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Volume: I, Issue: I, July - December 2010


CRITICAL ISSUES TO BE LOOKED AT WHILE SETTING UP A MINE (With Special Emphasis on the Tribals)







Abstract

Mining does much more than displace people. Apart form severing the umbilical link of the indigenous people with the nature, it replaces their simple, cocooned and contended lifestyle with an alien, complicated and competitive way of life they find extremely difficult to cope with. It strikes at the root of their cultural moorings and ushers in the value system of the big, bad world that they are completely unfamiliar with. But governments and companies seldom take these apparently intangible factors into consideration while planning the so-called Reconstruction and Rehabilitation package for them. They are just content to provide adequate compensation for the land or property acquired. This precisely is the reason mining projects in India often evoke extreme reactions from the indigenous people and run into rough weather because of it.



Keywords Content

Mining does much more than displace people. Apart form severing the umbilical link of the indigenous people with the nature, it replaces their simple, cocooned and contended lifestyle with an alien, complicated and competitive way of life they find extremely difficult to cope with. It strikes at the root of their cultural moorings and ushers in the value system of the big, bad world that they are completely unfamiliar with. But governments and companies seldom take these apparently intangible factors into consideration while planning the so-called Reconstruction and Rehabilitation package for them. They are just content to provide adequate compensation for the land or property acquired. This precisely is the reason mining projects in India often evoke extreme reactions from the indigenous people and run into rough weather because of it.

 

This report seeks to identify some such issues that need to be factored in while planning mining operations so as to ensure that they go on smoothly without incurring the wrath of the indigenous community.


I. INDIGENOUS PEOPLE & MINES:

Mining is seen essentially as a means of earning revenue for the country and the concerned state, but, sold to the indigenous people as a divine intervention for the speedy socio-economic development of the region. The people, who stand to be uprooted from their home and hearth, are rarely consulted while planning and executing mining operations. While governments and companies rake in the profit year after year, the displaced people are expected to be content with the one-time compensation package given to them, let alone expecting a share of the taxes, royalties or other benefits accruing from exploitation of mineral resources.


II. SOME CORE ISSUES:

There are three factors that need to be given top priority while planning mining operations, whether by governments or companies, to ensure that they are executed in a socially and culturally compatible manner without posing a major threat to their livelihood and lifestyle. They are:

 

  • Building Rights: Recognition of the human rights of the indigenous people is the first step towards the formulation of a sustainable development agenda that seeks to establish a relationship of trust and harmony between the indigenous peoples and the mining sector.

 

  • Building Capacities: The capacity of the indigenous community needs to be enhanced to give them a bigger say an equitable participation in planning and execution of mining operations.

 

  • Building Relationships: The mining industry must think beyond its legal obligations on the issue of human rights and seek to build a relationship of trust and understanding with the community that is mutually beneficial to both sides.

 

The world over, the local people have been at the receiving end of the adverse effects of mining activity, irrespective of its location and type. But in the Indian context, the tribals are affected in greater measure than their non-tribal counterparts. This is so, because of the dependence of the tribal on forests, the absence of legal rights over their land and their low level of education.

 

There are various factors which are responsible for such adverse effects caused by mines, most of which can be avoided if a proper risk avoidance mechanism is adopted by the executing agencies. In this exercise, some such factors have been discussed at length and possible remedies suggested ensuring an improved livelihood for all categories of impacted people, including tribal.

a. Capacities to sustain or resist:

The most important dimension is the indigenous culture’s capacity to sustain or resist a prolonged engagement with mining interests and their allies. A stake holder’s capacity to sustain or resist a negotiation is determined by knowledge, organization, resources, and time needed to reach a consensus or agreement on a plan of action. Non-tribal stakeholders hold considerable advantages over tribals in this regard. This includes not only access to capital but also knowledge of the potential market value of tribal resources and legal implications and political influence. In contrast, tribal people are rarely trained in the culture and economics of the other stakeholders they meet during an encounter. How long a tribal group can resist or sustain the risks arising out of mining operations depends not only on the internal capacity of the group but also on the ability of mining promoters to forge strategic alliances with the government and other non-tribal stakeholders. Conversely, tribal people are largely dependent on NGOs and other sympathetic interest communities such as religious, labour, academic and environmental organizations for restoration of their sustainable livelihood, minimization of risks and sharing of profits. Hence, it is necessary to enhance the capacity of the affected people, particularly the tribal, through an informed participation before setting up a mine in a given area. This will have a definite positive bearing on both the impacted people and also the mine – as the former can improve their livelihood and the latter can set up mines without time and cost overruns due to resistance of the local population.

