Sri Lanka — Withanage v. Geological Survey and Mines Bureau and others (2004) (original petition)

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA

In the matter of an application
for orders in the nature of
writ of mandamus under and in terms of the provisions of Article 140 of the Constitution

C.A.(writ) Application No. …../…..

Withanage Don Hemantha Ranjith Sisira Kumara
Centre for Environmental Justice,
No.19/8, Ambagahawatta Road,
Gangodawila, Nugegoda.

PETITIONER

V.

1. Geological Survey and Mines Bureau,
No. 04, Senanayake Building,
Galle Road,
Dehiwala.

2. Central Environmental Authority,
No.104, ‘Parisara Piyasa’,
Robert Gunawardena Mawatha,
Battaramulla.

3. Inspector General of Police,
Police Headquarters,
Colombo 01.

4. Minister of Environment and Natural Resources,
Ministry of Environmental and Natural Resources,
‘Sampathpaya’,
Rajamalwatta Road,
Battaramulla.

5. Attorney General,
Attorney General’s Department,
Hulftsdorp Street,
Colombo 12.
RESPONDENTS

TO HIS LORDSHIP THE PRESIDENT AND THE OTHER HONOURABLE JUSTICES OF THE COURT OF APPEAL

On this ….. day of August 2004.

The Petition of the Petitioner above named appearing by ……………………………….. his Attorney at Law states as follows;

1. The Petitioner is a citizen of Sri Lanka and is the Executive Director of the Centre for
Environmental Justice, No.19/8, Ambagahawatta Road, Gangodawila, Nugegoda, an organization having inter alia as its objectives protection, preservation and conservation of nature and environment in the interest of the general public. The Petitioner is genuinely concerned with the implementation and enforcement of the laws relating to the protection of the environment and responding to the constitutional dictates enshrined in the Chapter on Directive Principle of State Policy and Fundamental Duties in the Constitution of the Democratic Socialist Republic of Sri Lanka, is interested in the performance of the fundamental duty cast on every person by Article 28(f) of the said Constitution, to protect nature and conserve its riches, in proof of which is annexed hereto the affidavit marked P1 indicating the environment related activities of the Petitioner during the past 14 years.

2. The 1st Respondent is a body corporate established under and in terms of the provisions of section 2 of the Mines and Minerals Act No. 33 of 1992 and may sue or be sued in its corporate name. It is responsible for the due exercise performance and discharge of powers duties and functions vested in, imposed on and assigned to under and in terms of the provisions, particularly of sections 12,13 and 44 of the said Act.

3. The 2nd Respondent is a body coporate established under and in terms of the provisions of section 2 of the National Environmental Act No. 47 of 1980, as amended and may sue or be sued in its corporate name. It is responsible for the due exercise, performance and discharge of powers, duties and functions vested in, imposed on and assigned to under and in terms of the provisions, particularly of sections 10, 17 and 23 of the said Act.

4. The 3rd Respondent is a public officer appointed under and in terms of the provisions of Article 61E of the Constitution and is the officer in charge of the administration of the Police in Sri Lanka under and in terms of the provisions of the Police Ordinance No. 16 of 1865, as amended, whose officers, deputies and subordinates are under a duty to enforce the provisions of sections 63 (i) and 31 of the said Mines and Minerals Act and National Environmental Act respectively.

5. The 4th Respondent is the Minister in charge of the subjects of environment and natural resources and is a member of the Cabinet of Ministers which is charged with the direction and control of the Government of the Republic under and in terms of the provisions of Article 43(1) of the Constitution and as such is an agent and/or a component of the executive arm of the government. In the exercise, performance and discharge of their powers, duties and functions, all officers, servants and agents of the departments, institutions and agencies that come under the purview of the 4th Respondent, are subject to his direction, control and supervision.

6. The 5th Respondent is the Chief Legal Officer of the State and is made a Respondent for the purpose of giving notice of this application.

