BULANKULAMA AND OTHERS v. SECTRETARY, MINISTRY OF INDUSTRIAL DEVELOPMENT A

024-SLLR-SLLR-2000-V-3-BULANKULAMA-AND-OTHERS-v.-SECTRETARY-MINISTRY-OF-INDUSTRIAL-DEVELOPMENT-A.pdf


BULANKULAMA AND OTHERS
v.SECRETARY, MINISTRY OFINDUSTRIAL DEVELOPMENT AND OTHERS(EPPAWELA CASE)
SUPREME COURTAMERASINGHE. J.
WADUGODAPITIYA, J. ANDGUNASEKERA, J.
SC (FR) APPLICATION NO. 884 /99MARCH 15th. 16th. 28th AND 30th, 2000APRIL 7th, 2000
Fundamental rights – Proposed agreement for exploration and miningof phosphate – Environmental and development policies applicable toexploitation of natural resources – International standards andrequirements of domestic law – Contractual provisions calculated tocircumvent local laws – Denial of the right of the public to object tothe proposed agreement – Articles 12(1). 14(l)(g) and 14(l)(h) of theConstitution.
After discussions that ended on 04. 08. 1997. the representatives ofthe Government and Freeport Mac Moran of USA and its affiliateIMCO Agrico initialled the final drafts of the Mineral InvestmentAgreement and subsidiary documents in respect of a deposit of•phosphate“rock at Eppawela in the Anuradhapura district. .Theproposed agreement granted the Company the sole and exclusive right
to search and explore for phosphate and other minerals in theExploration Area (b) to conduct test or pilot operations at any locationwithin the Contract Area (c) to develop and mine under Mining Licencesany phosphate deposits (including associated minerals) found inthe Exploration Area.
The petitioners being residents of Eppawela engaged in cultivation andowning lands there, one of whom was the Viharadhipati of a temple,complained of infringement of their rights under Articles 12(1), 14(l)(g)and 14(1 )(h) of the Constitution by reason of the proposed agreement.They relied on the analysis of several professional experts and reports ofthe National Academy of Science and the National Science Foundationwho were of the opinion that the proposed agreement will not only be anenvironmentaf disaster but an economic disaster.
In respect of preliminary objections raised on behalf of the respondents:
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Held :
(i) The court has jurisdiction in terms of Article 126(1) of the Consti-tution to hear and determine the alleged infringement of fundamentalrights notwithstanding the claim that the Government and not the courtis the “trustee" of natural resources of Sri Lanka.
The individual petitioners have standing to pursue their rights interms of Articles 17 and 126(1) of the Constitution. They are notdisqualified on the alleged ground that it is a “public interest" litigation.The court is concerned with the rights of individual petitioners eventhough their rights are linked to the collective rights ol the citizenry oi sriLanka, rights they share with the people of Sri Lanka. * 2
The petitioners are not non – suited when they joined in oneapplication for invoking the court's jurisdiction under Article 126. Article126(2) does not preclude such joinder where individual rights are basedon the same alleged circumstances.
The petition is not time – barred as it has been filed within onemonth of the petitioners’ becoming aware of the proposed agreementfrom a newspaper report which announced that it was expected to besigned within two months.
The fact that leave to proceed was granted in respect of the allegedinfringement of fundamental rights does not preclude the court fromconsidering whether there was an imminent infringement of rights for,the greater contains the led§7
(2)As regards the alleged imminent infringement of fundamentalrights in respect of Articles 14(l)(h) and 14(l)(g). the material placedbefore the court, established :
“Exploration Area" said to be 56 Sq miles, increased by a 10 KM“Buffer Zone Area" was contractually elastic and extendable.It included even the “Processing Area" (within the “ContractArea") in Trincomalee which would be equipped with a ware-house and shipping facilities. The whole of Chilaw is also in the“Exploration Area”.
“Contract Area" includes Viharas and places of archaeologicalvalue, the area of the Jayaganga/Yoda Ela Scheme, ancienttanks, irrigation channels and the proximity of the SriMahabodhi and Ruwanweli Seya within the Cultural Triangleand ancient villages. About 2600 families were likely to beaffected.
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The proposed agreement requires the Company to comply withlocal laws, viz., the Crown Lands Ordinance and the NationalEnvironmental Law. However, the rights of the public areadversely affected in that:
there is no evidence that the requisite subsidiary laws andregulations have been made under such laws.
The sequence in which the agreement will operate is
Exploration for phosphate mineral deposits.
Feasibility study including an environmental impact studywhich will be done by an international consulting firm selectedby the Company and approved by the Government. Thefeasibility study and the development plan are "confidential";
Construction;
Operation; and
Marketing.
Once the feasibility study and the development plan aresubmitted, the Secretary is required to approve it “withoutunreasonable delay". Apparently, the Secretary has the powerto make a decision having regard to the rights of the publicbut in the event of a dispute the Company will refer it forArbitration.
As against the current rate of mining which is about 40,000metric tons of phosphate per annum, under the agreement, theamount will increase to 26.1 million metric tons within 30years which would exhaust all proven phosphate reserves.Phosphate is a non – renewable resource. Hence the scheme ofexploration will not be in the interest of future generations. Asper international norms, natural resources shall be preservedfor future generations, to meet their needs.
Mining operations will leave large pits and gullies which wouldprovide breeding grounds for mosquitoes and lead to malariaand Japanese encephalitis. There is no provision for the safedisposal of Phospho – Gypsum, a by-product of the projectwhich will pollute the environment. There is no provision forthe restoration of areas affected by mining at the expense of the
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prospector and for termination of the agreement, in default ofrestoration. Even though Mac Moran initialled the agreement,liability is placed on Sarabhumy a local Company with anissued share capital of only Rs. 58.000/=.
Held :
In the circumstances, there is an imminent infringement of thepetitioners' rights guaranteed by Articles 14(1 Kg) and 14(l)(h) of theConstitution.
3. As regards the alleged imminent infringement of fundamentalrights in respect of Article 12(1). the material placed before the courtestablished :
the proposed agreement does not provide for an environmentalimpact as required by the National Environmental Act butprovides for a feasibility and environmental study by aninternational consultant following exploration for phosphatedeposits. There is no decision of a competent nationalauthority as required by international norms but only anassurance that applicable law wall be followed. Legal rights ofthe people are mere paper rights: the proposed agreement isbiased in favour of the Company and in the event ofdisagreement lead to arbitration, and the liability is placed onSarabhumy, a small local Company.
(i) Project proposal and exploration plan are not approved bv a.» project approving agency such as the Central Environmentalvf Authority in terms of the relevant regulations. Environmental
impact assessment must first be done to the satisfaction of theCentral Environmental Authority with notice to the public toenable public comments and representations. If the project isapproved it has to be published in the Gazette.
(ii) The aforesaid statutory provisions have not been compliedwith but an attempt is made to contract out of an obligation tocomply wnth the law. The procedure adopted includingconfidentiality of the proposed assessment is calculated toextinguish public protests. The proposed agreementsubstitutes the Secretary of the Ministry who is not a projectapproving agency in terms of the National Environmental Act.It also places the burden on the Government to assist theCompany in obtaining the requisite licences from the relevantGovernment Authority: and judicial review is replaced byarbitration.
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Held :
In the circumstances, there is an imminent infringement of the
petitioners' fundamental rights under Article 12(1) of the Constitution.
Per Amerasinghe, J.
“Human beings are at the centre of concerns for sustainabledevelopment. They are entitled to a healthy and productive life inharmony with nature (Principle 1, Rio De Janeiro Declaration). Inorder to achieve sustainable development, environmental protectionshall constitute an integral part of the development process andcannot be considered in isolation from it. (Principle 4, Rio De JaneiroDeclaration). In my view the proposed agreement must be consideredin the light of the foregoing principles”
Per Amerasinghe, J.
"David Koten. the founder President of the People – Centred
Development Forum, once observed The Capitalist economy
. has a potentially fatal ignorance of two subjects. One is the natureof money. The other is the nature of life. This ignorance leads us to
trade away life for money, which is a bad bargain indeedMoney
is a number. Real wealth is food, fertile land, buildings or other thingsthat sustain us”
Cases referred to:
M.C. Mehta v. Kama! Nath (1977) 1 S.C.C. 388
Gaboikovo – Nagimaros Project (Hungary/Slovakia – The DanubeCase 1997 General list N 92 25th September 1997)
Illinois Central R. Co v. Illinois 146 U.S. 387 at 452, 135 S.Ct. 110at 118 (1892)
APPLICATION for relief for infringement of fundamental rights.
R.K.W. Coonesekera with Ruana Rajepakse and Anusha Dharmasiri for
the petitioners.
K. Sripavan, DSG, with B.J. Tilakaratne, SSC and Anusha Navaratne,
S.C. for the lsl to 3rd, 6lh and 8th respondents.
Chulani Panditharatne for the 4* respondent.
Romesh de Silva, P.C. with Harsha Amarasekera and Sarath Caldera for
the 5th and 7th respondents.
Cur. adv. vult.
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June 2, 2000.
AMERASENGHE, J.THE BACKGROUNDAfter soil surveys conducted by a team of scientists atkiruwelhena, which had been selected as a prototype site ofdry zone, high elevation laterite, the team informed theDirector of Geological Survey about some peculiar weatheredrock they had found. Early in 1971, during the GeologicalSurvey of the Anuradhapura district, it was found that whathad been supposed by the scientists during the soil surveys tobe “high level fossil laterite” was really an igneous carbonatiteapatite. The Department of Geological Survey had thus cometo “discover” a deposit of phosphate rock occuring in the formof the mineral apatite at Eppawela in the Anuradhapuradistrict.
Having regard to the policies of the Government at thattime, it was decided in 1974 that the use of the Eppaweladeposit should be entrusted to a Divisional DevelopmentCouncil (D.D.C.).
Although a trial order for the supply of 500 tons wasplaced by the Ministry of Industries and Scientific Affairs andthe order was fulfilled within about four months, no furtherorders for phosphate rock were placed. The D.D.C. project waslater taken over by Lanka Phosphate Ltd., a company fullyowned by Government, which was set up by the Ministry ofIndustries.
In December 1992, a notice calling for proposals toestablish a Joint Venture for the manufacture of Phosphatefertilizer using the apatite deposit at Eppawela was publishedin local and foreign newspapers. Six proposals were received.A committee appointed by the Cabinet, after havingconsidered an evaluation report, decided with the approval of
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the Cabinet to undertake negotiations with Freeport MacMoranResource Partners of U.S.A. (hereinafter referred to as FreeportMacMoran). One of the factors that appeared to have been infavour of Freeport MacMoran was that it was “one of theleading phosphate fertilizer firms in the world.” (P4 page 2).. Another was that “IMCO Agrico (sic.), an affiliate of M/S.Freeport MacMoran, had done studies and worked on theutilization of this particular phosphate deposit several yearsago and therefore, they had the benefit of that research."(P.4 page 2).
The negotiating committee was assisted by representa-tives from various Government Departments and Ministriesand by a team of experts.
The first round of negotiations was held from 17-22March, 1994. Thereafter, when the present Governmenttook office, the Minister of Industrial Development, in aMemorandum dated the 28th of January, 1995, reported toCabinet the progress made and sought and obtained theapproval of the Cabinet to continue with the negotiations. Asecond round of negotiations were held from 27-31 March,
“Major issues” relating to the availability of land for aplant at Trincomalee, and “the resettlement and payment ofcompensation to Mahaveli settlers presently living in theexploration area identified for the project”, were discussedwith local institutions and authorities (P.4).
On the 26th of September, 1996, the Minister of IndustrialDevelopment reported to Cabinet on the progress made andsought approval “for certain parameters in respect of some keyissues which continued to remain unresolved." No informationwas furnished to court on what these issues were and whathad been decided. We were merely informed that Cabinetapproval was received on the 02nd of October, 1996 and thatthe third round of negotiations were held from December 21s',
Thereafter, Freeport MacMoran submitted drafts of
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the Mineral Investment Agreement and other subsidiaryagreements.These were studied by the negotiating committeeand lawyers from the Department of the Attorney-General “onthe basis of the parameters laid down by the Cabinet and theapplicable laws.” (P.4). The Freeport MacMoran draft wasreturned to them with amendments. Freeport MacMoran thenraised “several issues regarding the interpretation of the keyparameters and also the language in the draft as amended bythe Attorney General’s Department.” (P.4) Subsequently,Freeport MacMoran met Her Excellency the Presidentwho thereupon directed Mr. B.C. Perera (Secretary tothe Treasury), Hon. Sarath N. Silva (Attorney-General),Mr. K. Austin Perera (Secretary, Ministry of IndustrialDevelopment), Mr. Thilan Wijesinghe (Chairman/Director-General, Board of Investment of Sri Lanka), and Mr. VincentPandita (Senior Advisor, Board of Investment of Sri Lanka andConsultant, Ministry of Industrial Development) (P.4),“to conduct one final round of negotiations and clear anyoutstanding issues along with the texts of the MineralInvestment Agreement and subsidiary agreements.” (P.4). Thefinal round of negotiations was held from the 28th of July, 1997to the 04th of August, 1997 and the final drafts of the MineralInvestment Agreement and subsidiary documents were agreeduporTand initialled by the Secretary, Ministry of IndustrialDevelopment and the representatives of Freeport MacMoranand IMCO Agrico.
On the 17th of May 1998, the President of the NationalAcademy of Sciences, Prof. V.K. Samaranayake, wrote to thePresident of Sri Lanka (with copies to the Minister of ScienceTechnology and Human Resource Development and theMinister of Industrial Development (P. 10) stating that theCouncil of the Academy was of the view
“that the proposed project in its present form is premature
as some of the vital data relating to the actual size
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and quality of the mineral deposit have not beenadequately surveyed and established. This shortcominghad also been highlighted in the Report of May, 1995of the Presidential Committee appointed by YourExcellency. The feasibility of the Project can becomprehensively appraised only when this vital data are• available. Accordingly, we respectfully request YourExcellency to defer the grant of approval for the Projectuntil a comprehensive appraisal is undertaken."
In the same letter, the President of the National Academyof Sciences stated that the Council had also examined otherrelated issues and that the recommendations, includingoptions, were elaborated in the report of the NationalAcademy of Sciences which was forwarded to the President ofSri Lanka.
In a newspaper article entitled "Exploitation of Eppawelarock phosphate deposit”, (P. 10(a)), Prof. V.K. Samaranayakestated as follows:
“The National Academy of Sciences is the highestmulti-disciplinary scientific organization in Sri Lanka.Its mandate includes, “to take cognizance and reporton issues in which scientific and technologicalconsiderations are paramount to the national interest",and “to advise on the management and rational utilizationof the natural resources of the island so as to ensureoptimal productivity, consistent with continued use of thebiosphere on a long term basis taking into account therepercussions of using a particular resource on otherresources and the environment as a whole, and to helpin making use of resources of the country in nationaldevelopment.”
Prof. Samaranayake went on to say that.
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“Accordingly, the Academy studied the proposal fromall angles and submitted its report to Her Excellencythe President in May 1998. The project proposal wasexamined in relation to (a) the deposit and proposed rateof exploitation; (b) proposal to manufacture fertilizerlocally; (c) environmental considerations; and (d)economic and social considerations."
On the 23rd of July, 1999, a committee of twelve scientistsof the National Science Foundation submitted a report underthe title “The optimal use of Eppawela rock phosphate in SriLankan agriculture.'' (P. 12). Having observed that the proposalof the U.S. Mining Company “in the view of many of theProfessional Associations in the country, e.g. The Institutionof Engineers, Institute of Chemistry, National Academy ofSciences and most individual scientists and engineers ishighly disadvantageous to the country and with highly adverseenvironmental impacts”, the committee examined variousproposals made and suggested options which in its view "aremore advantageous to the country."
