Niyamgiri case today serves as textbook example of good usage of free, prior informed consent, without which asymmetry of power between state & indigenous communities will continue
Photo: Shiv's fotografia / Wikimedia Commons Ten years ago, on April 18, 2013, the Dongoria Kondhs, a particularly vulnerable tribal group (PVTG) from Rayagada in Odisha won a historic legal battle in the Supreme Court of India. In the Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest case, the court recognised their cultural, religious and spiritual rights on the Niyamgiri Hill, over Vedanta Company’s claim to exploit the hills for bauxite.
Importantly, the Gram Sabha was given the authority to examine possible infringements on their rights due to the proposed project by reading Section 4(d) of the Panchayat Extension to Scheduled Areas (PESA) Act, 1996, wherein the Gram Sabha should safeguard and preserve the traditions and customs of the Schedule Tribes and other forest dwellers, with Section 6 of the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 that confers power on the Gram Sabha to process individual or community forest claims.
The Supreme Court ordered a referendum to be held amongst the affected Gram Sabhas to obtain consent on the project from the community which unanimously voted against it.
Read our entire coverage of the historic Niyamgiri case
This norm of obtaining free, prior and informed consent (FPIC) from the indigenous communities before introducing a project on their territories is a major shift from the earlier requirement of consultation or mere participation in decision-making. Free means there should be an absence of intimidation, coercion and manipulation while obtaining consent; prior means consent must precede any project activity; and informed ensures that all necessary and material information is shared transparently with the community for an informed choice.
The Niyamgiri case today serves as a textbook example of good usage of FPIC in the Food and Agriculture Organization’s manual for project practitioners of FPIC.
Interestingly, the judgment does not mention the FPIC norm or cite any other international human rights, presumably, because India is not a signatory to the Indigenous and Tribal Peoples Convention, 1989 (also called the International Labour Organization Convention 169) and the United Nations Declaration on Rights of Indigenous Peoples (UNDRIP) that defines FPIC as a non-binding instrument.
The FPIC norm is further embedded in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 that mandates, under Section 41, the prior consent of the concerned village assemblies for acquisitions in scheduled areas, including in cases of urgency.
The actual usage of FPIC by the state is difficult to quantify and is often marked by weak operationalisation, consent manipulation and culturally inappropriate dialogue.
Therefore, it is the courts that have been at the forefront of developing FPIC jurisprudence and ensuring effective implementation. Still, judicial decisions on FPIC are a handful since the first case Delgamuukw v The Queen emerged in 1997 in Canada.
The doctrine is predominantly used by the progressive Inter-American Court, and other cases have emerged from South America and Africa in the last decade. A decade forward, Niyamgiri remains a lone judicial case from India or even Asia.
In the given context, the case should be revisited to examine: What was the significance of the resultant registration of claims for the indigenous community? and how do we create space for more FPIC practices in India?
The individuals in selected 12 villages deposed to the magistrate, stating the significance of the Niyam Raja or ‘King of Law’ that resides at the hilltop and how the abode is interconnected with their identity, culture and interests.
The depositions reflected on the spiritual, ecological, medicinal and sustenance value of the forest and the hills with an acute awareness of the consequences of the project for themselves, in terms of displacement and dispossession, and the larger ecosystem.
Importantly, it also was a rare registration of their claim for sovereignty, self-determination and territorial autonomy.
The Khonds are a fiercely independent group that maintained internal autonomy from the local kings and rose on numerous occasions against the interventions of the colonial authorities using guerilla warfare. This is in sharp contrast to their depiction by the other litigants as backward, poor and simple.
Thus, the FPIC approach to conflict resolution was pivotal in restoring the power imbalance and can be considered akin to treaty-making powers.
The case also facilitated the international debate on whether FPIC rights should entail the right to absolute veto against a proposed project. The Niyamgiri case exemplified that granting veto rights can prevent violations in cases where a particularly vulnerable community chooses voluntary isolation or limited contact, and one must respect their will.
A prohibition on veto would again be a power play by the dominant state. Since there are complexities in indigenous peoples’ relations with others, depending on the level of proximity with the outside and the scope for endogenous development, the outcome of FPIC may differ in other cases.
Further, the risk of veto is considerably lowered when communities are meaningfully involved as a stakeholder in the decision-making process, and, therefore, the onus should be on the state to ensure inclusivity to prevent a veto. For this, the government will have to reconsider laws, such as the Mines and Minerals Development Act, of 1957, that completely exclude local communities from governance.
The Niymagiri case was a result of extraordinary efforts towards legal mobilisation against a multinational corporation where the leading local movement received support from the state, national and international organisations.
While this is difficult to replicate, the cumulative efforts led to reconsideration by the Union Ministry of Forest, Environment and Climate Change (MoEFCC) that had initially approved the project. The ministry, thereafter, ensured an adherence to the following mechanisms: Firstly, the MoEFCC’s forest advisory committee conducted joint sessions with the Union Ministry of Tribal Affairs (MoTA) officials to address the indigenous concerns.
Secondly, effectual compliance with the Forest Conservation Rules, 2003 that mandated FPIC before environmental approvals are granted, was sought from the Odisha state.
Thirdly, independent fact-finding committees were sent to ascertain the true state of affairs and based on the report on state violations, ultimately, the approval was rejected. The Court placed heavy reliance on the outcome of these measures taken by MoEFCC.
Unfortunately, despite legal provisions for FPIC, none of the procedures are in place today. Instead, controversially the new FCR 2022 downplays the requirement of FPIC before approvals are granted by the MoEFCC. The ministry places excessive reliance on the submissions of the state governments without a mechanism for independent verification.
Strangely, unlike many other countries, in India, no approvals are required from MoTA on the projects that impact the indigenous communities. This limits the scope for independent representation of the affected communities. Further, there is no mechanism for supervision and documentation of the FPIC process carried out by the state. These procedural lapses need to be addressed to develop effective FPIC practices in India.
Without effectual FPIC, the asymmetry of power between the state and the indigenous communities will continue. For instance, the Shompen tribe, another PVTG of 200-300 people that inhabits Nicobar Island, is in a precarious situation today.
Shompens maintain limited contact with the outside, but the government has planned a Rs 72,000 crore mega project for the ‘holistic development’ of their Great Nicobar Island.
Instead of obtaining FPIC from the Shompen and Nicobarese communities, the government changed their reserve area through notification and claimed the project site as uninhabited without seeking any FPIC determination on their community claims.
However, the government should be wary of such unilateral interventions that can lead to unabated exploitation, as is the result of encroachment in the territories of the Jarawa tribe on the nearby Andaman Island that now threatens their very existence.
It will do well to adhere to directions by the bench in OMC v. MoEF that the government ‘must practice precautionary principle to prevent irreparable damage to the affected people’ and restore the process of FPIC dialogue.
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