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Jindal - A Classic Example of Corporate Impunity
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
Jindal A Classic Example of Corporate Impunity
Jindal A Classic Example of Corporate Impunity
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
Technical information: Title: Jindal - A Classic Example of Corporate Impunity Mozambican justice and the violation of rights of the communities affected by Jindal Mozambique Minerais, Ltd Coordination: Anabela Lemos Publication: Justiça Ambiental JA! FOE Mozambique Authorship: João Nhampossa with Gizela Zunguze and Sílvia Cunha With the collaboration of: Anabela Lemos, Erika Mendes, Manuel Chaúque Edition: Outra Perspectiva Graphic Layout: Lourenço Pinto Photos: JA! team “The content of this publication is of Justiça Ambiental’s sole responsibility and does not necessarily express the opinion of our donors/partners.”
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Message from the Board This case study aims to expose and analyse in a concise manner the numerous difficulties faced during the whole process of fighting for respect and for the restoration of the human rights of the Community of Cassoca, in the Province of Tete, from the simple right to information to the right to live a decent life. This lengthy process started in 2013, when JA submited a letter to the National Directorate for Environmental Impact Assessment (DNAIA-MICOA) requesting, without success, copies of Jindal Mozambique Minerais Ltd’ (hereinafter referred to simply as JINDAL) Environmental Impact Assessment Report, as well as of the corresponding Environmental License. Numerous other letters – as well as countless requests for information and letters denouncing the deplorable living conditions the Community of Cassoca was being subjected to – were submitted to several relevant government institutions: from MICOA to MITADER, to the Ombudsman Office, the National Human Rights Commission, the Attorney General’s Office (PGR), the Administrative Court of the Province of Tete (TAPT), and finally the First Section of Litigation of the Administrative
Tribunal. In response, little or nothing was done to protect this community. To date, we have not been able to obtain copies of the Environmental Impact Assessment Report, nor have we been able to see the Environmental License assigned to JINDAL. After much persistence, in December 2018, on JA’s last visit to DNAIA seeking to obtain copies of these documents, the justification they offered us for not making them available was that, because it was an old process, they needed to check their archives and that takes a long time. Once again, access to information was denied to us without an acceptable justification. As the process trails along the tortuous paths of Mozambican Justice, the community of Cassoca remains besieged, for JINDAL has begun and continues to run its operation – a coal exploration that runs and coexists with the community. This perpetuates the impunity of JINDAL and the violation of the most basic rights of an entire community, with the full knowledge and consent of the Government. The living conditions of this community are a clear example of a violation of human rights. JIN-
Jindal A Classic Example of Corporate Impunity
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Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
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DAL started to mine coal without resettling the community living in the area, who suddenly found itself surrounded by JINDAL’s fence and stripped off it’s territories in favour of the mining company. Today, the people of the community are forced to coexist with the mine’s constant explosions and it’s resulting clouds of dust, with polluted waters and have even had their right to free movement restricted, because in order to go anywhere, they have to pass through a security gate controlled by JINDAL. Finally, in June 2018, in response to an appeal submitted by JA to the First Section of Litigation of the Administrative Tribunal, JINDAL was sentenced to resettle the communities of Cassoca before the end of December 2018. The resettlement process only began in March 2019. The resettlement site did not provide minimum conditions for housing, such as access to water, energy and basic public services such as a school, an health centre, a market, etc. Most of the houses for resettlement are still under construction. The many difficulties and challenges faced in the course of this six-year process deserve serious consideration, since they demonstrate that justice is not available to all Mozambicans and is clearly not within the reach of the most vulnerable. The rights of the community of Cassoca have been systematically violated over the last six years
and it was necessary to appeal to the courts to uphold them, despite the numerous complaints made to several government institutions, which have done nothing to defend the community. What, then, is the role of these institutions? And what is the responsibility of the State when the relevant institutions are aware of the violations and do not act to restore justice? How will the community be compensated for the damages? Is this the “development” the government aims to promote? And finally, how can we ensure that justice is accessible to the people? A luta Continua Anabela Lemos