On the 8th of October, 1999, the seven petitioners filed anapplication in this Court under Article 17 read with Article 126of the Constitution. The Court (Fernando, Wadugodapitiyaand Gunasekera, JJ.) on the 27th of October 1999 granted theseven petitioners leave to proceed with their application fordeclarations and reliefs arising from the alleged infringementof their fundamental rights guaranteed by Articles 12(1),14(l)(g), and 14(l)(h) of the Constitution.
JURISDICTIONIn the proposed agreement, it is acknowledged in the“Introduction” that “The mineral resources contained in theterritories of Sri Lanka constitute a part of the national wealthof Sri Lanka.”
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Learned counsel for the 5th and 7th respondents, withwhom the Deputy Solicitor-General associated himself,submitted that the Government, and not this Court, is the“trustee” of the natural resources of Sri Lanka. “Thus, as longas the Government acts correctly the Court will not put itselfin the shoes of the Government. That is to say the Court mayor may not agree with the final outcome. However, if theGovernment has correctly acted as trustee the Court will notinterfere,” It was further submitted that the petitions shouldbe dismissed in limine, since the petitioners had invoked thefundamental rights jurisdiction of the Court in a matter thatwas “either a public interest litigation or breach of trustlitigation.”
1 am unable to accept those submissions.
The Constitution declares that sovereignty is in the Peopleand is inalienable. (Article 3). Being a representativedemocracy, the powers of the People are exercised throughpersons who are for the time being entrusted with certainfunctions. The Constitution states that the legislative power ofthe People shall be exercised by Parliament, the executivepower of the People shall be exercised by the President ofSri Lanka, and the judicial power of the People shall beexercised, inter alia, through the Courts created andestablished by the Constitution. (Article 4). Although learnedcounsel for the petitioners, citing M.C. Mehta v. Kamal Nath11',agreed with learned counsel for the 5th and 7th respondentsthat the natural resources of the People were held in “trust” forthem by the Government, he did not subscribe to the view thatthe Court had no role to play. In any event, he challengedthe respondents’ claim that the Government had in fact acted“properly” in discharging its role as “trustee”.
The organs of State are guardians to whom the peoplehave committed the care and preservation of the resourcesof the people. This accords not only with the scheme ofgovernment set out in the Constitution but also with the high
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and enlightened conceptions of the duties of our rulers, in theefficient management of resources in the process ofdevelopment, which the Mahavamsa, 68.8-13, sets forth inthe following words:
“Having thus reflected, the King thus addressed hisofficers.
In my Kingdom are many paddy fields cultivated by meansof rain water, but few indeed are those which are cultivated byperennial streams and great tanks.
By rocks, and by many thick forests, by great marshes isthe land covered.
In such a country, let not even a small quantity of waterobtained by rain, go to the sea, without benefitting man.
Paddy fields should be formed in every place, excludingthose only that produce gems, gold, and other precious things.
It does not become persons in our situation to live enjoyingour own ease, and unmindful of the interests of the people …"
Translation by Mudaliyar L. de Zoysa. Journal of the RoyalAsiatic Society (C.B.), Vol. Ill, No. IX. (The emphasis is mine).
In the case concerning the Gabcikovo-Nagimarosproject (Hungary/Slovakia), – the Danube case121, before theInternational Court of Justice, the Vice-President of the Court,Judge C.G. Weeramantry, referred at length to the ancientirrigation works of Sri Lanka which, he said, “embodied theconcept of development par excellence.” He said:
“Just as development was the aim of this system, it wasaccompanied by a systematic philosophy of conservationdating back to at least the third century B.C. The ancientchronicles record that when the King (Devanampiya Tissa,247-207 B.C.) was on a hunting trip (around 223 B.C.),
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the Arahat Mahinda, son of the Emperor Asoka of India,preached to him a sermon which converted the King. Hereare excerpts from that sermon; “O great King, the birds ofthe air and the beasts have as equal a right to live andmove about in any part of the land as thou. The landbelongs to the people and all living beings; thou art onlythe guardian of it.’’. . . The juxtaposition in this heritage~ oi the concepts of development and environmentalprotection invites comment immediately from thosefamiliar with it. Anyone interested in the human futurewould perceive the connection between the two conceptsand the manner of their reconciliation. Not merely fromthe legal perspective does this become apparent, but evenfrom the approaches of other disciplines. Thus Arthur C.Clarke, the noted futurist, with the vision that has enabledhim to bring high science to the service of humanity, puthis finger on the precise legal problem we are consideringwhen he observed: “the small Indian Ocean Island . . .provides textbook examples of many modem dilemmas:development versus environment”, and proceedsimmediately to recapitulate the famous sermon, alreadyreferred to, relating to the trusteeship of land, observing,"For as King Devanampiya Tissa was told three centuriesbefore the birth of Christ, we are its guardians – not itsowners. ” The task of the law is to convert such wisdom intopractical terms …”'
I have not been able to find the sermon referred to.However Tissa, who depended on the support of EmperorAsoka, and even added to his name the title of his patron,"Devanampiya", would have had little or no hesitation inaccepting the advice of Asoka's emissary, Mahinda. Thesubject of land tenure in Sri Lanka, including the status,claims, and rights of the Monarch with regard to the soil, is anextremely complex one as, for instance, the debates on variousmatters between H.W. Codrington and Julius de Lanerolleshowed. (See Journal of the Royal Asiatic Society (Ceylon
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Branch), VoL XXXIV, P.199 sq., P.220 sq., P.226 sq.) For thepresent limited purpose, what I do wish to point out is thatthere is justification in looking at the concept of tenure, not asa thing in itself, but rather a way of thinking about rights andusages about land. H.W. Codrington, Ancient Land Tenure andRevenue in Ceylon, pp.5-6, refers to the fact that the King wasbhupati or bhupala – ‘lord of the earth’, ‘protector of the earth'- ‘lord – adhipati – of the fields of all’. He quotes Moreland withapproval in support of the view that at first, the question of‘ownership’ was of little or no significance. Moreland wrote asfollows: “Traditionally there were two parties, and only two, tobe taken into account; these parties were the ruler and thesubject, and if a subject occupied land, he was required to paya share of its gross produce to the ruler in return for theprotection he was entitled to receive. It will be observed thatunder this system the question of ownership of land does notarise: the system is in fact antecedent to that process ofdisentangling the conception of private right from politicalallegiance which has made so much progress during the lastcentury, but is not even now fully accomplished …" Later,grantees, in general, it seems were given the enjoyment oflands for services rendered or to be rendered in considerationof their holdings, or lands were given for pious and publicpurposes unrelated to any return. For their part, granteeswere under an obligation to make proper use of the landsconsistent with the grant or, in default, suffer their loss orincur penalties.
The public trust doctrine, relied upon by learned counselon both sides, since the decision in Illinois Central R. Co. v.Illinois131, commencing with a recognition of public rights innavigation and fishing in and commerce over certain waters,has been extended in the United States on a case by case basis.Nevertheless, in my view, it is comparatively restrictivein scope and I should prefer to continue to look at ourresources and the environment as our anscestors did, and ourcontemporaries do, recognizing a shared responsibility.
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The Constitution today recognizes duties both on thepart of Parliament and the President and the Cabinet ofMinisters as well as duties on the part of “persons", includingjuristic persons like the 5th and 7th respondents. Article 27(14)states that The State shall protect, preserve and improve theenvironment for the benefit of the community." Article 28(f)states that the exercise and enjoyment of rights and freedoms(such as the 5th and 7th respondents claimed in learnedcounsel’s submissions on their behalf to protection underArticle 12 of the Constitution relating to equal protection of thelaw) “is inseparable form the performance of duties and SIobligations, and accordingly it is the duty of every person in Sri fLanka to protect nature and conserve its riches,"
The loose use of legal terms like “trust" and “trustee”, isapt, as this case has shown, to lead to fallacious reasoning.Any question of the legal ownership of the natural resources ofthe State being vested in the Executive to be held or used forthe benefit of the people in terms of the Constitution is at leastarguable. The Executive does have a significant role inresource management conferred by law, yet, the managementof natural resources has not been placed exclusively in thehands of the Executive. The exercise of Executive power issubject to judicial review. Moreover, Parliament may, as it hasclone on many occasions, legislate on matters concerningnatural resources, and the Courts have the task of interpretingsuch legislation in giving effect to the will of the people asexpressed by Parliament.
In any event, the issue before me is not the questionwhether this Court or the “Government" is a “trustee", andwhether there has been a breach of trust, but whether in thecircumstances of the instant case the rights of the petitionersguaranteed by Articles 12(1), 14(l)(g) and 14(l)(h) of theConstitution have been violated. And in that regard thejurisdiction of this Court is put beyond any doubt by Article126(1) of the Constitution which states, among other things,
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that the Supreme Court has “sole and exclusive jurisdiction tohear and determine any question relating to the infringementior imminent infringement by executive or administrativeaction of any fundamental right . . ." The Court is neitherassuming a role as “trustee” nor usurping the powers of anyother organ of Government. It is discharging a duty which hasin the clearest terms been entrusted- to this Court, and thisCourt alone, by Article 126(1) of the Constitution.
Learned counsel for the 5th and 7th respondents submittedthat, being an alleged “public interest litigation” matter, itshould not be entertained under provisions of the Constitutionand should be rejected. I must confess surprise, for thequestion of‘public interest litigation’ really involves questionsof standing and not whether there is a certain kind ofrecognized cause of action. The Court is concerned in theinstant case with the complaints of individual petitioners. Onthe question of standing, in my view, the petitioners, asindividual citizens, have a Constitutional right given by Article17 read with Articles 12 and 14 and Article 126 to be before thisCourt. They are not disqualified because it so happens thattheir rights are linked to the collective rights of the citizenry ofSri Lanka – rights they share with the people of Sri Lanka.Moreover, in the circumstances of the instant case, suchcollective rights provide the context in which the allegedinfringement or imminent infringement of-the petitioners’fundamental rights ought to be considered. It is in thatconnection that the confident expectation (trust) that theExecutive will act in accordance with the law and accountably,in the best interests of the people of Sri Lanka, including thepetitioners, and future generations of Sri Lankans, becomesrelevant.
MAY THE SEVEN PETITIONERS JOIN IN A SINGLEAPPLICATION?Learned counsel for the 5th and 7th respondents submittedthat “several petitioners cannot join in one application in
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terms of Article 126 of the Constitution.” Admittedly, Article126(2) refers to “any person”, “such person” and “hemay himself. However, the Court has not construed thesephrases so as to preclude the joining of several petitionerswhere their individual rights are based on the same allegedcircumstances; in fact, the practice of the Court points in theother direction. I therefore hold that the petitioners are notnon-suited on the ground of misjoinder.
IS THE APPLICATION OUT OF TIME?The respondents submitted that the application mustbe rejected, since it has been made out of time. However, noindication was given by the respondents of the date from whichthe period of one month specified by Article 126(2) is to bereckoned. The respondents at the same time maintain thatthere can be no complaint of an infringement or imminentinfringement of rights “unless and until the Development Planis in place”, for it is that document which would show whatrights, if any, have been or are about to be infringed. If therehas been no infringement or imminent infringement, it seemsto me that the respondents are entitled to call for the dismissalof the petition on the ground that the petitioners have failed toestablish their case. It cannot, however, be maintained thatthe petition is too late, unless it is conceded that the case wasripe or mature for hearing. The petition cannot be prematureand too late at the same time, for the latter position assumesthat although the matter was ripe or mature for consideration,the petitioner failed to act within the prescribed time. Asubstantial part of the respondents’ case was based on thesubmission that the petitioners’ case was premature and“conjectural”. I shall deal with the respondents’ submissionsin that regard later on. But for the present, in dealing withthe threshold question of whether the petition is out of time,what I have already stated and what I shall state in the nextparagraph, should, I think, be sufficient to meet thesubmission of the respondents.
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In addition to pointing out the inconsistent positions ofthe respondents on the question under consideration, namely,whether the petition was out of time, the petitioners explainedthat there was considerable uncertainty about the status ofthe project in question, with “inconsistent signals” being givenby the Government form time to time on that matter, both inresponse to public protests, and critical observations fromscientists, including those of the National Science Foundationin their report to the Minister of Science and Technology inJuly 1999. The Minister had asked the National ScienceFoundation for advice, and having regard to the observationsmade by the Foundation, it was not unreasonably expectedthat the Government would not proceed with the project. Therewas such uncertainty about the matter, that it might havebeen premature for the petitioners to come into Court earlier,However, when a newspaper report, (Document P.13) datedthe .26th of September 1999, announced that the proposedagreement relating to the project, which had been initialled in1997, following negotiations that had gone on since 1994, wasexpected to be signed within two months, the petitioners filedtheir petition on 08 October, 1999. The impending orthreatening danger of the violation of the petitioners’ rightsreached a sufficient fullness on the 26th of September 1994.
In the circumstances, I hold that the application wasfiled in time within the meaning of Article 126(2) of theConstitution.
LEAVE TO PROCEED WAS FOR INFRINGEMENT NOT FORIMMINENT INFRINGEMENT.The petitioners were granted leave to proceed for thealleged infringement of Articles 12(1), 14(l)(g) and 14(l)(h) andnot for the alleged imminent infringement of their rights. Thefact that leave to proceed was granted for “infringement” doesnot preclude the Court from considering whether there was animminent infringement, for omne majus continet in se minus -the greater contains the less. This Court, having granted leave
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to proceed for the alleged infringement of a fundamental right,and thereby being empowered by the Constitution to do themore important act of considering whether an infringementhad taken place, cannot be debarred from doing the lessimportant thing of considering whether there is an imminentinfringement, for non debt cui plus licet quod minus est nonlicere or as it is sometimes expressed, cui licet quod majus nondebt quod minus est non licere – a doctrine founded on commonsense, and of general application.
THE ALLEGED IMMINENT VIOLATION OF ARTICLES14(1)(G) AND 14(1)(H) OF THE CONSTITUTION.Article 14(l)(g) of the Constitution states that every citizenis entitled to the freedom to engage by himself or in associationwith others in any lawful occupation, profession, trade, busi-ness or enterprise. Article 14(l)(h) states that every citizen isentitled to the freedom of movement and of choosing hisresidence within Sri Lanka. The petitioners are citizens of SriLanka and residents of the area called Eppawela in theAnuradhapura District in the North Central Province. The firstto fifth petitioners are land owners and/or paddy and dairyfarmers in the Eppawela area. The sixth petitioner is a teacherand the owner of an extent of coconut land in the Eppawelaarea. The first to sixth petitioners state that they are in dangerof losing the whole or some portion of their lands andtheir means of livelihood if the proposed mining project isimplemented. The seventh petitioner is the Viharadhipathi ofthe Galkanda Purana Viharaya where he has resided for over*35 years. He states that the Viharaya and the paddy lands thatsustain it are in danger of being destroyed if the proposedmining project is implemented. The petitioners complain ofan imminent infringement of their fundamental rightsguaranteed by Articles 14(l)(g) and 14(l)(h).
THE AREA AFFECTEDThe petitioners’ st&te that the initial exploration area willbe 56 square kilometres with -a ten kilometre buffer zone on
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each side, bringing to about 800 square kilometres the areapotentially affected. They state that about 2,600 familiesor 12,000 persons, including themselves, are likely to bepermanently displaced from their homes and lands.
There are only seven persons who have filed thisapplication; but it must now become clearer why I said thattheir claims were linked to the collective rights of others andthat the alleged infringement of the petitioners’ individualrights need to be viewed in the context of the rights guaranteedto them not only as falling within the meaning of “all persons”,as for instance within the meaning of Article 12(1) of theConstitution, but in particular as members of the citizenry ofSri Lanka.
The negotiating committee appointed by the Presidentstates in its report to the President (P.4 at P.5) that “theexploration area will cover approximately 56 sq. miles (sic.)of land situated in Eppawela in the Anuradhapura District”,and that the Buffer Zone Area “will comprise of a landarea extending to 10 kilometres from the boundaries of theexploration area.” That is a misleading statement, for in termsof the Agreement the “exploration area” is far in excess of56 sq. miles. Indeed, as we shall see, the President’s committeeaccepts the fact that the exploration area was not absolutelylimited to 56 sq. miles: It was contractually elastic andextendable.