b. Sustainability risks:

Socio-economic and environmental risks may also threaten the sustainability of the local people, particularly the tribal. Some risks are associated with the physical activities of mining while others strike at the people’s ability to accumulate, maintain, enhance and transfer wealth to future generations. With the opening of roads and the movement of machinery, animals and people are frequently injured and on occasion killed. Avoiding and preventing these potential risks is a necessary first step for any company working in an area inhabited by tribal people.

 

The degradation of vegetation cover, soil fertility, water quality and quantity and loss of bio-diversity often takes away the livelihoods of the impacted community, particularly in case of the tribal community. The consequences of environmental changes are usually not immediately discernible and manifest themselves over a long period. Hence, it is only natural that the consequences are not anticipated or understood by the impacted communities or even by mining companies and governments. The mines under the study are no different. Therefore, it is necessary to adopt risk control mechanisms in and around areas where mines are to be set up in consultation with the impacted community much before mining activities start.

c. Indigenous wealth and impoverishment risks:

All stages of the mining process—from the earliest days of planning and consultation, exploration and exploitation through decommissioning—usually disrupt the accumulation and intergenerational transfer of indigenous wealth. Those unfamiliar with indigenous/tribal culture may mistakenly believe that mining poses minimal risks since tribal people have little income or wealth to lose and high unemployment. Mining is sought to be justified on the ground that income generated from it would break the unending chain of poverty and unemployment that plague the indigenous community. Both the mining industry and governments feel they have fulfilled their obligations once they compensate the affected community by way of the market value of lost land, material goods and public facilities.

 

As a matter of fact, earned income represents only a small portion of tribal wealth. The wealth that supports the sustainability of their culture and identity is found in institutions and social support systems that include access to common resources, local prestige, culturally appropriate housing and food security. Tribal people invest vast amounts of time and resources to perpetuate their culture, institutions and social support systems.

 

Tribal people have flourished for generations, often in highly marginal environments that are ill equipped to sustain non-indigenous ways of life without substantial injections of external capital, energy, and technology. Besides, indigenous sustainability hinges on protecting environmental and resource endowments. Tribal people protect their resources and draw on the fruits of the land, much like one draws interest on an account without touching the principal.

 

The risks to sustainability from impacts of infrastructure projects on the tribals include landlessness, homelessness, loss of income [from traditional sources], loss of access to communal resources vital to their survival, cultural destabilization, food insecurity, health degradation, marginalization, corrosion of sovereignty, disruption of social organization and traditional leadership, spiritual uncertainty, restriction of civil and human rights, limitation of the capacity to participate in the broader society and threats from environmental disasters.

 

Mining affects indigenous wealth in seven different ways. First, it may break the flow of social and economic life. Second, the encounter may make excessive demands on the time and capacity of the local people and their traditional leaders. Third, it disrupts educational activities, both traditional and formal. Fourth, it may exacerbate factionalism resulting from inadequate consultation. Fifth, it may also disrupt the leadership structure or improper legitimization of individuals as ‘authorities.’ Sixth, it may undermine civil rights and traditional decision-making by ignoring prior informed consent. Finally, symbolic structures that define the essence of indigenous/tribal culture are in danger of being desecrated by mining operations.

