Sri Lanka has a rich tradition of environmental conservation, which had its
origins in Buddhist teachings and in customs and practices followed through
time. Modern environmental law in Sri Lanka has evolved from and has
been moulded by the principles of Roman-Dutch Law, English Law,
legislation, international treaties and judicial decisions.
The modern history of environmental law and policy in Sri Lanka can be
traced back to mid 19th Century. In 1848, The Timber Ordinance was
introduced to preserve forests, for timber production. In 1873, the protection
of natural forests above 5,000 feet as reserves was advocated. The Forest
Ordinance of 1885 afforded some protection of forests, primarily for
sustainable wood production but also afforded limited protection of wildlife
in forest reserves. This was developed further in 1907 with the enactment of
Forest Ordinance No. 16 of 1907 with some protection for forests and
products in reserved forests, village forests and for the controlled
exploitation of timber. In 1938, the clearing of forests above 5,000 feet was
prohibited.
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FFPO, nature reserves and jungle corridors were formally recognized as
protected areas and national reserves.
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Constitution can be dismissed as redundant. These Directive Principles have
today been linked to the ‘public trust’ doctrine and should guide State
functionaries, from lowest to highest, in how they exercise their powers. At
the same time, the ‘fundamental duties’ of citizens are often cited by
petitioners in public interest litigations to justify their locus standi to file
environmental cases.
Articles 11, 12 and 13 of the Fundamental Right Chapter set out rights
available to every ‘person’ while Article 14 sets out certain additional rights
available to every ‘citizen’. Article 15 sets out the circumstances in which
such rights may be restricted. Unfortunately, there is no explicit reference to
the environment in the ‘Fundamental Rights’ chapter (Chapter III). Neither
is there an expressly declared ‘right to life’ in the Constitution.
In the case of The Environmental Foundation Ltd. and Others vs. The
Attorney General and Others, (S.C. Application No. 128/91), the
petitioners who were residents of two villages in the Southern part of Sri
Lanka as well as a Company which is devoted to environmental protection,
challenged the blasting of rock quarry near petitioners’ villages. Petitioners
alleged that they have suffered serious injury to their physical and mental
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health, and serious damage to their property, as a result of large-scale
blasting by Southern Group which commenced at the quarry in 1987.
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(every citizen is entitled to freedom of movement and choosing his
residence).
After this action was instituted, CEA officials inspected the quarry, and met
with petitioners’ representatives. In December 1992, the parties informed
the Supreme Court that a settlement had been reached. The Court entered
the terms of settlement.
(ii) Blasting will take place between 10.00 a.m. and 5.00 p.m. There
should be at least a 20 second time lapse between each blasting, and
electronic detonation and the safety fuse method must be used. The depth of
a bore hole cannot exceed 8feet. The number of blastings per day is not
stipulated.
(iii) The Police must maintain a monthly report detailing the total quantity
of explosives used, the depth of bore holes, the dates on which blastings
occurred, the commencement and close of blasting, the methods used for
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blasting, the number of bore holes on each day, and any complaints
petitioners make. This report is maintained on the premises of the quarry,
and certified by the site manager.
In the case of S.C. Amarasinghe and three others vs. The Attorney
General and three others, (S.C. (Spl.) No. 6/92, the petitioner sought to
quash an Order of the President of Sri Lanka dated 21.10.1992 made under
Section 2 of the Urban Development Project (Special Provisions) Act No. 2
of 1980 declaring that upon the recommendation of the Minister in charge of
urban development he was of opinion that the lands described in the
schedule to the Order were urgently required for an urban development
project. The Attorney-General and, the Road Development Authority were
made respondents. It was common ground that the lands in question were to
be acquired in connection with the construction of an expressway from
Colombo to Katunayake. The petitioners contended in the Supreme Court
that there had been a failure of natural justice as there had been no hearing
prior to making the order, despite the fact that under Section 2 of the Act the
urban development project had to be one “which would meet the just
requirements of the general welfare of the people.
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The petitioners cited Sections 23AA and 23BB of the National
Environmental Act No. 47 of 1980 a amended by Act No. 56 of 1988 which
require that approval for all prescribed projects should be obtained from the
appropriate project approving agency, which is first required to call for an
Environmental Impact Assessment Report (EIA). They contended that the
Presidential Order under Section 2 of the Urban Development Projects
(Special Provisions) Act could not be made until the EIA had been prepared.
The Court held, inter alia :-
(2) The available material did not indicate that the decision to build the
expressway was unreasonable and therefore the Court would not interfere.
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In Wattegedera Wijebanda vs. Conservator General of Forest and
Eight Others in S.C. Application No. 118/2004, the petitioner challenged
the infringement of his fundamental rights after being refused a permit for
quarry mining in a environmentally sensitive area. The petitioner became
aware that the 6th respondent had been issued such a licence to carry out
quarry mining in the same area. It was found that the particular site was
located less than a mile from a national reserve close to an archeological
area and the Environmental Committee decided not to grant permit
considering the possible challenges to wildlife and water resources of the
area.