I agree with learned Counsel for the respondents thatthere is as yet no “Agreement” stricto sensu. Article 2.1of the proposed Mineral Investment Agreement, sometimeshereinafter referred to for the sake of convenience, as the“Agreement”, describing the “basic” rights of the Company,states, inter alia, as follows: “Without limitation on the otherrights conferred on the Company by this Agreement, theCompany shall have, and the Government hereby grants to theCompany, subject to the other terms and conditions specifiedin this Agreement, the sole and exclusive right (a) to searchfor and explore for phosphate and other minerals in the
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Exploration Area … (b) to conduct pilot or test operations asappropriate at any location within the Contract Area (withoutlimiting the Company’s option of conducting such pilot or testoperations entirely or partially at other locations); (c) todevelop and mine under Mining Licences any phosphatedeposit (including phosphate minerals and AssociatedMinerals) found in the Exploration Area …"
Article 1 of the Agreement defines “Exploration Area” as“that certain area of land which forms part of the Contract Areaand which initially covers approximately 56 sq. vkms. ofland and is set forth and described as the Exploration Areaon Annexes “B-l” and “C 1" hereto in respect of whichExploration Licences have been issued under the Act to LankaPhosphate and/or Geo Resources Lanka (Pvt.) Ltd., as sucharea may be reduced or extended as specifically provided forin this Agreement.” “Exploration” is defined in the Agreementas “the search for apatite and other phosphate minerals usinggeological, geophysical, and geochemical methods and by boreholes, test pits, trenches, surface or underground headings,drifts or tunnels in order to locate the presence of economicapatite or other phosphate mineral deposits and to find outtheir nature, shape and grade, and this term includes“Advanced Exploration” in terms of the Mining (Licensing)Regulations, No. 1 of 1993. The verb “explore” has acorresponding meaning.”
The various activities falling within the definition of“Exploration” is, in terms of the Agreement, not confined to anarea of 56 sq. kms. That, in terms of the definition, is thearea covered “initially”, but one that may be “extended asspecifically provided for in this Agreement.” It is stated inArticle 2.1 o'f the Agreement to be a “basic right" of theCompany “to conduct pilot or test operations as appropriate atany location within the Contract Area without limiting theCompany's option of conducting such pilot or test operationsentirely or partially at other locations." So, Exploration mayextend to the Contract Area. The Agreement defines “Contract
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Area” to mean “the lands included within the Exploration Areaand the Processing Area as included within the ExplorationArea and the Processing Area as described on Annexes “B -1”and “B-2" hereto and depicted on the maps set forth asAnnexes “C-1” and “C-2” hereto, within which the activities ofthe enterprise are to take place, as from time to time reducedor extended in accordance with this Agreement.” “ProcessingArea” is defined in the Agreement to mean “that certain areaof land which forms part of the Contract Area and which is setforth and described as the Processing Area on Annexes “B-2”and “C-2” hereto, as such area may be amended, revised orreplaced in accordance with the provisions of thisAgreement, which area may be used for processing, shipping,docking, terminalling, storage, stockpiling and all otherrelated activities and operations." “Processing” is defined inthe Agreement as “the crushing, benefication, concentrationor other treatment of phosphate minerals and AssociatedMinerals by physical, chemical, or other process in connectionwith the manufacture of products but does not include thesmelting and refining of metals. The verb “process" hasa corresponding meaning."
Thus, in terms of the Agreement, the activities fallingwithin the definition of “Exploration”, may take place, not onlywithin the 56 sq. kms., not only within the “Exploration Area”,but also within the “Processing Area" which even includesTrincomalee. In fact, the report of trie President's Committeestates at P.6 that the “Processing Area will be Trincomaleewhere the processing plant, ware-house, dock, terminal andshipping are located.”
It might be noted that in terms of Article 2.5, if theProcessing Area identified at the time of the signing of theAgreement was found to be unsuitable after the feasibilitystudy, the Government pledges to use “its best efforts" to locateother lands that are suitable.
Article 2.4 of the Mineral Investment Agreement states asfollows: “Notwithstanding the existence of this Agreement and
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the fact that the Company will control a significant area of landfor the exploration for and possible development of phosphatemineral deposits as a result of this Agreement, the Companyshall remain eligible to apply for and obtain Exploration andMining Licences on lands outside the Exploration Area … Inthe event the Company does obtain Exploration and/or
Mining Licences covering lands within the Buffer Area such
lands shall be added to the Exploration Area and treated in allrespects as part of the Exploration Area (and Mining Area, if aDevelopment Plan is approved) and as licences which aresubject to the provisions of this Agreement.”
The report by the President’s Committee states: “TheCompany will have, a right to extend their activities into thebuffer zone as well, if found necessaiy." There is no definitionin the Agreement of “Buffer Zone”, however, the report of thePresident’s Committee states at P.6 that “Buffer Zone Area”“will comprise a land area extending to 10 kilometres from theboundaries of the exploration area. The Company will have aright to extend their exploration activities into the buffer zoneas well, if found necessary.” Indeed, (1) since the “ExplorationArea” in terms of the Agreement, as we have seen, extends tothe “Processing Area”, and (2) since in terms of Article 2.1 of theAgreement it is acknowledged that the Company shall have the“basic” right not only to conduct pilot or test operations at anylocation within the Contract Area but without limiting theCompany’s option of conducting such pilot or test operationsentirely or partially at other locations", the area of operationeven at the "Exploration” stage is very vast indeed andextendable, in terms of the Agreement, in “the Company'soption." Reference is made to the reduction or extension ofexploration or Processing Areas; however, reduction in termsof Article 6.3 is a matter for the Company to decide. TheGovernment has no say in the matter. Regardless of mapsdemarcating the “Exploration Area” drawn on the basis of whatGovernment officials were given to understand, the termsof the Agreement leave the area of “Exploration” wide andpractically unrestricted. No exploration may be contemplated
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in any area outside the areas demarcated in the maps, but theterms of the agreement made “Exploration Area” at least anarguable matter. If the proposed agreement is signed, it wouldleave the resolution of a dispute on that matter to be settled byarbitration in terms of Article xx of the Agreement.
SETTLERS AND THE AFFECTED AREAIn their final written submissions on behalf of the ls'-3rd,6th and 8th respondents, made after the oral hearing, learnedcounsel submitted that “During the exploration period theinhabitants of the area will not be displaced nor their lands willbe affected.” A map (Document x), prepared by the Director ofthe Geological Survey and Mines Bureau was annexed to thesubmissions under the caption “The area reserved for mineralexplorations up to [the] 31st July, 1999." The map is a map ofSri Lanka showing three areas of demarcation:
“(1) the area of 56 sq. km. reserved for the proposed phosphateproject;
Areas reserved presently for mineral explorations (8514sq. km.);
The areas where detail explorations have been carriedout during the past three years (1839 sq. km.). Neitherany complaints or damage to the environment have beenreceived nor any person has been displaced due toexploration activities.'' (The emphasis is mine).
That map was not produced until after the conclusion ofthe oral submissions. When and why was it prepared? Onthe basis of Document X, the Deputy Solicitor-General said:“One could see from X’ that the whole of Chilaw town has beenpart of the exploration area (sic.). Therefore, it is respectfullysubmitted that no harm will occur either to the inhabitantsof the area or to the environment during the explorationperiod. In the circumstances, it is respectfully urged that theapplication of the petitioner at this moment is pre-mature.”
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What is the fate of Chilaw and other areas referred to indocument X? Was the agenda of the Geological Survey andMines Bureau made known to the people of the affected areas?The Deputy Solicitor-General has not stated that the people ofthe areas demarcated in Document X have been made awareof the intentions of the Geological Survey and Mines Bureau,and, in the circumstances, his submissions that the peopleliving within the proposed exploration areas in document Xhave made no protests, and that therefore the petitionerscannot object to exploration is unsound, for they are notcomparable situations. Has it been publicly announced thatexploration, as defined in the proposed agreement, will becarried out in Chilaw and other areas shown in Document X?
In his affidavit, the 1st respondent states, 4. (a) “Theapatite deposits were discovered in 1971 and part of thedeposit is to the North of the Jaya Ganga, which consist ofCrown lands (sic.) only; (b) the area to the south of Jaya Gangahas been excluded from the Mahaweli Settlement Scheme andreserved for the apatite/Phosphate Project in view of the saiddiscovery in 1971. Accordingly there are no legal settlementsin the area.” This, as we shall see is flatly contradicted byArticle 17.3 of the proposed agreement which I have quotedbelow. At the hearing, he produced a map through the DeputySolicitor-General. With his affidavit he submitted a Plan of"the known deposits area” prepared by the Geological SurveyDepartment and stated that the 7th petitioner’s temple was"not within the known deposit area.”
According to the map, there do not appear to beinhabitants on what is marked as the “Known Deposit Area”south of what is marked as the “Kalaweva R.B. Main Channel”,which the Deputy Solicitor-General confirmed is the JayaGanga referred to by the 1st respondent. Learned counsel, forthe 5th and 7th respondents and the Deputy Solicitor-Generalstated that no one was living on the reserve and that, therefore,on the known data, there will be no relocation.
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However, the question as far as the 7th petitioner and theother petitioners are concerned is not whether their lands wereon the “known deposit area”, but whether they were within the“Exploration Area”, including the .area south of the JayaGanga. Having regard to the Grid map (P.6 and 5 R2), thepetitioners’ lands are in the following squares and fallwithin the exploration area: 157332 (1st petitioner): 157329(2nd petitioner): 157329 (3rd petitioner): 157327/156327(4th petitioner): 157329 (5th petitioner): 157327/158327(6th petitioner); 157328 (7th petitioner).
The 1st respondent suggested that, in view of theimpending phosphate project, no settlers were located underthe Mahaweli project in the area earmarked for the phosphateproject. However, in the map furnished to us, there are“Mahaweli Settlers” within the demarcated “Exploration Area"south of what is marked as the “Kalawewa Main R.B.Channel”. Indeed, the map it seems had been prepared forthe very purpose of identifying Mahaweli Settlers, who areobviously not, as the 1st respondent suggested, illegaloccupants of lands. The caption of the map is “PhosphateProject at Eppawela – Area falling within system ‘H’ ofMahaweli Project.” Another map produced by the DeputySolicitor-General – the “Buffer Area Map” – a grid map – showsanother “known Deposit” north of what is marked as the“Kalawewa Main R.B. Channel.” When that map is read withthe “Phosphate Project at Eppawela etc. Map”, ‘MahaweliSettlers’ appear to be living in that area as well.
Learned counsel for the 5th and 7th respondents submittedthat “there are no persons living in the Exploration Area”, andthat therefore there will be no need for relocation, and that noViharayas, homes or villages will be damaged. He stated that“As at present in terms of the known given reserves andinferred reserves no one at all will be relocated. Until thefeasibility report is done there will be no way at all in findingout whether in terms of this project anybody will be relocated."
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The Deputy Solicitor-General stated that the application of thepetitioners was “premature”, for the deposits had not beenidentified and exploration had not been commenced. It wasonly after the feasibility study that the persons affected andextent of environmental damage could be assessed.
From the point of view of imminent infringement asdistinguished from infringement their submissions Eire notsupported by the evidence provided by the maps submittedto us especially when read with the definition and flexibledescription of “exploration area” in the Agreement referred toabove.
Learned counsel’s submissions, as well as the assertionsof the 1st respondent in his affidavit, are also at variance withthe report of the President’s Committee. At pp.3-4 of thatreport, attention is drawn to the fact that during the first roundof negotiations conducted by the negotiating committeepreviously appointed by the Cabinet, one of the “major issues”that had to be discussed with “local institutions andauthorities" “related to the resettlement and payment ofcompensation of Mahaweli settlers presently living in theexploration area identified for the project." The President’sCommittee notes that “Discussions have also been held withthe Mahaweli Authority of Sri Lanka and will help to determinean exploration area which will least disturb the settlements.However, where, re-settlement has to take place consequent todisplacement, adequate compensation will be paid to thesettlers and the costs will be met by the Joint VentureCompany.”
Article 17.3 of the proposed agreement acknowledges boththe fact that there are settlers south of the Jaya Ganga and thefact that they and other persons may be affected by miningoperations. The Article shows not only that the petitioners andothers may be affected but that if they are, the paramountconsideration will be the interests of the Company rather thanthose of the occupants of the affected areas.
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17.3 “The Government and the Company acknowledge thatif Mining is conducted within the portion of the Exploration Arealocated south of the Mahaweli District Authority’s main canalwhich flows through the Exploration Area, the occupantsof such land may'be directly affected. Occupied areas areindicated on the map is attached hereto and made a part hereofas Annex “K”. To the extent that this area is included within theMining Area and constitutes part of the area to be mined underthe Company’s Development Plan which is approved by theGovernment in accordance with the procedures set forth inArticle VII, and the Company determines that it is necessary torelocate such occupants in order to accommodate Mining sucharea, then the Company will pay the costs of such relocationsand the Government will use its best efforts to facilitate therelocation of any inhabitants of such land as requested by theCompany in a manner which does not create an unduefinancialburden on the Company or delay the Company’s developmentand operation of the Mining Area. The Government will also useits best efforts to coordinate with the Mahaweli Authority andany other Government authority having jurisdiction over suchlands in order to implement such relocations in an orderly andefficient manner, to minimize or eliminate the settlementwithin this area, and to cause the removal at minimal cost to theCompany of squatters having no legal or possessory rights. Inconnection with the foregoing, the Government shall use allreasonable efforts to minimize or eliminate the settlementwithin this area of new inhabitants during the term of thisAgreement.
As to other parts of the Mining Area where the Companydetermines that “resettlement” is necessary, the Governmentand the Company acknowledge that only small numbers ofpersons inhabit such lands. As to' these other lands whererelocation is determined to be necessary by the Company, thesame relocation provisions as set forth above will apply and theGovernment will utilize its best efforts to minimize or eliminateany settlement of persons or families on such other landsduring the term of this Agreement.
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In the event that the Company wishes to relocate personsin occupation or possession of private land and not within thescope of the relocation specifically provided for above in thissection 17.3, such relocation shall be effected on terms to beagreed between the Company and the owners of such privateland.” (The emphasis is mine).
Apart from the Mahaweli settlers in the more recentvillages established as part of the Mahaweli DevelopmentSystem ‘H' project, there are residents of numerous ancientvillages (puranagam), both in the “Exploration Area” and theBuffer Zone. Admittedly, the scale of displacement will dependon the feasibility study. That does not mean that at the presenttime it can be confidently asserted, as learned counsel for therespondents did, that no relocation will take place, nor can itbe denied that some displacement is likely, – a conclusion, aswe have seen, that understandably troubled the-negotiatingcommittee appointed by the Cabinet, although they seem tohave been preoccupied with the fate of the Mahaweli settlers.
PETITIONERS’ FEARS UNFOUNDED?Learned counsel for the 5th and 7th respondents analysedthe Agreement and said there were five stages'in the project:(a) exploration: (b) feasibility study: (c) construction; (d)operating: (e) marketing. Mining, which could cause damage,he said, “is done only at the operating stage”. There wasno need to feel any apprehension at the Exploration andFeasibility Study Stages, which is what the signing of theproposed Agreement would lead to. It is only when theexploration and feasibility study are done, the approval of allthe statutory authoiHties are obtained, and the Secretaryaccepts the feasibility report, that the Company will bepermitted to proceed to the construction and mining phases ofthe project. Exploration, he said, “only means search andlocation of the presence of economic apatite and other
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phosphate mineral deposits and to find out their nature andgrade.” The Deputy Solicitor-General expressed a similar view.
