the negation of indigenous peoples territory - the case of lafarge umiam, meghalaya

Engagement of IFIs with Indigenous Peoples (Asia): Policy and Practice

The Negation of Indigenous Peoples Territory

the Case of Lafarge Cement in Meghalaya, NE India

Forum for Indigenous Perspectives and Action August 2007

The Negation of Indigenous Peoples Territory: the Case of Lafarge Cement in Meghalaya, NE IndiaForum for Indigenous Perspectives and Action

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The Negation of Indigenous Peoples Territory: the Case of Lafarge Cement in Meghalaya, NE India Prepared by Ramananda Wangkheirakpam and Jiten Yumnam

Forum for Indigenous Perspectives and ActionJupiter Yambem Center Paona International Market Imphal West 795001, Manipur Email: [email protected] Tel: 91 9862486313

Acknowledgement We are thankful to the Shella Committee (The Rally of Shella Villages) for their time sharing their anger, protest and all the documents that they have painfully and meticulously collected. We also thank Dino Dimpep of the Meghalaya People Human Rights Council for his time and coordination. We are also thankful to Linda, Sanat of the Grassroots Options for their comments and inputs. The FIPA team of Rejoyce, Johnson, Anand, Bandhday for typing and transcription. We also acknowledge Makiko Kimura of Shimin Gaikou Centre, Japan for her insights and inputs into the case study.


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Acronyms MPCB Meghalaya Pollution Control Board MoEF Ministry of Environment and Forest GOI Government of India GOM Government of Meghalaya ADB Asian Development Bank IFC International Finance Corporation WB World Bank EPH Environmental Public Hearing EIA Environmental Impact Assessment EMP Environmental Management Plan NOC No Objection Certificate IPs Indigenous Peoples FPIC Free Prior Informed Consent DFO District Forest Officer LUMPL Lafarge Umiam Minerals Pvt. Ltd. LMMPL Lum Mushum Minerals Pvt. Ltd. LSC Lafarge Surma Cement IFI International Financial Institutions MLTA Meghalaya Land Transfer (Regulation) Act MPDA Meghalaya Preventive Detention Act

Contents Executive Summary 4 Introduction and Project Document 5‐9 Research Methodology 9 Project Impacts 9‐14 Applicable National Laws 14‐17 Relevant ADB Policy used instead of National Laws 18 Public Response 18‐20 Response of the ADB and the Executing Agencies 21 Policy Recommendations 22 Conclusion 23 References 24 Boxes Box A: Brief on Meghalaya and the Khasi People 5 Box B. The Lafarge Group & Cementos Molins 6 Box C. LSC basics 8 Pictures Pic. 1. Mining Site Entry 8 Picture 2: Conveyer Belt to Bangladesh 9 Pic. 3. Parimal Roy Shong Lait 11 Pic. 4. Trowell Nateb 13

Map Map 1. Locator for North East and Meghalaya 4 All pictures are by Ramananda Wangkheirakpam


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xecutive Summary The issue of extractive resource development in Indigenous Peoples land and territories must be based on the full recognition of their inherent rights to their lands, territories and natural resources. Sustainable development is essential for the survival of indigenous peoples, whose

right to development means the right to determine their own pace of change, consistent with their own vision of development. Land is closely linked with Indigenous Peoples (IPs) and must be protected from arbitrary development projects including those financed by International Financial Institutions (IFIs). Despite Asian Development Bank (ADB)’s call for poverty reduction, sustainable development and respect of indigenous peoples' rights, there are glaring cases of how their involvement in LSC has resulted just the opposite. The project has led to massive takeover of Indigenous Peoples land of the Khasi People of Meghalaya in North East India, destruction of forest areas which was used for traditional rice cultivation and also other seasonal vegetations and medical plants. The Blasting of hills and forests have caused physical changes leading to artificial changes in water flow regimes, subsequently impact on other aspects of human daily activities. The LSC project has also seriously undermined the traditional customary laws on land use and violated environmental and forest laws of India and other international human rights and Indigenous Peoples standards. ADB did not apply any of its safeguard policies, concerning Resettlement, on protection of Indigenous Peoples and promoting sustainable development. The application of Accountability Mechanism also has been blocked due to certain clause in the Mechanism. Rather, ADB relied on World Banks policies, without addressing clear cut accountability and monitoring mechanisms. Even after concrete cases of violations, ADB has failed to apply or attempt to address the concerns and the adverse reality that the Indigenous Peoples of Meghalaya confronts. The LSC, the first ADB involved project in NE and in SASEC has set an alarming precedent for the region amidst ADB's financing of several TAs and projects in diverse sectors in the NE. Given the adverse realities, it is important for ADB to critically respond to the policy and application challenges that this case has brought forth in its current policy revision. Further, this has underscored the importance of further recognizing IPs’ globally accepted standards in its policies and practices.

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Map 1. Locator for North East and Meghalaya


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ntroduction and Project Document Lafarge Surma Cement (LSC) Project is one of the first project of South Asia Sub regional Economic Cooperation (SASEC)1 and is promoted and claimed by ADB’s former President Tadao Chino as one that visualize ADB’s dream of borderless Asia. This transnational project involves a

cement plant in Chhatak in Sunamganj district of Bangladesh while the raw materials are being sourced from Khasi area of Meghalaya state (See Box A and Pic 2-Shella) in North East India. Box A: Brief on Meghalaya and the Khasi People Why LSC for this Study? Lafarge is the first project funded by ADB in NE as well as in the sub-regional dream SASEC. One of the reasons for choosing this case is for this very above reason and that by conducting a scrutiny of this project will contribute in recognizing how ADB operates and thus in engaging with the institution in its future projects. Another advantage is for reprimanding ADB of its need to strengthen its policies and applications as its current ones are weak to protect the region and its peoples. An additional reason for this choice is the lack of clarity on the applicability of the ADB policies as the LSC approval and loan agreement happened during the transition from the old to the new policies, and that the project is ongoing without application of its new policies. This study is focused on the mining and conveyor belt component in Meghalaya and not other related impacts in Bangladesh side due to problems associated in dealing with trans-boundary assessment. While we have tried to do a complete treatment of the mining component in 1 Sub-regionalization refers to a process where, rather than resulting from pre-determined national or sub-national plans, proposals primarily emerge from non-state actors. Like the clubbing of the Greater Mekong Sub-region, ADB has clubbed Nepal, Bhutan, Bangladesh and North East India to form the South Asia Sub-regional Economic Cooperation (SASEC). There are several initiatives and projects under SASEC and LSC is the first. For more please see http://www.adb.org/SASEC/

IMeghalaya1 is of the eight states of North East of India, occupying an area of 22,429 sq. km. According to the 2001 Census (Registrar General 2001), the total population of Meghalaya is 2,306,069 persons. The majority of the population is indigenous people, with 85% living in the rural areas. The two major indigenous communities in the state are the Khasi-Jaintia and Garo; These indigenous communities are provided special constitutional status known as the Sixth Schedule that in some way allows social relationship, social interactions and authority within the community to be defined by customs and traditions.1 The Khasi-Pnars (also known as Khasi-Jaintias) are descendants of Ki Hynniew Trep (the seven huts or families). The Khasi people are matrilineal society, with property handed down through women and people taking the clan name of their mother. The Chief of the village acts as instruments to carry out the decision of the Council or Durbars of the elders which is presided by the Chief. The ultimate authority resides with the General Council or Dorbar Hima, which every adult male member of the territorial unit under the headship of the Chief has a right to attend and be heard. The decision is based on consensus and not votes. Under the Khasi tradition, Ri Kynti land are those which are for certain clan upon whom the proprietary, heritable and transferable rights are vested. This clan land are then owned by individuals within the clan. Ri Raij is community lands which are allotted according to the need of each family but reverts back when not in use for more than 3 years. The Hima Shella is under a chief known as the Wahadadar. Under this Hima are headmans and dorbars of the constituent villages. Each Dorbar consist of 8-10 members.


