Look beyond Wilpattu | Daily News

Look beyond Wilpattu

Legal insights into Environmental Law Concepts and Principles
The entrance to Wilpattu National Park
The entrance to Wilpattu National Park

The Court of Appeal of Sri Lanka held in the case C.A. WRIT 291/2015 - which is now better known as the Wilpattu judgement, that the re-settlement of the IDPs in an area of over 3,000 Ha from Marichchikaddi, Kallaru, Vilaththikulam, Madhu, Periyamadu and Sannar forest in the Mannar District since 2009, has been made contrary to law. This judgement was a landmark judgement in Sri Lankan jurisprudence pertaining to environmental law, just as the Chunnakam power plant case and the Eppawala phosphate mine case before it, as it explored and incorporated several international environmental law principles in reaching the conclusion in favour of environmental conservation.

In addition to holding that the settlement of IDPs (internally displaced persons) was illegal, the Court in the Wilpattu case also issued an order in the nature of Mandamus ordering the First Respondent (Conservator General, Department of Forest Conservation) to take action to implement a tree planting programme under and in terms of the provisions of the Forest Ordinance, No. 16 of 1907 (as amended) in any area equivalent to the reserve forest area used for re-settlement of IDPs.

An ancillary or consequential order was also issued, directing the Seventh Respondent Rishad Bathiudeen to bear the full the cost of such tree planting programme applying the ‘Polluter Pays’ Principle, since according to the evidence before Court, he was instrumental in using the reserved forest land for the re-settlement of the IDPs.

Appreciating this salutary judgement which upheld the people’s right to environment as opposed to political considerations, this article will look at how Sri Lankan environmental jurisprudence, including the Wilpattu judgement itself, has borrowed from and found support in international environmental principles in ensuring this implicit right.

Intergenerational Equity Principle

The Intergenerational Equity concept was explored in detail by the Supreme Court in the Eppawala judgement which related to the handing over of the mining activities in the Eppawala phosphate mine to the company named Freeport MacMoran. The Court in this case recognized that the concept of Sustainable Development encompassed three elements: first, the conservation of natural resources for the benefit of future generations – which is known as the Principle of Intergenerational Equity; second, the exploration of natural resources in a manner which is ‘sustainable’ or ‘prudent’ – which is known as the Principle of ‘Sustainable Use’; third, the integration of environmental considerations into economic and other development plans, programmes and projects – which is known as the principle of Integration of Environment and development needs.

The Court went on to highlight the international instruments which have clearly recognized the principle of Intergenerational Equity. Citing Principle 1 and 2 of the Stockholm Declaration, the Court held that it has been stated that humankind bears a solemn responsibility to protect and improve the environment for present and future generations, and that the natural resources of the earth including the air, water, land, flora and fauna must be safeguarded for the benefit of present and future generations. It also recognized the Principle 5 of the Stockholm Declaration and stated that the non-renewable resources of the earth must be employed in such a way as to guard against their future exhaustion, and to ensure that benefits from such employment are shared by all humankind.

The Court also made mention of the Principle 3 of the Rio De Janeiro Declaration, and stipulated that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It was the Court’s view that the Inter-Generational principle is to be regarded as ‘axiomatic’ in the decision-making process in relation to matters concerning the natural resources and the environment of Sri Lanka in general. Thus, the Eppawala judgement set the precedent of this principle being applied in subsequent determinations pertaining to the environment.

The Court also made mention of the landmark environmental law case in the International Court of Justice (ICJ) the Danube case (Hungary v. Slovakia), and the groundbreaking Separate Opinion delivered by Judge C.G. Weeramantry, where he expressed the “imperative of balancing the needs of the present generation with those of posterity.” Judge Weeramantry noted that “The notion of not causing harm to others and hence sic utere tuo ut alienum non laedas was a central notion of Buddhism. It translated well into environmental attitudes. ‘Alienum’ in this context would be extended by Buddhism to future generations as well, and to other component elements of the natural order beyond man himself, for the Buddhist concept of duty had an enormously long reach.”

Referring to all such sources, the Court held that Section 17 of the National Environmental Act makes it a mandatory duty for the Central Environmental Authority to “recommend to the Minister the basic policy on the management and conservation of the country’s natural resources in order to obtain the optimum benefits therefrom and to preserve the same for future generations and the general measures through which such policy may be carried out effectively.”

Thus, the Court utilized the Intergenerational Equity principle to ensure the future sustainability of the mineral resources and of the water and soil conservation ecosystems of the Eppawala region, and of the North Central Province and Sri Lanka in general. And it was the determination of the Court that decisions of this nature, 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, ensuring the viability of their occupations, and also protecting the rights of future generations of Sri Lankans. Hence, the Court issued an order directing the respondents to desist from entering into any contract relating to the Eppawala phosphate deposit right then, basing the crux of its argument on this principle.

