‘Goa must appeal against High Court ruling’

CLAUDE ALVARES is the director of Goa Foundation, whose legal work on mining for over two decades culminated in a comprehensive writ petition filed by it in the Supreme Court. Excerpts from an interview he gave Frontline on the implications of the Goa government’s move to renew 27 leases on the basis of a High Court order and other issues:

Goa Foundation has written to the Chief Minister pointing out the Supreme Court order in the 2G spectrum case, the presidential reference on alienation of natural resources, and the Bharatiya Janata Party’s articulations on natural and national resources in its 2014 election manifesto. How does the statement of Chief Minister Manohar Parrikar to renew 27 leases, based on the High Court order, sit with all this? Do you think the government ought to have appealed against the High Court order?

The government of Goa opposed the writ petitions filed and insisted that the miners ought to have filed them in the Supreme Court instead as the matter was pending there. It also insisted that it was bound by the Supreme Court’s order and that the leases were no longer existing, non est . That is the language used in the counter-affidavit filed by the government in the case. So, since these positions were rejected by the court, the government should go in appeal. This is because the court order actually hampers the Goa government in implementing its own mineral policy. It is now forced to give out 27 leases in violation of the policy it may want to notify. It also means that the policy, if it is notified, will be applied to all the leases other than the 27. So this is some serious discrimination, but that is for the miners to complain. Parrikar’s statement in the House, in fact, refers to the court order as an “intervening factor”.

Of course, there is also a point of view that only enough material was placed before the High Court for it to absorb, and since Goa Foundation was not made a party, there was no real opposition. The Goa government should appeal. If it does not, there may be repercussions when the matter is placed once again before the Supreme Court in March/April 2015.

The argument that the government of Goa cannot now go in for competitive bidding because of the High Court order is something that must be considered seriously. The Chief Minister’s statement actually says: “The State government, in view of Honourable High Court order, has for the present ruled out the process of going for competitive bidding.” What this implies is that the High Court has cancelled the Supreme Court’s judgment on 2G [spectrum] and the presidential reference. Can a High Court really turn down important judgments of the Supreme Court on disposal of natural resources to commercial interests for the maximum value price, etc., or is the government of Goa using the judgment as an excuse to do the miners a favour? I think what the Chief Minister is doing is squarely against what the BJP has stated in its manifesto. However, we are used to U-turns from the BJP as well. Manohar Parrikar is known as the king of U-turns.

Three reports of the Shah Commission, the reports of the Central Empowered Committee (CEC), and the Supreme Court judgment have thrown up many issues of alleged illegality/irregularity. What happens to all of that? Is it back to square one as some say?

I am yet to discover any aspect of the Goa mining activity of the past 10 years that is legal in any manner. What is astonishing is that the Goa government feels that it can go back to the same companies involved in illegal mining to restart mining operations and to get new leases…. There is an effort made to distinguish so-called fly-by-night operators from genuine miners. This is rubbish. The principal mining companies were responsible for most of the illegal mining. The traders only deal with the small change, the leftovers.

The Mines Act requires the government to punish people involved in illegal mining. Leases are supposed to be cancelled. People involved cannot be granted fresh leases. However, in Goa, the Chief Minister is now going to reward them.

Goa Foundation had made a case for vesting mining profits in a public Goenchi Mati Permanent Fund. You have the uphill task of convincing the public that a public sector corporation doing mining is workable.

All big things begin small. We have gained a significant victory by knocking profits down 10 per cent and ensuring these are kept aside in a permanent fund for posterity. The government cannot use the fund, only its interest. Imagine if we could follow Norway, the U.S. State of Alaska, the Canadian province of Alberta and Botswana and 50 other countries that wisely create alternative assets with the money they get from the sale of natural resources. We are pushing for 100 per cent [in the public sector]. We are trying to get other States to follow the Goa example. Goa, in fact, is the first Indian State to join the 50+ countries with sovereign funds.

Public sector in mining is never all bad. But it comes out far better when compared with the corruption we have seen in the Goa mining sector in the past 10 years, and the Goa mining industry is 100 per cent private. Public sector agencies have the CAG [Comptroller and Auditor General] and other institutions that can monitor them. In the case of private mining companies, except for the accounts of Sesa Sterlite which are on the web, none of the miners has posted their operations, costs, profits, etc., in the public domain. MMTC Ltd in Karnataka has now been making better profits than private miners. It can also happen in Goa.

The principal issue is not [whether it is] private or public. It is about ensuring that the real value of the natural resource goes to the public exchequer. Those who help extract it can be allowed their legitimate profit, but nothing more. Windfall gains cannot be allowed. Windfall gains in these circumstances must be labelled loot of public money and assets.

Is not the question of intergenerational equity still before the Supreme Court?

Yes. The six-member expert committee on Intergenerational Equity (I.E.) has submitted only an interim report. The court has acceded to its request to give it a full year to carry out all its sustainability studies and recommendations on the cap. That report has to be placed before the Supreme Court in one year’s time, and the court will then consider the report and pass further orders. Goa Foundation has already submitted a good deal of data to the I.E. committee on various aspects of the mining industry as we know it.

What happens to issues like environmental clearances (E.C.), buffer zones, and so on?

The Ministry of Environment and Forests (MoEF) had appointed an expert appraisal committee [EAC] chaired by former MoEF Secretary Vishwanath Anand to examine the E.Cs given to Goa mining leases. The EAC, in fact, recommended that more than 70 E.Cs should be cancelled and the remaining should be suspended until further inquiry. It also recommended that none of these should be restored without their getting the approval of the NBWL [National Board for Wildlife].

The Supreme Court has issued [a writ of] mandamus to the MoEF to issue notifications declaring a 1-km buffer zone in which mining is banned. I do not know of any Ministry or individual who has disrespected a mandamus issued by the Supreme Court and survived.

When the matter comes up before the Supreme Court, where the High Court order and the renewals are also expected to come up, is the industry’s hope that the future will be litigation-free wishful thinking?

The industry cannot fix the matter with the government, as has been done in this case, and expect to be free of litigation. The usual habit of industrialists is to sort out tacky issues using influence, and then find worse situations down the end of the tunnel. It is the industry that approached the court within two months of the Supreme Court order, and then insisted on a judgment.