7. The Petitioner states that irregular and/or unregulated mechanized mining and transport of sand from the sand dunes in the region of the Kalpitiya Peninsula adjacent to the Puttalam estuarine complex, in the Puttalam District of the North–Western Province, are being carried out by unknown and/or unascertainable individuals, as far as he is aware and verily believes, without obtaining prior approval from the relevant Project Approving Agency (Geological Survey and Mines Bureau [GSMB]) with the concurrence of the Central Environmental Authority (CEA) , thereby rendering such mining and transport unauthorized and/or illegal and hence punishable, under and in terms of the provisions, particularly of section 63(1)(a) read with section 28(1) of the said Mines and Minerals Act and of section 31 of the said National Environmental Act.

8. The Petitioner annexes hereto, marked P2(a) and P2(b) , two maps depicting the location, and marked P3, the Wetland Site Report indicating the geographical, biological and environmental significance of the said Puttalam estuarine complex comprising Puttlam Lagoon, Dutch Bay and Portugal Bay, prepared as a part of the Wetland Conservation Project, started in September 1991 and carried out by the Natural Resources Management Division of the Central Environmental Authority of Sri Lanka to which the technical and financial assistance were provided by the Netherlands Government.

9. The features, attributes and significance of the said sand dunes are as follows:

i. Location- They are located in the Kalpitiya Peninsula adjacent to the Puttalam estuarine complex within the Puttlam District of the North-Western Province of Sri Lanka; vide. 7p. of P3.

ii. Geology and Geomorphology- Sand dunes extend along the Kalpitiya Peninsula to an extent of about 2,670 ha, rising up to 4.5-6 m and vary in width from 0.8-4.8 km. West of the high dune zone is a zone of low dunes up to 0.8km wide and heights exceptionally over 1.5 m.
They are ‘unconsolidated sands’ of Quaternary deposits belonging to Holocene period. The source of the dune sand is the wide sandy beach that lies west of the low dune zone. Most of sand dunes have a north-east / south–west orientation resulting from the dominating influence of the north–east and south–west monsoonal winds on the coast; vide. 8p. of P3.

iii. Soil – It comprises regosols formed in the Holocene period. The underlying freshwater source provides a reliable source of water for deep rooting crops; vide. 11p. of P3.

iv. Groundwater – Two types of aquifers are found: One is a local or discontinuous but productive aquifer in intergranular rock made up of sand, gravel and alluvial material; the water is generally hard, saline and contains excess iron: the other is extensive and highly productive aquifers in the sedimentary limestone; the water has a moderate to high chloride concentration; vide.17-18 p.p. of P3.

v. Flora, Fauna and Vegetation – Sand dunes are considered as one of the critical coastal habitat of the estuarine complex with regard to the details of vegetation, habitat distribution and extent. Tree species of the beach jungle grow to 2-3 m in height between which clumps of shrubs and carpets of grass are found. In undisturbed areas a forest cover is seen. The Fauna of sand dunes, especially amphibia, reptiles and birds is of special importance. Coconut and other garden crops such as onions, chillies, potatoes, tobacco, vegetables and fruits are cultivated extensively; vide. 18,19,21,23,24,50,51 p.p of P3.

vi. Significance –

a.) Sand dunes are important as carriers of fresh water aquifers and play a vital role in maintaining the groundwater table.
b.) They perform an important coastal protective function since they represent flexible barriers which absorb wave energy.
c.) They serve as deposits of economically valuable mineral sands, especially quartz.
d.) Sand dune grasses and plants, specifically adapted to the dune environment can resist sand abrasion, wind erosion and water loss; The dune vegetation also prevents internal desertification.
e.) As dunes build up, they become a major obstacle to the landword movement of sand and they serve to conserve sand in close proximity to the beach.

10. The Petitioner states that in view of the aforesaid facts and circumstances sand dunes constitute a dynamic, fragile and irreplaceable eco-system that provides significant geological, ecological, botanical, agricultural, economic, scientific, educational, recreational and scenic benefits to the people. Affidavits, of two renowned foreign experts and one Sri Lankan expert involved in the field of conservation and management of sand dune eco-systems are annexed hereto marked P4(a), P4(b) and P4(c) in this regard. Natural resources in the region of the said Kalpitiya Peninsula are indicated in the map annexed hereto marked P5.