Jindal A Classic Example of Corporate Impunity
Index 1. Contextualization 9 2. Protection of the communities’ land rights 15 3. Regarding the non-compliance of the resettlement plan 21 4. Complaints to the Ombudsman and the National Human Rights Commission 26 5. Complaints to the Attorney General’s Office 31 6. Actions in the Administrative Courts 34 7. Conclusions 37 5
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
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Jindal A Classic Example of Corporate Impunity
Contextualization
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Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
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1. Contextualization As a result of the discovery of varied mineral resources in its territory – including mineral coal, heavy sands, rubies and natural gas, among others – Mozambique is undoubtedly an international reference in terms of investment opportunities in different sectors of the extractive industry. It is in this context that in recent years the Province of Tete has been the subject of large-scale mineral
Jindal A Classic Example of Corporate Impunity
coal exploration. An example of this exploration results from the mining agreement celebrated between the Government of Mozambique and the mining company Jindal Mozambique Minerais, Ltd for the exploitation of mineral coal in an area located in Chirodzi, Marara District of the province in reference. This is the story of mining concession nr. 3605C.1
1 The full content of this agreement between the Government of Mozambique and JINDAL has never been in the public domain, which raises problems of transparency, access to information and public participation, taking into account the secrecy that characterizes this contract.
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Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
Jindal Mozambique Minerais, Ltd, part of JINDAL AFRICA and operating in Mozambique through the extraction of coal in Tete Province, is an Indian multinational, which is part of the Indian multinational conglomerate Jindal Steel and Power Limited (JSPL), which is part of the diversified OP JINDAL group, valued at about 18 billion US dollars.2 In August 2013, the Chirodzi mine was inaugurated by the then President of the Republic of Mo-
2 https://www.jindalafrica.com 3 https://www.jindalafrica.com/countries/mozambique
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zambique Armando EmĂlio Guebuza and by JSPL President Naveen Jindal.3 The mining agreement celebrated between the Government of Mozambique and JINDAL results, among other consequences, in the resettlement of the populations affected by the exploitation of the mineral coal in question. These are the communities of Cassoca, Luane, Cassica, Dzinda and Gulo. For the purposes of this resettlement, 289 families were identified as directly affected by the
project. To manage this process a Technical Commission to Monitor and Supervise the Resettlement was established, as well as a Resettlement Action Plan for the mining concession area’s resident population.4 These 289 affected families are still awaiting the implementation of a resettlement process that began in May 2010. These 289 families are living within mining concession 3605C, in a polluted environment, dangerous to public health, mainly due
to the frequent use of explosives, which cause not only noise pollution, but also huge clouds of coal dust that is highly harmful to health. JINDAL’s activities also have consequences regarding soil and water contamination, and contribute significantly to the social and cultural disruption of affected families, to the destruction of traditional values and habits, to the loss of families’ livelihoods and to increasing their cost of living, to the violation of their right to free movement and
Jindal A Classic Example of Corporate Impunity
4 The composition and functioning of the Technical Commission to Monitor and Supervise the Resettlement are provided for in Articles 6 and 7 of Decree 31/2012 of August 8th, which approves the Regulation of the Resettlement Process Resulting from Economic Activities.
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their right to demonstrate, and to the intimidation of community leaders and obstruction of the work of civil society organizations by preventing their access to affected communities. This case study of Justiça Ambiental (hereinafter referred to as JA) seeks to explain, in a succinct manner, the contours of Mozambican justice system’s monitoring, in relation to safeguarding the land rights of communities affected by JINDAL’s activities in Tete. JA is one of the civil society organizations that has carried out monitoring activities to defend the rights to the land and the environment of the communities affected by the mining of mineral coal by JINDAL, in the Marara District of Tete Province, through research, including regular fieldwork with affected communities, contacts with the Government and JINDAL.
