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Law, land use and the environment: Afro-Indian dialogues

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Christoph Eberhard

Perspectives indiennes / Indian Perspectives

Land Laws, Minerals and Development: A Case for Legislative Innovations

D. Parthasarathy

Résumé

Lois foncières, minerais et développement. La nécessité de réformes legislatives.

Les débats sur les réformes législatives en Inde et sur le pluralisme juridique portant sur le rôle du droit pour le développement durable et la réduction de la pauvreté se sont, pour la plupart, focalisés sur les ressources naturelles telles que la terre, l'eau et les forêts. Malgré le fait que des millions de pauvres en Inde (et ailleurs) vivent de l'exploitation minière et de la transformation de minerais majeurs et mineurs, ce champ a été négligé autant par les chercheurs que par les activistes. La libéralisation économique en Inde a résulté dans la libéralisation des lois sur les minerais et l'exploitation minière au détriment de l'intérêt du grand nombre de pauvres travaillant dans ce secteur. Elle est justifiée par la croissance économique et par le besoin en minerais pour les besoins infrastructurels croissants, la consommation et les exports. Mais, il existe de nombreuses communautés qui se sont traditionnellement occupées d'exploitation minière et qui ne sont ni protégées par le cadre juridique existant, ni par celui qui émerge. Pour la majorité de la période postindépendance, les besoins en minerais pour la construction de la Nation (nation-building) ont été pris en charge par des entreprises nationales d'exploitation minière. Une grande partie des ressources minières indiennes est localisée dans des zones forestières habités par les populations indigènes, adivasi, ou dans des zones rurales qui dépendent largement de l'agriculture comme source principale de revenu. La puissance coloniale britannique qui a reconnu le potentiel de la richesse indienne en minerais, a promulgué des lois pour se les approprier. Les gouvernements postcoloniaux ont continué cette politique d'appropriation et de monopolisation des ressources minières à travers une exploitation par des entreprises nationales. Ceci a mené à de nombreux déplacements de populations, qu'elles soient adivasi, ou qu'ils s'agissent d'autres sections de populations pauvres rurales vivant dans des espaces riches en minerais.

Cette contribution présente les petites activités minières informelles en Inde d'un point de vue juridique. Elle appelle à la mise en place d'une nouvelle approche juridique qui protégerait les intérêts des pauvres qui dépendent de l'exploitation minière et des minerais pour leur survie. Les mouvements sociaux et les organisations non gouvernementales indiennes qui luttent pour les droits des personnes déplacées-et plus particulièrement des adivasi - ont ignoré les traditions minières indigènes ainsi que le phénomène de dépendance de larges sections pauvres de la population de l'exploitation minière artisanale à petit échelle qu'elle soit légale ou illégale. L'exploitation minière est largement perçue en termes d'impact négatif sur les gens et l'environnement. Il évoque l'image de la destruction de l'environnement et des économies de subsistance. Ces perceptions se fondent sur les effets négatifs de l'exploitation minière intensive et à grande échelle sous contrôle gouvernemental. Mais les traditions indigènes ne sont pas étudiées par les chercheurs.

Il y a dix ans, un jugement de la Cour Suprême indienne a ouvert une fenêtre sur cette problématique lorsqu'elle chercha à concilier la prévention de l'aliénation de terres adivasi dans les localités riches en minerais et l'argument de nation-building en proposant que les adivasi pourraient exploiter eux-mêmes les minerais, que ce soit sur une base individuelle ou à travers des sociétés coopératives qui recevraient un soutien financier de l'État. Cette contribution bâtit sur cette décision en proposant de traiter les droits sur les ressources autrement que des droit de « propriété » (property) - une approche qu'on retrouve d'ailleurs dans le droit traditionnel de nombreuses sociétés. En Inde, on en voit d'ailleurs une application de fait dans le secteur minier où les licences de prospection et d'exploitation sont donnés en leasing. Les droits de « propriété » (property) demeurent dans la main de l'État, alors que les ressources peuvent être exploitées par des agents non-étatiques incluant des individus et des entreprises. Il est donc tout à fait possible, théoriquement et juridiquement, de transférer des droits sur des ressources et sur leur exploitation aux populations qui habitent traditionnellement les forêts riches en minerais. On doit souligner cet argument dans les débats sur des réformes législatives qui visent à protéger les intérêts tribaux dans des lieux où il y a abondance de minerais.

