‘Uninterrupted’ mining can be carried out following partial nod: Centre

The union environment ministry has clarified that mining can commence in an area with forest cover even when forest clearance has been granted by it for only part of the forest land involved, although it has also clarified that the activity will be restricted to the part for which clearance has been given.

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The move, which is aimed at resolving confusion over whether work can begin in mining blocks in forest areas where a forest clearance is only available for part of the area, was welcomed by the mining industry, although some environmentalists said that it could present a “fait accompli”.

In a clarification issued on May 31 addressed to additional chief secretaries and forest secretaries of the states and UTs, the ministry stated that uninterrupted mining activity can be carried out in forest land for which approval has been already granted by the Centre. HT has seen a copy of the clarification.

The ministry stated that provisions are available in the Handbook of Forest (Conservation) Act 1980 General Approval section to continue mining activity in a part of the forest land for which forest clearance has been granted by the Centre as per the Forest Conservation Act even if the clearance has not yet been granted for other part of the forest land involved in the lease area.

“The General Approval was granted to ensure uninterrupted mining operations in already approved lease area of the user agency and to enable state governments to assign the forest land on lease under section 2 (iii) of the FC Act 1980 ( which states that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority) for which approval under section 2 (ii) of FC Act (forest nod for non-forest use) has not yet been obtained by the user agency,” the clarification stated.

The clarification underlined that “mining in area approved under section 2(ii) can only be undertaken after obtaining the approval of the Central government under section 2(ii) of the FC Act 1980.” This means mining activity can take place only in the part of area for which Centre has granted forest clearance.

Some environmentalists and legal experts have said this could present a fait accompli as the mining company would hope that they can mine in the entire mining lease area . HT reported on February 9 that an environment ministry panel has allowed state governments to permit commencement of mining operations 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. HT also reported on November 20, 2021 that the Forest Advisory Committee of the ministry approved commencement of coal mining on non-forest land but imposed certain conditions. The panel ruled that in order to avoid a “fait accompli”, 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.

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The Handbook on FC Act 1980 in its General Approval section for mining projects states that mining can commence in part of forest land which has been granted forest clearance based only on certain conditions so that there is no fait accompli situation in future. One is that the state government get from the developer the Net Present Value under compensatory afforestation in lieu of the entire forest land falling in the mining lease. Another is adherence with the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 . And yet another is that this approval does not mean automatic approval for the entire area.

“We are very strict that mining should be limited to the forest land for which clearance has been granted. This will not create any fait accompli situation and they will have to follow conditions laid out,” a spokesperson of the environment ministry said on Tuesday.

“It is to clarify in respect of existing mining leases having forest land in part or full and where the state governments have considered the grant of general approval as per the provisions of the para 7.3 (iv) of the handbook of forest (conservation) act 1980, the existing mining operations will be restricted to the forest land already approved under section 2(ii) of the FC Act 1980. In existing leases where approval under the FC Act 1980 is available only for part of the forest land, the non-availability of approval under section 2(ii) of the Act in respect of remaining forest land will not be deterrent to undertake mining in already approved area provided the user agency has complied all conditions, as stipulated under para 7.3 (IV) of the handbook,” the ministry stated.

The mining industry has welcomed the move. “There are very few cases where additional forest land with no clearance is involved. But your present mining should not be jeopardised due to awaiting clearance on additional forest land. This is a very fair, very good move by the environment ministry. We have waited for a long time for this clarification . I don’t see any concerns of a fait accompli ,” said Basant Poddar, Federation of Indian Minerals Association (FIMI) mentor for southern region.

This clarification from the environment ministry is an important one. It spells out that while mining activities can be initiated on additional forest land within existing mining leases, it will be subject to approval from the central government, as mandated by the FCA, 1980. These clauses always have concerns related to fait accompli and prioritizing mineral extraction over ecology and forest rights, even though such extraction is conditional safeguard procedures. However, what needs to be examined much more closely the implications for the federated forest governance structure in India, in the light of commercial mining. This is especially because the central government’s prior approval for forest diversion continues to be on merit, and there is a possibility or permissions to be withheld even after mining operations have been initiated,” explained Kanchi Kohli, legal and policy researcher.

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“How mining will impact a part of the forest land involved will depends on the geography of the block being opened. If the forest land involved is separated by a hill or a river or other geological features then it’s all right otherwise it only creates a fait accompli situation. Impact of mining in one part cannot be limited to that part of the forest area. We have seen this happen in the past in certain cases in Hasdeo Arand block,” said Sudiep Shrivastava, lawyer.