Forest panel warns of ‘fait accompli’ situation to requests of mining before nod
Union environment ministry’s Forest Advisory Committee (FAC) has taken a cautious approach to requests from the coal ministry about allowing mining operations in non-forest land before prior clearance. To avoid “fait accompli” situations where mining begins before requisite permissions are granted, the FAC has directed the environment ministry’s regional office to prepare a briefing paper on inter-dependency of forest and non-forest land where mining involves both land types.
The minutes of FAC’s meeting on June 25, published on Parivesh website last week and seen by HT, show the panel held its view on preventing “fait accompli situations” despite senior officials suggesting that such projects be allowed to start operations without forest clearance.
Coal India Limited, in a letter dated July 14, 2020, and the coal ministry, in a letter dated August 14, 2020, requested the environment ministry to allow commencement of mining operations where Stage-I approval and environment clearance has been obtained and to relax the quorum of Gram Sabha prescribed. Subsequently, a reference was also received from the secretary (coal) where the request was reiterated.
To avoid situations, where investment made for commencing mining operations become infructuous in case forest clearance is finally denied, the environment ministry, in its guidelines, says that work on non-forest land should not be started till the final forest clearance (Stage-II approval) of the Centre is granted.
Coal ministry and Coal India Limited’s request was earlier considered by the FAC in November 2020 when it observed that agreeing to the request as such may create “fait accompli “situations and cannot be agreed as a general principle. For specific cases in which the forest land/non-forest land is already broken within an area having approved mining plan, permission for commencement of mining operation in the non-forest area may be considered by the State government after obtaining Stage I approval based on certain conditions.
The environment ministry sought legal opinion from the law and justice ministry on the matter. The law ministry observed: What may constitute a fait accompli situation is a question of fact and not the question of law and therefore, the administrative Ministry is advised to look into all aspects of a project and while granting clearances of Stage-I or Stage-II take all necessary measures that require to be taken to avoid a fait accompli situation.”
Based on the legal opinion, FAC held that work should not be started on non-forest land till approval of the Centre for use of forest land under the Forest Conservation Act is given. Only in specific cases, the Centre can consider commencement of mining operations in non-forest land having forest land/non-forest land broken up within an area having approved mining plan and in which Stage-I Forest clearance has been granted.
The minutes state that the secretary of the environment ministry did not agree with FAC’s cautious approach. He is quoted in the minutes saying: “I don’t agree with recommendation of FAC. Even though lease area may include forest area, we are under no obligation to grant forest clearance. There can be no fait accompli. If PP undertakes mining operation in non-forest area, it is none of our business to stop it and certainly casts no obligation on us to grant FC… we have absolutely no jurisdiction over non-forest land and shall not indulge in overreach.”
FAC said it requires more information to make a decision and discussed the issue with various regional offices of the environment ministry.
The FAC decided that the Bhopal office will prepare a comprehensive national briefing paper on the inter-dependency of forest and non-forest land in case of mining and what safeguards are needed to prevent ecological damage.
“We had a long discussion. Some senior officials had a different view, but FAC finally decided to take time and study the matter because a large number of such projects could have a massive impact,” said an environment ministry official, who did not want to be named.
Kanchi Kohli, legal researcher, Centre for Policy Research, said: “The FAC’s approach to not allow for work on non-forest land is socially just, ecologically reasonable and legally sound. Historically, the political economy of fait accompli has always worked in the favour of mine owners, highway contractors, or dam builders. Allowing for work on non-forest land will make the ministry complicit in setting the stage for forest diversions. This will neither be an innocent interpretation nor an ignorant decision by a ministry that has the mandate to protect forests.”
A Coal India Limited spokesperson said he cannot respond immediately as to why such a request about the commencement of mining before the final forest clearance is granted was made.