Les stratégies et mécanismes juridiques visant à protéger les intérêts des pauvres tout autant que les politiques économiques néo-libérales ignorent certaines questions clefs liés à l'accès et au contrôle des ressources par les pauvres. Ceci s'explique principalement par la manière dont les ressources sont définies théoriquement et juridiquement et par la manière dont les droits sont définis et mis en œuvre. Si traditionnellement des lois ont exclu certaines sections de la population de l'accès aux ressources naturelles, les nouvelles lois dont le but est de rendre les droits aux marginalisés et de leur rendre une capacité d'agir (empowerment) se révèlent tout aussi coupables de leur exclusion par essentialisme.

La pluralisation des cadres juridiques, induite par la globalisation, permettrait peut-être de s'acheminer vers des approches innovatrices aptes à concilier les besoins souvent contradictoires entre le «développement national» et les préoccupations des populations tribales et des autres populations marginalisées vivant sur des territoires riches en ressources naturelles. Si le passage du gouvernement à la gouvernance, tel qu'il est promu dans leur agenda de «bonne gouvernance» par un ensemble d'agences de développement nationales autant qu'internationales, est problématique quant à son contenu idéologique, il ouvre une fenêtre permettant d'avancer des mesures qui peuvent accroître la participation authentique des adivasi dans les processus de développement et de gouvernance des ressources naturelles.

Texte intégral

INTRODUCTION

1Laws relating to the mining, prospecting and processing of minerals have been undergoing gradual liberalization in India since the onset of economic liberalization a decade and a half ago. This is being done in the name of enhancing economic growth rates and to make minerals available for growing infrastructure needs, consumption and exports. For most of the post-independence period, the mineral needs of ‘nation-building’ were met by government-owned mining corporations. Many of the mineral deposits in India are found in forested areas inhabited by the indigenous ‘tribal’ people or in rural areas largely dependent on agriculture as the chief source of livelihood. British colonial rulers, recognizing the potential of India’s mineral wealth, passed laws to appropriate them. Post-colonial governments continued the policy of appropriating and monopolizing minerals through government-owned mines, often displacing adivasis (term used to refer to India’s tribal or indigenous people) and other sections of the rural poor living in mineral rich areas.

2Debates between environmentalists and growth lobbies have rarely focused on the developmental needs of populations living in and off the natural resources, of which they are deprived when they are forced to move away to make place for large mining projects. Similarly, social movements and non-governmental organizations in India fighting for the rights of the displaced-especially the tribal populations -, have failed to take note of indigenous traditions in mining and mineral exploitation or of the dependence of large sections of India’s poor on small-scale legal and illegal artisanal mining. Mining is largely perceived in terms of negative impacts on people and the environment, as being destructive in terms of ecology and livelihoods (Matthew 1995). The few existing studies pertain to child labour in the mining sector and to environmental issues and movements, which are mostly in the formal and organized sector. General concerns expressed regarding labour issues in this sector do not focus on the employment potential (ILO 1999, 2002). While such perceptions are based on large-scale adverse impacts resulting from insensitive government intervention in the mining sector, India’s indigenous traditions in mining have not been the focus of much scholarly attention (Chakravorty 2001, Lahiri-Dutt and Macintyre 2006). Policies and developmental programmes have also largely neglected this sector owing to a general perception of mining as an environmentally degrading activity.

