032-SLLR-SLLR-2009-V-1-WATTE-GEDERA-WIJEBANDA-vs.-CONSERVATOR-GENERAL-OF-FORESTS-AND-OTHERS.pdf

Watte Gedera Wijebanda Vs. Conservator General Of Forests And.'Others
SC(Shiranee Tilakawardane, J.)351
Respondent on 12.12.2002 for the lease of 10 hectares ofland in Pollaththawa, for reforestation of the land with Teak,Halmilla and Khomba etc., after extracting the Silica Quartz.The application for the 10 hectares of land mentioned in6R9a/ 1R3 is marked as 6R9b.
It is apparent even on a rudimentary reading of theapplication marked as 1R2 (for 50 hectares dated 20.12.2000)and the application marked as 6R9b (for. 10 hectaresdated 12.12.2002), that they both pertain clearly to a schemeof reforestation and cultivation and not to the commercialexploitation of the concerned land through the mining ofsilica quartz. The concomitant question that arises is as towhy the 6th Respondent was not required to comply with thenormal procedure of tendering a straightforward applicationfor mining, in the same format as PI. This lends credenceto the allegation by the Petitioner that the 6th Respondentwas given favorable and privileged treatment by the Is*Respondent in contravention of set and established proce-dures for the grant of mining permits.
A further point which militates against the bona fides ofthe 1st Respondent is the incontrovertible evidence of theproject report marked as 1R4 which relates solely to thereforestation of 10 hectares of land in Pollathawa. A singlesentence in paragraph 3 of the Report refers almost sur-reptitiously to the fact the “it is intended to plant this landin stages after the extraction of quartz in each block”. Theapplication was clearly intended to be for reforestation. Thissame document annexed by the 6th Respondent as 6R9d wasreferred to by him as an “amended project report for refores-tation” of land submitted on 12.12.2002.
Further the 6th Respondent has stated in paragraph 18of objections dated 04.06.2004, that while several meetingswere held regarding the allocation of land for the reforestationprogram, it was only at a meeting held on 26.05.2003 in discus-sions with the 1st Respondent that it was “suggested” by the 6th
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Respondent that there might be a possibility of “negotiating"with the four parties who had signed the agreement for refor-estation, to permit extraction of quartz prior to reforestation.If this suggestion came up only at a meeting held on 26th May2003, the 1st Respondent could not have conceivably consid-ered either 6R9b dated 12.12.2002 or 1R2 dated 20.12.2000as applications for a mining permit to extract white Silicaquartz.
The 1st Respondent has also tendered 1R2 as theapplication for the reforestation project 1R4. It is to be notedthat the application 1R2 was for 50 hectares and dated20.12.2000. 1R2 was also produced by the 6th Respondent as6R7b.The project report 1R4 was filed by the Is* Respondentas the project report relating to the application for reforesta-tion lR2/6R7b relates however only to 10 hectares which wasthe project report relating to a subsequent application madeby the 6th Respondent dated 12.12.2002 marked as 6R9b.The project report relating to the application for reforesta-tion marked as 1R2, which was for 50 hectares has not beenproduced by the 1st Respondent, but has been produced bythe 6th Respondent as 6R7c.
It is significant that while the application for refores-tation produced by the 1st Respondent as 1R2 was for 50hectares, the project report annexed by him relates only tothe amended project for 10 hectares and therefore clearly didnot relate to the application 1R2. The 1st Respondent haserroneously tendered a project for 10 hectares lR4/6R9d. Hehas not tendered the project report for the 50 hectares, whichwas however produced by the 6th Respondent and markedas 6R7c.
Accordingly, the 6th Respondent’s position contradictsthe position taken up by the 1st Respondent. In any event,it is clear that the 6th Respondent has not submitted anapplication for mining in the form set out in PI. The questionthen arises as to how a mining license was ever granted to the
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6th Respondent without a valid application, in the establishedformat, ever being made; especially as the 6th Respondenthimself adverts only to an application for reforestation.