Jindal A Classic Example of Corporate Impunity
Protection of the communities’ land rights
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2. Protection of the communities’ land rights JINDAL has been the subject of disputes and accusations by affected communities and a significant number of non-governmental organizations, including academics who have claimed and denounced human rights violations – particularly land rights and housing rights of the communities in question – in a context where there is a clear lack of evidence of improvements in the living conditions of these communities as a result of their exploitation of mineral coal. Besides JA, among these organizations5 are also the Mozambican Human Rights League (Liga Moçambicana dos Direitos Humanos), the Mozambican Bar Association (Ordem dos Advogados de Moçambique)6, the Public Integrity Centre (Centro de Integridade Pública)7, various platforms of civil society organizations on the extractive industry, among others.
Jindal A Classic Example of Corporate Impunity
To better understand the legality and sustainability of this process, JA addressed several letters to the Ministry of Land, Environment and Rural Development (Ministério da Terra Ambiente e Desenvolvimento Rural – MITADER), to the governmental institution that preceded it and was designated Ministry for Coordination of Environmental Action (Ministério para a Coordenação da Acção Ambiental – MICOA) and to the Office of the National Directorate of Environmental Impact Assessment (Direcção Nacional de Avaliação de Impacto Ambiental – DNAIA), requesting the full content of JINDAL’s Environmental Impact Assessment (EIA), as well its respective certificate of approval. On the 28th of August 2013, a meeting was held between JA and the then Minister of MICOA, who was accompanied by a team that also included
5 Justiça Ambiental, the Mozambican Human Rights League and the Mozambican Bar Association submitted proceedings in the administrative jurisdiction in order to hold JINDAL and the Mozambican State responsible for violations of the rights of the communities affected by the coal project in Tete. 6 See Report of the Mozambican Bar Association on Human Rights in Mozambique for the year 2015 and 2016. 7 See publications of the Public Integrity Centre available at https://cipmoz.org/index.php/pt/industria-extractiva
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the then Director of DNAIA. At this meeting, JA received confirmation that JINDAL did not have an approved EIA, and that, in fact, its process was at the Environmental Pre-feasibility Study and Scope and Terms of Reference for the EIA elaboration phase. This means that JINDAL was in violation of Article 16 of Law 20/97, Environment Law, of October 1st; of the repealed Decree 45/2004 of September 29th, as well as of the current Decree 54/2015 of December 1st, which advocate the obligation to have the EIA finalized and approved before any company starts its activities. In order to formalize the information provided to us at the meeting and due to the lack of evidence supporting the existence of the EIA, on the 11th of October 2013, JA sent a new letter to MICOA and DNAIA requesting information about JINDAL’s EIA, but the request did not get any response. On the 6th of August 2014, JA sends another letter on the subject to the same authorities and, on the 13th of August 2014, DNAIA finally responds. In its reply, it states that the EIA is owned by JINDAL, and therefore it could only be consulted in DNAIA’s premises and that it could never provide any copies of the document. On the 3rd of September 2014, JA responds appealing that the Law on the Right to Information is respected, arguing that the Law guarantees the passage of documents to the interested parties
provided that it does not contain classified, confidential or secret information. JA also argues that consulting the EIA at DNAIA’s premises would not allow for proper analysis and discussion of the documents in question. Moreover, JA explains that, above all, what was intended was to have the EIA in its entirety and the whole process duly approved. Over the following four years, JA held some meetings and established some telephone contacts with MITADER’s technical staff to obtain the desired information, but it did not work. By the end of 2018 – already during the process of finalizing this study – the mere existence of JINDAL’s EIA remained questionable. Then, on the 29th of November 2018, JA sends another letter to MITADER and DNAIA asking them to confirm the existence of this EIA, as well as the date of its approval. Once again, JA requests copies of the documentation. In a reply dated December 3rd 2018, DNAIA informed JA that JINDAL had in fact an EIA and that it had been approved by MITADER, reiterating that it could only be consulted in DNAIA’s premises. That being said, on the 13th of December 2018, a team from JA went to DNAIA to consult JINDAL’s EIA documentation, seeking to clarify as many issues as possible, including those regarding its submission and approval. From the analysis of the
documents that were provided, it was only possible to verify that JINDAL’s Environmental Impact Assessment Report was submitted to DNAIA on the 17th of February 2012. However, we were not provided with any document related to the EIA’s
approval, and when we asked for this documentation, DNAIA replied that – because it was an old process – they would have to look in the archives and it might take a few days for them to be made available.
