By: Jibran Ahmad Khan
The following article analyses and provides a broad outline of the National Mineral Policy 2019. It attempts to highlight the merits of the policy while comparing it with the 2018 policy and the changes recommended by the TERI Report. The article also discusses the demerits of the policy by discussing the landmark judgment of Common Cause v. Union of India.
PROPOSAL TO INCREASE PRODUCTION AND ACHIEVE SUSTAINABLE DEVELOPMENT
The present policy emphasises on the need for investment by foreign companies and the need for an increase in Foreign Direct Investment (hereinafter ‘FDI’). It also points to the fact that, so far, the investment in regard to the exploration has been minimalistic in India, compared to the leaders in the industry of mining such as Australia or Canada. This can be attributed to the fact that the Geological Survey of India was technologically inept and did not have sufficient resources to achieve the same. To counter the flaw, the policy suggests a joint concentrated effort between the Ministry of Environment and Forests and the Geographical Information System to achieve optimum mineral exploration.
The policy proposes to grant the status of ‘industry’ to mining activities in order to boost the financing of mining by the private sector. Mining has not been recognised as a primary industry in India, and doing so would give impetus to foreign mining companies to invest in it. Moreover, it would be easier for people planning to invest in the same to get loans. The plans to simplify the taxation regime regarding mines would lead to an overall increase in investment and exploration.
There is a focus on the usage of coastal waterways and inland shipping for evacuation and transportation of minerals as it promotes the creation of dedicated mineral corridors to facilitate the transportation of minerals. This could be extremely beneficial as transportation through water channels is a much cheaper alternative.
The policy promulgates the need for the creation of the District Mineral Fund which would be beneficial as most of the areas where mining is done today are underdeveloped in terms of infrastructure and the same would benefit the indigenous populations residing there. The policy also recognises the environmental threat that illegal mining, without checks and balances, poses. The policy provides for the creation of ‘critically fragile ecological areas’ which, it states, would be declared as ‘no-go’ and inviolate to ensure the conservation of such areas.
Another progressive inclusion is the resolution to increase gender equality in the mining industry. At present, the jobs available for women in the mining industry remain restricted to technical and managerial posts. However, the present resolution might just provide an incentive for women to join the mining industry in blue-collared jobs. This, in turn, would increase many job opportunities for women.
COMMON CAUSE JUDGMENT AND THE ENVIRONMENTAL THREATS MINING POSES
In the Common Cause judgment delivered by the Supreme Court, multiple pending mining leases were cancelled in the state of Odisha. The judgment recognises the environmental issues revolving around illegal mining. The court states, “Lessees in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha have rapaciously mined iron and manganese ore, apparently destroyed the environment and forests and perhaps caused untold misery to the tribals in the area.”
The court goes on to give directions for the regulation of mining, recognition of forest areas and cancellation of mining leases for the time being for the sake of environmental protection and stopping unlawful mining practices.
The reason that there is a discussion on the same is that the policy was expected to take the following into consideration and come out with proper plans to curb illegal mining. The reason that mining should have stringent regulations for environmental protection is that a lot of unregulated mining is unscientific and rampant, leading to poor pollution standards. This, in turn, may lead to improper mine management and mine closure practices that further leads to the endangerment of the lives of locals and miners. Since all these concerns remain, the policy should have had a more detailed structural analysis as to how it plans to tackle the issues of miners’ welfare and mine closure.
Another major issue that should have been tackled by the policy is mine closure and rehabilitation. Improper mine closure can have a major impact on the livelihoods of the population dependent on the particular mine.
Mine closure has been a challenging issue both in developed and developing countries. To ameliorate its effects, we need to have a proper design, supervision, and effective implementation, especially of financial obligations. The policy does not lay out a proper plan as to how the same would be tackled. This is of imminent importance as after the Common Cause judgment, there were sudden mine closures at multiple locations in Odisha. The groups hit worst with such actions are the indigenous population who have built their livelihoods around the mine, thus leaving them with no options for generating income.
A case needs to be made against sudden mine closure and for gradual mine closure. Gradual closure allows those who stand to lose their livelihood a window to find alternate means of sustenance even in difficult situations. While decision-making in sudden closure aims at addressing survival in the immediate present, gradual closure focuses on minimising loss from a long-term perspective. Gradual closure, as a preventive measure, is more preferable and allows for minimisation of loss to a larger extent.
The policy does shed light on and gives emphasis to relief and rehabilitation, devolution of mining benefits and ensuring the welfare of tribal communities. But if we were to focus on the fact that the main objective of the policy is to increase investment and adopt aggressive exploration policies, environment policy might not have the best implementation.
This investor-friendly and development-driven policy cannot be substituted for as it aims at revamping the mining industry and increasing production. However, the welfare of indigenous communities should not be kept in the backseat as it can have far-reaching ecological and biodiversity effects.
SAFETY OF MINERS
Over the last three years, i.e. from 2015 to 2018, there have been a total of 377 deaths in incidents related to mining, with a lot of them happening in mines which were illegal and wherein the safety regulations were not being followed extensively. The policy fails to recognise the rise in such incidents and the strategy remains the same as compared to the 2008 mining policy. To solve this situation, a two-pronged approach needs to be adopted. It would include stricter regulations to curb illegal mining and implementing higher safety regulations which are at par with the global mining safety standards.
INVOLVEMENT OF LOCAL POPULATION TO SUPPLEMENT LOCAL LAW ENFORCEMENT
The policy includes a reference for the involvement of the local population to supplement local law enforcement. It does seem to be a harmless proposition on the face of it, as a policy to provide employment to the local youth. However, it is an extremely ambiguous proposition, which could lead to a lack of checks and balances when the policy is to be implemented on the ground. A similar situation arose in the Salwa Judum conflict where the local population was involved in creating a force to tackle the rising Naxalite issue. Problems arose when the forces went rogue and went on to loot villages and assault tribals when met with any kind of resistance.
Though it could be pointed out that the situation in case of the mining industry is very different, however, there are parallels that can be drawn between the two which present a worrying picture.
The illegal mining mafia is one of the most violent in the country and has been held responsible for the deaths of multiple journalists, forest rangers and administrative officials. In such a situation, to introduce a force which may not be as well-trained as the police forces would mean providing force to mobs without regulation as well as putting the lives of the local population in danger.
The discussed policy is progressive as it tackles the largest issue that the mining industry faces, i.e., the issue of lack of funding regarding exploration and investment from the private sector. However, it leaves a lot of questions unanswered such as to how the court decisions leading to immediate mine closures would be tackled.
The policy lacks clarity as to how environmental degradation and miners’ safety would be tackled. Thus, on the large, the policy seems to be promising with regards to the way production issues are addressed and how it would be beneficial in increasing investment, which might create better opportunities for the tribal population and lesser exploitation of the environment given the Common Cause judgment is kept in mind while drafting plans in line with the same.
(Jibran is currently a 3rd year undergraduate at Dr. Ram Manohar Lohiya National Law University, Lucknow.)