Precautionary Principle

The uncertainty surrounding potential threats to the environment has frequently been used as a reason to avoid taking action to protect the environment. However, it is not always possible to have clear evidence of a threat to the environment before the damage occurs. The Precautionary Principle” is a response to this uncertainty.

The Precautionary Principle recognizes that delaying action until there is compelling evidence of harm will often mean that it is then too costly or impossible to avert the threat. Use of the principle promotes action to avert risks of serious or irreversible harm to the environment in such cases. The Precautionary Principle has been widely incorporated, in various forms, in international environmental agreements and declarations.

Rio Declaration, 1992 Principle 15 incorporates this principle in the following terms: “In order to protect the environment the Precautionary Approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This principle is also incorporated in Convention on Biological Diversity 1992, Preamble; Framework Convention on Climate Change 1992, Article 3.3; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Resolution Conf 9.24 (Rev CoP13); Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2000 and the Earth Charter, para 6.

The Precautionary Principle is of particular relevance and importance in the context of conservation and sustainable use of biodiversity and living natural resources. Species and ecosystems (similar to that of the destroyed forest area in Wilpattu) are genetically unique and irreplaceable ― their loss is irreversible. Ecosystems vary across a vast range of parameters, and similar ecosystems (whether wetlands, forests, coastal reserves etc.) cannot be presumed to be interchangeable, such that the loss of one can be compensated by protection or restoration of another. Further, conservation and sustainable use must deal with a particularly high degree of persistent and largely irreducible uncertainty and complexity.

In Art. 3.3 of the United Nations Framework Convention on Climate Change (UN-FCCC, 1992) it is stated that: “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects….”. By placing a greater emphasis on direct measures to systematically monitor observable effects, a precautionary approach offers a way to be more responsive to harm due to climate change, when the first signals of it manifest themselves in the real world, however ambiguous these first signals may be. Therefore, a truly precautionary principle argues for focusing on solving current problems that may be aggravated by climate change, and on increasing society’s adaptability and decreasing its vulnerability to environmental problems in general and climate change in particular. Hence, this basis provided by the precautionary principle can be utilized in arguments against acts of deforestation of tropical forests, and destruction of eco-systems, as these are problems that aggravate climate change.

Polluter Pays Principle

The Polluter Pays Principle is enshrined in Principle 16 of the Rio de Janeiro Declaration and it states as follows: “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

This principle is an oft-cited and applied principle of environmental law and it has been utilized by the Sri Lankan judiciary and has been championed by the Indian judiciary, with the creative use of the principle in landmark environmental law cases like Vellore Citizens Welfare Forum v. Union of India 1996; M.C. Mehta v. Kamal Nath (1997); M.C. Mehta v. Union of India 1987; S. Jagannath v. Union of India (1997) and many others. The Indian Courts have interpreted this principle to mean that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. And that, the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

The Supreme Court of Sri Lanka has also recognized and applied the Polluter Pays principle in cases like Bulankulama and Others v. Secretary, Ministry of Industrial Development and Others (2000) – known as the Eppawala case; Wijebanda v. Conservator General of Forests (2009); Kariyawasam v. Central Environment Authority and Others [S.C.F.R. 141/2015, S.C.M. 04.04.2019]- also known as the Chunnakam Power plant case.

In the Eppawala Case, the Court held that the costs of environmental damage should be borne by the party that causes such harm rather than being allowed to fall on the general community to be paid through reduced environmental quality or increased taxation in order to mitigate the environmentally degrading effects of a project. Similarly in the Chunnakam Thermal Power Plant case, where it was alleged that the operation of the Plant has resulted in ground water pollution in the area, the Court utilized this Principle and directed the Respondent to pay a sum of Rs. 20 million within three months to be credited to a special fund, so as to be distributed as compensation amongst the residents of the area which was affected.

In the Wilpattu case, the Court held that in view of the constitutional duty under Article 28(f) of the Constitution which dictates that it is a fundamental duty of every person in Sri Lanka to protect nature and conserve its riches- including public officials and representatives- it would be a travesty of justice to require the State and consequentially the tax payer to bear the costs of this programme, when the Seventh Respondent (Mr. Bathiudeen) was instrumental in getting the reserved forest released for the re-settlement of the IDPs.

 Following this argument, the Court issued an ancillary or consequential order directing the Seventh Respondent to bear the full the cost of such tree planting programme applying the polluter pays principle- since the evidence before Court indicated that he was instrumental in using the reserved forest land for the re-settlement of the IDPs. This cost is to be calculated by the Conservator General, Department of Forest Conservation and to be informed to the Seventh Respondent who shall pay such sum within a month of such communication.