Jindal A Classic Example of Corporate Impunity
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Jindal A Classic Example of Corporate Impunity
Regarding the non-compliance of the resettlement plan
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3. Regarding the non-compliance of the resettlement plan With regard to the Resettlement Plan and its noncompliance, it is important to note that the resettlement process began in 2010 and has not been materialized to date. For this reason, JA approached MITADER and was made aware that the Government of Mozambique never held JINDAL responsible for its failure to comply with the submitted Plan. Item c) of number 2, Article 25 of the Regulation on Resettlement Processes Resulting from Economic Activities establishes that failure to comply with the approved Resettlement Plan constitutes an administrative offense, a violation of the law, punishable by a fine equivalent to 10% of the project’s value. On the 7th of February 2017, JA sent MITADER a request for information regarding this issue. MITADER responded on the 8th of March 2017 in the following terms: a) MITADER did not start any process seeking JINDAL’s accountability because resettlement processes are new to the country and, therefore, going through a learning process themselves, and because the resettlement process
Jindal A Classic Example of Corporate Impunity
of this company predates the approval of Decree 31/2012 of August 8th, which approves the Regulation on Resettlement Processes Resulting from Economic Activities. b) Strangely, MITADER also notes that they have been monitoring companies to have them comply with their Resettlement Action Plans in accordance with the aforementioned Regulation, regardless of whether they precede or follow it’s approval.
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JA’s response to MITADER JA responded to MITADER via letter, dated April 25th 2017, arguing that although the resettlement plan in question was approved prior to the approval and entry into force of Decree 31/2012 of August 8th, it is undisputed that the process of this resettlement is contemporaneous with this Regulation, and, since such resettlement did not take place, it is fallacious to consider that it is not covered by the aforementioned Regulation. Which means we
are, obviously, dealing with a flagrant case of noncompliance with the Resettlement Plan, which violates Articles 19 to 23 of the Resettlement Regulation, and should result in the penalty established by item c) of number 2, Article 25 of the same legal document. JA understands that the Government of Mozambique’s decision not to penalize JINDAL for failure to comply with its resettlement plan for the affected population, because that resettlement process is prior to the approval of Decree 31/2012 of August
8th, should not proceed because it is unfounded. In addition, in light of number 2, Article 12 of the Civil Code, it is clear that, given the rules governing the application of the laws in time, this resettlement process is covered by the entry into force of Decree 31/2012, of August 8th, because these processes are still ongoing. It is in these terms that JA requires that MITADER comply with the provisions of item c), number 2 of Article 25 of Decree 31/2012, of August 8th, penalizing JINDAL with a fine in the amount equal to
10% of the value of its project for non-compliance with the resettlement plan, as explained above. Furthermore, JA was informed by a press release issued by the Mozambican Bar Association that – given the importance and seriousness of the violation committed by JINDAL – this organization requested the Administrative Court, on September 5th 2018, to order MITADER to comply with the law, penalizing JINDAL by charging them with a fine in the amount corresponding to 10% of the value of its enterprise for the violation explained above.
Jindal A Classic Example of Corporate Impunity
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Jindal A Classic Example of Corporate Impunity
Complaints to the Ombudsman and the National Human Rights Commission
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Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
4. Complaints to the Ombudsman and the National Human Rights Commission On the 11th and on the 18th of March 2015, by mean of requisitions, JA denounced to the Ombudsman and the National Human Rights Commission (ComissĂŁo Nacional de Direitos Humanos - CNDH), respectively, the existence of serious illegalities in the implementation and operation of
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the mining company JINDAL and the violation of the rights of the local communities affected by the exploitation of mineral coal. This decision was essentially based on the fact that – not withstand that the resettlement plan for those communities was approved by the Govern-
ment in 2010 and was not materialized thus far – despite the numerous complaints made by us and other non-governmental organizations, there is no apparent effort to even hold the parties concerned accountable, let alone solve the problem. JA made this complaint based on information obtained from its research and fieldwork, as well as on documented complaints from affected communities – the same ones that still share their living space with JINDAL’s mining concession area, its pollution and the public health risks that result from its activities, in a clear situation of continuous violation of their rights to land and the environment, including their right to adequate housing and free movement.
