An artist’s impression of the proposed port city at Galle Face, via Wikipedia
Paving paradise to put up a parking lot with a pink hotel, a boutique, and a swingin’ hot spot?
In the words of Nobel laureate and economist, Amartya Sen, freedom is the primary goal of development; freedom is also the principal means of development. Yet, the prevalent ethos of Sri Lanka is one that denigrates human rights in the name of economic development. The race to prosperity is callous towards human costs of development while adopting a myopic apathy towards violence committed against the environment.
The latest addition to the long resume of government’s development projects is the Colombo Port City Development Project. Shopping areas, water sports area, mini golf course, hotels, apartments, recreation areas, marinas and a formula one driving track are only few of the luxuries that will be available once the Project is completed. Approximately 575 acres of water front sheltered by a breakwater will be reclaimed for this mega investment project of nearly US$ 900 million. The plan has been given approval by the Standing Cabinet Appointed Review Committee (SCARC).
The total investment for the project is by the investing company. As per an unsolicited proposal forwarded by China Harbour Engineering Company Ltd. (CHEC), a partnership of the China Communication Construction Co. Ltd. (CCCC), has been granted permission to develop the Colombo Port City Project, including reclamation, breakwater construction, connected road network and supply of services.
Various allegations have been leveled against the legitimacy of the project. It was alleged that the CCCC is a company reported for engaging in corrupt practices. Furthermore, former Chairman of the Ceylon Chamber of Commerce, Chandra Jayaratne in a letter to the Minister of Investment Promotion, questions how this project which proposes to give ownership of newly constructed land to a foreign company would affect Sri Lanka’s sovereignty, territorial integrity, freedoms and rights of the citizens while also questioning whether the judicial structure of the country would apply to the newly constructed area.
Most proponents of the project liken this mega construction to the Palm Islands in Dubai. This very comparison raises a question mark on the viability of the Port City Project. World Wildlife Fund and Greenpeace have severely criticized Dubai’s Palm Islands as a monstrosity against the environment. Dredging of sand that has led to confusion and turbidity of seawater as well as damaging marine habitats such as coral reefs and shells covered by sand are among the devastating environmental consequences of constructing these artificial islands. Therefore it is only reasonable that interested segments of the public should be concerned about the possible consequences, and the viability and the sustainability of replicating such a project.
This essay attempts to isolate the issue of sustainability of the Colombo Port City Development project in terms of environmental rights. To this end it explores certain obligations of Sri Lanka and the enhancement of the relevant jurisprudence through judicial interpretation.
The 1978 Constitution, it may be argued, enshrines the principle of sustainable development in its Directive Principles of State Policy and Fundamental Duties which imposes duties on the State as well as every individual to protect the environment [Articles 27(14) and 28(f)]. However, it was in the Eppawala Phosphate Mining case [Bulankulama v. Secretary, Ministry of Industrial Development (2000) 3 Sri. L.R. 243], that the concept of sustainable development was clearly articulated. It was stated that while international legal principles are not legally binding in Sri Lanka’s dualist legal regime and are regarded merely as ‘soft law’, as a Member of the United Nations, they could hardly be ignored by Sri Lanka.
Accordingly, the current legal regime in Sri Lanka dictates that in order to achieve sustainable development, one must consider environmental protection as an integral part of the development process. (Principle 4, Rio De Janeiro Declaration). In the case concerning the Gabcikovo-Nagimaros project (Hungary/Slovakia) before the International court of Justice, the Vice-president of the Court, Judge C.G. Weeramantry, referred at length to the ancient irrigation works of Sri Lanka stating, “Just as development was the aim of this system, it was accompanied by a systematic philosophy of conservation dating back to at least the third century B.C.”, thereby noting that sustainable development although now perceived by some as a foreign imposition, was in fact a practice embedded in and was part and parcel of the Sri Lankan heritage.
THE COAST CONSERVATION ACT No. 57 of 1981
Sri Lanka has legislated extensively to bring in a plethora of piecemeal legislations that address various aspects of environmental protection whilst establishing enforcement mechanisms therein. Those projects such as the Port City Development project which are entirely within the coastal zone require approval under the Coast Conservation Act (CCA).
No permit shall be issued by The Director cannot issue a permit for a proposed development activity which may have any adverse effect on the stability, productivity and environmental quality of the Costal Zone (Section 15). Furthermore, Section 24 of the CCA states that even in instances where permits may be issued, the occupation of any part of the foreshore or bed of the sea lying within the Coastal Zone can only be permitted for any period not exceeding three years after which the permit may or may not be renewed.
Under the present project, except for 125 hectares out of the total land area of 233 hectares which will be owned by the Government of Sri Lanka, the rest will be retained by the Chinese company to cover their costs of expenditure. 20 hectares come under the company’s full ownership whilst the rest will be handed over under 99-year lease basis. The investor, at the initial stage, owns only the seabed.
