Bulankulama and six others v. The Secretary, Ministry of Industrial Development and seven others

SC Application No 884/99 (FR), unreported
Download Judgment: English

The respondents entered into a draft agreement with a leading US mining company for the exploration of phosphate deposits in Eppawela, an agriculturally developed area of great historical importance and archaeological value. The proposed area of exploration was described as land ‘initially covering 56 square kilometers’.

The petitioners, residents of Eppawela, started proceedings in the Supreme Court contending that the proposed project infringed their constitutional rights to equality before the law (Art 12(1)), to practice any profession or carry on any occupation, trade or business (Art 14(1)(g)) and to freedom of movement (Art 14(1)(h)). They alleged that the project would have widespread and adverse environmental consequences and would cause thousands of people in the project area to be permanently relocated.

Both constitutional and statutory provisions refer to the protection and improvement of the environment. In particular, s 17 of the National Environmental Act No 47 of 1980 (the Act) requires the Central Environmental Authority (CEA) to recommend policies for managing and conserving the country’s natural resources for the benefit of current and future generations. The Act also requires a developer to submit an environmental impact assessment to the CEA, the appropriate ‘national authority’ within the meaning of Principle 17 of the Rio Declaration on Environment and Development (1992) (the Rio Declaration), so as to ensure that development options under consideration are environmentally sound and sustainable and that environmental consequences are recognized and taken into account early in the project design.

As a preliminary point, the fifth and seventh respondents challenged the Supreme Court’s jurisdiction under Art 126 of the Constitution to hear the case. They argued that the country’s natural resources were vested in the government as trustee for the benefit of the people and that, as the case raised a question of public interest, the petitioners could not assert that their fundamental rights had been infringed.

 

[Adapted from INTERIGHTS summary, with permission]

In finding imminent violations of Arts 12(1), 14(1)(g) and (h), and ordering that the respondents be prevented from entering into any contract relating to the Eppawela phosphate deposit until a comprehensive exploration and study relating to location, quantity and quality of phosphate minerals in the country had been carried out, the results of the exploration and study published, and the approval of the CEA obtained, the Court held that:

  • Since the case involved the protection of fundamental rights rather than the role of government as trustee of the country’s natural resources, the Supreme Court clearly had jurisdiction under Art 126.
  • The petitioners had locus standi. The fundamental rights involved were shared with the people of the country and, as a collective personality, they were entitled to expect that the government would act according to the law. The fact that the petitioners’ rights were linked to the communal rights of others did not affect their standing before the court.
  • The evidence did not support the respondents’ submission that the project would not result in the relocation of thousands of people. By specifically allowing for the exploration area to be extended in excess of 56 square kilometers the draft agreement left the project area wide and practically unrestricted. The draft agreement, moreover, expressly acknowledged the possibility of displacement.
  • The petitioners’ concerns that environmental damage would occur at the exploration stage of the project were well-founded. Although it was at the construction and operating stages of a mining project that most damage was caused, the exploration stage itself was not without environmental consequences. There was, moreover, nothing in the draft agreement to suggest that the project would only result in exploration.
  • The relevant authorities must have regard to the principles of sustainable development in order to ensure the future sustainability of the country’s mineral resources, its water and soil conservation ecosystems and its unrenewable cultural heritage. In particular the ‘inter-generational equity principle’ should be regarded as axiomatic in the decision-making process in relation to matters concerning the natural environment of Sri Lanka. The health and safety of the people, the viability of their occupations and the protection of the rights of posterity were all matters to be taken into account.
  • The CEA should implement the ‘precautionary principle’ and the ‘polluter pays principle’ by adopting measures to prevent environmental degradation in the project area and assessing the compensation to be recovered from the polluters as the cost of reversing the damaged environment. Given the area’s extreme historical importance and archaeological value, any development activity must also be accompanied by proper studies and proposals for mitigating any adverse impact on the country’s unrenewable cultural heritage.
  • There was an imminent infringement of the petitioners’ rights under Arts 14(1)(g) and (h). The potential impact of the project on the environment and the individual and collective rights of the petitioners was unknown and, until a proper evaluation was been carried out, it was unclear what safeguards, if any, could be put in place to protect the historical and archaeological value of the project area.
  • The draft agreement did not comply with the Act’s requirement that an environmental impact assessment be submitted to the CEA. Such an assessment was instrumental in establishing exactly which areas of the proposed project required precautionary or preventive measures in order to ensure the overall environmental viability of the project.
  • Publicity, transparency and fairness were essential features of sustainable development. Despite this the draft agreement did not envisage public debate of development options and substituted arbitration, in which the public had no role, for judicial and administrative proceedings. Its confidentiality provisions virtually negated the safeguards in the Act regarding publicity, and effectively exclude public awareness and citizen participation in environmental decision-making as contemplated by the Act and Principle 10 of the Rio Declaration. It follows that there was an imminent infringement of the petitioners’ rights under Art 12(1) (Gunaratne v Homagama Pradeshiya Sabha (1998) 2 SLR 11 (SL SC) followed).
  • The proposed project imposed a limitation on the petitioners’ fundamental rights which was not reasonably justifiable in a democratic society. The proposed project was, moreover, a result of a proposed contractual agreement and so was not ‘prescribed by law’ within the meaning of Art 15.