11. Coastal sand dunes present a variety of microenvironments due to substrate mobility and physical processes. They form a crucial natural resource and a unique habitat for rich and diverse communities of highly specialized plant and animal species. They are highly sensitive to damage by human disturbance and have a very low threshold for being able to absorb human impacts. Sand dunes are a major component of Coastal and Marine Systems which comprise one of the four main ecosystems in Sri Lanka, the others being Forests, Wetlands and Agricultural Systems which constitute the panorama of natural ecosystems and the array of basic habitats of the country.

12. Therefore, the cumulative impact of erratic and/or unregulated and/or unscientific mining and removal of sand will not be congenial and/or conducive to ecological balance and environmental discipline in the said locality in as much as the disastrous consequences of the said operations have been irreparable and/or irreversible damage and destruction to and/or real and imminent threat to the soil, water resources, fauna and flora, environment, ecology and natural resources, the most indispensable gift endowed by Nature for preservation of life on Earth, resulting deep and ugly scars on the landscape and scenic beauty beside constituting a danger to the habitat of human life. The major adverse effects would include inter alia ;

i. ecological destruction and environmental damage by sand mining and removal.
ii. loss of a major coastal defense barrier against winds, tides and waves.
iii. danger of salt water intrusion into the ground water supplies creating disastrous effects on agriculture and on fauna and flora of the eco-system.
iv. increased vulnerability of coastal human settlements to coastal erosion and inundation by storm surge.
v. increased wind erosion and recession of the coast line due to destruction of vegetation.
vi. danger of sand movement into adjacent agricultural fields due to compromised stability of the dunes.
vii. loss of potential buffer against future sea level rise due to global warming from greenhouse effect.
viii. loss of scenic, aesthetic and recreational value and a potential site for tourism.

13. I. on account of the rich and diverse eco-systems, extensive gene pools, high species diversity and high levels of endemism, Sri Lanka has been named as one of the eighteen bio-diversity hot spots in the world. Conservation of Sri Lanka’s bio-diversity, therefore, the Petitioner states transcends national boundaries, it is of global relevance.

II. The overall national goal of bio-diversity conservation shall therefore be to conserve the biological diversity of Sri Lanka while fostering its sustainable use to meet the needs of the present without compromising the ability of the future generations to meet their own needs.

III. The present generation, therefore has a duty to those yet unborn to use the natural resources in a sustainable manner and bequeath them to the next generation so that the latter in turn would use them in the same equitable manner in their lifetime. Where there are threats of serious or irreversible damage, effective precautionary measures shall be taken to prevent environmental degradation.

14. Hence, the primary responsibility for the protection, preservation and conservation of the country’s biological diversity and ecological heritage and for the exploitation and utilization of such resources in a rational manner for the well-being, development and advancement of the people of Sri Lanka lies with the Government, of which the Respondents are components and/or instrumentalities and/or agencies, as the guardian of the natural resources of Sri Lanka on behalf of present and future generations of the people of Sri Lanka.

15. The Petitioner states that the recognition of such responsibility by the Government of Sri Lanka is manifest by it becoming a contracting party and subsequently ratifying, or acceding to or becoming a signatory to a number of international conventions and declarations relating to environmental conservation such as ;

i. Stockholm Declaration on Human Environment, 1972
ii. Paris Convention for the Protection of the World Cultural and Natural Heritage, 1972
iii. World Charter for Nature, 1982
iv. Rio Convention on Biological Diversity, 1992
v. Rio Declaration on Environment and Development, 1992
vi. Paris Declaration on the Responsibilities of Present Generation Towards Future Generations, 1997
vii. Johannesburg Declaration on Sustainable Development 2002

The Petitioner annexes hereto an index of such conventions and declarations marked P6 and true copies of the aforesaid instruments marked P6(a) – P6(g) respectively.

16. The Petitioner came to know of the mining and transport of sand from the said sand dunes in the Kalpitiya Peninsula on or about 03 07.2004 and states that such activities still continue unabated in large measure, in proof of which are annexed hereto some photographs of the said area marked P7(a) – P7(o), true copies of newspaper repots marked P8(a) – P8(g), affidavits given by affected/concerned citizens of the area marked P9(a) – P9(c) and the project coordinator of Centre for Environmental justice marked P9(d) respectively.