 

Therefore, restoration of indigenous/tribal wealth is a more realistic parameter than mere compensation for land to judge benefits to indigenous communities. Such restoration means full compensation to cover the market values of lost wealth, including lost social and environmental services. Restorative action should include a long-term sequence of non-monetary steps, institution building, training, environmental restoration and extended financial arrangements to ensure that people retain or regain their ability to accumulate wealth. The effectiveness of these efforts, judged from the perspective of indigenous sustainability, rests on whether the project leads to an accumulation of indigenous wealth – within the broader definition of wealth. The effectiveness of all restorative and mitigating action, in the end, will be judged by the key question: do the indigenous peoples give more than they receive? If so, they are subsidizing the mining project—which is morally and economically unacceptable. In view of this, here has to be a mechanism to ensure that the tribal people are not alienated from their traditional/indigenous wealth. In case it is unavoidable, they should be provided access to such wealth in the post-establishment period of the mines so that the possible impoverishment can be avoided.

d. Development-induced displacement and resettlement:

It has been seen in case of most mines/mining projects that mining-induced displacement and resettlement significantly increase the risks of impoverishing local populations, threatening their livelihoods and truncating their chances for sustainable development or even survival [Cernea 1999, 2000, 2001; Pandey 1998; Fernandez 1994; Downing 1996 and 2002; Government of India 1993]. Societies that have endured for hundreds, if not thousands, of years can quickly disintegrate under the pressures of forced displacement. Avoidance of this catastrophic outcome demands detailed planning and the allocation of adequate financial and human resources. Integral to any successful resettlement is the use of skilled development-induced resettlement specialists. Extensive development knowledge and scientific research show that rehabilitation and restoration [R&R] of livelihoods is more likely when all potential impoverishment risks are identified early and arrangements are made to mitigate or avoid them. Informed, timely, widespread and active participation of the project-affected people is an essential prerequisite of an effective R&R policy. Involuntary resettlement is a socio-economic, not an engineering issue. The chances of risk mitigation and restoration are greater when stand-alone financing is provided for displacement, since this removes the conflict of interest that tempts companies to view displacement as an unnecessary social service rather than a necessary cost. To ensure an improved living condition for the impacted people in general and the tribal in particular, companies should take appropriate steps in consultation with the impacted community, identify the possible impoverishment risks from a very early stage of the project and take risk mitigation measures for sustainable R&R.

e. Loss of sovereignty:

One of the primary causes for the resistance of tribal people to mining is the potential loss of sovereignty, which has been corroborated by the findings of the present study. Sovereignty refers to an acknowledgement by the government of the collective rights of tribal people to their traditional territories and heritage. Among tribal, just as among non-tribal people, sovereignty is a sacred concept, like freedom and justice. It refers not only to land and common property rights but also to political and economic self-reliance and the right to determine the extent of cultural distinctiveness [d’Erico 1998]]. Threats to group sovereignty may come in many ways, the most common being the loss of human and civil rights and the capacity to pass along a culture, including its wealth, to subsequent generations. Mining frequently disrupts indigenous ways of life and institutions, threatening people’s sovereignty. People’s relationship with land is fundamental to ‘indigenous sovereignty’ struggles. The loss of this symbiotic relationship is often the major reason for the stiff resistance to mines in Orissa and elsewhere in the country. In order to protect the sovereignty of the indigenous people, all safeguards should be taken so that the affected persons continue to live with dignity. This will result in reduced resistance by the tribal people.

f. Stakeholder Strategies and Tactics:

The chances of the preservation of the distinctive culture of the indigenous people increase, if impoverishment and sovereignty risks are avoided or at least mitigated. Likewise, stakeholder costs and conflicts are reduced when tribal issues are addressed strategically early in the project preparation.

 

This section enlists the various strategies that need to be adopted by governments, mining companies, international financial intermediaries, NGOs and indigenous people as stakeholders when a mine is set up in an area—particularly in a tribal area.

Government Strategies and Tactics:

National legal frameworks define the rights and obligations of stakeholders during an encounter. The relevant legal frameworks pertain to eminent domain, the rights of indigenous people, mining provisions and environmental protection laws. These frameworks frequently run counter to each other, paving the way for appeals and political arrangements.

 

It is seen that in most of the cases, the government reserves the right to transfer sub-surface or other natural resources or take land under the doctrine of eminent domain. This poses a big problem for tribal people—especially those with unsettled claims to land. Exploration and exploitation usually take place at the expense of some groups or individuals in the name of common good, usually with the provision that landowners are fairly compensated. Vacant and encroached lands are usually not recognized as eligible for compensation. Besides, compensation is restricted to the value of the land – which is always difficult to determine given that land markets are weakly developed among tribal communities and that access to impartial justice for those who dispute company valuations are not available. The doctrine of eminent domain incorrectly assumes the elasticity of land, ignoring its spiritual and emotional value to a tribal community.

