Mining on non-forest land before final nod approved

ByJayashree Nandi, New Delhi
Feb 09, 2023 03:28 AM IST

The Forest Advisory Committee (FAC) decided in October 2021 to approve coal mining on non-forest land adjoining a forest, when mining activity extends to both areas, even before a forest clearance is granted; the recent nod has been given for all minerals.

An environment ministry panel has allowed state governments to permit commencement of mining operations for all minerals on non-forest land contiguous with a forest, where both types of terrain are involved, even before the final clearance is accorded, drawing criticism from environmentalists and legal experts.

Mining on non-forest land before final nod approved
Mining on non-forest land before final nod approved

The Forest Advisory Committee (FAC) decided in October 2021 to approve coal mining on non-forest land adjoining a forest, when mining activity extends to both areas, even before a forest clearance is granted; the recent nod has been given for all minerals.

HT reported on November 20, 2021 that the FAC approved commencement of coal mining on non-forest land but imposed certain conditions. The panel ruled that in order to avoid a “fait accompli” situation, plans for mining in non-forest areas of a coal block will not involve any forest area; no component of mining activity in the non-forest land shall have any dependency in the forest area of the same block. The decision was criticised by environmental experts as they said it was a legal subsidy to the mining sector.

For other minerals too, the FAC has decided to allow mining on contiguous non-forest land if there is a separate mining plan or a separate lease.

“The FAC, after detailed deliberations in the matter observed that in respect of mining leases involving forest as well as non-forest land, working on non-forest land without ensuring the separate mining plan or lease for such non-forest (part) of the lease may create fait accompli situations, which is not desirable in terms of directions contained in the Hon’ble Supreme Court orders,” the Union environment ministry wrote to all state governments and UTs on February 3.

“It is hereby clarified that after obtaining the Stage-I approval, deposition of compensatory levies and environment clearance, the State/UT Government or authorities concerned should prepare a separate Mining Plan or execute a separate mining lease for full or part of non-forest land involved in the mining lease before allowing mining operations in the non-forest land of such mining leases,” the letter said. HT has seen a copy of the letter.

In 2014, a three-judge Supreme Court bench headed by justice RL Lodha said mining companies that invested money in blocks without getting all clearances took the decision at their own risk. Any investment made in anticipation of clearances cannot be justified and such coal blocks cannot be protected if the companies fail to get clearances within the time frame fixed under the law, the bench had said. Environmental experts said commencing of mining on non-forest land would result in expectations that the entire mine will be accorded clearance because of the investment involved.

“Even if they have a separate mining plan but the lease is the same, it will amount to a fait accompli situation. This is because the viability of a project is determined based on the entire capacity or area required. The cost-benefit analysis of a mining project is also based on the entire reserves available. So mining may be limited to the non-forest land in the first few years but the expectation is that a nod will be granted to the entire area, including the forest land involved,” said Ritwick Dutta, environmental lawyer.

“A decision like this can be understood as a case where a regulation by exemption is resulting in reading down the intention of a statute which argues for an assessment-based approval. The viability of most mining or any other large infrastructure projects relies on accessibility to both forest and non-forest land. Initiating work on non-forest land prior to assessments of risks and costs of forest land diversion, can affect the implementation of the project if the assessments result in delayed or no approvals. Therefore, a process which is not based on sound environmental logic is also not in the interest of business,” said Kanchi Kohli, legal researcher at the Centre for Policy Research.

“This move to allow commencement of mining in non-forest land first will save time for the project proponent but it cannot be quantified as to how much time will be saved,” a senior environment ministry official said.

In another development, in order to fast-track forest clearances, the ministry notified the guidelines on Accredited Compensatory Afforestation (ACA) on January 24.

The final guidelines were published on the ministry’s Parivesh website last week. Under ACA, any interested person or entity can develop plantations on non-forest land and trade them with the project proponent that is seeking diversion of forest land for its project.

ACA is a system of proactive afforestation, according to the ministry, where readymade plantations are available.

Until now, the project proponent of any infrastructure project involving diversion of forest land would identify land for compensatory afforestation to compensate the loss of forests. The company would submit details of the land to the environment ministry along with an undertaking to bear the entire cost of afforestation. The afforestation land was transferred and mutated in favour of the state forest department and subsequently notified as protected forest under the Indian Forest Act, 1927. The forest department would take up afforestation on the mutated land against the loss of forests due to clearance granted to the project.

“This practice has been in vogue for the last four decades. Difficulties observed during the intervening period in the implementation of the scheme primarily include delayed fund flow, untimely availability of non-forest land, uncertainty of survival percentage, etc,” said a letter issued by the ministry to all important ministries, including the home ministry, on January 24.

Under the new guidelines, the proponent of any infrastructure project requiring forest land can negotiate financial details with the person or agency holding accredited plantation and enter into an agreement for its sale.

The preconditions for afforestation plots that can be sold include: any non-forest land can be used; mined out and biologically reclaimed non-forest land, ownership of which vests with a state PSU or central PSU may also be used; land considered for raising such afforestation should be properly demarcated and fenced to ensure its protection from various biotic factors; such land should cover an area of minimum ten hectares; afforestation over land of any size situated in the continuity of land declared or notified as forest under any law, protected area, tiger reserve or within a designated or identified tiger or wildlife corridor can be considered; accreditation can be obtained after afforestation of one-hectare area with 0.4 or more canopy density is available.

Environment ministry officials said no plantation patch has been accredited so far under the new guidelines but once the process starts it will help fast-track forest clearances.

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