MITADER’s response to the Ombudsman
Jindal A Classic Example of Corporate Impunity
The Ombudsman, in response to JA’s complaint, urged MITADER to respond to this complaint, and MITADER, by letter nº 076/MITADER/GM/019/2015, replied as follows: • Regarding the EIA, it cannot be provided to JA because of copyright protection, and therefore it can only be consulted in MITADER’s library. Alternatively, JA can ask the owner of the study – in this case JINDAL – for a copy.8 • Regarding the environmental degradation caused by JINDAL’s activities, MITADER said that JINDAL had a poor environmental performance, reason why an infraction order was issued and the company was notified to act in conformity with the recommendations provided by the Ministry after conducting its monitoring work. Furthermore, it stated that the Administrative Court of the Province of Tete (Tribunal Administrativo da Província de Tete – TAPT), through Judgment 1/TAP/2015, of January 29th
8 This position violates the Right to Information Law, which advocates the principle of maximum disclosure of information of public interest in cases such as this. In addition, it violates other administrative legislation on the performance of the Public Administration, as is the case of Law 14/2011 of August 10th, concerning provisions on the right to information, the principle of transparency, the pursuit of the public interest and the principle of collaboration between those who govern with those who are governed.
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Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
2015, ordered JINDAL to, within 30 days, comply with the recommendations to protect the affected populations and the environment.9 • MITADER also said that it is engaged in the search for effective solutions for the protection of populations and the environment and that it wishes to fortify its cooperation links with JA in favour of sustainable development. It should be noted that, to date, at the Ombudsman level, this process has not yet come to an end.
The silence of the National Human Rights Commission The CNDH - an institution whose purpose is the promotion and protection of human rights in Mozambique - did not even deign to respond to the complaint made by JA, choosing to remain silent.
9 However, there is no evidence that JINDAL complied with this judgment, since it continues to commit the same infringement.
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Jindal A Classic Example of Corporate Impunity
Complaints to the Attorney General’s Office
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5. Complaints to the Attorney General’s Office In December 2014, JA filed a complaint at the Attorney General’s Office regarding the serious illegalities in the establishment and operation of the mining company JINDAL, and its violation of the rights of local communities affected by the project, as explained above.
Attorney General’s Office response to JA
Jindal A Classic Example of Corporate Impunity
further information, under the Administrative Litigation Procedure Law – which came to happen as we will explain below. In this context, in October 2015 JA denounced to the Tete Provincial Prosecution Office the existence of illegalities and injustices regarding a Memorandum of Understanding (Agreement) signed between the Governor of the Province of Tete, Civil Society, the community of Cassoca and the mining company JINDAL.10
In response to JA’s complaint, the PGR clarified – through Note 457/GAB-PGR/2015 – that an investigation took place and concluded that JINDAL was only implemented for the purpose of its main activity at the end of an environmental licensing process. However, it did not provide any details of this environmental licensing process. In addition, it recommended that JA request the Administrative Court of the Province of Tete for
10 The Memorandum/ Agreement was celebrated on the 2nd of June, 2015, and it established that JINDAL would pay each family a monthly income of 2,000 MT for “temporary resettlement” for a period of two years. In return, the communities pledged not to paralyze JINDAL’s activities at any time.