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Meghalaya and its associated negative and positive impacts, we are constrained by some unforeseen situation2, as well as lack of vital documents3 that can inform the study. Contextualizing Lafarge ADB has been aggressive in their entry in the North East India region. A study report titled “Insidious Financial Intrusion in India’s North East”4 co-authored by these same authors reveals that ADB (along with other IFIs) have funded several Technical Assistances which touches almost all sectors including road & water ways, agro-business, energy, urban development, trade & investment, fiscal reform etc. There are also other TAs which are sub-regional (SASEC) in nature such as hazardous waste management, tourism, information and communication development etc. There are also ongoing projects such as the Assam Power Reform that aims for privatization of electricity which has resulted into severe protest in the state of Assam. ADB’s sudden and massive entry into NE, facilitated by the Government of India, indicates that the region has been left completely for ADB (and other IFIs). Project Description Understanding the mining of Limestone & Siltstone in Meghalaya, India and then transporting to Chhatak in Bangladesh requires careful examination of several key players involved. Reportedly, Bangladesh does not have limestone reserves and hence the cement companies have to rely on costly imported clinkers. With increased construction activities growing at 10 % the demand for cement was recognized5. Seeing this gap and to tap the growing market, the Lafarge Group, France and Cementos Molins, Spain (See Box B) decided to set up a plant in Bangladesh with limestone from Meghalaya, North East India. The Mining is done in the Shella Confederacy in East Khasi Hills of Meghalaya, and is being ferried by a conveyor belt to Chhatak. Box B. The Lafarge Group & Cementos Molins6 In what looks like its modus operandi worldwide, the Lafarge Surma Cement was formed for its operation in Bangladesh. The Lafarge Group, France holds more than 51 % of its shares. In a similar way, two more companies were also formed in Meghalaya. Lum Maushun Minerals Private Ltd. (LMMPL) & Lafarge Umiam Minerals Private Ltd. (LUMPL) with their

2 In our field visit the mine has been shut down due a high court order and MoEF’s directive. 3 Some land related materials and Loan Agreement between LSC and IFIs are not available at the time of this report preparation. 4 http://www.icrindia.org/pdf/IFI_in_Northeast_India.pdf 5 How do you Build a Facility in Extreme Condition, Lafarge, 2006 6 http://www.lafarge-bd.com/

The Lafarge Group Lafarge was founded in France in 1833. Its website claims that it is ranked as number 1 in the production of Cement, number 1 in Roofing, number 2 in Aggregates and Concrete, and number 3 in Gypsum. In 2004, the Group is reported sales of 14,436 million euros, As a typical trans-national company, it operates in more than 76 countries! Lafarge's growth policy is being defined as sustainable and that it protects the environment, shows respect for societies and cultures and is sparing in its use of natural resources and energy. Lafarge claims that it is the only construction material producer to have a global partnership with WWF, the conservation organization, with the objective to continue to improve and implement the best practice in the field of quarry reclamation and to help WWF preserve bio-diversity! Cementos Molins Cementos Molins S.A. is a Company founded in 1928 in Spain, which started producing Calcium Aluminate Cement and that, from 1942, has also been producing Portland Cement. Quoted in the Barcelona Stock Exchange, has kept its character of family-owned business. LSC is a joint 50/50 venture of Lafarge and Cementos Molins, and together they own about 60 % share in the operation in Bangladesh.


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Headquarters in Shillong, Meghalaya. 74 % share of LMMPL is owned by LSC and the rest is by two Khasi Mr. S.G. Lyngdoh and late B. Roy, while LUMPL is 100% subsidiary of LSC. In other words, all the avatars are controlled and managed by the Lafarge Group, France and these new Lafarges were created in the country of operation to facilitate easy functioning. The LUMPL was set up to do the mining operation. The two Khasis who holds 26 % share in LMMPL are key players to acquire land and mining rights from Indigenous Khasi People of Meghalaya. These two Khasis leased some land and for some, they bought from several individuals of Nongtrai Village, Shella Confederacy for the mining purpose and conveyor belt. The land for the conveyor belt is partly under Nongtrai Durbar and in Shella Village. After they leased and bought the land for mining as well as for the conveyor belt, LMMPL transferred the legal titles to LSC who further mortgaged it to the International Financial Institutions for a loan of $ 250 Million. ADB loaned LSC $ 10 M in Equity Investment and another $ 40 M as Private Sector Loan7. The total land taken for this project includes 100 hectares of land at Nongtrai Village for Limestone Mining, 30 Hectares at Nongtrai, Shella for Conveyor Belt, 13 Hectares at Shella for Shale mining and 7.6 hectares at Nongtrai Village for crusher and also to mortgage the above land by the Lafarge Umiam Mining Pvt. Ltd. 8 Yet another interesting, confusing and the illegal part of the loan agreement is the mortgaging of title deeds of mining and conveyor belt land. According to a document available during the course of this study, LUMPL’s special Resolution of an Extra-Ordinary General Meeting of the Shareholders held on March 29, 2005 “Resolved that in order to secure the loan of approximately USD 153 million being borrowed by Lafarge Surma Cement Limited (the holding/ parent company of the company), from the offshore Lenders, the company to create security over its assets in favor of Asian Development Bank, DEG- Deutsche Investitions und Entwicklungesellschaft MBH, European Investment Bank, International Finance Corporation, Arab Bangladesh Bank and Standard Chartered Bank, Bangladesh (the “Offshore Lenders”) as well as Calyon (formerly known as Credit Agricole Indosuez) and Financier Lafarge (collectively with the Offshore Lenders, the “Secured Lenders”) in the following manner: (1) Mortgage (by way of deposit of title deeds) of all of the Company’s immovable properties, in favor of the Offshore Lenders; and (2)mortgage and charge over all present and future moveable properties, contracts, investments and Insurance policies of the Company, under a Composite Security Agreement, in favor of the Secured Lenders”.