The exploration contemplated by the respondents may,perhaps, be of a non-intrusive nature. However, the definitionof “exploration” in the proposed Agreement, as we have seen,includes the search for certain minerals, and their location,nature and grade, inter alia, by making “boreholes, testpits, trenches, surface or underground headings, drifts ortunnels.” Mining may have comparatively more devastatingconsequences, but exploration can scarely be said to be soharmless as to cause the occupants of the exploration area noreasonable apprehension of imminent harm to their homesand lands. In the circumstances, the petitioners can hardly beblamed for not sharing the optimistic submission of learnedcounsel for the 5th and 7th respondents that exploration “cando no harm whatever to anyone."
The petitioners express concern not only about the harmthat may be caused at the stage of exploration, but also at allstages of the project and by the total effect of the project asdescribed in the proposed agreement. Admittedly, there is asyet no formally executed agreement. Yet, the document mayhave caused reasonable apprehension leading to theapplication of the petitioners, for (a) it has been initialled aftera “final” round of negotiations between the parties to aproposed agreement; and (b) provides for each and every oneof the “five stages” of the project referred to by learned counselfor the fifth and seventh respondents in his analysis of theAgreement. The petitioners’ case is that, in the circumstances,the totality of the proposed agreement must be considered indeciding whether there is an imminent infringement of theirconstitutional rights.
There is nothing in the proposed agreement that supportsthe view that the signing of the proposed agreement will“only result in exploration and feasibility study.” It is acomprehensive, all embracing document.
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THE PROPOSED ACTIVITIES UNDER THE AGREEMENTFollowing the exploration stage during which theCompany will locate the presence of economic apatite or otherphosphate mineral deposits and find out their nature, shapeand grade, a study would be made “to determine the feasibilityof commercially developing the phosphate deposit or depositsidentified by the Company.” (Article 7.2). This isto be followed by the construction of “the mine, fertilizerprocessing plant and associated facilities.” (Article 8.1). Article9.4 states that “The Enterprise facilities shall include, amongother things, the mine and related processing facilities, thefertilizer processing plant and associated facilities and mayinclude port facilities, rail, road and pipeline transportationfacilities, storage facilities, communication facilities, powersupply and distribution facilities, gypsum and other wastedisposal facilities, repair and maintenance facilitiestemporaiy or desirable in connection with the operation of theEnterprise …” The next stage is the “operating period" whenmining takes place. Article 9.1 states: “As the construction ofthe enterprise facilities are progressively completed,” theCompany will “commence the operation of such facilities onthe mining and processing areas and the conduct of all otheractivities contemplated by the Enterprise and shall achievecommercial production by no later than two years followingthe end of the construction period, and the Company shall beauthorized to continue such operations and activities for theduration of the operating period, as long as the Companyabides by its obligations under this Agreement and Applicablelaw.” “Operating Period” is defined in the Agreement to mean“the period commencing on the day following the end ofthe Construction Period and continuing for so long as theCompany shall continue to conduct operations with respect toany phosphate mineral reserve within the Exploration and/orMining Area and, provided the Company has not permanentlyabandoned or terminated its operations and given noticethereof to the Secretary, for a period of not less than 25 years
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following the commencement of Commercial Production, orsuch longer period as the Secretary, on the written applicationof the Company, may approve." Finally, the product will besold in the market. This is dealt with in Article X.
SUSTAINABLE DEVELOPMENTIn the introduction to the proposed Mineral InvestmentAgreement, it is stated, “The Government seeks to advance theeconomic development of the people of Sri Lanka and to thatend desires to encourage and promote the rational explorationand development of the phosphate mineral resources of SriLanka.” (The emphasis is mine.)
Undoubtedly, the State has the right to exploit itsown resources, pursuant, however to its own environmentaland development policies. (Cf. Principle 21 of the U.N.Stockholm Declaration (1972) and Principle 2 of the U.N. RioDe Janeiro Declaration (1992). Rational planning constitutesan essential tool for reconciling any conflict between the needsof development and the need to protect and improve theenvironment. (Principle 14, Stockholm Declaration). Humanbeings are at the centre of concerns for sustainabledevelopment. They are entitled to a healthy and productivelife in harmony with nature. (Principle 1, Rio De JaneiroDeclaration). In order to achieve sustainable development,environmental protection shall constitute an integral part ofthe development process and cannot be considered in isolationfrom it. (Principle 4, Rio De Janeiro Declaration). In my view,the proposed agreement must be considered in the light of theforegoing principles. Admittedly, the principles set out in theStockholm and Rio De Janeiro Declarations are not legallybinding in the way in which an Act of our Parliament would bet]It may be. It may be regarded merely as ‘soft law’. Nevertheless,as a Member of the United NationsTThey could hardly beignored by Sri Lanka. Moreover, they would, in my view, bebinding if they have been either expressly enacted or become
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a part of the domestic law by adoption by the superior Courtsof record and by the Supreme Court in particular, in theirdecisions.
During the hearing, learned counsel for the 5th and 7lhrespondents, submitted that the project must go ahead;because the people would otherwise “starve”. In his writtensubmissions he stated that as “trustee of the naturalresources of the country . . . the Government cannot sit backdo nothing. That would be a sin of omission and would be assuch a breach of trust as if the Government did act wrongly… It is common ground that the phosphate has to bp_/ developed. All the experts are agreed that the phosphate''‘Cannot be permitted to lie underground.”
While, as I must on account of its extravagance rejectlearned counsel’s claim that people would “starve” if theproject is not proceeded with, it might be pointed out that thereseems to be no disagreement that the phosphate depositshould be utilized. Indeed, an hypothesis has been advancedthat the Eppawela deposit was not “discovered" in 1971, butwas known to our rulers and people for thousands of years andshared the thought that the deposit should be utilized. Thedifference between them and us is how this should be done.The ingenuity of the rulers and people of Sri Lanka in timesgone by, it is suggested, had created a stable and sustainableagricultural development system harnessing the key naturalresources available within their natural habitat, includingthe Eppawela deposit. The natural processes of weathering,microbial activity and precipitation might have released plantnutrients which were carried overland by flowing into thereservoirs, channels and rivers as well as permeating into thesoil matrix and possibly reaching underground aquifers. (SeeIvan Amarasinghe, Eppawela : Contribution to Nutrient Rowsin the Ancient Aquatic Ecosystems- of Rajarata).
In 1974, it was decided to use the Eppawela depositthrough a District Development Council. The D.D.C. was an
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organization aimed at harnessing resources at “grass-roots” level, utilizing locally available resources with theminimum use of foreign or imported expertise, techniques andtechnology, and providing maximum employmentopportunities and the most favourable benefits to the locality.The annual production of the Eppawela D.D.C. project was tobe 50,000 tons, and at that rate of extraction, it was estimatedthat the deposit would serve the country for a very long time,perhaps a thousand years. Moreover, the D.D.C. project wasdesigned to quarry the phosphate and not to mine it, and suchquarrying operations were to be far from the Jayaganga.
It has been the policy of successive governments duringthe past three decades that the Eppawela mineral depositshould be put to use. In fact, Lanka Phosphate Ltd., the 6threspondent, under a licence issued by the Geological Surveyand Mines Bureau, has been mining about 40,000 metric tonsof rock per annum for crushing and marketing to enterprisesmaking fertilizer. That modest operation, the petitionersexplain, caused them no concern. However, in view of theescalation of the amount to be mined under the proposedagreement to 26.1 million metric tons within thirty years fromthe date of the signing of the agreement, the petitioners fear (a)that existing supplies will be exhausted too quickly; and (b)that the scale of operations within the stipulated time framewill cause serious environmental harm that would affect theirhealth, safety, livelihood as well as their cultural heritage. Thepetitioners do not oppose the utilization of the deposit.However, they submit that the phosphate deposit is a“non-renewable natural resource that should be developed ina prudent and sustainable manner in order to strike anequitable balance between the needs of the present and futuregenerations of Sri Lankans.”
In my view, due regard should be had by the authoritiesconcerned to the general principle encapsulated in thephrase ‘sustainable development’, namely that humandevelopment and the use of natural resources must take placein a sustainable manner.
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There are many operational definitions of “sustainabledevelopment”, but they have mostly been variations on thebenchmark definition of the United Nations Commission onEnvironment and Development chaired by Gro HarlemBruntland, Prime Minister of Norway, in its report in 1987,
. . development that meets the needs of the present withoutcompromising the ability of future generations to meet theirown needs.”
Some of the elements encompassed by the principle ofsustainable that are of special significance to the matter beforethis Court are, first, the conservation of natural resources forthe benefit of future generations – the principle of inter-generational equity; second, the exploration of naturalresources in a manner which is ‘sustainable’, or ‘prudent’ – theprinciple of sustainable use; the integration of environmentalconsiderations into economic and other development plans,programmes and projects – the principle of integration ofenvironment and development needs.
International standard setting instruments have clearlyrecognized the principle of inter-generational equity. It hasbeen stated that humankind bears a solemn responsibility toprotect and improve the environment for present and futuregenerations. (Principle 1, Stockholm Declaration). The naturalresources of the earth including the air, water, land flora andfauna must be safeguarded for the benefit of present andfuture generations. (Principle 2, Stockholm Declaration). Thenon-renewable resources of the earth must be employed insuch a way as to guard against their future exhaustion and toensure that benefits from such employment are shared by allhumankind. (Principle 5, Stockholm Declaration). The right todevelopment must be fulfilled so as to equitably meetdevelopmental and environmental needs of present and futuregenerations. (Principle 3, Rio De Janeiro Declaration). Theinter-generational principle in my view, should be regarded asaxiomatic in the decision making process in relation to matters
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concerning the natural resources and the environment ofSri Lanka in general, and particularly in the case before us. Itis not something new to us, although memories may need tobe jogged.
Judge C.G. Weeramantry, in his separate opinion in theDanube case (Hungary v. Slovakia), (Supra), referred to the“imperative of balancing the needs of the present generationwith those of posterity." Judge Weeramantry referred at lengthto the irrigation works of ancient Sri Lanka, the philosophy ofnot permitting even a drop of water to flow into the sea withoutbenefitting humankind, and pointed out that sustainabledevelopment had been already consciously practiced withmuch success for several millenia in Sri Lanka. JudgeWeeramantry said: “The notion of not causing harm to othersand hence sic utere tuo ut alienum non laedas was a centralnotion of Buddhism. It translated well into environmentalattitudes. 'Alienum’ in this context would be extended byBuddhism to future generations as well, and to othercomponent elements of the natural order beyond man himself,for the Buddhist concept of duty had an enormously longreach."
Contemporary law makers of Sri Lanka too have been aliveto their responsibilities to future generations. Thus, section 17of the National Environmental Act makes it a mandatory dutyfor the Central Environmental Authority to “recommend to theMinister the basic policy on the management and conservationof the country’s natural resources in order to obtain theoptimum benefits therefrom and to preserve the same forfuture generations and the general measures through whichsuch policy may be carried out effectively."
The call for sustainable development made by thepetitioners does not mean that further development of theEppawela deposit must be halted. The Government is notbeing asked, to use learned counsel’s phrase, to “sit back anddo nothing.”
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In my view, the human development paradigm needs to beplaced within the context of our finite environment, so as toensure the future sustainability of the mineral resources andof the water and soil conservation ecosystems of the Eppawelaregion, and of the North Central Province and Sri Lanka ingeneral. Due account must also be taken of our unrenewablecultural heritage. Decisions with regard to the nature andscale of activity require the most anxious consideration fromthe point of view of safeguarding the health and safety of thepeople, naturally, including the petitioners, ensuring theviability of their occupations, and protecting the rights offuture generations of Sri Lankans.
According to the Geological Survey Department (presentlythe Geological Survey and Mines Bureau), the 3rd respondent,the Eppawela deposit is said to have a proven reserve of25 million metric tons and an inferred reserve of another35 million metric tons. However, as a Director of the 5threspondent, Mr. Gariy L. Pigg, and a Director of the 7threspondent, Mr. U.I. De Silva Boralessa, state in theiraffidavits, “the actual extent of the phosphate reserves in SriLanka is not known today", and “it would take exploration todiscover the new reserves which would move the inferredreserves into the proven category .” The Secretary of theMinistry of Industrial Development, Mr. S. Hulugalle. in hisaffidavit states that “only 26.1 million metric tons of roc’phosphate will be mined over the entire 30 year project periodand the deposit contains 25 million metric tons proved reserveand 35 million metric tons of inferred reserve. Therefore afterthe 30 year period there would still be a substantial amount ofphosphate reserve.” The Deputy Solicitor-General stated asfollows: “If the Mining Licence is given in terms of the Minesand Minerals Act No. 33 of 1992, the project company will onlybe entitled to mine 26.1 million metric tons for the entire 30years period. This amount when compared with the availableresource’ at Eppawela is somewhat negligible."
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How could it be asserted with any degree of confidence atthis time, when no exploration has taken place, that only acomparatively “negligible" quantity of the available depositswill be extracted so that at the end of the 30 year project periodthere would remain a “substantial” amount of phosphate? AsMr. Pigg and Mr. De Silva Boralessa, quite correctly in my view,point out, until exploration, we really do not know what thereserves are, except for the already proven reserve of 25 millionmetric tons.
The National Academy of Sciences in its report (P. 10)points out that in May 1995, a Committee of five scientists andtwo economists appointed by the President of Sri Lankarecommended that “a more comprehensive geological reserveevaluation be undertaken in the light of recent researchfindings so that government can make a decision on the rateof exploration of such reserves. The decision on the rate ofexploration should be made taking into account the importantconcerns about the use of the resources in a manner thatfuture generations can also benefit”. No such survey has beendone, although it should, for reasons I shall presently explain,have been done before the negotiating committee appointed bythe President to conduct the final round of negotiationsrecommended the signing of the proposed agreement. TheNational Academy of Sciences calls attention to the fact that ifafter exploration is carried out under the proposed agreementit is found that the inferred reserves are less than presentlyanticipated, there is no provision in the proposed agreement toslow down the exploration rate with the result that almost allof the national reserves could very well be exhausted at theend of the 30 years. The importance of giving effect to therecommendation of the President’s Committee which reportedin May 1995 that a comprehensive geological evaluationshould be done so that more certain information would beavailable on the quantity and quality of the phosphateat Eppawela cannot be overstated, for on it woulddepend reliable conclusions being reached on how best inthe national interest the mineral resource should be utilized.
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from the point of view of the rate of extraction, havingregard to considerations of sustainable development and thefeasibility of alternatives, such as the production of singlesuper phosphate fertilizer to meet only local requirementsrather than producing Di-ammonium phosphate. It is alsoimportant from the point of view of accurately assessing theGovernment’s contribution. In terms of Article 2.16 of theproposed agreement Lanka Phosphate is given a ten per cent,holding. What if the exploration reveals a deposit that in termsof quantity and quality exceed the current assumptions?Government’s contribution would then have beenunderestimated. And so, even if the geological survey is to beundertaken as a part of the proposed agreement, is it in thebest interests of the country to limit the shareholding to ten percent, at this stage merely on the basis of a pessimisticguesstimate when better information can be had, and ought,on so important a matter, to be required and had before policydecisions are taken, let alone binding contracts being enteredinto?
The National Science Foundation’s Committee stated asfollows: “Mining of rock phosphate should be done at acontrolled rate (e.g. 350,000 mt per year) so that the presentdeposit could be utilized by serveral generations. However, ifmore deposits are found, the rate of exploration could berevised, the guideline being that the ore should last at least 200years for use in Sri Lanka's Agriculture.’' {The emphasis ismine).
Let us look at the matter in the context of the optimisticscenario predicted by the Secretary of Industrial Developmentand the Deputy Solicitor-General with regard to the quantumof deposits. Assuming that 26.1 million metric tons will bemined within the 30 year project period, and that the depositswill not be exhausted, is it prudent to enter into the proposedagreement from the point of view of the long term, futureinterests of the countiy, having regard to the fact thatphosphate is a non-renewable resource? The report of the
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National Science Foundation (P. 12) points out that theEppawela deposit is of considerable value to Sri Lankabecause phosphate deposits are non-renewable anddwindling resources in the world like fossil fuel, and should be“wisely utilized." Citing Herring and Fantel’s landmark study,the National Science Foundation points out that, on the basisof current information, the worldwide phosphate reserves willbe exhausted in 100-150 years. Herring and Fantel state asfollows:
. the ineluctable conclusion in a world of continuingphosphate demand is that society, to extend phosphate rockreserves and reserve base beyond the approximate 100 yeardepletion in date must find additional reserves and/orreduce the rate of growth of phosphate demand in the future.Society must: (1) increase the efficiency of use of knownresources of easily minable phosphate rock; (2) discover new,economically-minable resources; or (3) develop the technologyto economically mine the vast but currently uneconomicresources of phosphate that exist in the world. Otherwise, thefuture availability of present cost phosphate, and the costor availability of world food will be compromised, perhapssubstantially." (The emphasis is mine).