3These debates, positions and strategies are to be understood in the larger context relating to the way in which environmental movements have defined and delimited the field of natural resources, as well as historically with reference to the politics of developmental strategies and the governance of resources in India. Ajit Menon throws more light on these issues in his paper in this book. It is important to note as he suggests, and as will hopefully emerge in this paper, that well-meaning strategies and legal mechanisms for social justice, as much as neo-liberal economic policies, ignore or fail to address certain key issues pertaining to access and control over resources for the poor, and this is essentially due to the way(s) in which resources are defined and legalized, the way(s) in which rights are defined and administered. If laws have traditionally excluded certain sections of the population or deprived them of rights to natural resources, new laws with the aim of empowering and restoring rights to the marginalized are no less guilty of exclusion by essentialism.

4The privatization and expansion of the mining sector in India has been accompanied by protests and the violent suppression of those protests, as seen for instance in the recent killing of adivasis in Kalinganagar in the state of Orissa. On January 2, 2006, twelve adivasis were killed when police fired against them as they were protesting against displacement due to mining and industrial activities in areas inhabited by them. Given the fact that the state is unlikely to retreat from its policy of granting mining leases to large Indian and multinational private companies, and given also the imperative of protecting and restoring access to natural resources for those directly dependent on them, it is essential that we approach resource management issues from fresh perspectives.

5Debates on legal reform and legal pluralism with respect to the role of law in sustainable development and poverty reduction have mostly focused on such natural resources as land, water and forests. Despite the fact that millions of the poor in India eke out livelihoods by mining and processing major and minor minerals, this is an area that has so far been neglected both by researchers and activists. As mentioned earlier, economic liberalization in India is resulting in the liberalization of mineral and mining laws to the detriment of the interests of the vast numbers of poor employed in this sector. There are also several communities that have traditionally been involved in mining activities and that are not protected in existing and newly emerging legal frameworks. The paper provides an overview of small and informal (artisanal) mining in India from a legal perspective and argues for new legal mechanisms to protect the interests of the poor who are dependent on mining and minerals for their livelihoods, or who inhabit areas rich in minerals necessary for ‘national development’.

Artisanal and Small Mines in India

6Archaeologists have discovered several ancient mining sites in different parts of India. Studies show extensive mining at great depths, apart from opencast mining for lead, copper, zinc and iron (Willies et al. 1984). Almost all deposits so far investigated had ancient workings that are still present. In the modern period, informal and illegal mining, in particular in the sector of ‘minor’ minerals, continues on quite a large scale in several states of India, despite the entry of large multinational corporate firms into the prospecting and mining of mineral resources in the country. While much of artisanal mining occurs in small-scale mines for minor minerals such as basalt, and in sand mining and stone quarries, it is also not unknown in the case of major minerals. Examples include iron and bauxite. Communities such as the vadderas and upparavas, traditionally involved in construction, stonecutting and stone crushing, digging wells and mining, are still present in this sector, although their presence is either diminishing, or some members have proceeded to the formal mining sector. Similarly, adivasis (tribals) in different parts of the country (but especially Jharkhand, Chattisgarh, Bihar, Orissa, Madhya Pradesh and Maharashtra) are involved in the mining and extraction of iron ore, coal, lead, zinc, etc., as well as in metallurgical activities, using traditional techniques.

7In India, minerals are mostly located in forested areas occupied by adivasi populations. The granting of mining leases in these areas has led to conflicts between governments, leaseholders and adivasis over ownership, access and use of natural resources. Recent debates have focused on enabling local populations to use, extract and economically benefit from these resources. Enabling an official policy requires a formal recognition of informal, illegal and artisanal mining, which in turn requires scientific studies on artisanal mining as a whole. While mining as a sector in India is often the target of environmentalists’ ire because of its effects on environmental degradation, the idea of sustainable small-scale mining has rarely been given adequate thought. The fact that mining has been and continues to be practised on a small scale by large numbers of people in India using traditional techniques, and that this had and continues to have enormous potential for employment and income generation in rural areas, has not been given adequate attention and thought. This is reflected in the fact that studies on this sector are practically absent. An exhaustive review of journals, books, Internet material and newspaper reports (including grey literature) revealed that, apart from engineering and geological studies, there exist very few socio-economic or cultural-anthropological studies on informal / artisanal mining in India.

