Is the Owner of the Land Also the Owner of the Minerals?

June 6, 2015

By Stan Swamy

‘Minerals are an essential part of the land … the ownership of sub-soil/mineral wealth should normally follow the ownership of the land” – (SC:CIVIL APPEAL NO. 4549 OF 2000, delivered on July 8, 2013)

1) ‘Owner of the land is also the owner of the minerals’ :

The Supreme Court of India in a path-breaking judgment has said

we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.

A myth exploded: During all these years the ruling class and the govt have created a myth that sub-soil minerals belong to the State. On that assumption the State claimed its right to ownership as well as the use of these minerals. Thousands of acres of land with millions of tons of minerals was arbitrarily and forcefully acquired by the State. Electricity was generated, rail-cum-road infrastructure was created, big dams and factories were built. All these were named ‘modern temples’. No one cared as to what natural law has to say on the matter. The Indian Legislature, Executive and Judiciary did not find it necessary to reflect on the matter. The centres of learning churning out intellectuals and professionals never pondered on this vexing question. India, the largest democracy in the world, had to wait for well over 60 years to affirm the natural law that ‘the owner of the land is also the owner of the sub-soil minerals’.

The silent majority: When the all powerful State and its machinery posed the claim that the State is the automatic owner of all minerals, the land-owning-farmers who are at the lowest rung of the socio- economic ladder, also accepted it as an inevitable truth. The tragic truth is that although the farming sector is the largest producer (65%) in the economy of the country it has been kept at the receiving end all these years. For one thing, the farmers and their offspring are not as formally educated as the urban middle and upper classes of society and hence cannot put forward their natural right over the sub-soil minerals. They have been the silent majority.

2) The Indigenous Adivasi People have followed the laws of nature:

The United Nations Declaration on the Rights of Indigenous Peoples, Adopted by General Assembly Resolution 61/295 on 13 September 2007, in Article 26 affirms:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Let us remember India is a signatory to the above UN Declaration on the Rights of Indigenous Peoples. Hence it is morally bound to honour the resolution. Apart from its UN commitment, the Indian Govt has enacted some laws meant to safeguard the indigenous peoples and their interests. The PESA Act clearly asserts “every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution” [PESA Act 4(d), emphasis added].

This corresponds to the notion of indigenous territoriality elaborated by ILO Convention No. 169 in which indigenous rights to property extend to the natural resources that they use as part of their traditional economies or which have cultural, spiritual or ceremonial uses. Article 15(1) states: “The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.”

3) ‘There are no indigenous people in India’ says the Indian govt: that there is a clear plot in the action of the govt is clear from the fact on the one hand it liberally signs the resolutions of the UN Conventions and on the other the Indian govt keeps denying that there are no indigenous peoples in the country at all. As such it feels it is not obliged to abide by the decisions taken in the UN. It is a denial of the very existence of about 10 crores indigenous Adivasi people. Instead they have been put in the conveniently created Scheduled Tribes category and some bits & pieces are thrown at them most of which is eaten up on the way and do not reach them. Consequently poverty is deepening among them.

4) Wolves in Sheep clothing! in the meantime, the rich minerals in their lands are being looted by the govt and private companies. The Supreme Court has declared 214 out of the 219 Coal-Blocks in the country illegal and ordered their closure and levied a fine on them for their illegal mining. But the Central & State Govts have found a way out by re-allotting these illegal mines through auction to make it look legal! Lot of assurance is given that Adivasi land will not be given to industrialists, yet at the same time mines in Scheduled Areas are being allotted to govt and private companies. Cheating game.

To conclude, may we say that a time will come when the farmer-land owners and Adivasis will be sufficiently awakened and strengthened and will tell the govt/industrialists that they are the natural owners of the minerals in their land and if the govt/industrialists want these minerals they will have to buy it from them. Let us hope that time will come soon.

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