In terms of Section 26 (1) of the National EnvironmentalAct No. 47 of 1980, the Central Environmental Authoritycould by order delegate any of its powers, duties andfunctions under this Act to any Government Departmentor any Local Authority. Therefore, the powers, duties andfunctions under the Act, which were conferred on the CentralEnvironmental Authority, could be delegated. Accordingly,it appears that the Dambulla Pradeshiya Sabhawa wasdelegated with powers and functions under this Act. ThereafterSection 26 (1) of the Principle Enactment has been amendedby Section 9 of the National Environmental AmendmentAct No. 56 of 1988, permitting delegation of the powers andfunctions of the Central Environmental Authority to anyGovernment Department, corporation, Statutory Board,Local Authority or any public officer.
It is also relevant to refer to Section 23(Y) falling withinpart IV(c) of the National Environmental (Amendment) ActNo. 56 of 1988. This section permits the Minister by anorder published in the gazette to specify the state agencies,which shall be the “project approving agency”. Section 11 ofthe Amended Act also repeals the powers of the Minister tomake regulations (Section 32 (1) of the Parent Act) in respectof all matters, which are stated or required by the Act forwhich regulations were required. Though such was repealed,the Minister was now empowered with even wider powersto make regulations in respect of all matters which wererequired by the Act to be prescribed or for which regulationswere required by the said Act.
It is important to note that in accordance with Section 23(Y) of the National Environmental Act No. 56 of 1988 an orderwas published in the gazette specifying the Central Environ-
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mental Authority and the Geological Surveys Mining Bureauas the Project Approving Agencies [marked as R4]
In terms of Section 9 of the National EnvironmentalAmendment Act No. 56 of 1988, the Chairman of thePredeshiya Sabhawa was vested with the powers to issue anenvironmental license.
The 8th Respondent has admitted that in terms of •section 26 of the National Environmental Act No. 47 of 1980as amended by Acts No. 56 of 1988 and No. 53 of 2000 hehas been delegated with the authority to issue licenses underthe National Environmental Act to the industries listed in theGazette Notification No. 1159/22 dated 22.11.2000 markedas 8R2, and in terms of the letter of authority produced byhim and marked as 8R1.
It is also relevant to note at this stage that the 1stRespondent has stated in paragraph 10 of his affidavit thatthe authority to grant approval to commence excavationof land is vested in the Forest Department and not theDivisional Secretary.
The next matter that comes up for analysis by this Courtis the relevance of the Field Inspector’s Report tendered bythe Central Environmental Authority on 24.11.2005. A clearfinding has been made that the quarry is situated within 75meters of the Digiriya Polaththawa road. It has also beenstated that this area is a reserved forest and specific find-ing have been made that the teak forest that once existedhas been destroyed to facilitate the illegal mining activities.
A finding has also been made that more than 2 acres of landhad been mined.
It is pertinent to note that under the Fauna and FloraProtection Ordinance No. 02 of 1937, a Minister may declarea specified area of land to be a national reserve. It is not in
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dispute that the Girithale Minneriya National Reserve has beendeclared as a national reserve under Section 2 of the Fauna& Flora Protection Ordinance, as it was found in the Gazettemarked R7 bearing No. 492/32 dated 12.02.1988. The Fieldinspectors Report adverted to above states that the mine waslocated within one mile of the Girithale Minneriya NationalReserve. Given the situation of this mine, there should havebeen an initial environmental examination or environmentalimpact assessment conducted prior to the granting of themining license. Even presently, the Field Inspector does notrecommend any mining activity without such examinations.
The findings of the Field Inspection Report are signifi-cantly corroborated by the actions of the Forest Officer whenshe sent PI 1. It appears that the 2nd Respondent rejected theapplication of the Petitioner based on the grounds laid outin the report Pll, which are in conformity with the findingsof the Field Inspection Report submitted to court. Under thecircumstances it is inexplicable, arbitrary and capriciousthat this report Pll and the grounds contained therein havebeen circumvented in order to accommodate and grant min-ing rights over the same site, to the 6th Respondent. In thiscontext, a comparison of the document 6R11 produced by the6th Respondent with the document Pll, ex-facie shows thecapricious and arbitrary manner in which the recommenda-tions of the forest officer, have been granted.
The 4th Respondent is also implicated in this transactiondue to the granting of twin licenses covering the same areaof land. As the license 6R13 is a license given for the sameperiod as 8R8 it is apparent that the 4th Respondent hasissued two licenses for the same period and thereby givenpermission for an extent of more than one acre to be minedwhich was in violation of the explicit conditions given by theForest Department in the document 8R7, which was for an
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area of one acre only. This action by the 4th Respondent isboth capricious and arbitrary.
