws. The Comptroller and Auditor General estimated environmental damage from this unauthorized land use to be Rs 19.33 crores (1 crore = 10 million).
In a ground-breaking judgement delivered on 30 October 2002, a three-judge bench of the Supreme Court comprising Chief Justice B N Kirpal, Justice Y K Sabharwal and Justice Arijit Pasayat, ordered all mining operations to cease and recommended that the company make its departure from the area by December 2005. The apex court had also constituted a Monitoring Committee (MC) to oversee the closure proceedings.
Earlier, in May 2002, the Supreme Court had instituted a Central Empowered Committee (CEC) as part of a ruling on the Godavarman case. All interlocutory applications (IAs) under the Godavarman case were to be referred to the CEC. The CEC was later notified as a statutory committee under the Environment (Protection) Act. The judgement and proceedings of the case against KIOCL had drawn heavily on the recommendations of the CEC which had visited and examined the mine site.
Supreme Court ruling, 2002
“Duty is cast upon the Government under Article 21 of the Constitution of India to protect the environment and the two salutary principles which govern the law of the environment are: (i) the principles of sustainable development and (ii) the precautionary principle.”
“Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend.”
• Copy of SC’s 2002 ruling (PDF) But KIOCL would not relent. A few months following the October 2002 judgement, KIOCL, represented by counsel Kapil Sibal (currently Minister of Science and Technology in the UPA government), filed a petition seeking clarifications on the judgement. The apex court referred this appeal to the CEC which returned it with the comment that it was a review petition and was therefore not maintainable.
Meanwhile, the Central government amended the Mineral Concession Rules in April 2003. Switching back to its original counsel, K K Venugopal, KIOCL once approached the SC quoting the amendments, particularly rule 23(C) which details procedures for final mine closure. The SC dismissed this request in an order passed on 4 August 2004, and held that these amendments would not override the directions contained in its earlier judgement of 2002. They also directed that the application be placed before the MC and the question of directions if any (on mine closure), would be considered after the matter was first examined by the CEC.
KIOCL then presented to the MC that it could extract primary ore for a further twenty years and needed to extract weathered ore in an area of 54 hectares on a hill slope. They claimed that the hill slopes were unstable and only extraction could help stabilize the area. Reports from the National Institute of Rock Mechanics concurred with this, and soon, the MC was convinced of the validity of these claims. Only one member of the MC, Dr R Sukumar of the Centre for Ecological Sciences had voiced dissent, stating that the action was clearly outside the mandate of the MC and that he concurred with none of their recommendations.
More was to unfold. In a series of parallel developments in April 2004, Anita Arekal, Deputy Conservator of Forests (DCF) for the Karkala Division within which the Kudremukh National Park falls, raided the premises of the Kudremukha Wildlife Foundation (KWF) and seized computers and other material. KWF had been aiding resettlement of communities living within the park, working on conservation awareness programmes and had been a key participant in the anti-mining campaign.
The DCF also filed 14 cases in four magistrate courts against 18 persons including conservationists, scientists and even the members of the Supreme Court appointed CEC who had opposed the mining. Among the accused were Niren Jain of KWF, filmmaker Shekhar Dattatri, scientist Ullas Karanth and K M Chinappa who filed the original 2001 IA against KIOCL. The charges filed against them were trespassing into the national park and conducting surveys and studies without permission — all the alleged violations had taken place a few years before the cases were filed.
Subsequently, hearings in these cases largely went against the now-transferred DCF, and the courts declared Anita Arekal’s actions “illegal and without jurisdiction” and have stayed all the cases. Thereafter, the CEC itself, in its order dated 10 September 2004 held that the raid and seizure of material was not justified and asked the state government to take disciplinary action on Arekal for having violated a stay order issued earlier. The fact that these cases were filed in several different courts in several different towns, in an apparent attempt to harass the accused, also came in for criticism. Speculation was rife that the officer was under pressure from or in collusion with KIOCL.
This September, a series of reports appeared in the New Indian Express that not only questioned the original judgement of 2002, but went on to accuse the SC instituted CEC of bias, and alleged corruption and misappropriation of foreign funds by non-profit organizations associated with the case. Following this, and with four months left to wind up, the company made one more review appeal to the Supreme Court. This time, Amicus Curiae Harish Salve advised the Supreme Court that the company’s repeated appeals were not maintainable. Following his strongly worded advice, the Court declared that KIOCL must first comply with the closure order and wind up by 31 December 2005.
Yet, the company pressed on. On 30 September they once again sought to raise the matter along with another application moved by former justice Rama Jois on behalf of the KIOCL labour union. After hearing them for 40 minutes the Court in a written order directed that “…no mining is permissible after 31st December, 2005…”.
While this looks like the end of the road for KIOCL and conservationists have gained a breather for the first time in years, there has been immense pressure from the political community — notably ministers in both the central and state governments — for a reversal of the 2002 judgement. There has even been talk of amending laws to enable KIOCL to continue functioning. Political will and a company with a turnover of more than a 1000 crore rupees can do a lot. But for now, December looks set to bring the curtains down, at least to this phase of the Kudremukha chronicle.