 

Company Strategies and Tactics:

Strategies and tactics for dealing with tribal people usually rank low on corporate agenda. The willingness of companies to deal with social [including indigenous policy] issues too leaves a lot to be desired. Only one of the mines under study has appointed an Anthropologist for dealing with the impacted communities, whereas the other three have assigned the job to engineers. The survey found that companies were reluctant to set up a compensation system for the affected communities or to negotiate with communities over land rights issues beyond their legal compulsions. They have maintained a safe distance from the impacted people. There is no consultation/interface with the impacted community in general and the tribals in particular on issues like acquisition of land, resettlement, the needs of the people, the adverse effects of mining activity and their possible solutions.

 

Non-governmental organization strategies and tactics:

Indigenous people have found a sympathetic ear in NGOs, especially where they have few or no avenues to air their grievances. NGOs have shown great diversity of objectives and organizational capacities. Some local organizations focus on particular mining projects. Others assume broader, global policy objectives by forming strategic alliances among themselves. Their positions range from militant resistance to uncritical promotion of mining interests.

NGOs also deploy a wide range of strategies and tactics, including national and international lobbying, civil disobedience, serving as information clearing houses, coalition building and community outreach. Other options include referrals to other support groups, meetings with the institutional financiers of mining, hosting conferences, organizing resistance campaigns and subcontracting to assist in indigenous development or cross-cultural brokerage to interested stakeholders. While setting up mining projects, executing agencies and the government should allow NGO involvement among the affected persons. They should see them as useful intermediaries rather than as adversaries and refrain from unleashing repressive measures on them.

 

Indigenous People’s Strategies and Tactics:

The current empirical study corroborates the findings of earlier studies that the impacted tribal people have limited strategic and tactical options. Laws are ill defined and often skewed against them. In any case, they lack the resources to carry out a prolonged legal battle against the mines. An apathetic bureaucracy seldom has the time or the inclination to their pleas.

 

In the circumstances, the tribal people usually are left with only two options: resistance or acquiescence. Resistance strategies and tactics include violence, civil disobedience, appeals to NGOs, religious groups or to any other organization that is likely to listen. While such groups may lend their sympathetic support, they may be guided by considerations other than the cultural survival of the affected people. They may exaggerate or downplay the possible impacts of a mining project depending on their primary interest and motivation. On the other hand, acquiescence means acceptance of any arrangement the mining companies and/or governments may bring to the table.

 

III. ISSUES TO BE LOOKED AT FOR PROTECTING INDIGENOUS PEOPLE’S INTERESTS:

Mining companies should include in their plans at least nine components for protecting the interests of the impacted indigenous people. They are:

 

  • Examination and explanation of the project’s economic and legal aspects to the community in a way they will understand;

 

  • Full and honest assessment of the project’s risks, including threats to sustainable livelihood, employment loss, disruption of productive systems, environmental and health risks and socio-cultural effects;

 

  • Budgeting and organization of actions to mitigate each risk;

 

  • Determination, by the people, of how the project fits into their cultural vision;

 

  • Institutional and financial steps to ensure that the project’s benefits are opportunely and transparently allocated to the tribal people;

 

  • Equitable distribution of benefits and costs through a common community-defined process;

 

  • Development of new alternative resources to provide a sustainable livelihoods to replace the ones lost;

 

  • Preparation of strategies for negotiating with project promoters, financiers, government and other key stakeholders on benefit-sharing arrangements over and above risk mitigation; and

 

  • Formalization of negotiated arrangements with legally binding instruments.

 

IV. PRECAUTIONARY PRINCIPLE FOR MINING NEAR INDIGENOUS/TRIBAL LANDS:

Ignoring tribal issues greatly increases the risk of human rights complaints or costly downstream litigation. A few decades ago, it would perhaps have been possible to hoodwink the tribal about the effects of mining operations. But now, even remote tribal groups are fully aware of the risks to sustainability posed by mines near or on their lands thanks to increased literacy, high-speed communication and active NGOs. They are beginning to challenge the attempts of companies to buy their acquiescence with a few unskilled and menial jobs.