7 http://www.adb.org/Documents/PIDs/31911014.asp 8 Letter dated 13 march 2006 from Deputy Commissioner, East Khasi Hills District, Meghalaya to Director, Lafarge Umiam Mining Pvt. Ltd, approving land mortgage from Lum Mawshun Minerals Pvt Ltd to Lafarge Umiam Mining Pvt. Ltd, Ref No. L. 14/5(13)2004/134


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Further, it has been revealed that the permission to transfer land from the LMMPL9 to LUMPL and for mortgage of the same to offshore lenders was granted on 13 March 2006. This controversial permission was granted by the Deputy Commissioner of the East Khasi Hills District, Government of Meghalaya. Before the illegality part of this transfer, it is of utmost surprise that the resolution by LUMPL was prior to the transfer approval. Mining Area Description The project area of the LUMP Mining Project falls within the East Khasi Hills District and under two Community Development (CD) Blocks – Shella Bholaganj and Mawsynram CD Blocks with their respective headquarters at Cherrapunji and Mawsynram. The mine site area falls within the Mawsynram CD Block while the land required for the conveyor belt track belongs primarily to the people residing in the Shella village which falls under the Shella Bholaganj CD Block. Under the traditional administrative set-up, the project area falls within the Shella Confederacy, which is the only Wahadadarship10 in the Khasi Hills. The Shella Confederacy is an association of nine village durbars: Shella, Nongtrai, Nongwar, Tyngnger, Mustoh, Lyngkhom, Dewsaw, Umptlang and Rumnong. Belt Conveyor Route

9 As per the legal deed, the land was bought by LMMPL in September 2003. 10 The Wahadadar is the administrative head of the Shella Confederacy and is assisted by two elected representatives from each village durbar under the Confederacy.

Pic. 1. Mining Site Entry

LAFARGE SURMA CEMENT (LSC)

Country Bangladesh

Location Chhatak, Sunamganj district, Bangladesh

Project Number 31911-01

Project Name LAFARGE SURMA CEMENT (LSC)

Approval Number 7142

Type of ADB Assistance [Approved]

LAFARGE SURMA CEMENT LTD.

7142 Equity Investment US$10.00 million Fully Disbursed

7142 Private Sector Loan US$40.00 million Fully Disbursed

Sector/Subsector Industry & Trade / Industry

Responsible ADB Department Private Sector Operations Department

Responsible ADB Division Infrastructure Finance Division 1

Responsible ADB Officer Mats Elerud

Project Sponsor(s) Lafarge S.A. Cementos Molins S.A.

Safeguard Categories

Environment A

Timetable for assistance design, processing, and implementation

Concept Clearance 13 Jun 1997

Due Dilligence Mission N/R to N/R

Box C. LSC basics


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The 17 km conveyor belt track originates from the crushing unit at the southern side of the lime stone mine site at Nongtrai and terminates at the cement plant in Chhatak in Bangladesh. On the Indian Territory, it runs for about 7 km on the western side of the River Umiam. It traverses across hilly terrain at the point of origin from the crushing unit, over stretches of flat barren land, a dry channel of Umiam riverbed and across cultivated agricultural lands up to the international border with Bangladesh. The belt conveyor traverses mostly

across private lands owned by the people of the Shella village. When the Construction of Conveyor belt began in 2004-2005, some people of Shella village filed a case at Shillong bench, Guwahati High Court. (Source: affected people of Shella village)

esearch Methodology For this study we have used both primary and secondary data collecting, visiting the villages affected by the mining, field visit to mining site, Interaction with project proponents, funders (email interviews), lawyers, affected people, NGOs, media group,

human rights defenders etc. We also have used several secondary information for this study. Documents from websites and contacts we set up. News paper clippings, books and other publications have been used. Court Papers, video clippings, audio recordings etc also have been sourced. Snow balling effect was used for tracing and meeting them. Unstructured interview method was adopted for all the interviews. Audio Visual Records were also maintained.

rojects Impacts Impacts of Lafarge can be dealt under interrelated categories of a) Land Alienation & Institutional change, b) Environment, c) Social & d) Long term implications.

a. Land Alienation & Institutional change

The primary impact of LSC mining activities is loss of land due to arbitrary land transfer that undermines traditional decision making institutions. While there has been gradual erosion of the Khasi traditional institution due to pressures from within and without, it is recognized now that the creation of Sixth Schedule under the Indian constitution has relegated the power of the Dorbar Shnong, traditional collective decision making body of Khasi people to a mere body that collects revenues without the decision making power.

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Picture 2: Conveyer Belt to Bangladesh


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The Meghalaya Transfer of Land (Regulation) Act of 197111 was enacted to protect (some say to facilitate land transfer) land from alienation. A particular clause 3(1)12 of the Act under which the land has been transferred to LMMPL, then to LSC then mortgaged to IFIs is very controversial. Following this, LMMPL with permission obtained from the Government of Meghalaya13 bought land from several individuals of Nongtrai and Shella villages under Shella Confederacy. This land transfer provokes three issues. One is, the land of Tynger village being sold by individuals of Nongtrai village without the knowledge of the first, the second is land of Shella village sold by some individuals from the village without villagers consent and the third is the land bought and transferred as by LMMPL to LSC then to IFIs. While all these controversial buying and transfer is in the High Court, the issue is the whether these land transfer is illegal under the MTLRA, 1971. In 2006, a group of primarily affected people of Shella Village formed the Shella Action Committee, Rally of Shella Village Natives (Committee from now onwards) “to protect and safeguard the interest of Indigenous People of Shella village from economic exploitation”14. The issue of illegal land transfer has been brought up by the Committee, and has been meticulously documenting the case and have filed case against the project proponents. The Committee claimed that the Nongtrai land sold to LMMPL actually belongs to people of Tynger village. While the authors do not have access to the relevant documents on this claim, it is argued that, in the past, it was agreed between the two villages that the Nongtrai village administration will look after the land portion of Tynger as it was administratively difficult for Tynger. It is argued that some individuals of Nongtrai sold this land portion for limestone mining to LMMPL. When this came to light at the time of project constructions, those who are real land owners of Tynger went to court, and the matter is still pending there. It is also interesting to note that, if the claim by Tynger is right, then the land title deeds, now with the funders, used as security for the loan, are fake ones. The second issue of land being bought by LMMPL for the conveyor belt is also contested to be illegal. As narrated in the interviews with the Committee members, land owners, and from court papers, it is contended that Mr. S. K Bidhan Roy, headman of Shella Village collaborated with the Project authorities and granted land ownership certificate to 89 villagers who are not the real owners of the land without full consultation of the Village Durbar. Some of the real land owners whom one of the authors met claims that realized that their land has been sold off to LSC only when the construction for conveyor belt began to appear. Parimal Roy Shong Lait of Shella Village is one such affected person and he said "the company came here and without any consultation, without any knowledge”. He further said that he along with

11 Amended Act 11 of 1991 12 Article (3.1) says“No land in Meghalaya shall be transferred by a tribal to a non-tribal to another non-tribal except with the previous sanction of the competent authority”. 13 Government of Meghalaya, Order NO: MG. 41/94/223 dated 29 August 2001 and Govt Letter. No. RDS. 25/99/11 dated 18 January 2002 14 Quoted from the PIL (No. 40/2007) filed in the High Court


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other affected people went to Lafarge to inform that their land has been illegally sold and that where the conveyor belt is built is theirs. After that they had meeting with the Lafarge Cement officer who came for seeking for solution. “The company said that they would grant a compensation of Rs. 1 Lakh but it is unacceptable. And from time to time again, the company said, they would pay but end up to only Rs 1 Lakh. But this land is not worth for that sum of money; it is much more than that. Our generations lived on this land………….."