Adverting to learned counsel’s submission aboutstarvation, one might ask, should the lives of futuregenerations of Sri Lankans be jeopardized?
The National Science Foundation states that “Theirrefutable conclusion is that the Eppawela rock phosphatedeposit should be exclusively reserved for the country’s use forgenerations to come.” It indicates alternative methods toensure the use of the deposit to meet the fertilizer demands ofthe country while conserving the reserves for the use of futuregenerations. The Secretary of the Ministry of IndustrialDevelopment has misunderstood the matter in making hisaverments in paragraphs 18(c) and 19(b) of his affidavit. It wasno one’s case that the New Zealand proposal should have been
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considered in deciding upon responsive bids to theGovernment’s call for tenders. What is asserted is that at sometime, in considering policy options, the Government ought tohave taken or ought to take the New Zealand proposal intoaccount as being more appropriate (having regard to the inter-generational principle and environmental considerations)in the matter of the development of the Eppawela phosphatedeposit before adopting the course of action decided upon bythe Government as expressed in the proposed agreement.
The Secretary of the Ministiy of Industrial Development inhis affidavit stated that “with the development of technologyand market conditions, a mineral deposit may also cease to bea resource as has happened to the tin industry in the worldwith the advent of plastic _. . ." Sustainable developmentrequires that non'-rern^aEIe resources like phosphateshould be depleted only at the rate of creation of renewablesubstitutes. What is the known renewable substitute forphosphate? Herring and Fantel, as we have seen, refer to a“continuing phosphate demand. “Does the first respondentassume that plants will need no phosporous? On thatmatter. Prof. O.A. Illeperuma of the Department of Chemistry,University of Peradeniya, with some asperity, had this to say(P. 11): ’There are some wisecracks who say that scientists willdevelop new plants which will grow without phosporous.Anyone with even a rudimentary knowledge of science knowsthat phosporous is an essential component of our bonestructure and when such varieties of cash crops are indeedpossible then we will have humans with no bones who willprobably move around like jellyfish! . . .”
If in fact the optimistic views of the Secretary of theMinistry of Industrial Development and the Deputy Solicitor-General are confirmed by exploration, learned counsel for thepetitioners submitted that it does not necessarily follow that atthe end of the thirty years after the signing of the proposedagreement, the Government of Sri Lanka will be in control ofthe mining operations. I find myself in agreement with that
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submission of learned counsel for the petitioners, forthe proposed agreement defines “operating period” to be“a period of not less than 25 years following the CommercialProduction, or such longer period as the Secretary, on thewritten application may approve.” Article XXX of the proposedagreement states, inter alia, that the Agreement “will continuein force until the later to occur of the following dates: (a) thedate which is 30 years following the date of the signing of thisAgreement, or (b) the date on which the Operating Periodexpires. The Company may request the extension of thisAgreement on terms to be negotiated . . ."If the Secretaiyapproves the application of the Company for the extensionof the Operating Period, he thereby extends the OperatingPeriod; there is then no need for the Company to apply for theextension of the agreement on terms to be negotiated.
The petitioners also state that the Eppawela deposit is anagriculturally developed area which is also the location ofmany historical viharas and other places of archaeologicalvalue. It is also the area of the Jaya Ganga/Yoda Ela schemewhich is considered to be among the greatest examples ofSri Lanka’s engineering skills and forms an important part ofthe irrigation network of the North Central Province. Theyallege that over 20 new and ancient irrigation tanks and about100 kilometres of small irrigation canals are in danger of beingdestroyed. Five kilometres of the Jaya Ganga, they say, will beaffected which could adversely affect the entire irrigationsystem of the North Central Province in which it is animportant link. The petitioners further allege that a factory forthe production phosphoric acid and sulphuric acid which arehighly polluting substances will be constructed at Trincomaleeusing a 450 acre land next to Trincomalee Bay. The petitionersalso allege that the environmental pollution resulting fromthe said project will be massive and irreversible and will renderthe affected area unusable in the foreseeable future. Wasteproducts from the large-scale mining of phosphate asenvisaged by the project include phospho-gypsum and otherradio active substances, while the mining operation will leave
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behind large pits and gullies which will provide a breedingground for mosquitoes and lead to the spread of dangerousdiseases such as malaria and Japanese encephalitis. Thepetitioners further state that the past record of environmentalpollution by Freeport MacMoran and IMCO Agrico (the majorshareholder in the 5th respondent company) is notorious evenin their own home country, namely, the United States ofAmerica.
The National Academy of Sciences of Sri Lanka (see below)also makes critical comments about the past experience ofFreeport MacMoran.
With regard to the gypsum as a by-product, the firstrespondent in his affidavit states: “The project is expectedto produce approximately 1.2 metric tons (sic.) of phospho-gypsum per annum as a by-product.” He suggests that ratherthan being a problem, it would be a boon for which we shouldbe thankful, for a part of this, he says, could be sold to localcement manufacturers and used in the manufacture of “plierand boards". Have market studies been done? Gypsum maypose no danger if the quantities are manageable. The scale ofoperation is important if the by-products are to be utilizedwithout causing environmental damage. Could the amount ofgypsum produced be absorbed by the cement manufacturersand others having regard to the fact that, according to theAcademy of Sciences, there will be “a million metric tons ofphospho-gypsum"? The National Science Foundation in itsExecutive Summary states: “The U.S. Mining Companyproposal is not environment friendly: Mountains of phospho-gypsum will accumulate polluting the environment."Mr. Thilan Wijesinghe, in his letter dated March 30, 1998 (P. 7),notes that 1.2 million metric tons per annum of rockphosphate would be mined and processed. ” The 1st respondentseems to have been confused about the amount of rockphosphate to be mined and processed and the amount ofphospho-gypsum left behind. If, the gypsum is not in factabsorbed in the way envisaged by the first respondent, is it to
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lie somewhere? Not everyone is willing to form opinions ongrounds admittedly inaccurate or insufficient. Prof. O.A.Illeperuma stated as follows (P. 11): “This may not be a problemfor large countries such as USA where phospho-gypsummountains are visible dotting the Florida landscape, sinceopen and barren land is available in large countries such asthe U.S.A. Sri Lanka, on the other hand, is one of the mostovercrowded countries in the world where even finding a siteto dump domestic garbage has become a serious problem.”The evidence before us points to the fact that the quantityof phospho-gypsum would grossly exceed the assimilativecapacity of the environment.
In the circumstances would the gypsum end up in the sea?The minutes of the meeting held on the 22nd of January 1998at the CEA atate as follows: “Mrs. Priyani Wijemanne, GM/MPPA highlighted the possible impacts on marine eco-systemsat the Trincomalee site and requested that those should becarefully looked into during the Environmental ImpactAssessment Stage. She submitted a report to the Chairman onissues that should be addressed.”
I do not know what Ms. Wijemanne said in her report, butattention is drawn, especially of the 4th respondent in applyingthe National Environmental Act and the regulations framedthereunder, to the principles of the Stockholm Declaration:“The discharge of toxic substances or of other substances . . .in such quantities or concentrations as to exceed the capacityof the environment to render them harmless, must be haltedin order to ensure that serious or irreversible damage is notinflicted upon eco-systems. The just struggle of the peoplesof all countries against pollution should be supported.”(Principle 6). “States shall take all possible steps to preventpollution of the seas by substances that are liable to createhazards to human health, to harm living resources and marinelife, to damage amenities or to interfere with other legitimateuses of the sea.” (Principle 7). It might be noted, particularly bythe 4th respondent, that Principle 15 of the Rio De Janeiro
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Declaration marked a progressive shift from the preventiveprinciple recognized in Principles 6 and 7 of the StockholmDeclaration which was predicated upon the notion that onlywhen pollution threatens to exceed the assimilative capacity torender it harmless, should it be prevented from entering theenvironment. Principle 15 of the Rio De Janeiro Declarationstated: “In order to protect the environment, the precautionaryapproach shall be widely applied by states'according to theircapabilities. Where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used as areason for postponing cost-effective measures to preventenvironmental degradation.” The precautionary principle actsto reverse the assumption in the Stockholm Declaration and,in my view, ought to be acted upon by the 4th respondent.Therefore if ever pollution is discerned, uncertainty as towhether the assimilative capacity has been reached shouldnot prevent measures being insisted upon to reduce suchpollution from reaching the environment.
The National Academy of Sciences states in its report asfollows:
“Assuming that the ore reserves are as high asenvisaged, and that the ore has a high content of iron andaluminium impurities, di-ammonium phosphate with its highphosphorous content and also containing some nitrogen isa good value added product for the export market. Howeverthe high technology required will include setting up ammonia,phosphoric acid and sulphuric acid manufacturing plants,which together with the liquid processing technology involvedcan lead to serious environmental hazards including theproduction of high toxic waste by products and release oftoxic pollutants to water bodies and the atmosphere.
If the economically exploitable ore reserves are not muchhigher than 30 million metric tons, and 70% of this is highquality, it might be more prudent to follow the advice of ourscientists and accept the New Zealand Fertilizer Group’s
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proposition (estimated to cost $ 20 million US Dollars) toproduce 150,000 metric tons of single super-phosphate peryear to meet only local requirements even if in the shortterm it may appear to give less monetary benefits. This willpreserve our ore reserves for a much longer period, involvesimpler technology, leave no environmentally hazardous wasteby-products such as a million metric tons of phospho-gypsum,and there will be no need for ammonia and phosphoric acidplants which produce toxic effluents. Of course the lower grade. . . single super-phosphate would lose out on high transportcost per unit nutrient and may leave little export demand.Furthermore, under our free market liberal economy, locallyproduced single super-phosphate may be more expensive toour farmers than imported high phosphorous content fertilizersuch as triple super-phosphate on unit nutrient value basisunless the local product is given fiscal protection. The decisionon what fertilizer should be produced locally must await theresults of the comprehensive exploration phase.”
The report adds as follows“Mining and processing of the products as envisaged willbe an operation of unprecedented magnitude in Sri Lanka,and the potential environmental impacts could be equallydrastic. At the mining site there will be severe disturbances tothe ecology of the area through, among others, the miningoperation itself, the infrastructural activities and thedischarge of pollutants to the atmosphere. At the processingsite, the effluents and other pollutants that will be dischargedwould pose severe environmental threats unless adequatecounter measures are adopted. Although the proposedarrangement with the prospector has provision to the effectthat the operations will be carried out with due respect to thelaws of the country, and the National Environment Act doescontain provisions to guard against adverse environmentimpacts, we are of opinion that for an operation of thismagnitude additional safeguards should be adopted. This isparticularly important as mining prospectors the world over
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are notorious for creating environmental disasters, and FreeportMacMoran is no exception. In fact, according to mediareports, Freeport MacMoran, one of the largest fertilizermanufacturing companies in the world, has the dubiousdistinction of being also No. 1 Pollutor in the USA. It has alsohad a poor record in Indonesia and in the South Pacific islandof New Guinea. It would also be prudent to check on thecompany’s credibility pertaining to environmental matters bycalling for the relevant reports from USA, New Guinea andIndonesia before project approval. . . Through study of suchreports, we would be in a better position to insist on theincorporation of stronger and more effective measures inthe Agreement to ensure environment safety. It should be. expressly stated in the Agreement that the mining operationsand the processing should be carried out in accordance withthe environment standards set by the Government of SriLanka. The Agreement should also specifically state that theecological restoration of the areas affected by the mining mustbe carried out by the prospector at his own cost progressivelyduring the period of mining operations and as directed by theGovernment of Sri Lanka. The Agreement must be explicit thatfailure to observe these environmental protection measurescould result in the termination of the project. We draw specialattention to the fact that the Jaya Ganga which is within thearea to be mined has been regarded as a wonder of the ancientworld and a cultural monument to be preserved by UNESCO’sWorld Heritage Convention. (D.L.O. Mendis, The Island, 14April 1998)”.
The petitioners’ assertions with regard to apprehendedharm from the proposed project also finds support in thereport of the National Science Foundation (P. 12) which statedthat the project
“in the view of many of the Professional Associations inthe country, e.g. The Institution of Engineers, Institute ofChemistry, the National Academy of Sciences and mostindividual scientists and engineers is highly disadvantageous
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to the country and with highly adverse environmentalimpacts.”
The report adds:“The proposal of exploitation of the apatite mine is besetwith many problems. Mines always cause damage to [the]environment and minimization of such damage must beexamined at length. Further, [the] Eppawela phosphate ore islocated in an agriculturally developed system, in an area ofextreme historical importance and of archaeological value inthe proximity of [national] monuments close to the CulturalTriangle sites with the Sri Mahabodhi and Ruwanweli Saya.Within the bounds of [the] mining area are many ancientvillages, which will be adversely affected. The immediate threatto the Jaya Ganga or Yoda Ela cannot be overlooked. Ifthe mining of the ore damages the Jaya Ganga, it denigradesSri Lankan histoiy. Jaya Ganga is an engineering marvel thatmust be preserved for eternity as the heritage of mankind justas the Taj Mahal, the Pyramids or Ruwanweli Saya arepreserved for posterity.”
The Eppawela project, as the petitioners, the NationalScience Foundation and the National Academy of Sciencespoint out, is in an area of historical significance. If I mightadopt the words of Martha Prickett Fernando in her commentson another proposed project – the augmentation of the Malalaoya basin from Mau ara -, “Unless development activities inareas like this project are accompanied by proper ELA studiesand [proposals for] mitigation of the [adverse impacts on]archaeological resources that will be damaged, vast numbersof sites – in fact, much of Sri Lanka’s unrenewable culturalheritage and the raw data for all future studies on ancient SriLanka – will be destroyed without record, and an accurateunderstanding of life in ancient Sri Lanka will remain foreverwrapped in myth and hypothesis.” In that connection, thewords of D.D. Kossambi (The Culture and Civilization of AncientIndiaJ come to mind: “To leam about the past in the light'of thepresent is to leam about the present in the light of the past.”
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Ignorance of vital facts of historical and culturalsignificance on the part of persons in authority can lead toserious blunders in current decision making processes thatrelate to more than rupees and cents. The first respondent, theSecretary to the Ministry of Industrial Development, inparagraph 13 of his affidavit states as follows: “The southernpart of the Yoda Ela has been abandoned after the constructionof Jaya Ganga in 1980’s under the Mahaweli Scheme.” (Theemphasis is mine). Judicial restraint prevents me fromsuggesting why he might, perhaps, have thought it wascalled “Jaya” Ganga.
The Kalaweva, which helped to supplement the supply ofwater to Anuradhapura and the area around that great andancient city, was constructed by King Dhatusena (455-473AD) and it is, therefore supposed, though not conclusivelyestablished, that Dhatusena also built the Jaya Ganga whichaugmented the tanks at Anuradhapura and its environs suchas Tissa, Nagara and Mahadaragatta, apart from irrigatinga large area of land of about 180 square miles. (See K.M. deSilva, History of Sri Lanka, p. 30; R.L. Brohier, AncientIrrigation Works in Ceylon, Part II, pp. 7-8.)