 

The international community has placed empowerment high on the agenda. In the emerging scenario, empowerment has come to mean that the tribal people gain the capacity and the ability to control the impact of a mining project on their culture and livelihood. This empowerment stands over and above compensation for mining related damages. Empowerment is not training people for non-existing employment. It is not something to be given away as a gift. It is neither an agreement for the company to assume the costs of government welfare nor the promotion of alternative lifestyles by outsiders.

 

Instead, empowerment begins with tolerance and compassion. From the perspective of sustainable development, empowerment means that indigenous people do not lose but rather improve their livelihoods and enhance their cultures.

 

In view of the factors discussed above, it is necessary to create conditions for empowering the impacted people, especially those belonging to the tribal community, with a view to increasing their income on a sustainable basis. The following 12 measures must be given top priority in the action plan by every mining company or the government, as the case may be:

 

  • Meaningful, informed consultation with the impacted people/community

 

  • Securing of rights and access to indigenous land and nature. To complement this, Government should factor enabling provisions for addressing the issues of habitat and livelihood security in tribal dominated areas in respect of the impacted families, if mineral extraction is permitted to private sector.

 

  • The rights and entitlement of the tribals should be settled before physical displacement of tribal families

 

  • A full and timely disclosure by the stakeholders on the plans, agreements, and financial arrangements of the project for the benefit of the impacted people in their language and in a culturally appropriate manner.

 

  • Identification and disclosure of all the risks of a proposed mining endeavour by the stakeholders. While assessing risks, the full range of anticipated social, economic and environmental impacts should be taken into consideration rather than just the threat posed by loss of land. In fact, an in-depth Social Impact Assessment covering all the affected House Holds in the affected area for the Tribal families through an experienced organization addressing livelihood issues to be incorporated in the report which must be done through a consultative process getting vetted by the Gram Sabha. Stakeholder consultation should be made mandatory while conducting SIA exercise. The SIA also should have a special component called The Social Development Framework which must A Sustainable Development Framework [SDF] which should include appropriate compensation, suitable R&R provisions and arrangements for restoration of habitat.

 

  • The Mining Plan should link R&R Plan and the Mine Closure Plans. The R&R activities based on standard rehabilitation procedures according to a legislation should be completed before mining operations are ceased.

 

  • The Mining Plan should link R & R plan and the Mine closure plans. The R&R activities, based on standard rehabilitation procedures according to legislation should be completed before mining operations are ceased.

 

  • An appropriate CSR model should be created through a Legislation, with a participative mechanism to monitor its implementation and financial support from profits of a company.

 

  • Prompt and unambiguous institutional and financial arrangements to mitigate each risk.

 

  • Graduation from compensation for damages to a benefit sharing arrangement

 

  • Vesting in local Self Governance Institutions the right to approve, reject, or modify decisions affecting the livelihoods, resources and cultural futures of the indigenous people.

 

  • Protection of basic human and civil rights as specified in the laws of the land and international conventions like ILO 169, UDHR, MDG etc. to which our country is a signatory.

 

To safeguard the interests of the tribal and to save them from impoverishment, it is necessary not only to identify, avoid and mitigate risks but also to focus on benefits over and above compensation and rehabilitation for damages. A prudent approach, it goes without saying, demands long-term commitments, innovative solutions, financial and institutional guarantees and the use of professionals experienced in dealing with issues of social development and indigenous people. It also requires continuous monitoring by technically competent, independent observers of these indicators, providing all stakeholders with opportunities to take corrective actions. In the light of the history of encounters between stakeholders in this field, it would make sense to extend the environmental precautionary principle approved at the Earth Summit in Rio to the impact of mining on tribal people. Thus a Precautionary Principle for Mining in or near tribal People would read: Non-tribal stakeholders in mining shall use the precautionary approach to protect the tribal people and the environment that supports them. Mining cannot take place without their prior informed consent and participation in their self-defined indigenous development. Where there are threats of serious or irreversible damage, scientific and economic uncertainty shall not be used as a reason to postpone cost-effective measures to avoid and mitigate risks to livelihoods and cultures of the affected tribal people.