The Committee in 2006 sued the Khasi Hills Autonomous District Council (KHADC), a constitutional authority for protecting tribal rights, for permitting alleged illegal deeding and transfer of some 89 plots of village land to LMMPL by “outright sale.” which is now pending before the Shillong Bench of the Guwahati High Court. The KHADC dismissed this complaint in the beginning but has reportedly begun re-investigation15. There is clear erosion and/or manipulation of traditional land holding system and the Institutions of the Khasi people. While there are local people involved, including the Chief of Shella in selling of land, there is obvious self interest among some local leaders who collaborated in this misdeed with Lafarge in bypassing certain accepted traditional processes required for land transfer. The headman Mr. Bidhan Roy is not entitled to exercise any right over the land of the village, which was confirmed in letters written from the then DC, Khasi and Jaintia Hills to Headman, Shillong on 24 June 193816 and 21 February 200617. However, the Notification of 7 June 1978 by the Special Secretary (Revenue etc. Department), GOM prohibits any transfer of tribal land in the east Khasi Hills District. Going by this Notification, permission by Competent Authority is null and void. Interestingly, Mr. V G K Kynta the legal counsel who represents Lafarge argues that all due process of the law was in place including taking permission from the competent authority for the land bought and transferred. The third issue of land transfer to LSC then mortgaged to IFIs is also illegal based on the Notification. The transfer and mortgage thus negate the traditional land transfer norms which also have been recognized under the state law formed based on Khasi People’s traditional land holding system. Environmental Impact Though a full scale environmental assessment has not been intentioned for this study, this assessment is based on interviews of affected people, visit to mining and conveyor belt areas, interviews of MoEF and MPCB officials and observations of research team. Public Hearing report and other documents have also been used to verify environmental consequences of the project.

15 http://www.grassrootsoptions.org/index.php?module=Pagesetter&func=viewpub&tid=1&pid=7 16 Letter written by Deputy Commissioner, Khasi and Jaintia Hills to U Jugordhon, Headman, Shillong, 24 June 1938, Misc. Pol. Case - No. 43 of 1938. 17 Letter written by Acting Wahadadar, Shella Confederacy to the Office of the Executive Committee, Khasi Hills Autonomous District Council, Shillong on 21 February 2006.

Pic. 3. Parimal Roy Shong


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One of the main complaints is the use of heavy explosive materials in blasting hills for limestone. The blasting are very strong and powerful and have brought environmental changes in the area. This is best described by one affected person of Shella" ………………this limestone mining is very destructive. They use to blast bombs, nearby houses shook like an earthquake that is a big one. We don’t know what tradition is that, to destroy our land, forest and they don’t care………………..? " Due to blastings, cracks have appeared on the earth causing drinking water sources-spring water began to stop and dry up. In recent years there was occurrence of water coming out from inside the ground of the residential houses in the area during rainy season. Water usually available to the local tribal residents form the springs and from inside holes and caves in the hilly terrain have stopped flowing causing hardships18. Due to blastings, frequent tremors and shakes have impacted on residential houses, provoking widespread fear that residential houses of local people located at foot-hill and at hill-slopes might be in trouble as the frequency of earthquake has increased. The rocks and big stones with their support materials on hill slopes started to loosen their hold on the Earth and these big stones may fall and roll down on the residential houses of the villagers situated at the foot-hill. Coming to the blastings, it is reported that all faunal– bears, deer, leopards, birds, fowls and have left the area due to destruction of forest. Similarly the aquatic lives in the rivers, streams and rivulets found and living in the area are on the verge of extinction year by year. Besides this, blastings have seriously affected the domestication of the live-stocks in the area. In an almost like a prediction one participant at the Environmental Public Hearing said “The natural resources available to tribal people-water, trees, forests and land for cultivation, source of their survival will be lost to them soon if the Limestone mining operation by the Lafarge Umiam Pvt. Ltd is allowed by the authorities.19 The fauna and flora of the area is a contested one. While the Rapid EIA for Limestone mining describes the mining area as forest area with agricultural activities and presence of mammals, bird's reptiles, amphibians etc., Lafarge did not take the forest clearance based on a No Objection Certificate (NOC)20 issued by a forest department official, GOM. As may be noted here that the mining has been currently closed down by the MoEF (regional office in Shillong) as the Chief Conservator of Forest found that the area is covered with thick and pristine forest21 and requires clearance from the Ministry. It is interesting to note that ADB which based its Board Approval in 1997 on the Rapid EIA has not monitored the project clearance process as well as the violations or non-compliance with national laws, nor has it taken proactive investigation of forest destruction after mining has been banned.

18 Complaints from affected people recorded in the Proceedings of Environmental Public Hearing. 18 January 2006 19 Additional Submission to the Deputy Commissioner, East Khasi Hills District, Shillong and Chairman, The Environmental Public Hearing Committee held on 18 January 2006 by Chairman, Shella Village Natives Rally on 6 March 2006. 20 The District Forest Officer issued the NOC stating that the land where the mining is proposed is barren, wasteland and rocky. 21 The Chief Conservator of Forest, Meghalaya, Mr. B.N Jha, visited the mining site on 24 May, 2006 and discovered massive destruction of forest and the non mining areascovered with thick and pristine forests.


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Loss of Livelihood Loss of livelihood has occurred due to take over of agricultural land and forest resources. Rice, betel nut, oranges are some key produces of Shella, however a large portion taken by Lafarge has kept out local people to do their activities. Mr. P.P Roy, villager of Shella informed that production has reduced drastically over the year. Dr. B. Swett, Chairman, Shella Action Committee Rally expressed that he opposes the project as it deteriorate the agricultural activity and subsequently the social and cultural lives of the people. The flora, fauna and aquatic life are already affected and that the project will bring about social insecurity due to influx of migrant laborers and will also contribute in the decrease of rainfall in Meghalaya, recognized as one of the wettest places in the world and where the World's rainiest place is located.22 Another affected person Trowell Nateb who lost his land said “So many they spoiled paddy fields area of this land for Jhum Cultivation. Actually, annual produce will come 30 to 40 thousand like that. And now after the destruction done, the Lafarge Cement group and the government has not done anything. ……….. We don’t know what kind of action is required to regain this land………". The loss of agricultural and forest land has deprived local affected Khasi people from their ancestral land but also from their meager livelihood source. Demographic Impact The LSC project has reportedly hired only three indigenous peoples for the project23. LMMPL has brought outsiders, non–tribals and peoples mostly from Bangladesh to work in the mining project. As affected people are not hired for the project and with the destruction of their livelihood sources, many have shifted their profession and some migrating to nearby towns and cities, further adding to the marginalization of Shella people. Workers from outside also have added the fear and miseries of Shella. Some expressed that with workers from outside will bring un-told miseries to the area like anti-social activities, social unrest, outbreak of AIDS, women trafficking, prostitution, drug trafficking, thefts, robbery etc and lastly extinction of the Natives by influx of outsiders and their settlements in the tribal lands. Impact on Sustainable Mining The people of East Khasi Hills from pre-British days have been carrying out small scale limestone mining from their land and traded with neighboring communities and contributing in the local subsistence economy. However, the LSC pattern of mining is very destructive not only

