Mine Water – Whose water it is?

Water is precious natural resource and very important for sustenance of life, but it is under constant pressure from consumption as well from pollution due to anthropological activities. The per capita water availability is going down with increase in population, industrial use and urbanisation. Demand for water is on rise whereas little work has been done on recharge or renewal of water sources including surface and groundwater. United Nations through a resolution also observes the ten-year period starting from 2018 as a Decade for Action. The Resolution also focusses on integrated management of water from economic, social, and environmental perspectives. Hence, right of access to adequate quantity of water with acceptable quality must be respected.

Many human rights have been expressed as distinct rights and there are some which are not so defined in international law as distinct rights, but have found its decent mention in internationally agreed frameworks. The right of ‘access to water’ is one such right. Water rights related to mining are categorised as legal, cultural, universal and human rights. (Kemp et al. 2010)

The mineral industry uses water for processing and transport of ore and waste, minerals separation, dust suppression, washing of equipment and human consumption. To ensure a secure water supply for its operation, mining companies store water in dams or mining voids.

A mining lease may have government land, private land, forest land and hence the water rights interpretation also differs based on the nature of land. The right to use water was often linked to the use or ownership of land or structures built on such land under both the common law and civil law traditions. Historically, most water rights were related to the use of water on land. This approach having elements of Roman water law was a cornerstone for the development of water law under the two European legal traditions. The countries of the common law tradition treated public waters and private waters at equal footing. The common law did, however, maintain the principle of Roman law that flowing waters are publici juris. Based on this common tenet, two divergent approaches to water law and water rights developed: the doctrine of “riparianism” and the doctrine of “prior appropriation”. Riparian rights were considered as an integral part of the right of ownership of the land and not as mere easement or servitude. The prior appropriation doctrine got prominence in the nineteenth century with the case of practical demands of water users in the western United States. It originated in the customs of miners on federal public lands who accorded the best rights to those who first used water just as they had accorded mining rights to those who first located ore deposits. (Hodgson 2006).

The water law system in India is a culmination of different Acts and Rules practiced and implemented over many years. This has fair share of human right values to water, irrigation and common law evolved during historic time, pre-independence and after independence.

Arthashastra also mentions about the utilisation of water for the advancement of water related infrastructure, water system, and navigation, indicating that ownership of water vests with the king; however, users are supposed to pay charges for withdrawal of water. Tax exemptions of different period ranging from 3 to 5 years were provided in case of creation of new tanks, repair of tanks and cleaning of tanks. There is a provision of limited possession of tanks or reservoirs but is linked to its use and in case of not using the reservoir for certain period, the ownership ceases. Arthashastra elaborates system of collection of water in great detail and Chief Superintendent of Crown land is authorised to collect water taxes. Not much emphasis on water law was given during the Mughal period as India was water rich country compared to the middle east and the area from where the rulers came. The British presented the idea of government command over surface waters. Until the Sepoy Mutiny of 1857, the Company with Britain patronage didn’t interfere with prevalent principles and traditions as long as it was not impacting their own agenda of amassing wealth. The presidency area was subject to British rule while, mofussil regions followed plural law and far away area, local laws were still respected. (Cullet and Gupta 2009)

Water law in the post-independence period is inspired by plethora of factors like the legacy of British times, constitutional developments, state centre federal structure, importance of surface as well ground water, awareness on socio political issues, impacts on environment, issue about dams, collaboration with bordering countries, right of food and right to good environment.

The concept of right to life was first articulated in the case of Bandhua Mukti Morcha Vs Union of India and then it also got expanded in other subsequent hearings. The Supreme Court protected the right to clean water as a prerequisite to right of healthy environment as many cases related to water pollution were coming in different courts in the early nineties. The Supreme Court recognised the damage to the people and awarded suitable compensation on the basis of the ‘precautionary principle’ and the ‘polluter pays principle’ while recognising the basic need of healthy environment for a common person to live. (Kothari 2016)

In M.C. Mehta Vs. Kamal Nath, the court declared that the legal system of India believes in public trust doctrine. The common man is the beneficiary of all-natural resources and the State is merely the trustee to ensure that all the natural ecosystems are preserved well for public to use judiciously.

Mining in remote area can serve the purpose of meeting the human rights where adequacy of water infrastructure is much needed. Mining companies prepare the conceptual plan and closure plan based on the requirement of water and the amount of water it can release post treatment of water during the operating phase and a reservoir after the mine closure. Water in mining guidelines, 2013 of Western Australia clearly prescribes the use, management, and closure of mine voids to prevent undue impact on the environment or water resources. Any use of mine voids for the storage or transfer of water should be considered when developing the operating strategy. (Department of Water 2013).

Australian companies have decades of experience in dealing with hydrological, geochemical and engineering challenges for identifying suitable artificial recharge sites. Artificial recharge schemes also known as artificial aquifer recovery involves a process of reinjecting surplus water into aquifers. This is a sustainable approach to storing surplus water that uses the natural storage capacity of aquifers. (Austrade 2017)

With growing awareness and Iot being implemented by various regulatory agencies as well by mining companies, water discharged after use are meeting the norms of acceptable quality. With progressive mine closure plan, mining companies are aware of inter-generational equity of water and future rights of water towards the public with government being trustee of it. There are more than 500 abandoned mines in India which can potentially be used for aquifer recharging as well meeting the demand of water for the community. In India, Chennai Metro Water Supply and Sewerage Board (CMWSSB) has converted 35 abandoned quarries in the vicinity of Chennai to water reservoirs. Planning and Decision at basin level and at macro level will serve the purpose of ensuring that the benefits of Mine Water accrue for the greater good of the community at large.

The author is Co-Chair, FICCI Mining Committee & Managing Director, Tata Steel Mining Ltd