New Delhi: The Ministry of Environment, Forest and Climate Change has written to all states allowing mining activities in those parts of a mining block that fall outside forest areas, as long as user agencies have obtained stage one approvals and comply with certain conditions.
Stage one approvals are “in principle” permits and are given subject to conditions, such as paying and providing land for compensatory afforestation. Under the Forest (Conservation) Act, forest clearance for projects is not considered granted till stage two approvals — awarded once the conditions for stage one approvals are met — are given, after which work in the concerned area may begin.
In the letter dated 10 December, however, the Ministry has said user agencies may begin work in the non-forested part of the mining block with stage one approvals, provided they meet certain additional conditions. These conditions state that the mining plan for work in non-forest land “shall not involve” and remain independent of forest areas, and that the work permitted “shall not create any obligation or fait accompli”.
A fait accompli situation refers to when work, once started without adequate clearances, becomes difficult to reverse.
The conditions also state that the proposal for mining within the forest area should be “standalone” and make no mention of the work underway in the non-forest portion. Violations will attract penalties under provisions of the Forest (Conservation) Act, the ministry cautioned.
Experts have pointed out that the ministry’s directives are an exception to the rules under the Forest (Conservation) Act, which explicitly state that when mining projects extend across both forest and non-forest land, work should not begin in the latter till stage two approval is granted for the entire mining area.
“If a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been obtained,” states section 1.14 of the 2019 Rules under the Forest Conservation Act.
The ministry’s directive follows the recommendation of the Forest Advisory Committee (FAC), which made the decision to allow mining in non-forest areas with stage one approval in a meeting on 28 October.
The issue is contentious and had been discussed by the FAC on multiple occasions — in November 2020 and June 2021 — after Coal India made appeals in July and August 2020, seeking permission to begin work without stage two approval.
According to the minutes of the October meeting, environment ministry secretary R.P. Gupta did not initially agree with the FAC’s recommendations of including a caution against fait accompli situations, saying the environment ministry had no jurisdiction over non-forest lands.
Gupta is quoted in the minutes as saying that “Even though lease area may include forest area, we are under no obligation to grant forest clearance. There can be no fait-accompli. If the project proponent undertakes mining operations in non-forest area, it is none of our business to stop it and certainly casts no obligation on us to grant FC. If some expenditure of project proponent becomes infructuous, so be it. We have absolutely no jurisdiction over non-forest land and shall not indulge in over-reach.”
Coal India, in its appeal, had also asked that provisions in the Forest Rights Act (a law that safeguards the rights of tribals and other forest dwellers) requiring quorum of Gram Sabha members be relaxed. The FAC did not, however, respond to this request since it falls outside its jurisdiction.
Cause for worry, say experts
Experts claim that the ministry’s caution against a “fait accompli” situation is weak, and mining activities may still spillover into forest land.
“This way they are stopping any chance for rejection (of forest clearance),” said Ritwick Dutta, environmental lawyer and founder of Legal Initiative for Forest and Environment (LIFE).
“The fact is a mining block is a compact block. For the FAC to say that mining can commence in the non-forest portion of that land completely misses the purpose of the Forest (Conservation) Act because even if they do that, as a mining block, it is one and the same. The guidelines clearly state that they should not begin working in the non-forest land till clearance is given for the entire block,” he said, adding, “This will render the whole process under the FCA as a mere formality.”
His views were echoed by Kanchi Kohli, legal researcher at Centre for Policy Research, who termed the provisions in the letter as “a reading down of the ministry’s own guidelines”.
She added: “They are selectively applying this to coal mining operations under certain conditions. The FAC is aware of the problems this may lead to, which is why they have included that caution against a “fait accompli”. In practice, this may not hold and we are likely to see fait accompli situations anyway.”
(Edited by Poulomi Banerjee)