22 Proceedings of the Environmental Public Hearing in Respect of the Proposed Mining of Shale and Siltstone of M/S Lafarge Umiam Mining Pvt. Ltd, held at Shella, East Khasi Hills District on 18th January 2006 prepared by D.P Wahlang, Deputy Commissioner, East Khasi Hills District, Meghalaya, India, who is the Chairman, Environmental Public Hearing Committee

23 Interview with affected person Prince Star Well of Sohlap Shella Bazar.

Pic. 4. Trowell Nateb


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to the environment but also to the sustainable economic practices. Even now there are small scale mining in other areas in Shella. Some of these indigenous miners complaint that the use of heavy blast, use of modern technologies in the Lafarge Mining will soon exhaust the raw materials which they can use for long. There are now talks of returning back the land to the owners after the project life, but it is argued that in 30 years (which is the period of mining lease by LSC) there will be nothing left on earth for them to mine and survive.

DB Safeguard Policies and Application In order to affect the loan, LSC had to follow certain safeguard policies of the ADB and the IFC. The other lenders did not have mandatory policies. For any loan that the ADB

sanctions it has to be first approved by the Board of Directors after due process of diligence and then the Loan gets approved after fulfilling certain agreed terms. The Concept of LSC was cleared on 13 June 1997 and the Board approved the loan in August 1997. The loan was signed in 2001. The case study, Lafarge Surma Cement, that has been chosen, for this dialogue, is one that falls in the transition from no or old safeguards to new ones. If we are to take the date of Board of Approval as the triggering of policy, in this case 18 December 1997, then for Lafarge only the Involuntary Resettlement ADB policy applies. However, ADB has not applied this policy and instead used IFC standard. But if we take the date of signing of Loan as that benchmark that triggers the policy, the IPs and Involuntary Resettlement applies. The policy on environment of 2002 is still left out. Interestingly enough, the Board Approval of the loan was based on a Rapid EIA of Limestone Mining of IFC in August, 1997. However, there are complications in this. It is known that the mining is not just Limestone but Siltstone/Shale too, and an additional takeover of forest and agricultural land in Meghalaya for the conveyor Belt. This means that the ADB Board approval of the loan in 1997 was based on insufficient information and data. This hurried transaction has indeed resulted into a controversial project. In addition, by the time when the Loan was formally signed, the IPs Policy of 1998 was already in place, but that the ADB did not used its own policy on IPs. An issue that also needs clarification in the ADB operation is on accountability of those projects which it considers that its policy is not applicable due to the date of approval or signing of loan. In other words, what will be ADB’s responsibility for those projects which were approved during transition of its policies? What will be ADB’s responsibility for ongoing projects which were approved before its new policies? These are grey areas in ADB operation and will need clarity in order to affect full accountability for all projects that ADB funds. The question why ADB has not used any of its policies has remained unanswered. Email queries to the responsible ADB officer24 and to the Disclosure Unit has not yielded any response when this report was prepared. But the question remains, why ADB did not used its own policies but instead choose to use IFC policies. And if there are agreements with IFC, what are the terms and

24 Email to Mats Elerud dated 08 August 2007.

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conditions, and what will be ADB’s responsibility in ensuring that IPs, the environment and other consequences are taken care. The issue of transparency is critical here. It is known that the title deeds of Tynger (Nongtrai) and Shella village were mortgaged to ADB by LSC in order to secure the loan of 50 M USD. It will be in the terms and conditions of the loan where the details of the land transfer will be found. It is feared that if LSC fails to pay back the loan from whatever situation, will the land be given back to the owners after the project; will the land be still with LSC etc. Such are real fears that the affected Khasi people have raised. One of the authors of this study has written to ADB officials several times seeking the Loan Agreement, however email response from the Senior Regional Cooperation Specialist has made it clear that “under ADB's public communications policy (PCP), private sector legal agreements entered into by ADB, or amendments to such agreements, cannot be disclosed (PCP para. 104)”25. Because of this disclosure policy, one main aspect of the current crisis in the project remains unresolved. The struggle of the Khasi Indigenous Peoples is to get back their land and its resources. ADB Accountability Mechanism established to provide a space for affected people has also been not blocked due to its clause that does not apply to Private sector projects with concept clearance before 29 May 2003. The use of accountability mechanism to at least complain and seek solutions of the problems faced by the affected people of Meghalaya is also being ruled out. There is little thing that can be done unless rules and policies changes or else the affected people of Meghalaya will always be in the receiving end of financiers and transnational corporations. Application of ADB’s Indigenous Peoples Policy Interestingly, ADB failed to prepare or apply the ADB policy on Indigenous Peoples of 1998. Rather, ADB officials in communication with the research team26 outlined that ADB's Policy on Indigenous Peoples of 1998 was not in effect at the time of ADB Board's approval of the project and that the policy did not then govern the formulation and processing requirements for the project. However, the Loan agreement between ADB and Lafarge was signed in 2001, three years after the formulation of the Indigenous Peoples Policy in 1998 and that there is no reason as to why the policy cannot be applied and also that the project implementation commenced in the year 2005, again eight (8) years after the Board Approval. It is interesting that the ADB official stated that a 1994 staff instruction made the World Bank’s standards applicable to the project, requiring the project to comply with the World Bank Operational Directive 4.20 on indigenous peoples, further stating that the World Banks policy was considered by ADB to be substantively equivalent to ADB's Indigenous Peoples Policy of 1998. An Indigenous Peoples Development Plan (IPDP) was not prepared prior to Board approval. The IPDP was finalized in July 2002, before construction started in Meghalaya in early 2003. The loan was agreed in 2001 before the issue for land for mining was settled that took several years after in high controversy over appropriation of Indigenous peoples land and

25 Email exchange between Ramananda Wangkheirakpam and Soo Nam Oh (Senior Regional Cooperation Specialist, South Asia Department, ADB) during March 2007. 26 E-mail response from Senior Investment Specialist , ADB to Mr. Ramananda Wangkheirakpam