17. On account of the aforesaid facts and circumstances, the petitioner states emphatically that due to the issues relating to environment and ecological balance and the implication on the well-being of the inhabitants of the locality, the adoption of emergent preventive, remedial and curative measures by the authorities concerned are required to avert real danger, present and potential, to the soil, water, fauna and flora, natural resources, environment, ecology and the like and well-being of the people.

18.

I. Thus, for the aforesaid reasons, the petitioner both his capacity as a citizen of Sri Lanka and the Executive Director of the said Centre for Environmental Justice in the public interest and responding to the constitutional dictates enshrined in the said Directive Principles of the State Policy and Fundamental Duties of the Constitution requested through his Attorney at Law the Director of the 1st Respondent and the Director General of the 2nd Respondent who are the principle technical officer and the chief executive officer of the said Respondents respectively, by letters dated 03rd August 2004 and the 3rd Respondent by letter dated 06th August 2004, true copies of which are annexed hereto marked P10(a)-P10(c) respectively to take cognizance of the aforesaid facts and circumstances and to take prompt action in the performance of their statutory duties in compliance with particularly of the provisions of , section 6(2) of the said Mines and Minerals Act, section 13 of the said National Environmental Act and sections 56(a) and (d) and 71 of the said Police Ordinance respectively or otherwise as required by law as being consonant also with the provisions contained in Articles 27(14) and28(f) of the Constitution. The petitioner by his letter dated 13. 07.2004, a true copy of which is annexed hereto marked P10(d), also requested the 4th Respondent to take immediate action in that regard.

II. The petitioner stated that in as much as dune sand being a mineral the ownership thereof is vested in the Republic by virtue of the provisions of section 26(1) of the said Mines and Minerals Act, a license/licenses could not have been issued for such mining operations by the Geological Survey and Mines Bureau the 1st Respondent without first being furnished with a Report Regarding the Environmental Impact/Economic Viability Report as mandated by Regulation 13(1) and 21(g) of Mining (licensing) Regulations No.01 of 1993 {vide Gazette Extraordinary No. 794/23 dated 26.11.1993 ; P11(a)} and with an Initial Environmental Examination (IEE)Report or Environmental Impact Assessment (EIA) Report as mandated by the provisions of section 23BB(1) of the said National Environmental Act and without the concurrence of the Central Environmental Authority (CEA), the (2nd Respondent ) as mandated by Regulation 03 of the National Environmental (Procedure for Approval of Projects) Regulations No 01 of 1993, Mining and Mineral Extraction being a prescribed project as per order of the Minister of Environment, the (4th Respondent) under section 23Z of the said National Environmental Act dated 18.06.1993[vide Gazette Extraordinary No 772/22 dated 24.06.1993, P11 (b)].

19. The petitioner states that given the fact that such mining and transport of sand from the said sand dunes in contravention not only of section 26(1) and 28(1) of the said Mines and Minerals Act but also of sections 23AA and 23BB of the said National Environmental Act and the Regulations referred to above constitute offences punishable under section 63(1)(a) of the said Mines and Minerals Act and section 31 of the said National Environmental Act.

20. The petitioner states further that the said Respondents have failed to respond and to take necessary action up to date.

21. Being aggrieved by the said inaction and /or failure to act and /or neglect to perform duty by the said 1st -4th Respondents, the petitioner respectfully seeks to invoke the jurisdiction of your Lordships’ Court under and in terms of the provisions of Article 140 of the Constitution for orders in the nature of writ of mandamus and for other incidental relief, on the following among other grounds that may be urged by counsel at the hearing of this application.

i. The said inaction and/or failure to act and /or neglect to perform duty is wrong, illegal and contrary to law.

ii. If is submitted with respect that the 1st – 4th Respondents by the said unlawful and /or illegal and /or wrongful inaction and /or failure to act and /or neglect to perform duty have failed to perform the public statutory duty imposed on the said Respondents by the provisions of the said Mines and Minerals Act, the National Environmental Act and the Police Ordinance.

iii. It is further submitted with respect that the said inaction and /or failure to act and /or neglect to perform duty is/are obnoxious to the declared objectives and express provisions of the aforesaid Enactments.