The maps produced show that the Jaya Ganga passesthrough the Eppawela phosphate deposit region. It was, asBrohier says, a part of “an ingenious net-work of irrigationchannels in this district . . . which, apart from affordingedification to future generations, are monuments of the powerand beneficicence of the ancient rulers of Ceylon." Whether itwas built by Dhatusena or not, according to Chapter 79.58 ofthe Mahawamsa, Parakrambahu I (1153-1186 AD) “had theruined canal called Jaya Ganga restored. It branched off fromKalavapi and flowed to Anuradhapura.” It is a 54 1/2 mile longcontour channel that starts from a sluice in the bund of theKala Wewa and ends in the Tissa Wewa and Basawakulamtank in the ancient city of Anuradhapura. Assuming that somepeople not only do not know the basic facts of history, but
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might also be ignorant of elementary geography so as not to beable to read the maps that were produced, it might beexplained that the function of the Jaya Ganga in ancient timesappears to be twofold: to intercept the drainage from the landto the east and issue it to cascades of smaller village tanks tothe west, in the basin of the Kala oya; and, by trans-basindiversion, to augment the Anuradhapura city tanks andprovide irrigation water in the adjacent Malwatu oya basin.Brohier states that this ancient canal, which had again beenrestored in 1885-1888,
“had a gradient for the first 17 miles of only six inches permile .. . Such an ingenious memorial of ancient irrigation skillcannot be passed over without a reference to its peculiarfeatures. It needs to be explained that the Jaya Ganga followsthe high ground between the reservoir which serves as itssource of supply and the Tissa Wewa. By this means itintercepts all the drainage between Elagamuwa and the west-ern watershed of the Malwatuoya which otherwise would runto waste and it irrigates the country below the canal by a mostperfect system of irrigation. In each of the subsidiary valleys onits course the water is diverted by channels into little villagetanks or chains of tanks – the tanks lower down receiving theoverflow from the tanks placed higher in each chain.
The scheme was so perfect that the ancient canal affordedirrigation facilities over approximately 180 square miles ofcountry on the east of the Kala-oya, between Kala Wewa andAnuradhapura. It today feeds no less than 60 village tanks andprovides a reliable source of drinking water to more than 100villages and to the town of Anuradhapura.
There is under such circumstances, little reason todispute that the Jaya-Ganga must have been of incalculablebenefit to Nuwarakalawjya~m the days of the Slnhalese-Kings,Inasmuch as the restoration of the work is today but tooaptly described as ‘the grandest experiment in irrigation everundertaken in modem Ceylon.’”
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The Jaya Ganga, which the petitioners, as well asthe National Academy of Sciences and the National ScienceFoundation, have drawn attention to, is not merely a watercourse or transportation canal corrdidor, or even “an amazingtechnological feat”, as Prof. K.M. De Silva describes it; it is alsoan integral part of a human-made water and soil conservationecosystem. Its preservation is therefore not only ot mleresIt toEfieliterati at a higher plane, as a matter concerning theheritage of humankind that must be preserved, but also, atthe more mundane level of the petitioners and thousandsof others like them who depend on the continued andefficient functioning of that ecosystem for the pursuit of their1occupations and indeed for sustaining their very lives, a matterof grave and immediate personal concern.
The respondents and their learned counsel submit thatenvironmental concerns have been sufficiently addressed inthe proposed agreement.
The 1st respondent in his affidavit stated that explorationand mining licences cannot be issued in respect ofarchaeological reserves. Plants for the production ofphosphoric acid and sulphuric acid cannot be constructedbefore compliance with the Environmental ImpactAssessment process prescribed by the NationalEnvironmental Act. If and when the Agreement is entered into,the Project Company is required to carry out exploration andfeasibility studies after which the project is required to submititself to the EIA process before mining is commenced. Adetailed Mine Restoration Plan and a Mine Restoration Bondare required. Moreover the Company is required to complywith the requirements of the Mines and Minerals Act, theNational Environmental Act and the Mahaweli Authority Actand to conduct its operations so as to minimize harm to theenvironment, protect natural resources, dispose of waste in amanner consistent with good waste disposal practices and ingeneral to provide for the health and safety of its employeesand the local community and also be responsible for the
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“reasonable preservation of the natural environment withinwhich the Project Company operates.” The lsl respondentfurther stated that the Government is empowered to suspendthe operations of the Company “if it determines that severeenvironmental damage associated with the Company’sviolation of applicable law is resulting from the Company'soperations which the Company has failed to remedy."Attention is drawn to the maintenance of an EnvironmentRestoration Escrow Account, the requirement to furnish aMines Restoration Bond which, he states, “would be adequateto cover any environmental damage and to effect the necessaryrestoration work.” In his opinion, since there are adequatesafeguards in the proposed agreement “to make the Companyresponsible to take necessary steps to minimize andrehabilitate any damage to the environment and localcommunity”, the 1st respondent concludes that “it ispremature to form an opinion on the nature and extent of theenvironmental damage which may take place due to thisproject.”
The Directors of the 5th and 7th respondents stated in theiraffidavits that in the introduction to the agreement it is statedas follows: “(D) In the process of developing mineral resources,the Government gives high priority to the protection of theenvironment and avoidance of waste and misuse of itsresources. (F) The Company [5th Respondent] is ready andwilling to proceed in these undertakings, and to assume therisks inherent therein in exchange for the rights and benefitsherein provided, all pursuant to the terms and conditionsset forth in the agreement.” It is stated that until theEnvironmental Impact Assessment and Feasibility studyare done, the concerns set out in the petition cannot besatisfactorily addressed. The Exploration Licences issued tothe 6th and 7th respondents are subject to the rights of theowner or occupant of the land covered by the licence and to theprovisions of the Mines and Minerals Act and the regulationsmade thereunder. They state that they would bring to bearcurrent technology for both phosphoric and sulphuric acid
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which have mitigated very nearly all of the pollution aspects ofsuch plants. All this will be subject to the EIA and FeasibilityStudy. They submitted the IMC Global Environmental, Healthand Safety Standards and Guidelines Manual in support oftheir averment that the Board of Directors of IMC had adopteda very specific and enforceable policy towards environmental,health and safety policies. They state that with the merger ofMacMoran Inc. into IML-Global Inc., Freeport MacMoranceased to exist. This was a part of the consolidation occurringin the fertilizer industry at the time and not an attempt to hidethe former Freeport MacMoran Inc.’s involvement in Sri Lankaon the project. What troubles the petitioners is that althoughFreeport MacMoran with a bad record on pollution has ceasedto exist, its spirit roams doing important things, such as seeingthe President (see P.4) and initialling the fined draft of theproposed agreement. While liabilities are placed on Sarabhumi,a small local company, whereas the decision to accept thetender was based on the size and capacity of the multi-nationalgiant Freeport MacMoran.
Learned counsel for the respondents submitted that interms of Article VII of the proposed agreement, there has to bea feasibility study and a report thereon. The report must havea section reporting the results of environmental impactstudies as described in Annex E to the Agreement. The sectionof the report will be prepared by an appropriately qualifiedinternationally recognized independent consulting firmapproved by the Government. The study must meet therequirements of Article 25. Article 25.2 provides as follows:
“The Company shall include in the Feasibility Study anenvironmental study in relation to all enterprise activities inaccordance with Applicable Law, and shall also identify andanalyze as part of the Feasibility Study the potential impactof the operations on land, water, air, biological resourcesand social, economic, culture and public health. Theenvironmental study will also outline measures which theCompany intends to use to mitigate adverse environmental
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impacts of the Enterprise (including without limitationdisposal of overburden and tailings and control of phosphateand fluorine emissions) and for restoring and rehabilitatingthe contract Area and any Project Areas at the termination ofthis Agreement. The Feasibility Study shall provide anestimate of the cost of such restoration and rehabilitation. TheFeasibility Study shall also include procedures and schedulesrelating to the management, monitoring, progressive control,corrective measures and the rehabilitation and restoration ofall Contract Areas and Project Areas in relation to all adverseeffects on the environment as are identified in the FeasibilityStudy. The Study will also provide an estimate of the cost ofsuch activities.”
Article 25.1 provides as follows:“The Company shall in relation to all matters connectedwith the Enterprise comply with the Mines and Minerals Act,No. 30 of 1992, the National Environmental Act, No. 47 of 1980(as amended by Environmental Act No. 56 of 1988, theMahaweli Authority of Sri Lanka Act, No. 23 of 1979, theRegulations made thereunder and all other Applicable Lawand generally prevailing standards for mining operations.Without in any way derogating from the effect of the abovementioned Applicable Law and mining standards, theCompany shall conduct all its operations under thisAgreement so as to minimize harm to the environment(including but not limited to minimizing pollution and harmfulemissions), to protect natural resources against unnecessarydamage, to dispose of waste in a manner consistent with goodwaste disposal practices, and in general to provide for thehealth and safety of its employees and the local community.The company shall be responsible for reasonable preservationof the natural environment within which the Companyoperates and for taking no acts without Government approvalwhich may block or limit the further development of theresources outside the mining and processing areas …”
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Learned counsel for the respondents submitted that untilthe feasibility study is done and the development plan isprepared, there is no way of finding out the location of the mineand method of mining and whether in terms of the projectanybody will be relocated. In terms of the agreement, afterthe preparation and submission of the feasibility study, ifthe Company decides to proceed with construction, it mustsubmit a development plan with its. application forconstruction to the Secretary, who may withhold approval forproceeding with the project.
In terms of Article 7.7, “if and only if the Secretarydetermines that implementation of the Development Plantogether with any modifications thereof which may be reflectedin the Company’s application to construct and operate: (a) willnot result in efficient development of the mineral resource, (b)is likely to result in disproportionately and unreasonablydamaging the surrounding Environment, (c) is likely tounreasonably limit the further development potential of themineral resources within the Mining Area, or (d) is likely tohave a material adverse effect on the socio-political stabilityin the area which is not offset by the potential benefits ofthe project or by mitigating measures incorporated into theDevelopment Plan. The decision shall not be unreasonablydelayed and, in light of significant expenditure of time, effortand money which will have been undertaken by the Company,approval shall be granted in the absence of significant andoverriding justification.'' The Article goes on to state that if theSecretary has any objections or suggestions, they should becommunicated to the Company, and in the event of anymutually acceptable resolution not being reached, theCompany may refer the matter to arbitration under Article XXas to whether the Secretary had “substantial cause forwithholding approval of the Feasibility Study Report,Development Plan and application to construct and operate,and if substantial cause is determined to have not existed, theSecretary shall promptly issue his (her) approval of suchReport, Plan and application . . (The emphasis is mine.)
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Learned counsel for the 5th and 7th respondents submittedthat if the Secretary wrongfully approved the feasibility study,it is “only at that stage, if at all” persons will be able to challengematters in Court. How would the petitioners know after theFeasibility Study or Development Plan that they are likely to beaffected, for in terms of Article 7.9, subject to the provisions ofArticle 5.5, the Feasibility Study and Development Plan are tobe treated as “confidential”. The Government may in termsof Article 5.5 disclose “date and information which theGovernment determines in good faith is necessary to discloseto third parties in order to protect the national interests ofSri Lanka”; but what is the guarantee that the Governmentwill release the Feasibility Study and Development Plan whenthey are available? The petitioners and other persons who maybe affected will probably be no better informed than they wereat the time of making this application. In my view, thepetitioners decided wisely in coming before the Court whenthey did. Moreover, who may seek judicial review if damage iscaused to a cultural monument or the cultural monument orcultural heritage landscape of Jaya-ganga? Further, in myview, the words emphasised are so vague as to confer apractically unlimited discretion on the Secretary. They are sobroadly framed so as to make judicial review very difficultindeed. In any event, what is the remedy available to anyone,if the Secretary’s decision is pursuant to an arbitral award?
Learned counsel for the respondents stated that, since theproposed agreement expressly provides for compliance by theCompany with Applicable Law, including the Mines andMinerals Act and the National Environmental Law and theregulations made thereunder, and since the Company will besubject to the “stringent” requirements of the licences issuedfor exploration and mining, the fears of the petitioners areunfounded and “conjectural". Section 30(1) of the Mines and'Minerals' Act states that no licence shall be issued to anyperson to explore for or mine any minerals upon, among otherplaces, “any land situated within such distance of a lake,stream or tank or bund within the meaning of the Crown Lands
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Ordinance (Chapter 454), as may be prescribed, without theapproval of the Minister and the Minister in charge of thesubject of Lands”; “any land situated within such distance ofa catchment area within the meaning of the Crown LandsOrdinance (Chapter 454) as may be prescribed without theapproval of the Minister and the Minister in charge of thesubject of Lands.” Section 31 of the Mines and Minerals Actprovides that no licence shall be issued- to any person toexplore for, or mine any mineral upon “(a) any land situatedwithin such distance of any ancient monument situated onState land or any protected monument, as is prescribed undersection 24 of the Antiquities Ordinance (Chapter 188); and (b)any land declared by the Archaeological Commissioner to bean archaeological reserve under section 33 of the saidOrdinance."
One wonders whether the provisions of the Mines andMinerals Act relating to lakes, streams and bunds andcatchment areas as defined by reference to the Crown LandsOrdinance sufficiently protect the water and soil conservationecosystem of the area affected by the proposed project. Noevidence was placed before, this Court as to whether any landin the exploration, mining, contract or project areas has beenprescribed under the law as being land within prescribeddistances from ancient monuments and what land has beendeclared to be an archaeological reserve. Moreover, noprovision exists for the preservation of a cultural heritagelandscape, like the Jaya Ganga, as distinguished froma monument, lest there be some dispute about the word‘monument’: No laws can expressly provide for all situations.However, the legislature has foreseen the need to provideagainst omissions and stated in section 30(2) as follows:
“In addition to any other condition that may be prescribedunder this Act, the Minister or the Ministers . . . may, ingranting approval for a licence under subsection (1), lay downsuch further conditions, as may be determined by such
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Minister or Ministers. Where approval is granted subject toany further conditions, the Bureau shall cause suchconditions to be specified in the licence.”
At the present time, when there has been no FeasibilityStudy and no Development Plan, and, moreover, when thereis no guarantee that such study and plan will ever be madeknow to them, how could the petitioners feel assured that theirindividual and collective rights will be protected? There may beconditions that may be prescribed under section 30(2) of theMines and Minerals Act to safeguard their interests and theinterests of the people of Sri Lanka, and indeed of humankind.But how is this possible without a proper evaluation ofthe project? A report from an “appropriately qualified”,“internationally recognized independent environmental firmselected by the Company and approved by the Government”,is of little or no use to the petitioners and concerned membersof the public, having regard to the provisions in the proposedagreement regarding “confidentiality.”
For the reasons set out above, I am of the view that thereis, within the meaning of the Constitution, an imminentinfringement of the petitioner's rights guaranteed by Article14(1 )(g) and (h) of the Constitution.
ALLEGED VIOLATION OF ARTICLE 12(1) OF THECONSTITUTION.The Chairman/Director General of the 2nd respondent ina letter dated March 30, 1998 (P.7) quotes the followingfrom the Executive Summary of the report of the President’sCommittee dated the 9th of May 1995: “any large-scale venturehas the potential to cause an adverse environmental impact,yet it could generate substantial revenue to the country. It isalso recommended that the rigorous EIA procedures laid downby the law be followed before any joint venture proposal isimplemented because of the possible environmental risksassociated with projects of this nature.”
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Learned counsel for the respondents submitted thatArticle XXV of the proposed agreement obliges the Company tocomply with the National Environmental Act No. 47 of 1980 asamended by Act, No. 56 of 1988 and the regulations madethereunder. In the circumstances, the Company is obliged tosubmit an Environmental Impact Assessment in terms ofPart IV C of the Act.
The proposed agreement makes no reference to thepreparation or submission of any Environmental ImpactAssessment as required by the National Environmental Actand the regulations made thereunder. What the proposedagreement does, as we have seen, is to provide for anenvironmental study to be prepared by an international firm,selected by the Company and approved by the Government, asa part of its Feasibility Study. (Article 7.6) “Feasibility Study”is defined in the proposed agreement as “a study to determinethe feasibility of commercially developing any deposit ordeposits identified by the Company during the ExplorationPeriod, including the items set forth in Annex “E”. Annex “E”states that the Feasibility Study shall include “Environmentalimpact and monitoring studies into the likely effects ofthe operations of the Enterprise on the Environment (suchstudies to be carried out in consultation with an appropriatelyqualified independent consultant and under the termsof reference set out in Article XXV of this Agreement.”(But cf. Article 7.6 where the study is to be “conducted byan internationally independent environmental consultingfirm . . .”)