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Tete Provincial Prosecution Office’s response to JA In response, through Official Letter 2000/PPT/ SA/091/2015, the Provincial Prosecution Office stated that, as a result of queries made to the Government of the District of Marara, to the Provincial Directorate for Environmental Coordination and to JINDAL, it established the following: • That there are approximately 289 families in the Community of Cassoca who are directly affected by pollution due to JINDAL’s activity and have not yet been resettled in compliance with their fundamental rights. • That the celebrated Memorandum cannot contradict the provisions of the law on resettlement matters. Therefore, both JINDAL and central and local level entities should not be relieved of their responsibilities regarding the law on community resettlement. • That the Memorandum in question, in its paragraph 12, violates the constitutional right to demonstrate, provided for in Law 19/91, of July 18th and therefore should not be applied. • That the resettlement process that is being implemented by JINDAL in Cassoca began in May 2010 and was subject to public consultation prior to its approval in 2011, and that the envi-
ronmental certificate regarding the resettlement plan for the population in JINDAL’s concession area nr 3605 was issued in February 2012. • That, in December 2012, a new resettlement area – whose Right to Use and Exploit the Land (Direito de Uso e Aproveitamento da Terra – DUAT) belonged to JINDAL – was announced, and in 2013 its disengagement from the mining concession area in favour of the community was approved. • That, in May 2015, the construction of houses began, as well as the clearing of an area for the construction of a school and a health unit – which makes this resettlement of the communities affected by the activities of this mining company an ongoing process.
Jindal A Classic Example of Corporate Impunity
Actions in the Administrative Courts
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6. Actions in the Administrative Courts In November 2015, JA submitted two cases to the Administrative Court of the Province of Tete (TAPT), namely: a) Action to Recognize Legally Protected Rights JA submitted this action in defence of environmental law and land rights of communities and families affected by the activities of mining company JINDAL, in the District of Marara, Chirodze, Tete Province. This is case nr. 43/2015/ TAPT. This process followed its legal procedures and, on the 13th of June 2016, JA was effectively notified of Judgment nr. 09/TAPT/16, concerning this case nr. 43/2015/TAPT, and by which TAPT rejected JA’s request on grounds of an alleged illegality of the State and of use of improper procedural means by JA. However, disagreeing with the decision given in Judgment nr 09/TAPT/16, JA submitted the relevant appeal to the First Section of Litigation of the Administrative Court, since, in its view, the judgment in question lacked grounds of law and as such, violated the law
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and the principles of the rule of law and justice. It is clear that, in that judgment, a decision was taken on the basis of presumptions and that, on the one hand, it sought at all costs to accommodate exceptions or previous matters in order not to know the merits of the cause; knowing, on the other hand, exceptions such as those of illegitimacy of the State and use of improper procedural means, lack legal sustainability. The TAPT decided on the basis of arbitrariness and on the basis of a clear abuse of the discretionary powers that the law confers to the judge of the case. The appeal in question is now processed as case nr 60/2016-1, in the First Section of Litigation of the Administrative Court. However, that court has not yet ruled on the appeal in question, which has already prompted JA to address it calling for a speedy and timely decision on the ground of fundamental rights being at stake.
Jindal A Classic Example of Corporate Impunity
b) Intimation regarding behaviour In this urgent procedure, since it was a precautionary measure, JA requested the TAPT to instruct the State and JINDAL to materialize the guarantee of peoples’ land rights, rights to adequate housing and rights to the environment under the law. This is case nr. 39/2015/TAPT, from which resulted Judgment nr. 03/TAPT/16, rejecting JA’s request on the basis of an alleged passive illegitimacy of the State, in the sense that the State did not have any liability to be sued for by this proceeding. Since the judgment in question is unfounded and unjust because of a clear breach of the law – in particular given the absence of reasons for its decision – JA appealed to the First Section of the Administrative Court and the appeal was identified as Case nr. 25/2016-1. One of the grounds of the appeal is that, from the point of view of constitutional law, it is the State’s primary responsibility to ensure the protection of the fundamental rights and freedoms of its citizens in accordance with
number 1 of Article 56 of the Constitution of the Republic. It is up to the State to take all necessary measures to ensure fair resettlement under the law.