iv. It is respectfully submitted that the said inaction and/or failure to act and /or neglect to perform duty is/are detrimental to and/or in violation of the fundamental rights, of the citizens inhabiting the said locality, declared, recognized and guaranteed particularly by Article 12(1) and 14(1)(g) and (h) of the Constitution and thereby the said Respondents have failed in the constitutional duty cast in all organs of government by Article 4(d) to respect, secure and advance the fundamental rights declared and recognized by the Constitution, the said Respondents being components and /or instrumentalities and /or agencies of the government.

v. It is respectfully submitted further that the said inaction and/or failure to act and /or neglect to perform duty is/are inconsistent with and/or repugnant to the Directive Principles of State Policy and Fundamental Duties, particularly those enunciated in Article 27(2)(a),(b)and (c), 27(9), 27(14) and 28(a) and (f)of the constitution. According to Article 27(1) the Directive Principles of State Policy are the guiding principles for the legislature and executive in the enactment of laws and the governance of the country. They are in the nature of an instrument of instructions, which both the legislature and executive must respect and follow.

vi. It is submitted with respect that the organs of the government, in one of which the said Respondents are components and/or instrumentalities and/or agencies, are the guardians to whom the people have committed the care and preservation of the natural resources, including the bio-diversity of the people and thus, the said Respondents have failed in and/or neglected to perform their duty in the said capacity of the “Public Guardian” as the said concept is judicially formulated.

vii. It is further submitted with respect that the said inaction and/or failure to act and/or neglect to perform duty is/are in breach of Sri Lanka’s international obligations on environmental protection. The international conventions and declarations indicated in paragraph 15 above cast several responsibilities on the Government of Sri Lanka of which the said Respondents are components and/or instrumentalities and/or agencies, for the protection, preservation and conservation of the environment and natural resources and utilization of such resources in a sustainable manner for the well-being, development and advancement of the people of Sri Lanka as the guardian of the natural resources of the country, on behalf of the people of Sri Lanka. It is submitted that, as it has been judicially determined, the concepts and principals of Environmental Law enshrined in such instruments have become part of the domestic law of Sri Lanka.

22. The Petitioner has not invoked the jurisdiction of Your Lordships’ Court in respect of this matter prior to this application.

WHEREFORE the Petitioner prays that Your Lordships’ Court be pleased to: –

a. Issue notice of this application on the Respondents in the first instance;

b. Grant and issue an order in the nature of a writ of mandamus ordering the 1st Respondent to take action and/or steps and/or measures to stop and prevent the activities in violation of the provisions, particularly of sections 28(1) and 63(1)(a) of the said Mines and Mineral Act, taking place in the region of the said Kalpitiya Peninsula;

c. Grant and issue an order in the nature of a writ of mandamus ordering the 2nd Respondent to perform its duties under and in terms of the provisions of section 10(a) and (l) of the said National Environmental Act, i e. to administer the provisions of the Act and the regulations made thereunder and to undertake investigations and inspections to ensure compliance with the Act and to investigate complaints relating to non-compliance with its provisions particularly those of section 23AA, 23BB(1) and 31, in the said region of the Kalpitiya Peninsula ; and to conduct research and/or studies in relation to the environmental degradation caused by the mining of sand dunes in the region the said Kalpitiya Peninsula and recommend to the 4th Respondent for implementation a National Policy and Criteria for the Protection , Conservation and Management of the Sand Dune Mineral Resources in terms of the provisions of sections 10(b) and (d) read with section 17 and 23, while fostering its sustainable use for the benefit of the present and future generation;

d. Grant and issue an order in the nature of a writ of mandamus ordering the 3rd Respondent to act in accordance with the provision of section 56(a) and (d) and 71 of the said Police Ordinance in respect of the individuals acting in contravention of the provisions, particularly of sections 28(1) and 63(1)(a) of the said Mines and Mineral Act and of section 23 AA , 23BB(1) and 31 of the said National Environmental Act or as otherwise required by law; in the region of the said Kalpitiya Peninsula.

e. Grant and issue an order in the nature of a writ mandamus ordering the 4th Respondent to give necessary orders, directions and guidance to the 1st and 2nd Respondents for the protection, conservation, management and sustainable use of the said sand dune mineral resources;

f. Grant costs of this application;

g. Grant such other and further relief as to Your Lordships’ Court shall seem meet.

………………………..
Attorney-at-Law
For the Petitioner