Not surprisingly, therefore, although both the DeputySolicitor-General and learned counsel for the 5th and 7threspondents agreed that an Environmental ImpactAssessment was a requirement of the law, they were unable toagree when that assessment was to be made, and what itssignificance was in the context of the proposed agreement.
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Firstly, therefore, in terms of Principle 17 of the Rio DeJaneiro Declaration, there is no Governmental ImpactAssessment subject to “a decision of a competent nationalauthority", Nor is the approval of such an authority in termsof the National Environmental Act contemplated by theproposed agreement. What does exist in the proposedagreement is an assurance that the “Applicable Law",including the provisions of the National Environmental Act,will be complied with.
According to the Deputy Solicitor-General, the Company’sapplication to construct and operate the facility had to bemade “after obtaining the approval for the feasibility report,inclusive of the ELA, and the Development Plan …" He statedthat “In the event the Project Approving Agency refuses togrant approval for the project, the project company will haveto abandon the project subject to a right of appeal to theSecretary of the Ministry of Environment. Moreover, if theproject is approved after a hearing had been given to thepublic, the persons who are aggrieved will have an opportunityto come before the Court to have the decision quashed. Thereare instances where the public have invoked the jurisdictionof the Supreme Court and the Court of Appeal to suspenddevelopment projects such as the project pertaining to theSouthern Expressway and the Kotmale Power Project.”
According to learned counsel for the 5lh and 7threspondent, “in the first place, after the feasibility report isprepared and the development plan is prepared, this projectwill be submitted to the project approving agency, in this casethe Central Environmental Authority. The C.E.A., that is thestatutory authority, may or may not give its approval. If it doesnot give its approval, the matter ends there.” “The permissionand approval of the statutory authorities, including the CEA,is essential. If that is not obtained, the project comes to anend.” “If there is a threat to the environment or to the people,the Central Environmental Authority will not permit the
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project to go ahead. The C.E.A. is the statutory authorityvested by law to determine the matter.” “The CentralEnvironmental Authority can refuse to permit the project.That is final. ” If the Central Environmental Authority does giveits approval, the feasibility study, development plan and thereport of the international firm on environment, he said, issubmitted to the Secretary of the Ministry of Industries, whomay refuse it on the grounds specified, in the proposedagreement. “It is only after the feasibility study inclusive ofthe Development Plan (sic.) is approved by all the statutoryauthorities including the Central Environmental Authoritythat the next stage will commence. The next stage is theconstruction stage.” Referring to the Environment ImpactAssessment and the requirements under the NationalEnvironmental Act and the regulations framed thereunder,learned counsel for the 5th and 7th respondents gave theassurance that “all those steps will be followed after thefeasibility study is submitted to the C.E.A. . . . Therefore thepublic will have every right of protest after the feasibilitystudy report is submitted to the C.E.A.” As we shall see,the submissions of learned counsel on that matter were,having regard to the statutory requirements of the NationalEnvironmental Act and the regulations framed thereunder,seriously flawed.
Learned counsel for the 5th and 7th respondents inquiredwhether, after bringing in scientific and technical expertise notavailable in this country, and investing U.S. $ 15 million notavailable for investment by the Government, it was too muchfor the 5th respondent to pray that it be permitted to proceedwith the construction in the event of the statutory authoritiesgranting approval, and the Secretary accepting the FeasibilityReport and Development Plan. Learned counsel for the 5th and7th respondents said: “Equity, righteousness and fairplaydemands that the rights of all parties be equally protected; forall persons are equal before the law and such persons includethe 5th and 7th respondents.”
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The petitioners’ state that their rights of equal protectionunder the law are in imminent danger of being infringed.
Learned counsel for the 5th and 7th respondents, on theother hand, submitted that the Court should not intervene “atthis stage”, for “the proceeding of the project”, meaningprobably the signing of the proposed Agreement, "will onlyresult in (a) exploration, (b) feasibility study.” He stated that“the only comfort (sic.) the 5th and 7th respondents needs andthe only comfort (sic.) the 5th respondent gets from thisAgreement is that after the exploration and feasibility study isdone, and if (a) the statutory authorities grant permission;(b) the Secretary accepts the feasibility report, that the 5threspondent will be permitted to mine subject to the terms andconditions of the Agreement and that they be permitted tomine as set out in the feasibility report subject to the approvalof the Statutory Authority.”
The proposed agreement is so framed that it generouslystrengthens, assists, supports, aids and abets the Company’sdesigns in respect of all of the matters referred to in theanalysis of learned counsel in dealing with the various stagesof the project. Article 17.31 have quoted above is one example.There are others. E.g. see Articles 2(2)(b)(i) and (iii) and (iv) and(v), 6(f), 6(g), 6(h); 2.4; 2.5; 2.21; 3.2; 3.4(a) and (b); 6.1; 7.1;7.8; 8.2; 9.3; 9.4; 9.7; 16.5; 16.6; 17.1; 17.6; 27.7. Once theproposed agreement is signed and converted into a formal,binding contract, there is little else the Government can doexcept, under Article 20.1 to resort to arbitration. And therewill be much less the petitioners, or for that matter any oneelse, who may be adversely affected, will be able to do. TheDeputy Solicitor-General submitted that persons who areaggrieved will have an opportunity to come before the Court.There may be legal rights on paper; but how many individualpeople, including the petitioners, if and when they areadversely affected by the proposed project will be able toafford the luxury of litigation? If they are in fact adversely
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affected what are the chances that they will be adequatelycompensated? The liabilities will not be those of the multi-national giant whose standing in the world’s fertilizer businessscene it is said was a decisive factor in their selection (see P.4at P.2 and also Cf. at P.5), but of Sarabhumi Resources(Private) Ltd. – a locally incorporated limited liability Companywhich presently has an issued share capital of onlyRs. 58,000/-.
Moreover, learned counsel for the petitioners drewattention to the inadequacy of the protection afforded byArticles 25.1 and 25.3 of the proposed agreement with regardto the repair of environmental damage. The petitioners did notshare the belief expressed by the first respondent in hisaffidavit on the adequacy of the safeguards by way ofthe proposed Environmental Compliance Bond andEnvironmental Restoration Escrow Account and theundertakings given with regard to environmental complianceand restoration. It seems to me that the provisions in theproposed agreement on the matter are the product of outdatedmainstream economic thought: They appear to be based onthe views of persons who at best nominally recognize theenvironment or have considerable difficulty in placing a ‘value’on it. Today, environmental protection, in the light ofthe generally recognized “polluter pays” principle (e.g. seePrinciple 16 of the Rio Declaration), can no longer be permittedto be externalized by economists merely because they findit too insignificant or too difficult to include it as a costassociated with human activity. The costs of environmentaldamage should, in my view, be borne by the party that causessuch harm, rather than being allowed to fall on the generalcommunity to be paid through reduced environmental qualityor increased taxation in order to mitigate the environmentallydegrading effects of a project. This is a matter the CentralEnvironmental Authority must take into account in evaluatingthe proposed project and in prescribing terms and conditions.
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The signing of the proposed agreement may. in thecircumstances, please, and even delight the Company, butthere is justification for examining the project as a whole atthis stage in deciding whether those dangers referred to by thepetitioners might be permitted to hang threateningly over theirheads and ready to overcome them in the event of the signingof the proposed agreement and the execution of the project.
Fairness to all, including the petitioners and the people ofSri Lanka as well as the 5lh and 7th respondents, rather thanthe Company’s “comfort”, should be our lodestar in doingjustice.
In terms of Part (I) (6) of the Order of the Minister on the 18“?of June 1993 made under section 23 Z of the NationalEnvironmental Act (vide Gazette Extraordinary of 24. 06.1993), the proposed project, since it related to mining andmineral extraction either concerned with inland deep miningand mineral extraction involving a depth exceeding 25 metresand/or inland surface mining of a cumulative area exceedingten hectares, is a “prescribed project” within the meaning ofsection 23 Z of the National Environmental Act. As such, interms of section 23 AA of the National Environmental Act. it isa project that must have had the approval of a projectapproving agency.
Project approving agencies were, on the 18th of June, 1993(Gazette Elxtraordinary, 24. 06. 1993) under powers vestedin him, designated by the Minister under section 23 Y of theNational Environmental Act, and includes the CentralEnvironmental Authority. Learned counsel for the petitioners,for stated reasons, urged that the Project Approving Agency inrespect of the project relating to the case before us ought to bethe Central Environmental Authority. Learned counsel for the5th and 7th respondents in his oral submissions, and manytimes in his written submissions, stated or implied thatthe relevant project approving agency was the Central
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Environmental Agency. However, at one place he submittedthat the preparation of the TOR [Terms of Reference),co-ordination and all activities would be undertaken by theC.E.A. acting with (sic.) the PAA.’’ According to the minutes ofa meeting held on the 22nd of January 1998, submitted bylearned counsel for the 5th and 7th respondents,
“During the discussion, it was emphasised that as thisis the single largest investment which covers mining,transportation and manufacturing of phosphate fertilizerconsisting of by-products, it is difficult to process this projectas required under the ELA regulation by one single ProjectApproving Agency (PAA). Therefore it was suggested thatthe preparation of TOR [Terms of Reference] and co-ordinationof all activities would be undertaken by the G.E.A. actingas the PAA. Assessment of the ELAR under main subsectionsof the project, i.e., mining, transportation and industrywould be carried out simultaneously by GS & MB, Ministryin Charge of Transport and the CEA respectively. Thismechanism would be drawn up at the next meeting of theconcerned agencies."
This Court has no evidence as to what happened at “thenext meeting", if there was such a meeting. I shall, for thepurposes of this judgment assume that the decision to makethe CEA the project approving agency stands. But in additionto the tentative decision on the modalities of cooperationbetween concerned agencies and the Centred EnvironmentalAuthority acting as the Project Approving Agency, according tothe minutes, it was also decided as follows at that meeting:
“As the exploration area falls within the jurisdiction ofvarious government agencies, it was suggested that theseagencies too would wish to incorporate additional conditionsif any to the exploration licence. Director/GS & MB agreed toconvene a further meeting with officials of the FD, DWLC,MASL, BOI, and CEA for this purpose."
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It was stated at the meeting that “a project proposaland an exploration plan have been prepared by the projectproponent. Hence Mr. Udaya Boralessa was requested tosubmit 10 copies of the proposal and 05 copies of theexploration plan to the CEA, for distribution among concernedagencies.” Were the copies received and distributed? Werethere any responses? This Court does not know, for noevidence was placed before it on those matters.
That meeting, I might observe, in passing, was attendedby the representatives of several government ministries,departments and agencies, and by Mr. S. Usikoshi and byMr. Udaya Boralessa. According to the evidence on record.Mr. Usikoshi was the General Manager of Tomen Corporationwhich holds 25% of the shares in the project company andMr. Udaya Boralessa was the Managing Director of Novel Int.and represented IMC – Agrico. Which holds an initial equityof 65% in the 5th respondent. He is a Director of the 7threspondent.
According to the minutes of the meeting submittedby learned counsel for the 5lh and 7th respondents, themeeting was chaired by the Director-General of theCentral Environmental Authority who is supposed to havestated “the objectives of the meeting”. Why was the meetingheld? Was there an application for the approval of the project?On what date was such application made? If an applicationfor the approval of the project was made to the CEA or toany other project approving agency, why was no referencewhatsoever made either in the pleadings or oral or writtensubmissions of counsel for the respondents? Why as statedin the minutes of the meeting, was Mr. Boralessa “invited . . .to make a presentation on the proposed project forthe information of participants,” if there was no projectproposal before the Central Environmental Authority atthe time?
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In terms of the National Environmental (Procedure forapproval of projects) Regulations No. 1 of 1993 (GovernmentGazette Extraordinary of the 24th of June 1993), hereinafterreferred to as the “NEA regulations”, when the projectproponent had the goal of undertaking the mining project atEppawela and was actively preparing to make a decision inachieving that goal (see the definition of “project” in theNEA regulations), such proponent should have made anapplication to the Central Environmental Authority (CEA) forapproval of the project as early as possible. The projectproponent might then have been required to submit to the CEApreliminary information about the project, including adescription of the nature, scope and location of the proposedproject accompanied by location maps and other details,(see the definition of “preliminary information” in the NEAregulations). Such preliminary information would then havebeen subjected to “environmental scoping”, that is, amongother things, determining the range and scope of proposedactions, alternatives and impacts to be discussed in an InitialEnvironmental Examination Report or Environmental ImpactAssessment. (See the definition of “environmental scoping” inthe NEA regulations). A matter of significance is that in theprocess of ‘scoping’ a project approving agency, such as theCentral Environmental Authority, is by law empowered to“ take into consideration the views of state agencies and thepublic.” (NEA regulation 6(ii)). Having regard to the concernsexpressed from time to time, the Central EnvironmentalAuthority might have exposed themselves to a charge of beingremiss in the duties of a project approving agency had theyfailed to invite and consider the views of the public. Thepurpose of all this was to set the Terms of Reference (TOR)either for an initial environmental examination report or anenvironmental impact assessment (ELA). With regard to theprocedures to be followed in case the approval or rejection ofa project based upon an initial environmental examinationreport, attention is drawn to section 23 of the NationalEnvironmental Act read with regulations 6-9 framedthereunder.
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The Central Environmental Authority was the 4threspondent in this case and was represented by learnedcounsel. However, no affidavits were filed by the 4,hrespondent nor were any oral or written submissions made onbehalf of the 4th respondent. The Central EnvironmentalAuthority, the fourth respondent, should nevertheless incarrying out its duties imposed under the order made in thisjudgment, have due regard to and give effect to the law.including the principles laid down or acknowledged by theSupreme Court in the matter before this Court.
It was assumed by all the other respondents and thepetitioners that what would be required by the 4,h respondentfor the purpose of considering whether the proposed projectshould be approved or not was an Environmental ImpactAssessment, and that if an application had been made to theCentral Environmental Authority for approval of the project,that Authority would in all probability, after the process of‘scoping’ referred to above, which might, as we have seen,included taking account of the views of state agencies and thepublic, have called for an Environmental Impact Assessmentfrom the project proponent on the basis of the Tennsof Reference determined by the Central EnvironmentalAuthority.
Attention is drawn, particularly that of the CentralEnvironmental Authority, the fourth respondent, to Principle17 of the Rio De Janeiro Declaration which stated as follows:"Environmental impact assessment, as a national instrument,shall be undertaken for proposed activities that are likely tohave a significant adverse impact on the environment and aresubject to a decision of a competent national authority."This is an important procedural rule designed to facilitatethe preventive (Principles 6 and 7 of Stock holm) andprecautionary (Principle 15 of Rio) principle alreadymentioned above. I should like to remind the personsconcerned, especially the Central Environmental Authority,that an environmental impact assessment exercise can
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identify the potential threats of a proposed activity or project,and that this information can then be used to modify theproposed activity in order to take these threats into account.Remedied measures can also be introduced in order to mitigateor reduce any perceived detrimental impacts of the project.In this sense, therefore, an environmental Act can beinstrumental in establishing exactly which areas of theproposed project, or activity require. precautionary orpreventive measures in order to ensure the overallenvironmental viability of the project.