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undermining of their customary traditions of decision making. The land mortgage27, that took place in 2006, indicates that Indigenous Peoples are the last to be counted in the project cycle. Another aspect on the loan from ADB is mortgaging of Indigenous Peoples title deeds. As per Lafarge's record now available with us, the Resolution to Mortgage (by ADB) was signed on 30 March 2005. What is unclear is whether the Loan agreement of 2001 between ADB and Lafarge Surma Cement was signed before the mortgaging of the land? And whether the construction and mining begin even before land being mortgaged? Further, given the 1994 Staff Instruction that made the WB policy applicable, what remains unclear and undefined is ADB's role in implementing and monitoring the impact on Indigenous Peoples. The concern is whether ADB will be accountable for implementation and monitoring of the World Bank Policies. An explanation on reasons as to why ADB choose to abide by WB policy remains crucial in understanding ADB's involvement in multi-financing. Application of ADB Policy on Involuntary Resettlement of 1995 Again the ADB Policy on Involuntary Resettlement of 1995 was not applied to the Lafarge Mining in Meghalaya. ADB official while admitting that ADB's Policy on Involuntary Resettlement of 1995 was in effect for project preparation, the loan agreement between ADB and Lafarge (signed in 2001) required the project to comply with the World Bank Operational Directive 4.30 on involuntary resettlement, which was considered to be substantively equivalent to ADB's Policy on Involuntary Resettlement of 199528. Interestingly. The ADB Board Approval of the project took place even before the preparation of EIA, Resettlement plan and Social Impact Assessment (and IPDP). The EIA Report on Cement Project of Lafarge Surma Cement (LSC) of Chhatak, Sunamganj (August 1997) and the Rapid EIA of proposed Limestone Mining Project at Nongtrai, Meghalaya (August 1997), finalized before Board approval in December 1997 failed to outline a clear rehabilitation and resettlement policy for affected indigenous peoples of Shella, East Khasi Hills, who would lose their land. The definition of displacement and resettlement requires further broader interpretation. The destruction of vital livelihood sources, food, water and other allied economic activities, will compelled the people to shift. So the displacement of people based on the extinguishment of their survival source, physical and spiritual must an important count for resettlement issues. On the part of ADB, it has done ‘nothing’ on resettlement. Despite that the fact that their policy on Involuntary Resettlement of 1995 requires close consultation with affected people so that affected people are at least better off after the project, ADB choose to opt for the World Bank’s policy. The IFC also did not bother to look at the possible present and future issue of displacement and resettlement in Meghalaya. The ‘Resettlement and Social Impact Mitigation Plan’ of 1998, is meant for Bangladesh portion only. Questions definitely arise on ADB’s commitment to those who are affected, particularly for Indigenous Peoples of Meghalaya. Is it that ADB did not consider important to do even an initial assessment of the possible impact of taking over IPs land for mining? This brings up a critical question on how projects are cleared by the ADB Board of Governors and how loans are being sanctioned without even prerequisite studies. Since no studies or plan

27 Government of Meghalaya letter to Director, LSC, dated 13 March 2006 giving permission for land transfer. 28 Email response from Senior Investment Specialist , ADB to Mr. Ramananda Wangkheirakpam


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exist now on resettlement it is extremely difficult for affected people to complain or resort to mechanisms that can take care of their difficulties. Even if there is lack of a resettlement plan for the mining site in Shella, it is possible to refer to the EIA Study of Shale Mine at Shella to understand the reason for not conducting the resettlement plan for the mining affected people in Meghalaya. It is reported that “The mine being opened in a land with no settlements or habitation would not result in the generation of any ousters or displace population, who would otherwise have been required to be rehabilitated to provide with adequate compensation”. This is ADB's oversight and sheer negation of the intrinsic dependence of the people of Shella Confederacy to their natural resources. This is either the lack of sensitivity or understanding of how displacement takes place. Particularly for IPs, due to their close relationship with their land and forest, even if there is no direct displacement, any encroachment on their land or their forest will decrease their livelihood capacity and impact on their cultural and spiritual space. Application of ADB’s Environmental Policy 2002 On the application of the Environmental Policy of 2002, the ADB official again said that the policy cannot be applied in the formulation of the project as Board approval and contract negotiation/signing occurred beforehand. ADB official said that the loan agreement between ADB and Lafarge (signed in 2001) required the project to comply with IFC's Operational Procedure 4.01 on Environmental Assessment (October 1998) and guidelines on health and safety, environment, and cement manufacturing (1998). However, despite this ADB's claim of non application of Environmental Policy of 2002, the mining operation has been closed down because it has failed to take the mandatory forest clearance from the Indian Ministry of Environment and Forest (MoEF). The Ministry has asked "complete closure of all on-going non-forestry activities." 29 How long will ADB stick to its interpretations that the Board approval for Lafarge Surma Cement took place in 1997 and that the ADB environment policy came only in 1998 and hence the inapplicability, when villagers of Shella Confederacy had already complained of loss of forest and the serious impact of repeated blasting of explosive devices, creating fissures and disturbing natural water flows and threatening their very survival on account of loose rocks and soils due to repeated blasting? Will ADB remain silent as an irresponsible actor, consistently rejecting the call of the affected people to stop encroaching on their land, destructing of their forest, further threatening their survival? While the area where the mining takes places is a semi-tropical forest, and ADB in its website categorized the project as A (environment), there was complete negligence on the part of Lafarge to follow existing norms. In addition, ADB has failed to keep tack of projects where funds from ADB have been used for environmental destruction as well as displacing IPs from their forest and farm lands.

29 Letter no. MoEF/NERO/WP/WS/ML/HADC/2007/231‐35)


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pplicable national laws and if they were used The Lafarge Cement Project in Meghalaya is marred with violations of land laws in Meghalaya, Forest Conservation Act, 1980, Environmental Impact Assessment 1994 and

amended in 1997. The project authorities had tried to use the National Environment and Land Laws. However, they are fraught with controversy over issues, including submission of false and misleading informations. The Lum Mawshun Minerals Pvt. Limited with permission obtained from the Government of Meghalaya30 occupied land under the territory of the Shella Village in Shella Confederacy, East Khasi Hills, Meghalaya. The Villagers of Shella considered the purchase as illegal and the possession as violating the safeguards under the Sixth Schedule provide under Article 244 (2) of the Constitution of India and also Section 3 of the Meghalaya Transfer of Land (Regulation) Act, 1971, that prohibits transfer of tribal land to non tribals without the consent and approval of Village Durbar. Further, the violation of Environmental laws is evident when the Ministry of Environment and Forest instructed the LSC to take fresh forest clearance in 2007 after detection of mining operation in forest areas, which it indicated in its Rapid EIA as barren land. It is however, interesting that the same Ministry of Environment and Forest, Government of India accorded Environment Clearance to Lafarge Umiam Pvt. Ltd. on the basis of the letter issued by the District Forest Officer, A. Lyngdoh, Khasi Hills Division dated 13-06-2000 to the company describing the land as non-forest, not notified as Reserved Forest. The forested mining site, where the Lafarge Cement obtained an environmental clearance from the Ministry of Environment and Forest, Government of India is already deforested heavily. Despite the clearance, the Chief Conservator of Forests who visited the area on 24 May, 2006 discovered the mining site was surrounded by thick natural forests and found that about 20 hectares was strewn with tree trunks, while the remaining unmined areas had stretches of natural forest with tall trees and dense vegetation. According to the Forest Conservation Act, 1980, any project using forests for non – forest purposes needs to obtain a forest clearance from the Central Government. The Chief Conservator of Forest, Meghalaya then wrote a letter on 9 April, 2007, following which the MoEF sent Lum Umiam Mining Pvt Ltd, a stop work order and asked the company to apply for fresh clearances under the Forest Conservation Act, 1990.

elevant ADB policies used instead of national laws ADB did not use any of its policies, unfortunately.

ublic response Meghalaya is one of the seven north-eastern states where indigenous peoples have been, either by armed movement or by peaceful means, struggling to defend their territories and

resources, with some trying to separate from India. Compared to other states in north-east India, activities of the Indigenous resistance groups in Meghalaya is comparatively ‘moderate’