8There is a feeling among many scholars and activists in India that current models of economic development based on specific modes of resource access and extraction lead to the ‘social exclusion’ of many groups and communities (e.g., Shiva 2005, Anandwan Declaration 2001). In the era of economic liberalization and the entry of large Indian and multinational firms into the mining sector, is small-scale, informal mining viable? What role can it play in promoting sustainable development and in offering employment and income-generation options to the rural and urban poor? Who are the people involved in this sector? Can they be clearly delineated in terms of caste, class, ethnicity, tribe, region and gender? What kind of policy interventions are required to make the mining sector more sustainable, and what role do small and artisanal mines have in this endeavour? What is the role of social scientists and researchers in studying small and artisanal mines? Which areas require urgent attention? Can social scientists and researchers help to improve the quality of the debate on the mining sector in general? What legal measures or needed/legal hurdles exist concerning sustainable small-scale mining? What kind of governance models for natural resources work best for developing countries? These are some of the questions that require the attention of researchers in India. This paper makes a small beginning by identifying certain legal innovations that can serve the twin purposes of making minerals available to the mainstream economy, while at the same time enabling indigenous peoples and local groups to profit from mineral resources.

9There is no official definition of artisanal or small mines in India. Chakravorty (2001: 7) defines small-scale mining as “mostly organised mining carried on with acquired mining rights under some statutory control although unlicensed or informal activities are not uncommon on many occasions e.g. straying into unlicensed areas from existing mines and working in disputed territory”. He also states that, “India has not adopted any formal definition of Small-Scale Mining and / or of Artisanal Mining”, and that even very small mines are referred to as small mines rather than as artisanal mines. The provisions of the Mines Act of 1952 are usually not made applicable to small and artisanal mines. These mines are generally involved in the extraction of minor minerals and hence also do not come under the jurisdiction of the Indian Bureau of Mines.

10Small and informal mining thus suffers from a blindness in law and governance that makes it easier to impose policies to promote large-scale corporate mining at the cost of rural livelihoods. It also makes it easier for the state to push the nation-building argument to deprive adivasis and marginalized groups in India of access to resources. The overall legal framework in which this occurs needs to be studied in order to generate appropriate responses from the perspective of ‘governance for sustainable development’.

Land, Resources and Minerals: The Legal Framework

11Historically, the appropriation of land from local owners and users of resources has taken place either through force (under colonial and precolonial rule) or through specially enacted legislation (colonial and post-independence phases) such as the Land Acquisition Act. The Land Acquisition Act has been described as “draconian and obsolete, providing overriding powers to the state to encroach onto people's lands for any 'public purpose', including mining” (Bhanumathi 2002). While some states have resettlement and rehabilitation policies, there is no rehabilitation policy at the national level or even as a constitutional safeguard for the protection of people for whom natural resources are the sole means of livelihood. There is no “prior consultation” with local communities regarding acquisition of their land for projects. Adivasis, dalits and women are the worst affected, primarily owing to lack of ownership of land or to a nebulous status regarding their rights. By making forests state property, and by largely refusing to recognize usufruct rights, British and post-independent states in India have successfully marginalized millions of people from access to resources.

12In a situation in which access to forests and other resources is already denied to vast sections in order to provide for the needs of environmental conservation and nation-building, it is important that legal frameworks be modified in defining resources. In India, as elsewhere in the world, laws have largely defined resources in terms of land and property rather than in terms of the ‘elemental aspects’ of resources. Even in the case of minerals, in which land is primarily given on lease without permanent ownership rights, laws function largely through redefining and regulating access to the land rather than to the resources themselves. Likewise, in the case of precious metals, in which the state once had monopoly rights of procurement, mineral rights are now being given to those who possess the land. This is in contrast to traditional systems, which clearly demarcated between land and the resources that exist or are developed on that land. This was true for pasture and grazing land, forests, minerals and agricultural land (Parthasarathy 2003).