The duration of this initial stage is unknown to the author. However, one finds it difficult to reconcile the statutory obligations of the Coast Conservations Act which restrict the use and occupation of the sea bed, with the granting of approval for a project which affords a complete ownership of the seabed for a considerable period of time with a view of significantly and permanently altering the marine landscape.
ENVIRONMENTAL IMPACT ASSESSMENT
Furthermore, under Section 16 of the CCA it is required for an Environmental Impact Assessment to be conducted before the commencement of a project in the coastal zone. An IEA is carried out for projects that may produce significant environmental impacts. The SLPA has stated to the press that an Environment Evaluation Certificate for the project has been obtained as early as December 2011.
At the heart of the EIA process is the idea of public participation in development and development planning. Upon receipt of the EIA report, the project approving agency is required to publish a notice in the Gazette and in one national newspaper published daily in the Sinhala, Tamil and English languages to invite the public to make written comments within thirty days. EIA process also allows the public or informed parts of the public to challenge and question development projects and probe the impact that these projects will have on the environment. In the Galle Face Green case (Environmental Foundation Limited v. Urban Development Authority, SC(FR) No. 47/2004, Supreme Court Minutes 23rd November 2005.) it was held that the freedom of speech and expression guaranteed in Article 14(a) of the Constitution to be meaningful and effective, must carry within its domain an implicit right of a person to secure relevant information from a public authority in respect of a matter that should be in the public domain.
It is not entirely clear whether the process of public participation took effect to its full potential with regard to the Port City Project. Even then, the judicial enhancement of the EIA process through the Water’s Edge case (Sugathapala Mendis and Others v. C B Kumaratunga and Others, SC (FR) 352/2007, Supreme Court Minutes 8th October 2008.)must be taken into account. The Supreme Court in this case recognized that mammoth projects such as the Port City Development Project do not manifest all their multifarious facets until long after the expiration of the window of opportunity for the public to object. It further noted that “the mere fact that the various environmental authorities said the project could be done, does not in itself suggest that it should have been done.” On the contrary such external approvals are to be seen merely as conditions precedent to the commencement of analysis of the viability of any given project and not as the basis for any decision.
The underlying rationale for the above judgment was that it is barely sufficient to argue that procedure has been followed, when procedural compliance results in a violation of the public trust. This concept of Public Trust needs further discussion.
PUBLIC TRUST DOCTRINE
Roman law dictates that air, running water and the sea including its shores are common property of mankind, the protection and preservation of which may be achieved through the application of the Public Trust Doctrine. The key idea is that the natural resources essentially belong to the people (Article 3 of the Constitution), and the government merely holds them in “trust” and therefore is under an obligation to properly discharge the duty of a trustee.
In Illinois Central Railroad Company v. Illinois [146 U.S. 387 (1892)], the Illinois Legislature had made an extensive grant of submerged land in 1689 to the Illinois Central Railroad Company which the Illinois legislature repealed in 1873. The US Supreme Court held that to grant almost the entire waterfront of a major city to a private company is in effect to abdicate legislative authority over navigation. Accordingly when a state holds a resource which is available for the free use of the general public a court may view with conservable skepticism any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject pubic uses to the self-interest of private parties.
Likewise, in the Galle Face Green case the court refused to accept an agreement which handed over the exploitation of Galle Face Green to the E.A.P. Group as it limits access to the public of a place which was freely used by the common man for purposes of leisure and recreation. Moreover, in the Waters Edge case, the Supreme Court made a strong statement that objectives such as ‘beautification’ of an area, the creation of a few hundred jobs, the creation of a cricket ground (which in the case of the Port City Project is a formula one track) and finally and most importantly the ability to have the above at the expense of an investor rather than at the hands of the State do not constitute a direct benefit to the public. These are the very same justifications being forwarded by the SLPA in order to promote their extravagant Port City Project. It seems the State would need to show a significantly higher public purpose for depriving the public of a resource which was freely accessible to them.
One must question to what extent the recent development projects, specifically the Port City Development Project are in conformity with the advancements made in environmental jurisprudence of Sri Lanka. The grandiose notion of development which measures a country’s progress by the size of its shopping malls may not be sustainable. Surely, it has been an 18th Amendment and a judicial impeachment since much of this jurisprudence was crystalized. Even then, there is never a good time to stop testing ‘the benevolence of the bench’. In the words of another Nobel Prize winner Wangari Maathai “Human rights are not things that are put on the table for people to enjoy. These are things you fight for and then you protect.”
Vishakha Wijenayake, LL.B. (Hons)( Colombo), Attorney-at-Law and Lecturer (Prob),Department of Law, University of Jaffna