Legal Framework related to Mining and Environment

Protection

-Saloni Kulshrestha

MINING IN INDIA

Brief Overview

Perceptions about existing mining sectorEffects of Mining on the EnvironmentNeed for Sustainable Development

Mining and Law

Regulatory Framework for Management of Environmental Problems of Mining Sector

Salient features of The MMDR Act, 1957 and MMDR Amendment Bill, 2015

India being a mineral rich country is endowed with a large number of minerals and fuels, consisting of a total of 88 minerals.

Indian mining industry occupies the GDP contribution of 2.2% to 2.5%.

India is one of the top ten mineral producing nations in the world coming at par with countries like United States, China, Russia etc.

Thus, Mining and mineral exploration is an important industry which brings significant economic opportunities

Overview

As the scale of mining activity has increased, so has the level of impact upon the environment.

The community now expects & demands that the resources sector must apply high standards of environmental management to address the Environmental issues and must integrate environmental considerations with mine development.

This is where the need for sustainable development arises

So let us now see how environment protection forms a part of planning and design for obtaining approvals and lease of contemporary Indian mines, thereby benefiting both the mining industry as well as the community as a whole.

Overlapping of interests among the three: i.e mineral reserves, forest cover and tribal zones.

Economic and social benefits of mining not apparent.

There is social dissatisfaction and unrest among the people towards the mining.

The legal and regulatory policies regarding mining and environment are inadequately factored focussing majorly on long term impacts.

Too much pressure on land, air, water, forests and biodiversity due to excessive demand.

Overall life quality of people damaged.Lack of enforcement and successful implementation

of existing sustainable mining policies.

Perceptions regarding Mining

Air- Blasting operations at open cast and surface mines is one the main causes of air pollution

from mining operations. Also smelter operations without proper preventive actions or safeguards

could be another cause for air pollution due to pollutants resulting from heavy metals.

Water- Water has always been important for mining as it is used in large quantity for mining

operations. Water could be polluted during a mining operation as a result of acid mine drainage,

toxic metal contamination, increased sediment level in streams. Disposal of contaminated used

water is also a big problem faced by the industry.

Land- Land suffers the most damage of all resources, in terms of movement of rocks and over

burden (materials overlying a mineral deposit must be moved before mining) during the mining

which severely impacts surface of the earth. Other than that, deep underground or opencast

mines leave the land hollow or scarred, thus making it unfit for being used for any other purpose.

Forest and Biodiversity- Deforestation due to mining continues to be one of the leading

causes of loss of forest cover on earth. Though deforestation may be small compared to the total

amount it may lead to loss of important biodiversity and species extinction. Moreover due to the

high level of pollution and damage caused by mining residues in form of metals, dust,

contaminants etc, the land as water bodies become poisonous and unfit for sustaining its rich

biodiversity.

Impact over Environment

Sustainable development basically means that development should take place in such a manner that the needs of the present generation are met without compromising with the needs of the future generations.

Joint Study- ‘Breaking New Ground’ –need for integration of economic activity with environmental integrity was recognised. Such integration aims at sustainable development.

According to the report ‘In the mining and metals sector, investments should be financially profitable, technically appropriate, environmentally sound and socially responsible’.

Need to take into account Global Trends in sustainable development.

Sustainability principles have application for all stages of mine life cycle – exploration, mine planning, construction, mineral extraction, mine closure and post-closure reclamation and rehabilitation

Need for Sustainable Development

Mining and LawLaw plays a very crucial role in

moulding the approach of mining industry with sustainable methods:

Mining companies are made to

comply with

certain prescribed environment

al obligations at mining

sites.

Mining companies must

pay money as security to the Department of

Mines and Energy so that

mining sites can be rehabilitated

and any environmental harm caused by mining activities can be cleaned up without the

government having to pay for

it.

There are punishments and penalties

under criminal

offences for mining

companies that cause serious or material harm or

nuisance to the by

preaching any

environmental obligations

An official permission/

grant or authorisation

is required from the

governing authority under the

Ministry of Mines before undertaking exploration or mining activities

mining companies

are required to

have certain

environmental

protection management systems installed in place for

their mining sites.

M.C. Mehta v Union Of India & Ors the Supreme Court reached the following conclusion while discussing

the problem of environmental degradation through mining in the Aravalli region: ‘The mining activity can

be permitted only on the basis of sustainable development and on compliance of stringent conditions . The

Aravalli hill range has to be protected at any cost. In case despite stringent condition, there is an adverse

irreversible effect on the ecology in the Aravalli hill range area, at a later date, the total stoppage of mining

activity in the area may have to be considered. For similar reasons such step may have to be considered in

respect of mining in Faridabad District as well. Violation of any of the conditions would entail the risk of

cancellation of mining lease. The mining activity shall continue only on strict compliance of the stipulated

conditions.’ M.C. Mehta v Union Of India & Ors Writ Petition (civil) 4677 of 1985

Samatha Judgement: In 1997 the Supreme court of India ruled that mining in Schedule V areas should not

be allowed without the participation of the local people. The judges laid out certain duties for any entity

that mined in Schedule areas: 20% of net profits to be set aside as a permanent fund for the establishment

and maintenance of water resources, schools, hospitals, sanitation and transport facilities, reforestation

and maintenance of ecology, among others. Samatha v State of Andhra Pradesh 1997 Supp(2) SCR 305

Landmark Judgements Related to Mining:

The basic umbrella Act for Development and Regulation of mineral deposits and for grant of various Mineral Concessions.