The Court found that the 6th respondent had not obtained a valid
Environmental Protection Licence under the National Environmental Act
No. 47 of 1980 , which was a mandatory requirement for the granting of a
licence. After argument, the Court noted :-
2) The Petitioner’s right to equality and equal protection of the law under
Article 12(1) of the Constitution has been violated through the arbitrary and
capricious acts of the respondents in issuing a quarry mining permit to the
6th respondent in respect of operations at the same location.
3) That the 6th respondent’s permit was in any event invalid, as he did not
have a valid Environment Protection Licence under the National
Environmental Act.
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4) In as much as the illegal mining activities of the 6th respondent have had
an appalling impact on the surrounding environment, the primary objective
in such a case must be the restoration of the land to its original position.
Accordingly, no further mining activities were to be conducted at the said
location and the 6th respondent should bear all the costs related to the
restoration of the land back to it original position.
7) That while environmental rights are not specifically alluded to under the
fundamental rights chapter of the Constitution, the right to a clean
environment and the principle of inter generational equity with respect to the
protection and preservation of the environment are inherent in a meaningful
reading of Article 12(1) of the Constitution.
8) That the State and the 6th respondent should pay the petitioner a sum of
Rs. 20,000 and a sum of Rs. 50,000 s costs respectively.
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In the course of its judgment, the Court observed as follows:-
“Courts in Sri Lanka, have long since recognized that the organs of
State are guardians to whom the people have committed the care and
preservation of the resources of the people. This recognition of the
doctrine of ‘public trust’, accords a great responsibility upon the
government to preserve and protect the environment and its
resources.
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utilization, conservation and protection and should always be only in
the interest of the general public with a long term view of such being
conserved for intergenerational use. For this doctrine is closely
linked with the principle of intergenerational equity. Human kind of
one generation holds the guardianship and conservation of the
natural resources in trust for future generations, a sacred duty to be
carried out with the highest level of accountability”.
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The proposed agreement granted the Company the sole and exclusive right –
(a) to search and explore for phosphate and other minerals in the
“Exploration Area”,
(b) to conduct test or pilot operations at any location within the
“Contract Area”; and
(c) to develop and mine under mining lincences any phosphate
deposits (including associated minerals) found in the “Exploration Area”.
Once the feasibility study and the development plan are submitted, the
Secretary is required to approve it “without unreasonable delay”.
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Lanka constitute a part of the national wealth. Hence, the Court concluded
that phosphate being a non-renewable resource would be exhausted by the
Company within 30 years; the scheme of exploration will not be in the
interest of future generations. As per international norms, natural resources
shall be preserved for future generations, to meet their needs.
Mining operations will leave large pits and gullies which would provide
breeding grounds for mosquitoes and lead to Malaria and Japanese
Encephalitis. There is no provision for the restoration of areas affected by
mining at the expense of the Company. In the course of the judgment,
Amerasinghe, J. noted that
On this basis, the Court declared that there was an imminent infringement
of the petitioners’ rights guaranteed by Article 14(1)(g) and 14(1)(h) of the
Constitution.
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(a) the proposed agreement does not provide for an environmental impact
as required by the National Environmental Act but provides for a feasibility
and environmental study by an international consultant following
exploration for phosphate deposits. There is no decision of a competent
national authority as required by international norms but only an assurance
that applicable law will be followed. Legal rights of the people are mere
paper rights; the proposed agreement is biased in favour of the Company and
in the event of disagreement it leads to arbitration, and the liability is placed
on Sarabhumy, a small local Company.
(b)(i) Project proposal and exploration plan are not approved by a project
approving agency such as the Central Environmental Authority in terms of
the relevant regulations. Environmental impact assessment must first be
done to the satisfaction of the Central Environmental Authority with notice
to the public to enable public comments and representations. If the project is
approved, it has to be published in the Gazette.
(ii) The aforesaid statutory provisions have not been complied with but
an attempt is made to contract out of an obligation to comply with the law.
The procedure adopted including confidentiality of the proposed assessment
is calculated to extinguish public protests. The proposed agreement
substitutes the Secretary of the Ministry who is not a project approving
agency in terms of the National Environmental Act. It also places the
burden on the Government to assist the Company in obtaining the requisite
licences from the relevant Government Authority; and judicial review is
replaced by arbitration.
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In the circumstances, there is an imminent infringement of the petitioners’
fundamental rights under Article 12(1) of the Constitution.
The petitioners are not non-suited when they joined in one application
for invoking the Court’s jurisdiction under Article 126. Article 126(2)
does not preclude such joinder where individual rights are based on
the same alleged circumstances.
The petition is not time-barred as it has been filed within one month
of the petitioners’ becoming aware of the proposed agreement from a
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newspaper report which announced that it was expected to be signed
within two months; and
The fact that leave to proceed was granted in respect of the alleged
infringement of the fundamental right does not preclude the Court
from considering whether there was an imminent infringement of
rights for, the greater contains the less.
Justice K. Sripavan
(JUDGE OF THE SUPREME COURT OF SRI LANKA)
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