It appears that several meetings have been held betweenthe 6th Respondent and the Board of Investment of Sri Lanka.I find it unnecessary and undesirable that the Board ofInvestment interferes in any manner whatsoever with thefunctioning of public officers who regulate and implementprocedures and mechanisms for environmental protection inSri Lanka.
The right of all persons to the useful and proper useof the environment and the conservation thereof has beenrecognized universally and also under the national laws ofSri Lanka. While environmental rights are not specificallyalluded to under the fundamental rights chapter of theConstitution, the right to a clean environment and the prin-ciple of inter generational equity with respect to the protec-tion and preservation of the environment are inherent in ameaningful reading of Article 12(1) of the Constitution.
The constitution in Article 27(4) of the directive princi-ples of state policy enjoins the state to protect, preserve andimprove the environment. Article 28 refers to the fundamen-tal duty upon every person in Sri Lanka to protect nature andconserve its riches.
Further, although the Directive Principles of State Policyare not specifically enforceable against the state, they provideimportant guidance and direction to the various organs ofstate in the enactment of laws and in carrying out the func-tions of good governance. An important parallel can be drawnwith the Indian experience, and the significance grantedto Directive Principles within that countries’ legal schemegoverning environmental protection.
The Indian Supreme Court has increasingly cited thedirective principles of state policy in a complimentary
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manner to fundamental rights. [Vide, Som Prakash Rekhiv. Union of India,'111 M. C. Mehta v. Union of India,i2) RuralLitigation and Entitlement Kendra, Dehradun v. State of UttarPradesh,® In Damodar Das v. The Special Officer, MunicipalCorporation of Hyderabad,|4) the High Court of Andra Pradeshhas interpreted Article 48A, the provision dealing with en-vironmental protection, as imposing an obligation on thegovernment including courts to protect the environment. InM. C. Mehta v. Kamal NatH5) the Indian Supreme Court hasrecognized the right of the public to expect certain lands andnatural areas to retain their natural characteristic.
Correspondingly, courts in Sri Lanka, have long sincerecognized that the organs of State are guardians to whomthe people have committed the care and preservation of theresources of the people. This recognition of the doctrineof ‘public trust’, accords a great responsibility upon thegovernment to preserve and protect the environment and itsresources.
The doctrine of public trust was initially developedin ancient Roman jurisprudence and was founded on theprinciple that certain common property resources suchas rivers, forests and air were held by the government intrusteeship for the free and unimpeded use of the generalpublic. This doctrine emphasizes the obligation of thegovernment to protect and conserve these resources forpublic use and protect it from exploitation by privateindividuals for short term monetary or commercial gains.Such resources being an endowment of nature should beavailable freely to the general public, irrespective of theindividual’s status or income level in life. This doctrine is an“affirmation of the duty of the state to protect the people’scommon heritage of streams, lakes, marshlands andtidelands surrendering the right of protection only in the
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rarest of cases, when the abandonment of that trust isconsistent with fundamental and larger interest of thepurposes of that trust. Contemporary concerns with thestate and its role in the protection of the environment haveclose links with this doctrine of public trust. As part of thisresponsibility governments make policy decisions relatedto the environment and its useful utilization, conservationand protection and should always be only in the interestof the general public with a long term view of such beingconserved for intergenerational use. For this doctrine isclosely linked with the principle of intergenerational equity.Human kind of one generation holds the guardianship andconservation of the natural resources in trust for futuregenerations, a sacred duty to be carried out with the highestlevel of accountability.
Under the public trust doctrine as adopted in Sri Lanka,the State is enjoined to consider contemporaneously,the demands of sustainable development through theefficient management of resources for the benefit of all and theprotection and regeneration of our environment and itsresources. Principle 21 of the Stockholm declaration, 1972and Principle 2 of the Rio De Janeiro Declaration, 1992recognize the right of each state to exploit its own resources,pursuant, however to its own environmental and developmentpolicies. The principle of sustainable development prioritizeshuman needs and concerns for a healthy and productive lifein harmony with nature. Therefore environmental protectionas envisaged under the Constitution forms an integral part ofsuch development.
Where government officers act in the manner set out inthe facts of the instant case, they act in grave breach of thepublic trust reposed upon them.
