On 12th January 2015 the BJP government promulgated an ordinance to amend the principal mining law, the MMDR Act, 1957. The Act was amended so that mining leases could in future be granted for a maximum period of 50 years. The changes to the law also meant that leases could no longer be renewed on expiry and in future would have to be auctioned.
However, just prior to the promulgation of the ordinance, the Goa government – presumably in knowledge of the impending changes – renewed 88 mining leases in the state, backdating these to 2007. No auction was held. 54 out of 88 of these renewals were done in the week before promulgation of the ordinance.
A few months later other clearances were given to mining leaseholders in Goa, enabling them to re-commence mining post-monsoon in 2015. Mining had thus been ‘on hold’ in Goa for about 3 years.
The current situation is, however, a volatile one. Key issues worth noting include:
Elections – The next state government elections in Goa are scheduled to be held towards the end of January, 2016. Ahead of this the Goenchi Mati Movement has been trying to increase public awareness of the mining story in Goa so that voters may take candidates contesting the elections to task on key mining-related issues such as recovering dues, cancelling leases, implementing a cap at a sustainable level and instituting a permanent fund into which 100% of money received from minerals are paid.
Ongoing and fresh litigation
Challenge to lease renewals: In view of the extremely large loss to the public and on many other legal grounds, the Goa Foundation filed complaints against the Chief Minister, Director – Mines and the Secretary – Mines with the Comptroller & Auditor General (CAG), the Central Bureau of Investigation (CBI) and the Directorate of Vigilance, Goa. CBI responded that it was outside their jurisdiction. Since no response was received from the other two watchdogs, Goa Foundation filed a new Public Interest Litigation (PIL) at the Supreme Court challenging the renewal of the 88 leases, which was done in the weeks leading up to January, 2015. This Writ Petition has been clubbed with earlier Special Leave Petition and a couple of other petitions filed by other Goans and is still being heard.
Permanent Fund: The January 2015 amendment to the MMDR Act introduced the requirement to set up a ‘District Mineral Foundation’ (DMF) to finance sustainable development, and for the benefit of mining affected persons and areas. The earlier Supreme Court judgement in the Goa mining case ordered a Permanent Fund be instituted on grounds of intergenerational equity and sustainable development. Miners, whose views were supported by the Goa state government, have mounted legal challenges to the setting up of a Permanent Fund – on the grounds that it duplicates the functions of the DMF. However, the Supreme Court has not upheld these challenges.
To meet the requirements of the law, the Goa state government drafted rules for both the DMF and the Permanent Fund and submitted them to the Supreme Court. The Supreme Court ruled that the Permanent Fund structure was not satisfactory and required a redraft. The Goa government made changes and submitted them in April, 2016. The new draft is still very poor. It scores on par with the worst existing rated fund on the Truman Index (it achieved a score of 16 out of 100), where the best funds achieve near perfect scores. We therefore need ongoing public pressure to safeguard the Permanent Fund and the Citizen’s Dividend.
Cap on mining: The Supreme Court appointed ‘Expert Committee’s’ final report recommended a 30 million tonnes per annum (‘mtpa’) cap on mining (increased from a previously set ‘interim’ cap level 20 mtpa). It further states that the cap could be increased to 37 mtpa with improvements in infrastructure.
The Goa Foundation in its response severely criticised the methodology used by the Expert Committee to determine the cap level. It also criticised the proposed cap for violating common sense. For example, 30 mtpa was shown by the Shah Commission to result in complete extraction within 20 years (i.e. no ore would be left in the ground after that time). Also it has been established that many severe environmental impacts would be felt at a level below 30 mtpa. Furthermore, the cap in Bellary is 25 mtpa, while the area of Bellary is twice as large as that of Goa and it has a much lower ecological sensitivity.
The Goa Foundation recommended separate caps, the lower of which should apply. One based on the extension of the life of the resource to seven generations, through a cap of 1/200th the proven reserves.
A separate cap was proposed based on the lowest level at which the precautionary principle would come in to action. According to a government report, at 12 mtpa, the benthic life in the rivers became nearly extinct. Goa Foundation has therefore proposed that the initial ‘precautionary’ cap on extraction should therefore be set no higher than this. The Foundation also proposed that this cap could be increased cautiously – every 5 years, by at most 5 mtpa. However, if any environmental parameter like water quality goes beyond permissible limits, or other significant damage is observed, the cap would drop immediately.
The Supreme Court is yet to provide a final decision on Expert Committee reports. For now the cap therefore remains at 20 mtpa.
New litigation at NGT: Goa Foundation & Shankar Jog also filed a petition at the National Green Tribunal, Pune, challenging the Environmental Clearances (ECs) for 24 mining leases (of which 12 have restarted production). The grounds of the challenge were that the ECs were subject to both a study being completed and a subsequent full public hearing being conducted after such a study was completed. This hearing had not taken place for these 24 mining leases. Accordingly, on 27 October 2016 the National Green Tribunal (NGT) issued notices to the 24 mining lessees for operating mines without valid ECs.
Negligible prosecution of illegalities
There is a long list of reports and investigations with little outcome. (a) Public Account Committee report (Parrikar); (b) Shah Commission Reports 1 & 2; (c) Central Empowered Committee interim report; (d) EAC report of MoEFCC (Vishwanath Anand); (e) Shah Commission Report 3; (f) CEE report on EIAs (Madhav Gadgil); (g) Panel of Chartered Accountants; (h) Special Investigation Team (SIT) Goa; (i) Enforcement Department.
New concerns already
1. Control system not in place. No geologist in the Department of Mines & Geology. No one recruited after 2011, despite promise to recruit 435 additional staff
2. Transparency has declined substantially. Export of ore & reserves data refused to be provided in the legislative assembly. Even dates of government orders have been refused under RTI
3. Illegalities have restarted, DMG forced to act
- 2,571 (out of 6,120) trucks barred from transporting ore for overspeeding
- Vedanta moving Karnataka ore without following permits, unloaded without supervision
- People selling dumps they do not own – the state owns all dumps, as royalty has not been paid on the dumps
4. There is clear under-recovery of Permanent Fund dues. See the data presented in the legislative assembly
| Head |
Rate |
Amount collected |
Should be |
| Royalty |
15% |
Rs. 102.49 cr |
|
| Permanent Fund |
10% |
Rs. 27.99 cr |
Rs. 68 cr |
| District Mineral Foundation |
4.5% |
Rs. 30.31 cr |