[Adapted from INTERIGHTS summary, with permission]

"The exploration contemplated by the respondents may, perhaps, be of a non-intrusive nature.  However, the definition of “exploration” in the proposed Agreement, as we have see,. Includes the search for certain minerals, and their location, nature and grade, inter alia  by making “boreholes, test pits, trenches, surface or underground headings, drifts or tunnels.”  Mining may have comparatively more devastating consequences, but exploration can scarely  be said to be so harmless as to cause the occupants of the exploration area no reasonable apprehension of imminent harm to their homes and lands."

"Undoubtedly, the state has the right to exploit its own resources pursuant, however, to its own environmental and development policies. (Cf. Principle 21 of the U.N Stockholm Declaration (1972) and Principle 2 of the U.N. Rio De Janeiro Declaration (1992) Rational Planning Constitutes   an essential tool for recognizing any conflict between the needs of development and the need to protect and improve the environment.  (Principle 14, Stockholm Declaration)  Human beings are at the centre of concerns for sustainable development.  They are entitled  to a healthy and productive life  in harmony with nature. (Principle 1, Rio De Janeiro Declaration).  In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.  (Principle 4, Rio De Janeiro Declaration).  In my vie, the proposed agreement must be considered in the light of the foregoing principles.  Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally binding in the way in which and Act of our Parliament would be.  It may be regarded merely as ‘soft law’ Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka."

"While, as I must on account if its extravagance reject learned counsel’s claim that people would “starve” if the project is not proceeded with, it might be pointed that there seems to be no disagreement that the phosphate deposit should be utilized.  Indeed, an hypothesis has been  advanced that the Eppawela deposit was not “discovered” in 1971, but was known to our rulers and people for thousands of years and shared the thought that the deposit should be utilized.  The difference between them and us is how this should be done."

"In my view , the human development paradigm needs to be placed within the context of our finite environment.  So as to ensure the future sustainability of the mineral resources and of the water and soil conservation ecosystems of the Eppawela region, and of the North Central Province and Sri Lanka in general. due account must also be taken of our unrenewable cultural heritage. Decisions with regard to the nature and scale of activity require the most anxious consideration from the point of view of safeguarding the health and safety of the people, naturally, including the petitioners, ensuring the viability of their occupations, and protecting the rights of future generations of Sri Lankans."

"At the present time, when there has been no Feasibility Study and no Development Plan, and,moreover,when there is no guarantee that such study and plan will ever be made known to them, how could the petitioners feel assured that their individual and collective rights will be protected? There may be conditions that may be prescribed under section (30) 2 of the Mines and Minerals Act to safeguard their interests and the interests of the people of Sri Lanka, and indeed of humankind. But how is this possible without a proper evaluation of the project? A report from an “appropriately qualified”, “internally recognized independent environmental firm selected by the company and approved by the Government”, is of little or no use to the petitioners and concerned members of the public, having regard to the provisions in the proposed agreement regarding “ confidentiality.”"

Lawyers:

For the Petitioners: R K W Goonesekere, with Ruana Rajepakse and Anusha Dharmasiri

For the 1st, 2nd, 3rd, 6th and 8th Respondents: K Sripavan, DSG, with B J Tilakaratne, SSC and Anusha Navaratne, SC

For the 4th Respondent: Chulanie Panditharatne

For the 5th and 7th Respondents: Romesh de Silva, PC, with Harsha Amarasekera and Sarath Caldera

 
  • Sustainable development has been accepted as part of customary international law as well as the environmental law of Sri Lanka (dicta of Weeramantry J in Hungary v Slovakia (International Court of Justice, 1997 General List No 92, 25 September 1997) applied).
  • As a member of the United Nations, Sri Lanka can hardly ignore the Declaration of the United Nations Conference on the Human Environment (1972) and Rio Declaration on Environment: Development (1992), even though they are not legally binding.

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