13Before delving deeper into this issue, it would not be out of place to briefly describe the historical shifts in the definition of property and its governance in India. Much of the literature on property and land law in India dates to the colonial period, and there is little on the pre-colonial period. The historical literature on the Mughal period is of too general a nature to comment on specifics. British colonial rule transformed the definition and governance of property on the basis of European laws and on the need for resource exploitation and revenue enhancement. A series of laws was enacted identifying different types of property rights relating to ownership and cultivation of agricultural lands and the rights to collect land revenue. A distinction was made between individual rights and state rights and, in exceptional circumstances (in response to popular struggle), limited rights by collectivities over resources such as forests were recognized. The post-colonial government largely continued the property rights regime of the colonial period, with the important exception of taking away rights (land and revenue) from the absentee landlords (zamindars) and recognizing proprietary rights of cultivators. Common resources such as forests, water bodies, grazing land, wasteland, etc., as well as lands on which mines were located, continued to be state property. The imperative of agrarian land reform and social justice, however, meant that the state narrowed the constitutional position on property to a conflict over individual and collective interests-whether these be the rural poor, forest dwellers, or any other resource-dependent group. The state could thus expropriate individual property for the common good-in whichever way defined -, while at the same time ignoring (and thereby marginalizing / expropriating) various other types of traditional rights and interests held by collectivities. The wide variety and range of property and usufruct rights over different kinds of resources never came within the ambit of law making, and even if it did, it happened in an arbitrary, exclusionary and unimaginative way that led to further exclusion. The inability to clearly define group rights over property meant that, despite constitutional protection, access and use over resources was largely denied to millions of inhabitants of forest areas in India. At the same time, this also led to the further marginalization of people who traditionally had group rights, but no individual rights, since such groups had no rights to compensation under the Land Acquisition Act, which was used by the state to acquire land for public projects.

14Karl Marx (1996) wrote that “all customary rights of the poor were based on the fact that certain forms of property were indeterminate in character, for they were not definitely private property, but neither were they definitely common property, being a mixture of private and public right”. This indeterminate character stems from the fact that “there exist objects of property which, by their very nature, can never acquire the character of predetermined private property, objects which, by their elemental nature and their accidental mode of existence, belong to the sphere of occupation rights, and therefore of the occupation right of that class which precisely because of these occupation rights, is excluded from all other property and which has the same position in civil society as these objects have in nature” (ibid.) This elemental nature of resources, which particularly applies to natural forests and minerals, results in a “twofold private right:... a private right of the owner and a private right of the non-owner”. If, as Marx argues, “every medieval form of right, and therefore of property also, was in every respect hybrid, dualistic, split into two, and understanding rightly asserted its principle of unity in respect of this contradictory determination” (ibid.), then providing rights to resources by giving ownership of land and thus depriving someone else of that land becomes highly unjust. “The poor are sacrificed to a legal lie”, because laws fail to understand and regulate “according to the legal nature of things” (ibid.), preferring instead to regulate natural resources according to the law, when the actual need is to regulate the law itself.

15This is perhaps as strong a case for rights over commons for the poor as can ever be made. The larger point evident here is that such rights are crucial for the survival of certain communities with no other source of livelihood, and taking these entitlements from them can be exceedingly incapacitating. As if anticipating future debates on legal pluralism, Marx also makes a case for customary rights as legal rights, i.e., “customary right as a separate domain alongside legal right is therefore rational only where it exists alongside and in addition to law, where custom is the anticipation of a legal right” (ibid.). This perspective can be used to bring about legislative innovations for providing access to resources to the rural poor, which not only can enhance their welfare but also perhaps contribute to national development goals. How can this be done effectively? Can legislation be a path to sustainable small-scale mining? How do we improve the regulatory environment for minerals such that it is not too narrowly focused on the large-scale organized sector?