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Pavithra Sankaran (2005) ‘Kudremukha mining: closure in sight?’, India Together, 30 October 2005. https://indiatogether.org/kudremukh-environment/
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Leo Saldanha · 1 December 2005
The article "Kudremukha mining: closure in sight?" by Pavitra Sankaran is once more, a commentary from a particular view. Clearly, the position adopted here is that some people went to court and won a "landmark judgment" against some very destructive mining in the forests of Karnataka. As always, analysis as simple as this is fraught with many inconsistencies. A glaring one here is the complete absence of history to this litigation. There was no dearth of space, as in a printed paper, to not throw even a bit of light on this. By not doing so, the writer exposes her position as one being guided almost entirely by the petitioners. A telling instance of this is the rather sudden departure from a narrative of the litigation to the alleged misdeeds of Anita Arekal. Kindly put, the least the write could have done is to dwell a bit more on the context of these actions, rather than merely add fuel to imputed motives by sharing in a most lackadaiscal manner that: "Speculation was rife that the officer was under pressure from or in collusion with KIOCL." What if this speculation is wrong? Unfortunately for Anita Arekal, being a serving officer, there will not be an opportunity to clarify her view on this supposed "speculation". In the broader sense, what the article misses is the view amongst many many groups that fought long and hard battles against mining in the Kudremukh region, that to go to Court would be to provide unnecessary advantage to the draconian features of the Wildlife Act. As has been well established today, the Wildlife Act has failed to protect Wildlife and Forests, even when the best efforts propounded by its supporters have been fully supported by the State. To put forests within fences and accord protection by gun toting officialdom, is an idea whose time is long past. (Refer to Crimes Against Nature: by Karl Jacoby, for instance, to understand how mercenary these steps are against forest dwellers, and how useless such pursuits are in protecting our biodiversity). Because one cannot imagine a more imaginative approach to resolving complex problems, the solution does not lie in settling down for the median approach. Realising which, many groups who wanted an end to mining in Kudremukh pursued a more sincere and committed approach, that of building public opinion. They also did not want to use the Wildlife Act to end the mining, for the result would invariably be, to implement the law: that is shut down mining and all other forms of human activity. A complex problem that writer completely ignores. A glaring ommission here is the position adopted by the People's War Group for instance. In this landscape of conflict, should they not have their say? And what of the wide representation of organisations who have not only fought against mining, but also against dislocation of forest dwelling communities? Leo Saldanha
Pavithra Sankaran · 7 January 2006
Dear Mr. Saldanha I welcome your comments, especially the point you make about the issue being far more complex than any published analysis of it has been able to describe. It is evident that any issue that involves a corporate entity, local people and forests is bound to have several layers and several players, and there is rarely a pleasing way to tell the story, no matter how neutral the narrative. There is also no disagreeing with your observation that many of our laws have been badly used. But the Wildlife Act, should it ever have the benefit of being read finely, displays surprising regard for the rights of local communitiessomething most of us are unaware of. To condemn the law when actually lamenting bad implementation is a bit like banning speech because someone used a cussword. That said, it should be clarified that the aim of the article was merely to trace the progress of the original petition, and allied matters, in court. Hence the digression to the cases brought by Anita Arekal, etc. In any case, her clarifications and opinions on the issue of mining and much else, has found voice in several column inches of newsprint from the many press releases and conferences held during her tenure. That the article restricts itself to chronicling the legal proceedings should not be taken as an indication that the varied voices that should be heard in any issue of this nature have been deemed unimportant. Should the piece instead have been a commentary on the issue, your objections would be more than valid. In any case, by your own token, I could ask -- your letter mentions the People's War Group, and other organizations working with the local people against the mine, so why fail to mention the farmers of Shimoga who lives have been ruined by the silt from the mine? Why also to forget to mention that the last representatives of myriad life forms that make their final refuge in Kudremukha might have an intrinsic and undeniable right to life and their own form of livelihood? (If one were to believe KIOCL, the animals could subsist on a few acres of monoculture exotics planted to replace a thriving rainforest!) I am in complete agreement with you that building public opinion is crucial for many of the issues in conservation today, but in many cases it is mere opinion of one marginalised group against that of another. How are we to judge if the lives of those who lose their jobs when KIOCL closes are more or less important than those of the lakhs of farmers downstream of Nethravati and Bhadra? And finally, I should like to know, how in an atmosphere of heavy political string-pulling, would any group, no matter how sensitive to local issues, force an illegally functioning, but profit-making mine to shut down? Our governments (as is evident from dozens of instances in Orissa and other places) are solidly and chillingly in support of corporates attempting to wrest land from our people. The people in the Ministry of Environment and Forests have gone on record to say that they will "remove any environmental barriers" to "development". How are poor, impoverished local people, no matter how empowered and informed, going to fight a profit-making government-run unit? Misusing the law is one thing; being backed into a corner with your elected representatives crowding you with "multinational" and "export-oriented" swords and having nothing besides the shield of law to protect you, quite another. Pavithra Sankaran