Final decision on the case The First Section of the Administrative Court analysed the case and decided in JA’s favour, considering the request of this organization of civil society in defence of the environment and of the social and economic rights of the local communities well-founded, by Judgment 41/2018 of June 12th. The Court ordered JINDAL and the Government of the Province of Tete to complete the process of resettlement of the community of Cassoca within six months of the date of notification of the judgment or of this decision. In this sense, the First Section of the Administrative Court ruled for the annulment of Judgment nr 03/TAPT/2016, issued by the Administrative Court of the Province of Tete, for violating the law. It should be noted that the First Section of the Administrative Court stated in that judgment 35
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
that the resettlement procedure in question has been going on for a long time, consequently contributing to the deterioration of the living conditions and threatening the survival of the populations affected by the mining exploration in the area granted to JINDAL, a situation that is repudiated by this Court, specially given the fact that JINDAL’s resettlement plan was approved in 2013, when it signed commitments with the Government to erect houses and ensure adequate housing for the families affected, but JINDAL has not fulfilled its obligations until now. The appeal in question was processed as Case nr. 25/2016-1 for a period of two years in the First Section of Litigation of the Administrative Court. This decision was an important victory for JA and the affected communities in a jurisdictional battle that experienced excessive delays.
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7. Conclusions 1. While the First Section of the Administrative Court’s decision was praiseworthy for its courage and uprightness, the slowness of the procedures described above in the aforementioned judicial institutions is a major contributory factor in perpetuating violations of fundamental human rights of affected communities. This case is a clear example of this. 2. The aforementioned judicial institutions are insensitive to deadline breaches and to the urgency of cases concerning human dignity and fundamental rights on community land, which is the sole and primary source of their survival. 3. Although communities complain that the water and food they consume are contaminated by dust from coal mining operations, no government intervention to reverse the situation has occurred yet. 4. It is worrying that, although there is sufficient evidence of violations of the rights of communities affected by JINDAL, the State, through its executive, the Public Prosecutor’s Office and the Legal Aid and Sponsorship Institute (Instituto do Patrocínio e Assistência Jurídica – IPAJ), does nothing to protect the rights of those communities. This conduct of the State is contrary
Jindal A Classic Example of Corporate Impunity
to the law and leaves the citizen in a very vulnerable position. 5. The aforementioned Judgments of the Administrative Court of the Province of Tete acknowledge that the peasant families in question have not been resettled and that they live within the mining concession in which JINDAL operates. However, at the same time, these same judgments argue that JINDAL is carrying out the resettlement and compensation of the affected families, despite not demonstrating the criteria and deadline for their implementation. Strangely and curiously, the same judgments deny the existence of any violations of the fundamental rights of these families, which is a frightening and worrying nonsense, since this is a court whose function is to guarantee and strengthen legality as a factor of stability, to ensure the respect of laws and to ensure the rights and freedoms of citizens. In short, practice reveals that the legal terms defined to improve the living conditions of the communities affected by the extractive industry, especially the mining industry, are not being implemented in a correct and transparent manner, which has had a negative impact on the satisfaction of the rights 37
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
and interests of the affected population, especially, as demonstrated above, due to an oversacrifice of economic, social and cultural rights of those affected. From JINDAL’s case, and from many other examples of megaprojects implemented in our country and in the world, there are two conclusions that we think should be seriously taken into consideration: Firstly – as perfectly illustrated by this case – this type of activity is more often responsible for conflicts and problems for the affected communities than for improvements in their living conditions. It is irrefutable. Consequently, we have to ask yet again: Is this “development” model valid? Is it viable? Is it legitimate for us to make life even harder for some of the most vulnerable communities in the country for the sake of a “development” that does not benefit them? Shouldn’t they be the first to benefit from that “development”? Secondly, we feel that the State should take a more proactive stance if it really wants to take care of Mozambican interests. It’s inaction, as well as the slowness that usually characterizes its interventions, invariably serves the interests of offenders and only brings it discredit.
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Author: Justiça Ambiental * All information contained in this article, which refers to Jindal Mozambique Minerais Ltd and the communities affected by it, is based on the field visits, meetings and studies carried out by JA’s Team, and in the legal proceedings initiated by JA, except where other sources are quoted
Jindal - A Classic Example of Corporate Impunity Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
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Jindal - A Classic Example of Corporate Impunity
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
Jindal A Classic Example of Corporate Impunity