The Samata Judgement

16A window of opportunity in this case was opened by the Supreme Court of India through what has come to be known as the Samata Judgement. In 1997, giving its judgement on a case filed by Samata-an NGO working in the state of Andhra Pradesh-against the government of the state for leasing tribal lands to private mining companies in the scheduled areas, a three-judge bench declared that ‘government’ is also a ‘person’ and that all lands leased to private mining companies in the scheduled areas are null and void. This was based on constitutional provisions that barred land transfers to non-tribals in scheduled areas in order to prevent land alienation among the adivasi populations. The case was filed specifically to counter government policies granting mining leases that led to the displacement of tribals from the forests and lands they inhabited. The case came to the Supreme Court of India after two conflicting judgements were given by the two division benches of the Andhra Pradesh High Court. Land being an area under which state governments had jurisdiction, a case was initially filed by an NGO (Samata) against the government of the state seeking prohibition on the granting of mining leases and land transfers to non-tribals in scheduled areas. The constitution of India has defined scheduled areas occupied by indigenous or tribal groups (adivasis) that have special legal provisions to ‘protect’ the native populations from exploitation by outsiders. A large number of social activists, movements and NGOs have been representing the interests of exploited sections of the adivasi populations across India for decades. The division bench of the Andhra Pradesh High Court upheld the plea of the NGO. Earlier, in another case filed by a mining company, a different division bench ruled to the contrary, declaring the transfer of mining leases and land to companies as illegal, based on an interpretation of the law that companies do not constitute ‘persons’. The state government appealed against the High Court judgement and also sought clarification on the contrary judgements, and hence filed a special leave petition in the Supreme Court. The judges of the Supreme Court termed as “unconstitutional, void and inoperative” the transfer or grant of mining leases to non-tribals, companies, corporation aggregates or partnership firms. The Honourable Judges took note of the nation-building argument and the mineral needs of the country to propose that minerals can be exploited by tribals themselves, either individually or through cooperative societies and with financial assistance from the state. To this purpose, it enjoined on the central and state governments to evolve policies for a consistent scheme throughout the country.

17The Supreme Court judgement instantly achieved landmark status and was used as case law by activists and social movements throughout India to fight cases to prevent tribal land alienation-a problem of enormous proportions. While land is a state or federal issue, the Land Acquisition Act is a national act implemented by the states, and several other issues raised in the case pertained either to the constitution (e.g., scheduled areas) or mining and mineral issues that fall in the concurrent list of both state and union. However, despite almost a decade having elapsed after the judgement, no steps have been taken by any of the governments to give teeth to this judgement, either through legislations or through policy innovations. On the contrary, governments have attempted to scuttle the letter and spirit of the judgement through legal and policy subterfuges. Several state governments as well as the central government filed petitions to modify the judgement, all of which were dismissed by the Court in 2000. Subsequently, attempts were made in Andhra Pradesh to amend the Land Transfer Act of 1959, which prohibited the transfer of land to non-tribals. Under popular protest, the move was withdrawn. Also, the Ministry of Mines of the Government of India drafted and circulated a secret note proposing an amendment of the Fifth Schedule to overcome the Samata Judgement and thus facilitate the leasing of land in tribal areas to mining companies (Mitta 2001). When the secret note was made public by the media, public outcry forced the government to state that they had no intentions of amending the Fifth Schedule of the Constitution. However, despite the judgement and subsequent events, governments continue to grant mining leases to Indian and foreign companies in scheduled areas, resulting in continuing protests.

18Why have the central and state governments in India failed to give effect to the operational portion of the Samata Judgement to allow tribals to develop and make use of mineral resources themselves? While arguments of efficiency are routinely used, the intention clearly is to favour certain sectors and groups in granting mining leases. What measures would be effective in giving effect to the Supreme Court judgement? What sociological or philosophical basis should lie behind such legal measures? As argued in the introduction to this paper, laws and court judgements, however progressive they are, may not provide sufficient grounds to advance the cause of social justice. In the absence of appropriate governance initiatives inclusive of state support, and without the genuine participation of NGOs, social movements and the adivasis themselves in the governance process, progressive judgements and laws are toothless. It is in this context that legislative innovations may play a greater role in achieving better governance and in implementing laws to meet the aims of justice and equity.

A Case for Legislative Innovations

19Several aspects are to be considered and legislated for in order to promote a development alternative involving the participation of the tribals as stakeholders in the mining of mineral resources. Rather than approach the issue purely in terms of land and displacement, or of resettlement and rehabilitation, it is necessary to recognize the complex nature of the problems as they have historically emerged.