Although the international instruments and constitu-tional provisions cited above are not legally binding upon
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governments, they constitute an important part of ourenvironmental protection regime. As evidenced by the deci-sion of this court in Bulankulama v. Secretary, Ministry ofIndustrial Development,161 they constitute a form of softlaw, the importance and relevance of which must berecognized when reviewing executive action vis-a-vis theenvironment, In this case the Supreme Court adverted toprinciple 1 of the Rio declaration that “Human beings arethe center of concern for sustainable development. They areentitled to a healthy and productive life in harmony withnature".
The phrase ‘sustainable development’ encapsulatesthe meaning that natural resources must be utilized in asustainable manner, in keeping with the principle ofintergenerational equity. This requires that the State as theguardian of our natural resource base does not compromisethe needs of future generations whilst attempting to meetand fulfill the present need for development and commercialprosperity or short term gain.
In terms of Article 3 the sovereignly is in the people,and is inalienable and being a representative democracy, thepowers of the people are exercised through persons who arefor the time being only, entrusted with certain functions, andsuch must at all times be considered by them as a sacredtrust, never to be exploited for short term commercial gainor for personal gain even by those holding political power, orexploited for their own personal and selfish agendas. To do sowould be the highest betrayal of the sacred trust reposed inthem not only by the present generations but all generationsto come.
This has been succinctly put by Judge C.G. Weeramantry,who in his separate opinion in the Danube case (Hungary v.Slovakia)(7> referred to the “imperative of balancing the needsof me present generation with those of posterity.”
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Even national legislation aimed at environmentalprotection, has developed as a further standard applicableto environmental policy decisions. It involves the anticipa-tion of environmental harm and taking measures to avoid itor to choose the least damaging alternative or activity. Theenvironment must not only be protected in the interest ofhealth, property and economy, but also for its own sake.Precautionary duties are triggered not only by concreteknowledge of danger but also by a justified concern or riskpotential. [Vide, A. P. Pollution Control Board v. Nayudu.m
Application of this principle also suggests that wherethere is an identifiable risk of serious or irreversible harm,it may be appropriate to place the burden of proof on theperson or entity proposing the activity that is potentiallyharmful to the environment. The burden of proof in suchcases is therefore placed firmly on the developer or industrial-ist who wishes to alter the status quo. [Vide, Vellore Citizens'Welfare Forum v. Union of India,m.
The National Environmental Act, which forms the prima-ry legal basis for environmental protection in Sri Lanka, aimsat providing an effective mechanism for the protection andefficient management of the environment. Section 17 of theNational Environmental Act makes it a mandatory duty forthe Central Environmental Authority to “recommend to theMinister the basic policy on the management and conserva-tion of the country’s natural resources in order to obtain theoptimum benefits there from and to preserve the same forfuture generations and the general measures through whichsuch policy may be carried out effectively”.
Unfortunately though, neither the enactment of environ-mental legislation nor the recognition of key principles in thisregard have had the desired effect of effectively stemming thetide of environmental degradation. In the face of a conflictbetween a protective law and personal or commercial interest
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it appears sadly that the law ends up the inevitable loser. Astrong regulatory framework with requisite checks and bal-ances is therefore an imperative for the effective and mean-ingful application of any conservation law.
As recognized by the Indian Supreme Court in ICELA vUnion of Indiam the enactment of a law and tolerating itsinfringement, is at times worse than not enacting a law at all.The continued infringement of a law, over a period of time isfacilitated by a high level of laxity, tolerance and even collu-sion on the part of the administrative authorities concernedwith the implementation of the law. Continued tolerance ofsuch violations not only renders the law nugatory but also •.encourages a level of lawlessness and adoption of meanswhich must not be tolerated in any civilized society.
A law is not only meant for the law-abiding citizen and itis the function of the enforcement officials to ensure that thespirit of the law is enforced and honored by all. Failure to doso will lead to a level of degradation with disastrous impactson the present and future health of the nation.
This court is deeply disturbed by the apparent actof collusion and dishonesty committed by high-rankingpublic officials in order to grant this wrongful license to the6th Respondent. All these institutions appear to have actedin complete disregard of the several Acts, which exist toprotect and preserve the environment.