Where the Central Environmental Authority has requiredan Environmental Impact Assessment, the law requires suchAuthority to determine whether the matters referred to by theTerms of Reference have been addressed by the projectproponent, and if the assessment is determined to beinadequate, the Central Environmental Authority is obliged torequire the proj ect proponent to make necessary amendmentsand to re-submit the assessment. Upon receipt of the reportrelating to the assessment, the Central EnvironmentalAuthority is required by law by “prompt notice published in theGazette and in one national newspaper published daily in theSinhala, Tamil and English Languages” to “invite the public tomake written comments, if any, thereon to the CentralEnvironmental Authority." The law requires that suchnotification “shall specify the times and places at which thelassessmentj report shall be made available for publicinspection.” The Central Environmental Authority is requiredby law to make available copies to any person interested toenable him or her to make copies. The law provides that anymember of the public may within thirty days of the notificationpublished in the Gazette or newspapers referred to above, makehis (sic.) comments thereon to the Central EnvironmentalAuthority. Since section 23 BB (3) refers to making “his or itscomments”, having regard to the objects and scheme of theNational Environmental Act, comments, for the purposes ofsection 23 BB of the National Environmental Act, in my view,includes comments from statutory or other legal persons, as
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well as other organizations, whether incorporated or not andregardless of questions of legal personality, and by anyindividual, regardless of gender.
I might observe, in passing, that it is time, indeed it is hightime, that the laws of this country be stated in gender-neutralterms and that laws formulated in discriminatory termsshould not be allowed to exist, although protected for the timebeing as “existing law” within the meaning of Article 16 of theConstitution. The argument advanced that the provision in thelaw relating to the interpretation of statutes that “his" includes“her” is clearly insufficient: it displays, in my consideredopinion, a gross ignorance or callous disregard of such amatter of fundamental importance as the fact that there aretwo species of humans.
Where it considers appropriate in the public interest, andin the circumstances of this case, I cannot think that theCentral Environmental Authority, having regard to what hasbeen stated above, would really have had any real choice in thematter, the Authority is by law obliged to afford all those whomade comments an opportunity to be heard in support of suchcomments. The Central Environmental Authority is legallyobliged to have regard to such comments, submissions andany other materials, if any, elicited at a hearing in determiningwhether to grant its approval for the project. Upon completionof the period prescribed by law for public inspection or publichearing, if held, the Central Environmental Authority is,(having regard to the provisions of section 23 BB, regulation 12of the NEA regulations and the audi alteram partem rule – hearthe other side) required by law to forward the comments itreceived and the representations made at any hearing to theproject proponent for responses. The project proponent isrequired to respond in writing to the Central EnvironmentalAuthority. Upon receipt of such responses, the CentralEnvironmental Authority is by law required, either to grantapproval for the implementation of the project, subject tospecified conditions, if any, or to refuse approval for the
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implementation of the project, with reasons for doing so.If approval is granted, the law requires the CentralEnvironmental Authority to publish in the Government Gazetteand in one national newspaper published daily in the Sinhala,Tamil and English Languages the approval as determined.Further, if approval is granted, there must be a plan ofthe Central Environmental Authority to monitor theimplementation of the project. (See section 23 BB of theNational Environmental Act and the NEA regulations 10-13.)Where the National Environmental Authority in its role as theproject approving agency refuses to grant approval for aproject submitted to.it, the person or body of persons aggrievedhave a right of appeal against such decision to the Secretaryto the Ministry responsible for the administration of theNational Environmental Act and the National EnvironmentalAuthority created under it.
There are also other project approving agenciesdesignated by the Minister, but the National EnvironmentalAuthority is, the final authority in respect of environmentalmatters. See also NEA regulations 6. (ii), 13, 14, 17(ii)and 18).
As we have seen, learned counsel for the respondentswere all, in my view, correctly, agreed that if the CentralEnvironmental Authority refuses to approve the project, thatis an end of the matter, subject, of course, to the right ofappeal.
These salutary provisions of the law have not beenobserved. In terms of the proposed agreement, although thereis an undertaking to comply with the laws of the country,which in my view, is an unnecessary undertaking, for everyperson, natural or corporate must in our society which isgoverned by the rule of law, comply with the laws of therepublic, yhat is attempted to be done is to contract out of theobligation to comply with the law. The Articles of the proposedagreement dealing with matters concerning environmentalissues, read with the provision on confidentiality, in my view,
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attempt to quell, appease, abate, or even, under the guise of abinding contract, to legally put down or extinguish, publicprotests. Learned counsel for the 5th and 7th respondentsstated that Sri Lanka “does not possess the scientific knowl-edge or the technical know-how or the finances to develop thisnatural reserve.” I cannot accept the assertion that. Sri Lankadoes not have scientists who can guide the countiy. Picking on“yes” persons, or persons who might be suspected to be so, asin terms of Article 7.6 of the proposed agreement, is anothermatter, and that is why conforming to the law. as laid down bythe National Environmental Act and the regulations framedthereunder is of paramount importance. As for funding, thatwould no doubt depend on the nature of the project to beundertaken and the identification of sources of assistanceappropriate for the chosen level of operation. Quite differentconsiderations will apply if the decision after due investigationand debate will be to produce a quantity of single superphosphate for local use rather than producing Diammoniumphosphate for export.
If the genuine intention was, as claimed by therespondents, to comply with the requirements of the law, itwas, in my view, unnecessary to refer in the proposedagreement to a study relating to environmental matters as apart of its feasibility report. The law is clearly laid down inthe National Environmental Act and the regulations framedthereunder. What was being attempted by the proposedagreement was to substitute a procedure for that laid down bythe law. It was assumed that by a contractual arrangementbetween the executive branch of the government and theCompany, the laws of the country could be avoided. That is anobviously erroneous assumption, for no organ of Government,no person whomsoever, is above the law.
In his letter to Mr. Sarath Fernando dated March 3, 1998(P7), Mr. Thilan Wijesinghe, the Director/Chairman of the 2"'1respondent, who was also a member of the Committeeappointed by the President in 1997 to conduct the final round
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of negotiations, stated that “The Mineral InvestmentAgreement initialled by the FMRP and the Governmentincorporates most of the recommendations of’ the President’sCommittee which reported on the 9th of May 1995. The reportof the Committee of the President on the 9th of May 1995 wasnot submitted to this Court. We can only go by Mr. Wijesinghe’saccount of the 1995 recommendations. And going by theaccount there was failure to incorporate-some of the mostimportant recommendations of the Committee reporting onMay 9th 1995, e.g. the need for a comprehensive geologicalevaluation and adherence to the rigorous EIA procedures.I am not for a moment suggesting that either Mr. Wijesingheor any member of the final negotiating Committee appointedby the President acted except in good faith. It might have beensupposed that so long as the geological survey fitted into theexploration process and the environmental studies proposedin the draft agreement formed a part of the Feasibility Study,all was well. It was not. Learned counsel for the 5th and7lh respondents said that the final round of negotiations andwho examined the proposals were “the most responsible andhighest ranking officers of the country.” I accept learnedcounsel’s estimation without any hesitation, but I amconstrained in the words of Horace to say, lndignor quandoquebonus dormitatHomerus – But if Homer, usually good, nods fora moment, I think it a shame.
In its “Guide for Implementing the EIA Process, No. 1 of1998 (P.20), issued by the Central Environmental Authority,it is stated as follows: “The purposes of environmental impactassessment (EIA) are to ensure that developmental optionsunder consideration are environmentally sound andsustainable and that environmental consequences arerecognized and taken into account early in project design. ELAsare intended to foster sound decision making, not togenerate paperwork. The EIA process should also help publicofficials make decisions that are based on understandingenvironmental consequences and take actions that protect,restore and enhance the environment.”
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The proposed agreement plainly seeks to circumventthe provisions of the National Environmental Act and theregulations framed thereunder. There is no way under theproposed agreement to ensure a consideration of developmentoptions that were environmentally sound and sustainable atan early stage in fairness both to the project proponent and thepublic. Moreover, the safeguards ensured by the NationalEnvironmental Act and the regulations framed thereunderwith regard to publicity have been virtually negated, by theprovision in the proposed agreement regarding confidentialityI would reiterate what was said by this Court In Gunarabxe v.Homagama Pradeshiya Sabha, (1998) namely, that publicity,transparency and fairness are essential if the goal ofsustainable development is to be achieved.
Access to information on environmental issues is ofparamount importance. The provision of public access toenvironmental information has, for instance, been a declaredaim of the European Commission’s Environmental policy for anumber of years. Principle 10 of the Rio Declaration calls forbetter citizen participation in environmental decision-makingand rights of access to environmental information, for they canhelp to ensure greater compliance by States of internationalenvironmental standards through the accountability of theirgovernments. Principle 10 states as follows: “Environmentalissues are best handled with the participation of all concernedcitizens, at the relevant level. At the national level, eachindividual shall have appropriate access to informationconcerning the environment that is held by public authorities,and the opportunity to participate in decision-makingprocesses. States shall facilitate and encourage publicawareness and participation by making information widelyavailable. Effective access to judicial and administrativeproceedings, including redress and remedy, shall beprovided.”
In the matter before this Court, the proposed agreementmakes no mention of an environmental impact assessment in
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terms of the National Environmental Act. The respondentsstated that under its undertaking in the proposed agreementto comply with the applicable laws, it would have submitted anenvironmental impact assessment, in due course, if it hadbeen required to do so. In fact, learned counsel for the 5th and7th respondents gave an undertaking that it would providesuch an assessment. However, the law, for good reasons, as Ihave endeavoured to explain, requires the prescribedprocedures to be followed. The times prescribed are .vital.Project proponents cannot decide when, if ever they willcomply with the law. There are many things that have to bedone at the very earliest of stages for very good reasons. Thereis also a prescribed time if and when an environmental impactassessment has to be done. The parties to the proposedagreement attempted to substitute an extraordinaryprocedure for the proposed project. Such a procedurecontravened the provisions of the National Environmental Act,and the regulations made thereunder and the guidelinesprescribed by the National Environmental Authority. Thereby,reinforced by the confidentiality provisions of the proposedagreement, the proposed agreement effectively excludedpublic awareness and participation, as contemplated by ourlegislature as well as by Principle 10'of the Rio Declaration. Theproposed agreement ignores the Central EnvironmentalAuthority as the project approving agency, although it wasadmitted by the petitioners and the respondents that theCentred Environmental Authority in this matter was the projectapproving agency, and substitutes in its place the Secretary tothe Minister to whom the subject of minerals and mines isassigned for the purpose of approving the environmental studycontemplated by the proposed agreement. Such Secretary isnot a project approving agency in terms of the NationalEnvironmental Act: Nor is he or she therefore a “nationalauthority” within the meaning of Principle 17 of the RioDeclaration. A ‘national authority’ is an authority recognizedby the law of a concerned State. In any event, having regard tothe undertaking given in Article 27.7 (b) that “The Governmentshall render all reasonable assistance to the Company to
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obtain all approvals, consents, grants, licences and otherconcessions as may be reasonably be required from anyGovernment Authority", what comfort may the petitionersderive? They are, in view, entitled to be apprehensive that evenif there was an environmental impact assessment submittedto the Central Environmental Authority, such authority maynot have been able to act impartially and independently. Ofwhat use are biased decisions or decisions, reasonablysuspected to have been made under pressure? Further,although the law of Sri Lanka provides for the judicial reviewof the acts of administrative authorities, and Principle 10 ofthe Rio Declaration calls for effective access to judicial andadministrative proceedings, the proposed agreementsubstitutes arbitration for such proceedings, in which ofcourse, the public have no rale
For the reasons given, in my view, the proposed agreementseeks to circumvent the law and in its implementation isbiased in favour of the Company as against the members of thepublic, including the petitioners. I am therefore of the view thatthe petitioners are entitled to claim that there is an imminentinfringement of their fundamental rights under Article 12(1) ofthe Constitution.
OVERALL ECONOMIC BENEFITSThe respondents submitted that the proposed agreementif implemented would be highly beneficial to Sri Lanka andthat “when one balances the purported complaints as arecontained in the petition against the overall benefit that wouldaccrue to Sri Lanka, the petitioners’ application cannotsucceed in law.”
The Director- of the 5th respondent, Mr. Garry L. Pigg. andthe Director of the 7th respondent, Mr. U.I. De S. Boralessa,state in their affidavits that the proposed project would resultin economic benefits to Sri Lanka which they specify. Thereport of the Committee appointed by the President (P.4) listsnumerous financial benefits.
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Learned counsel for the petitioners, however, submittedthat the Eppawela project governed by the proposedagreement will not only be an environmental disaster but aneconomic disaster as well. They relied on the analysis of thesocial and economic considerations by Prof. V. K. Samaranayake(P. 10)(a); the comments of Prof. Tissa Vitarana (P.9); thecomments of Prof. O.A. Illeperuma (P. 11); the report of theNational Academy of Sciences (P. 10); the report of the NationalScience Foundation (P.12); and the financial analysis byPremila Canagaratna (P.17).
A study of the material submitted by the petitioners showsthat the question of benefits is a highly controversial matter,but one that must be gone into, for our democratic republicsets great store by the discovery of truth in matters of publicimportance in the market place of ideas by vigorous anduninhibited public debate. In the debate, perhaps, we need toconsider whether income and economic growth on whichthe respondents lay great emphasis, are the sole criteria formeasuring human welfare. David Korten, the Founder •President of the People-Centred Development Forum, onceobserved:
“The capitalist economy” [as distinguished from AdamSmith’s concept of a market economy) “has a potentially fatalignorance of two subjects. One is the nature of money. Theother is the nature of life. This ignorance leads us to trade awaylife for money, which is a bad bargain indeed. The real natureof money is obscured by the vocabulary of finance, which isdoublespeak. .. We use the terms “money”, “capital”, “assets"and “wealth” interchangeably – leaving no simple means todifferentiate money from real wealth. Money is a number. Realwealth is food, fertile land, buildings or other things thatsustain us. Lacking language to see this difference, we acceptthe speculator’s claim to “create wealth”, when theyexpropriate it . . . Squandering real wealth in the pursuit ofnumbers is ignorance of the worst kind. The potentially fatalkind.”
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It is unnecessary for the purposes of the task in hand toenter into the matter of the alleged beneficial nature of theproposed agreement: The petitioners case is that there isan imminent infringement of their fundamental rightsguaranteed by Articles 12(1), 14(l)(g) and 14(l)(h). I havestated my reasons for upholding their complaints. The“balancing” exercise referred to by learned counsel has beenalready done for us and the Constitution sets out thecircumstances when any derogations and restrictions arepermissible. Article 15(7) of the fundamental rights declaredand recognized by Articles 12 and 14 are “subject to suchrestrictions as may be prescribed by law”, among other things,for “meeting the just requirements of the general welfare of ademocratic society.” In the light of the available evidence, 1 amnot convinced that the proposed project is necessary to meetsuch requirements. In any event, the circumstances leading tothe imminent infringements have not been, “prescribed bylaw” but arise out of a mere proposed contract, and thereforedo not deserve to be even considered as permissible.
ORDERFor the reasons set out in my judgment, I declare thatan imminent infringement of the fundamental rights of thepetitioners guaranteed by Articles 12(1), 14(l)(g) and 14(l)(h)has been established.
There is no assurance of infallibility in what may be done;but in the national interest, every effort ought to be made tominimize guesswork and reduce margins of error. Havingregard to the evidence adduced and the submissions oflearned counsel for the petitioners and respondents, in termsof Article 126(4) of the Constitution, I direct the respondentsto desist from entering into any contract relating to theEppawela phosphate deposit up to the time,
(1) a comprehensive exploration and study relating to the (a)
locations, (b) quantity, moving inferred reserves into the
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proven category, and (c) quality of apatite and otherphosphate minerals in Sri Lanka is made by the thirdrespondent, the Geological Survey and Mines Bureau, inconsultation with The National Academy of Sciences of SriLanka and the National Science Foundation, and theresults of such exploration and study are published; and
(2) any project proponent whomsoever obtains the approvalof the Central Environmental Authority according to law,including the decisions of the superior Courts of record ofSri Lanka.
I make further order that (Z) State shall pay each ofthe petitioners a sum of Rs. 25,000 as costs; (2) the fifthrespondent shall pay each of the petitioners a sum of 12,500as costs; (3) the seventh respondent shall pay each of thepetitioners Rs. 12,500 as costs.
WADUGODAPITIYA, J, – I agree.
GUNASEKERA, J.- I agree.
Relief Granted.