30 Government of Meghalaya, Order NO: MG. 41/94/223 dated 29 August 2001 and Govt Letter. No. RDS. 25/99/11 dated 18 January 2002

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although there are a few organizations which started their operations in 1980s- 1990s, such as Hynniewtrep National Liberation Council (HNLC), Achik National Volunteer Council (ANVC) and People’s Liberation Front of Meghalaya (PLF-M). Reflecting such political unrest, the presence of the Indian army, para-military forces are enormous in the state and there are several draconian laws to restrict civic and political rights of citizens such as Meghalaya Preventive Detention Act (MPDA). These laws are also applied to suppress the protest by civil organizations to mining and other large-scale destructive development. In June 2007, the activists of Khasi Students’ Union who engaged in the road blockade in order to protest the public hearing of the controversial uranium mining have been arrested and booked under the MPDA. Such situation is more prevalent in other north-eastern states such as Assam, Manipur, Nagaland and Tripura. In these states, including Meghalaya, the undemocratic quashing of protests by police and para-military forces are common, and thus make it extremely difficult to raise a voice against large-scale projects led or backed by the state. As a result, the indigenous peoples in the region suffer from the undemocratic and colonial situation where there land and resources have been taken away by larger powerful states. It is against this backdrop that we need to understand the current peoples’ reaction to the mining. The affected indigenous peoples, affected by the Lafarge Limestone and Shalestone mining had launched divergent responses to the violations confronting them, including filing of Public Interest Litigation, challenging the legality and rationality of Lafarge Mining at Shella Confederacy at the Guwahati High Court in 2007. The affected groups had sought intervention from the President of India and had also written to the National Commission on Scheduled Caste and Tribes and had even lodged complaints with the Police Station of East Khasi Hills Districts. Affected groups made representations through local human rights groups at UN Human Rights Commission Sub mechanisms. The affected villagers have also engaged the concerned authorities of the government, including voicing their concern and rejection of the mining and illegal occupation of their land at the Public Hearing on Shalestone Mining, organized by the Meghalaya Pollution Control Board in 2006. The affected villagers also sought intervention of the Chief Conservator of Forest, Meghalaya over the destruction of forest of the Indigenous Peoples, taken over through dubious means, In 2006, a group of primarily affected people of Shella Village formed the Shella Action Committee, Rally of Shella Village Natives (Committee from now onwards) “to protect and safeguard the interest of Indigenous People of Shella village from economic exploitation”31. The affected indigenous peoples of Shella mobilized and organized themselves to file a Public Interest Litigation to the Guwahati High Court, on May 17, 200732, questioning the legality of the process through which the Meghalaya based Lafarge subsidiaries, the Lum Mawshun Minerals Pvt Ltd (LMMPL) acquired lands in Shella, and then used them as security enabling LMMPL’s Bangladesh based parent company, the Lafarge Surma Cement Pvt Ltd (LSC) to borrow US$ 153 Millions from seven foreign banks to fund their project.

31 Quoted from the PIL (No. 40/2007) filed in the High Court 32 PIL No 40/2007, Gauhati High Court (District – East Khasi Hills


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The petitioners challenged the land transfer approval by the Government of Meghalaya claiming it violated the MLTRA, 1971, that forbids the transfer of tribal land to any non-tribal. Another case is pending against the Khasi Hills Autonomous District Council for authorizing the transfer of tribal lands which is against the Council’s own rules forbidding tribal land alienation in any form. In this case the Rally of Shella Natives (RSN) sued the Khasi Hills Autonomous District Council (KHADC), a constitutional authority for protecting tribal rights, for permitting illegal deeding and transfer of some 89 plots of village land to LMMPL by “outright sale.” The RSN had complained to the KHADC that the headman issuing the no encumbrance certificates on the plots allegedly had no legal or traditional authority.33 The Guwahati High court, India has curbed French cement giant Lafarge’s Meghalaya based subsidiaries from taking any fresh loans by mortgaging tribal lands in the state, bringing the Asian Development Bank’s first sub regional private sector venture in India's North East under its South Asian Sub regional Cooperation (SASEC) program beneath a legal cloud. The interim order was passed by the Guwahati High Court (GHC) on a Public Interest Litigation (PIL) filed by the Shella Joint Action Committee against 17 respondents which includes the Government of Meghalaya (GOM) and Lafarge companies. GHC Chief justice J Chellameswar and Justice H Roy passed the interim order against the companies “not to create any fresh encumbrances on the land,” noting that the land “is the subject matter dispute in this writ petition.” Notices were also issued to among others the Union ministries of Home, Ministry of Finance, Ministry of Environment and Forest, Chief Inspector of Mines, National Commission for Schedule Tribes, Reserve Bank of India and other departments for alleged dereliction in their constitutional duty to protect tribal lands and environment from local and foreign incursions.34 The Meghalaya Peoples Human Rights Council had also apprised the Lafarge Mining Issues and the implications to the Khasi Indigenous People in United Nations Sub Commission on Human Rights meeting at its 12th Session in Geneva. Mr. Dino Dympep, while highlighting the problems created by Lafarge mining stated that the Government of India, while participating in the globalisation process, had invited the Multinational Companies (MNC) to invest in the mining and eco-development sector in Meghalaya without understanding the depth of the issues He further stated this is in direct contravention not only to the existing State Land law35 and Supreme Court of India Judgment36 but a clear violation of International Customary Law and other International Human Rights Law.37 Mr. Odhikar Khyllep and Mr. Soitbo Malyngiang, from Shella village had lodged an FIR with the Superintendent of Police, East Khasi Hills District, Shillong on 30 March 2007 pleading to

33 ibid 34 "Curb on Lafarge tribal land mortgage", The Grassroots Options, Meghalaya . http://www.grassrootsoptions.org/index.php?module=Pagesetter&func=viewpub&tid=1&pid=7 35 The Provision under Article 244(2) of the Constitution of India and the provision of the Meghalaya Land Transfer of Land (Regulation) Act, 1971.