20First, it is of considerable importance that the status of the term indigenous peoples (and in India the terms tribe, scheduled tribe and adivasi) be clarified and given legal status so that it becomes much more difficult to take away rights that have accrued to them historically through social evolution and struggles. Constitutional provisions relating to the Fifth Schedule need to be strengthened with the assistance of specific laws such as the Chotanagpur Tenancy Act, 1908. The Andhra Pradesh (Scheduled Areas) Land Transfer Regulation of 1970 and the Tribal Areas Regulation Act of 1949 have recognized the specific nature of the tribal problem and legislated accordingly, in particular by giving a special legal status to indigenous peoples, sometimes by even departing from mainstream legal principles. Various land-related legislations in the form of tribal land alienation acts, land revenue codes and state-level land reform policies have also been put in place to protect land interests of the adivasis. These acts are isolated examples of land laws in tribal areas having more power to protect tribal interests. By and large, however, land and forest acts are oriented towards environmental concerns or provide more power to the state. This is essentially due to the historical baggage provided by the Permanent Settlement introduced under British rule, which first alienated adivasi lands on a large scale to revenue collectors, as well as important legislation introduced during colonial rule that, with a few amendments, still stands as the architectural bulwark of land-and forest-related governance in adivasi areas-the Forest Act and the Wildlife Protection Act.

21Over the last fifty years, in response to social movements and struggles, social forestry and joint forest management initiatives have introduced limited usufruct rights to forest-dependent groups-but these have rarely worked in the context of state failures in implementation, corruption, the refusal of forest departments to implement these policies, and the illegal takeover of forest lands and resources by non-tribals. The latest initiative to provide access to forest resources for the adivasis is the the Scheduled Tribes (Recognition of Forest Rights) Act, 2006, which seeks to recognize the customary or traditional claims of adivasis to land. The Act has been diluted to accommodate diverse and conflicting claims of environmentalists, forest bureaucracy and the developmental state. A large number of activists and NGOs from around the country were involved in the drafting and advocacy of the Act, the fate of which will be seen in the near future.

22Second, there is an urgent need to legislate for prior consultation as an instrument for protecting and restoring the rights of adivasis and other groups historically using and dependent on minerals and other resources. Such legislation should not only outline the criteria and procedures for negotiations and agreements but also, and more importantly, incorporate and account for indigenous concepts of development, culture, identity, territory, resources, rights, etc. This naturally takes us into the realm of defining rights and legislating for collectivities rather than individuals, which, as is well known, is a contentious issue and will not be taken up for further discussion here.

23Third, laws regarding resource rights should have as their basis the legal nature of things that derive and evolve from their historical usage and prior access/customary rights/occupation rights, rather than being based on laws deriving from the need to protect the interests of a few or to promote national economic growth. This naturally necessitates looking at resources such as minerals in terms of their “elemental nature”, as Marx put it, and which “can never acquire the character of predetermined private property” (Marx, op. cit.); it necessitates the transformation of customary rights into a legal right. The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, currently being debated in the Indian parliament, marks the culmination of decades of struggle to restore access to forests for the adivasis. A similar recognition of mineral resources is necessary both for tribals and non-tribals traditionally involved in mining activities. Communities such as the vadderas and other involved in small-scale mining are often regarded as illegal miners under the current dispensation, just as tribals using forests resources are regarded as criminals.

24Fourth, mining laws should be modified and government agencies concerned with mining should change their policies and approaches to focus on small-scale and artisanal mining. This includes reforms relating to licences, mineral processing, credit, technological and managerial support and training.