The power of the state and public servants to grant orrefuse licenses and take suitable action for the protection andconservation of both the environment and natural resourcesis derived from its status as a public trustee. In this capacitystate officials have a paramount duty to serve as a safeguardagainst private and commercial exploitation of common prop-erty resources, and the degeneration of the environment dueto private acts. The principle of inter-generational equity
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and the long-term sustainability of our delicate eco-systemand biological diversity vests mainly in the hands of suchofficials.
In light of the repeated failure of state mechanisms toprevent the degradation of the environment and naturalresources at private hands, it is appropriate that we turnour attention to emerging principles of public accountabilityin the field of environmental law. The accountability prin-ciple, establishes that public servants should be held directlyaccountable to the public for their actions and inactions.While the polluter pays principle internalizes the costs ofpollution to corporate or individual polluters, the principle ofpublic accountability extends this liability towards corrupt orincompetent regulators for the most egregious instances ofmis-regulation.
The principle is borne from a growing recognition thatenvironmental degradation is by and large the product ofgovernment corruption and inertia. Each public officialassumes a heightened responsibility upon accepting publicoffice, and every public official is universally empowered withthe trust of the people. The official thus owes a correspondingduly of care to the people to exercise their powers in publicinterest. This is particularly important with respect to envi-ronmental laws where dereliction of the officer’s duty leadsto serious environmental harm. The accountability principlerecognized the negligent public official as a cause for environ-mental degradation and thereby holds them liable.
The concept of good governance requires governments topromote accountability, public participation, transparency,and a sound legal framework for equitable development. Ofall these elements in my view, government accountabilityis the comer stone of good governance. While the principleof accountability as detailed above may not as yet havedeveloped to an extent which warrants its application in the
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instant case, it signifies an important step in the direction offull government accountability which cannot be ignored inthe future, if the present state of governmental inaction andarbitrariness were to continue into the future.
In light of the circumstances detailed above I concludethat the application of the Petitioner for conducting miningactivities has been rightly refused by the relevant author-ity. I find that the Petitioner’s right to equality protectedunder the Constitution of Sri Lanka has been violated by thearbitrary and capricious acts of the Respondents, whichled to the wrongful granting of a mining license to the 6thRespondent under conditions of fraud and collusion. Iconsequently make the declaration as prayed for by thePetitioner that his rights enshrined in Article 12(1) of theConstitution have been violated.
With respect to the state of the land concerned, there isno doubt that the illegal mining activities conducted on theland have had an appalling impact on the surrounding envi-ronment. The primary objective in such a case must be therestoration of the land to its original position. The costs ofenvironmental damage should, in my view, be borne by theparty that causes such harm, rather than being allowed tofall on the general community to be paid through reduced en-vironmental quality or increased taxation in order to mitigatethe environmentally degrading effects of a project. ThereforeI order that no further mining activities be conducted on theland and that the 6th Respondent be compelled to bear allcosts related to the restoration of the land back to its originalposition.
With regard to the obvious negligence, collusion andcomplicity displayed by the relevant state officials in connectionwith this transaction, I wish to express my profound distressand dissatisfaction regarding the functioning of these
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regulatory authorities. I direct that immediate action betaken and inquiries be initiated by the Attorney Generaland the heads of the public institutions concerned, againstthose involved whose actions or inaction have facilitated thecommencement and continuance of illegal mining activi-ties in a protected forest reserve. I also direct the AttorneyGeneral to indict, in terms of the provisions of the Penal Code,the Respondents, including the public officials concernedwho have filed false documents in this case.
For the reasons set out in my judgment, I declare thatan infringement of the fundamental rights of the petitionerguaranteed by Articles 12(1) of the Constitution has beenestablished. The refusal of the permit to the petitioner washowever correct and as it should be in terms of the law. It wassalutary that as counsel informed court, the petitioner is notpursuing his application for the permit in view of the factsthat were disclosed in the case.
I direct that no further mining activities take place onthe said land and that suitable and immediate measures, betaken to restore the concerned land back to its originalposition by the 6th Respondent, and the program ofreforestation that was undertaken by the 6th Respondent bestrictly adhered to and complied with.
I further order that the State shall pay the Petitioner asum of Rs. 20,000 as costs and the 6th Respondent shall paythe Petitioner a sum of Rs. 50,000 as costs.
S. N. SILVA CJ. – I agreeMARSOOF J. – I agree
Relief refused.
Directives issued.