36 Supreme Court of India, AIR 1997 SC3297, K Ramaswamy, S Saghir Ahmad, GB Pattanaik JJ (11 July 1997). 37 Representation by Dino G. Dympep, Meghalaya Peoples Human Rights Commission to UN Sub Commission on Human Rights, 12th Session in Geneva


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investigate matters of encroachment into tribal land by subsidiaries of Lafarge Surma Cement Ltd.

esponse of the ADB and the executing agencies Application to ADB for provision of project document has not been responded positively. Rather, ADB communicated that because of ADB's Public Communications Policy

(PCP), private sector legal agreements entered into by ADB, or amendments to such agreements, cannot be disclosed and referring it to (PCP para. 104). The Executing Agency of the project, the Lafarge Surma Cement Ltd (LSCL) is preparing to respond to the objections and concerns raised by Indigenous Peoples through an engagement with the State Authorities and not directly with the Indigenous Peoples through their own traditional norms of decision making process or through a policy designed in accordance with their own policies on Environment, Indigenous Peoples and Resettlement. Their dealing with the Indigenous Peoples is in a way of efforts to bribe or silence them or forcing them to accept certain sum of amount stipulated by them. This is sheer irresponsibility on the part of Asian Development Bank and the other Financers involved in the project. Regarding the Union Ministry of Environment and Forest’s directive to stop mining limestone in Nongtrai as it was being done inside ‘forest’ land without obtaining clearance under the Forest Conservation Act, Mike Cowell, Managing Director of Lafarge Surma Cement Ltd (LSCL) told in a media interaction at Shillong, Capital of Meghalaya on 21 July 2007, that the company had done nothing underhand as it had received all the documents from the deemed authorities stating that the land was not a ‘forest’. But Lafarge will not argue over that, he said. “We have no intention of arguing about whether the land was/is a forest. We have been asked to seek clearance under the country’s laws and we are in the process of doing that. We are a responsible company and no fly by night group and we intend to do everything lawfully,” he said.38 With a lot of powerful people ranging from the State of Meghalaya to the Union Government at Delhi, rooting for the success of bi-lateral project, they are certain to get the clearance in a short while. The problem is that Mr. Mike Cowell's statement did not mention anything on the application of ADB's safeguard policies on Resettlement, Indigenous Peoples and Environment. Given this reality and in the absence of specific policies for protection of the rights of Indigenous Peoples from the project authorities and the Financers, especially the Asian Development Bank, the Indigenous Peoples of Meghalaya are left to fend for themselves. And the crucial question of accountability of project authorities and the financiers becomes a serious issue to be addressed in all projects financing by ADB. LSC rather respecting the rights of land and traditional rights and traditional norms of decision making insist on the application of national laws to further victimize affected by the project. Khasi Jyntia forest act.

38 http://www.grassrootsoptions.org/index.php?module=Pagesetter&func=viewpub&tid=1&pid=12

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olicy recommendations and best practices With the current ADB revisions of safeguard policies in mind, it is imperative that ADB takes the lessons from the Lafarge mining case in Meghalaya if it is to improve and

strengthen its policies. There are fears among Indigenous Peoples that ADB is likely to weaken its IPs policy and/or merge it with other policies and/or move to a country system approach. These fears will be unfounded if ADB continually learns from its ongoing and past projects. Below are some of the key policy recommendations based on the case study that must be incorporated in its revisions. P1. It is important now for the full recognition of Free, Prior Informed Consent of the affected IPs. Even if government (here in this case the Government of India and Government of Meghalaya) gives permission for a project, it should be mandatory that the Free Prior Informed Consent of the IPs should be in place as a way to recognize their sovereignty over their land and resources. Any policy revision must take into account the UN Declaration on the Rights of IPs and other globally accepted norms on IPs. P2. The Board Approval and Loan Sanction must be after complete studies are available. The studies must include impact assessment of the project on the environment, social, cultural, political, institutions, and economic rights of the Indigenous Peoples. If in case the Board Approves a project without proper scrutiny, and after it comes to light the need for further assessment during the course of the project, the ADB should make it mandatory for stopping of funds till further studies and clarity are in place. P3. Any project which are still ongoing and wherever and whatever way ADB is involved, the existing policies of ADB must be made applicable even if they are approved or signed prior to the existing policies. P4. In continuation of P2, it is also important that the ADB make its Accountability Mechanism applicable for all project, including those of private sector even after the concept clearance is prior to 29 May 2003. This will enable affected people of ongoing projects to seek justice from ADB. P5. For land illegally taken by corporations and/or mortgaged to ADB for any purpose/project should be transferred back, with fitting compensation, to the rightful owner, and that mechanisms be in place for fair punishment and justice, including ADB officials. P6. In areas where IPs claims of being colonized, or where there are un-democratic situation exist, as in the case of Meghalaya, ADB makes it mandatory that as an institution will not fund any projects until democratic norms are in place. This is important as ADB funding in such areas might further strengthen colonization and marginalization of IPs.

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onclusion This is a case where ADB is involved in funding a private global giant Lafarge to mine in Indigenous peoples land, where ADB did not use any of its existing policies, where ADB

is not transparent on land related agreements under its PCP, where the affected Indigenous Khasi people have not been given space for complaint and seek solutions under its current Accountability Mechanism. While there are several issues of prime importance that has been brought forward through this case study, it is now for ADB to live up to the standard of Indigenous Peoples. However marginalized & suppressed, some of the standards set by IPs, through their hardships, have been accepted globally. It is through the learnings from such cases that ADB can incorporate it its policies and programs and further strengthen its goal of poverty reduction, environmental safeguards and the overall welfare of the people of Asia and Pacific. Such progression will help ADB set standards for other banks as well for governments and corporations in their operation. It is with this hope that this case study has been submitted.

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eferences

1. Environmental Impact Assessment (EIA) on Cement Project of Lafarge Surma Cement (LSC) at Chhatak, Sunamganj, Final Report. Prepared by Envirocare (Pvt) Ltd, Dhaka, Bangladesh, August 1997

2. Rapid Environmental Impact Assessment of proposed Limestone Mining at Nongtrai, Meghalaya. Center for Eco-Development, North East Hill University, Shillong, 1997

3. Resettlement and Social Impact Mitigation Plan. Environmental Resources Management, January, 1998

4. EIA Study of Shale Mine at Shella, Environmental Resources Management, 20 5. PIL No. 40/2007, Public Interest Litigation filed by Shella Action Committee, Rally of Shella

Village Natives filed to Guwahati High Court. 6. Proceedings of the Environmental Public Hearing in Respect of the Proposed Mining of Shale

and Siltstone of M/S Lafarge Umiam Mining Pvt. Ltd, held at Shella, East Khasi Hills District on 18th January 2006 prepared by D.P Wahlang, Deputy Commissioner, East Khasi Hills District, Meghalaya, India, who is the Chairman, Environmental Public Hearing Committee

7. Additional Submission to the Deputy Commissioner, East Khasi Hills District, Shillong and Chairman, The Environmental Public Hearing Committee held on 18 January 2006 by Chairman, Shella Village Natives Rally on 6 March 2006.

8. "Cross Border Bustle", Down to Earth Publication, August 2007 9. Involuntary Resettlement. Asian Development Bank, August 1995 10. Policy on Indigenous Peoples. Asian Development Bank, 1998 11. Environment Policy of the Asian Development Bank, Asian Development Bank, November, 2002 12. "Equity and Customary Community Forest Management in Meghalaya, India", By A. Kyrham

Nongkynrih, NEHU, Meghalaya, as published in "Hanging in the Balance, Equity in Community Based Natural Resource Management in Asia" published by RECOFTC, Thailand and East West Center, Hawaii

13. Report of UN Special Rapporteur on Indigenous Peoples to UN Human Rights Commission, 2003

14. Commentary on the Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/38/Rev.2, 2003, para. 10 ©.

15. "Insidious Financial Institutions in India’s Northeast" Intercultural Resources and Forum for Indigenous Perspectives and Action, New Delhi and Imphal, April 2006

16. www.adb.org 17. www.ifc.org 18. www.grassrootoptions.com 19. www.lafarge.bd.com

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