Applicable to all States and all Minerals except Mineral Oils.

Provide for termination by the Central Government and the State Governments, if in their opinion it is expedient in the interest of preservation of natural environment, prevention of pollution, conservation of mineral resources, safety in mines etc.

Indicates about payment of Royalty & Dead rent.Empowers Central Government to make Rules in

respect of minerals.Empowers State Governments to make Rules in respect

of minor minerals.

The salient features of The MMDR Act, 1957 :

Section 13(2) lists the matters that are covered by rules framed by the Central Government. These matters include the manner in which rehabilitation of flora and other vegetation shall be made in the same area or in any other area selected by the Central Government. Section 15(1)A(i) includes the manner in which the rehabilitation of flora and other vegetation shall be made in the same area or in any other area selected by the State Govt.

Section 18(1) delegates the powers to the Central Govt to frame rules for major minerals for conservation and systematic development of minerals and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting and mining operations.

Section 21 outlines the penalties as outlined below. It states that whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both.

Transparecy :Removal of discretion, auction to be sole method of allotment.

The tenure of mineral leases has been increased from the existing 30 years to 50 years.

Problem of second and subsequent renewals remaining pending: The Bill addresses this by providing that mining leases would be deemed to be extended from the date of their last renewal to 31st March, 2030 (captive mines) and till 31st March, 2020 (merchant miners) or till the completion of the renewal already granted, if any, or a period of fifty years from the date of grant of such leave, whichever is later.

Safeguarding interest of affected persons: There is provision to establish District Mineral Foundation in the districts affected by mining related activities.

Encouraging exploration and investment: Transfer of mineral concessions granted through auction will be permitted in order to encourage private investors.

Salient features of MMDR Amendment Bill, 2015

Simplification of procedures and removal of delay: The amendment removes the need for "previous approval" from the Central Government for grant of mineral concessions in case of important minerals like iron ore, bauxite, manganese etc. thereby making the process quicker and simpler.

Stronger provisions for checking illegal mining: In order to address the serious problem of illegal mining, the penal provisions have been made further stringent by prescribing higher penalties up to 5 lakh rupees per hectare and imprisonment up to 5 years. State Governments will now be able to set up Special Courts for trial of offenses under the Act

The Forest (Conservation) Act, 1980 and Rules, 1981-

The Forest Conservation Act prohibits diversion of any forestland to the non-forestry activities including mining.

However with the permission of the Government of India the diversion is permitted only if the area approved for the mining does not contain any bio-diversity and do not harm the ecosystem.

All the mining projects existing or old sanctioned before the enactment of the Act are to be reviewed before renewing the lease.

Regulatory Framework for Management of Environmental Problems of Mining Sector

References are also made to Revenue and Forest Department to ascertain their views on the suitability of the site from the point of public nuisance or forestry angle. The area is also inspected by a geologist of this Directorate to ascertain the suitability of the area from mineral potential point of view

Applications are received and processed in the Directorate of mines.

The application is thereafter sent to the draughtsman and surveying section to ascertain the availability of the area

If the area involved is a forest land the case is processed for clearance under section 2 of FCA the state govt agrees in principle to grant the prospecting licence/mining lease. Clearance under section 2 of FCA 1980 involves a detailed proposal from the applicant in terms of Forest Conservation Rules and the guidelines prescribed by Ministry of Environment. The applicant is also directed to obtain environmental clearance in terms of EIA Notification.

The procedure for grant of mineral concessions

Establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies.

Under this act consents are required: To establish a mining project. To operate the mining project. While issue of these consents the Pollution Control Board

specifies the standards for water pollutants and monitor the same

The Water (Prevention and Control of Pollution) Cess, Act, 1977- provides framework for collection of levy and Cess on water consumed by industries including mining industry. The Cess collected is to be used by CPCB and PCBs to prevent and control water pollution.

The Water (Prevention and Control of Pollution) Act, 1974-

Provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB. This law defined an air pollutant as “any solid, liquid or gaseous substance present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.”

Under this act consents are required: To establish a mining project. To operate the mining project. While issue of these consents the Pollution Control

Board specifies the standards for air

The Air (Prevention and Control of Pollution) Act, 1981-

The Environment (Protection) Act, 1986

Authorizes the central govt to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds.

It is under this Act that makes it mandatory for the specified 30 categories of industries including mining which have investment beyond certain threshold that an Environment Impact Assessment is required.

Provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them.

In case of sanctuaries and National Park diversion is not generally allowed unless the project is of national importance and no other alternative is available.

In such cases the no objection has to be initially accorded by the Indian Board of Wildlife and State Legislature before consideration by MoEF for diversions.

The Wildlife Protection Act, 1972 and Amendment 1991

The mining industry, the government and the local people must work together to care for future generations.

There is also a need for better planning of reclamation/restoration system to bring back the derelict land in short time for use.

The enabling framework needs more focused strengthening to ensure that the principles of environmental management practices are adopted there should be a commitment among the stakeholders, policy makers, and regulators at the highest level on environment protection.

Maybe that is how we can prevent it from being merely a “Search and Destroy Mission”.

To Sum it up

Thankyou.