25Finally, and for the recognition of rights to mineral resources to occur, apart from the Marxian argument outlined above, it is also necessary that we move away from what has been termed the ‘empiricism-positivism’ strand of legal pluralism (Melissaris 2004: 59). Rather than applying the criteria of modern dominant legal systems to resources that have been governed by laws and rules deriving from a different ontology, and therefore laws that are themselves derived from a different epistemological system, we need “new ways of understanding the legal and... the interpenetration of dispersed legalities” (ibid.: 57). If our job as scholars is to collapse “observation into participation and... leave it to regulatory discourses themselves to organize their communication” involving a “radicalization of the way we think about the legal” (ibid.), then it is imperative that rather than “sacrifice the poor to a legal lie”, we sacrifice our dominant legal systems to the legal nature of things. The Supreme Court of India has shown a direction. Scholars have a duty to provide a sound theoretical basis to operationalize that judgement.

Legislative Innovations and Resource Rights: An Afterthought

26A case for legislative innovations has to deal with the possible opposition to such innovations by the state or legislative body, as well as by interests that stand to lose because of legal changes (in this case large mining interests). Progressive legislation is rarely an outcome of enlightened legislators working for the greater good of the electorate. Even if such is the case, it is usually an outcome of a larger social or democratic struggle that has put in place enlightened legislators. In general, progressive legislation that works to enhance equity and distributive justice is an outcome of long-term struggles and protracted judicial battles.

27In the case of mining in forest areas in India, as mentioned earlier, governments themselves have been reluctant to legislate and make policies to give effect to the Samata Judgement of the Indian Supreme Court. In fact, government efforts have been in the opposite direction of seeking to nullify the judgement. Opposition to the kinds of innovations suggested here are therefore to be expected. What kind of legal / social justifications can be offered to possible opposition?

28The advocacy of treating resource rights differently from the right to property on which such resources are located has a long history in the customary law of several societies and deserves serious attention. In India, the tradition applies to the mining sector in which licences for prospecting and extraction are in fact given as leases so that the property right remains with the state while the resources can be exploited by non-state agents, including individuals and the corporate sector. Thus, in theory and in law, a basis exists to transfer rights to mineral resources and rights to exploit them to people traditionally inhabiting the forests. This needs to be strongly emphasized in arguments for legislative change to protect tribal interests in areas where minerals are abundant.

29Second, there might be opposition to the argument of livelihood loss and displacement from those who would argue that a) tribal residents have no legal rights, and b) livelihood loss can be compensated by rehabilitation and resettlement. Avenues have been opened to counter such arguments by the entry and evolution of different kinds of project law in India on issues concerning displacement and resettlement and rehabilitation related to infrastructure. While the Narmada case draws on and continues to be controversial, other less known cases provide clear solutions. In Mumbai, for example, the state and courts have been forced to accept World Bank guidelines regarding resettlement and rehabilitation and have hence resettled even those considered to be ‘illegal’ squatters, as well as having given compensation for loss of livelihoods by considering the “impoverishment risks” of projects (Cernea 1988). As this kind of project law begins to be more widely accepted and become part of the conditions attached to aid projects, it is likely to become more popular and find greater acceptance.

30The pluralization of legal frameworks resulting from globalization can thus be used to argue and press for innovative laws to address the dual and often contradictory needs of “national development” and the concerns of tribal and other marginalized populations inhabiting areas rich in natural resources. While policies such as joint forest management (introduced with the support of the World Bank) have had mixed results and have introduced a spurious participation with dubious notions of stakeholder management, they still constitute a step forward, keeping in mind the exclusive control of forests by the state forest departments. More importantly, the shift from government to governance, as seen in the agendas of ‘good governance’ being pushed by an assortment of national and international development agencies, while being problematic with regard to the ideological content of such agendas, at the same time also offers an important window to push through measures to enhance genuine participation in resource governance and developmental processes on the part of the adivasis. The issues neglected so far, as outlined above, have a greater opportunity now than ever before to be legislated or to be included as part of governance frameworks, as evidenced by the passing of the Scheduled Tribes (Recognition of Forest Rights) Act, which, even with its limitations, represents a significant advance in legislating for more equitable access to forest and forest-based resources for the adivasi populations.

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Auteur

Associate Professor in sociology at the Department of Humanities and Social Sciences, Indian Institute of Technology, Bombay, India.

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