Therefore, it can be observed from the jurisprudence that just as in India, Sri Lankan judiciary has also utilized this principle creatively to assign the cost of restoration of the polluted environment and compensation to victims of such pollution, solely to the polluter, without shifting this burden to the tax payer, using Directive Principles of State Policy as well, where relevant. Thus, this principle remains relevant and has translated well into national jurisprudence.

State Sovereignty and State Responsibility Principles

The Public Trust Doctrine which acknowledges that the State only holds natural resources of the Country in trust for its citizens, gives rise to the responsibility which is imposed on the State to conserve and protect such resources. Thus States do enjoy sovereignty over natural resources, as recognized by Principle 21 of the Stockholm Declaration, Principle 2 of the Rio Declaration, Article 3 of the Convention on Bio Diversity, Article 194 (2) of United Nations Convention on the Law of the Sea, Article 1(2) of the International Covenant on Civil and Political Rights and Article 1(2) of the International Covenant on Economic, Social and Cultural Rights.

We can often see that the States use their sovereignty as a shield. When states participate in natural resource exploitation, sometimes accompanied by human rights violations, they will often disregard the complaint due to sovereignty. One example is the Saramaka case (Saramaka people v. Suriname). In this case, Suriname stated that all the natural resources were vested to them. As a result, they were free to grand logging and mining concessions. Furthermore, Suriname stated that the indigenous rights to natural resources should be limited to those traditionally used within their activities.

The Paris agreement brought a change in this attitude of developing countries refusing to set emission limitations. Through the Nationally Determined Contributions (NDC) system, developing countries are now also held accountable for their emissions. Further, according to the UN General Assembly resolution 1803 (XVII), December 14, 1962 and UN General Assembly resolution 2692 (XXV), 11 December 1970, one of the first duties States have is that they should exercise their sovereignty over natural resources in consideration with the promotion of the wellbeing of their people.

This is accompanied by the promotion of national development. The combination of national development, mainly economic, and promoting the wellbeing of the people, who are protecting the environment, seems to be contradictory. But protecting the environment does not mean there can be no economic growth. For example, as has been shown in the policy of Brazil from 2004 till 2011, there was a marked decrease in deforestation of the Amazon rainforest, and at the same time, there was economic growth.

Furthermore, art 47 of the ICCPR states that: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.”  The same is repeated within the ICESCR Article 1 and 25. And Sri Lanka is a Party to both these Conventions and is bound by these provisions, to ensure that all people of Sri Lanka’s right to enjoy and fully utilize their natural resources must not be hindered and restricted by the State. This shows that the right to sovereignty over natural resources should be balanced with the duty for socio-economic development and conservation of the environment. The Earth Charter Principle 2 states “that with the right to own, manage, and use natural resources comes the duty to prevent environmental harm and to protect the rights of people.”

Thus, the responsibility of State to conserve natural resources arise from its international obligations, as well as from the Public Trust Doctrine, as well as international environmental law principles like inter-generational equity- preservation of resources for future generations, and sustainable development which oversees this principle. Over time, the importance of sustainable use and conservation has grown. If this path continues, it could soon be a principle well established within international law. As has been explained previously, States have the duty to comply with international law. As a result, the States will need to take into consideration international environmental law when exercising their sovereignty over natural resources.

Importance of these principles

As the foregoing discussion has elaborated, the international environmental law concepts of intergenerational equity, precautionary principle, polluter pays principle, the overarching concept of sustainable development establish a solid foundation upon which Sri Lanka’s environmental law jurisprudence can rest. Furthermore, Sri Lanka’s Treaty obligations under the various environmental and human rights Conventions it is a Party to, as well as the Paris Agreement of 2015 and legal concepts like the Public Trust Doctrine make it crucial that Sri Lankan government be bound by its obligations to protect and preserve the natural resources of the country on behalf of its citizens. Thus, as encapsulated in the salutary environmental judgments discussed above, like the Eppawala case, the Chunnakam Power Plant Case and most recently the Wilpattu case, the State’s liability in this regard is inescapable and the citizens can no longer be beguiled by the veil of economic development to legitimize environmental destruction.

As held by the Court in the Wilpattu Case, the judiciary is part of the State and is bound to protect, preserve and improve the environment for the benefit of the community as directed by Article 27(14) of the Constitution. Therefore, this crucial acknowledgment paves the way and sets the precedent for the State to be held accountable for actions that violate this Constitutional obligation on the State. Hence, the Wilpattu judgment and the host of other case law and environmental principles enshrined in those judgments discussed heretofore, signal towards a rising sun, albeit in the distant horizon.