The Colombo Port City Development Project

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.

SUSTAINABLE DEVELOPMENT

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.

CONCLUSION

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

  • Nick Hart

    Sri Lanka has a lot of catching up to do after a vicious and immensely damaging 30-year insurgent war. A priority for government must be to rebuild the economy and create the infrastructure needed to attract external investment and employment opportunities that will benefit all—all—Sri Lankan citizens.

    Self-serving diatribes such as this do not help. Perhaps the author might share his ideas on how Sri Lanka should move forward, and how this could be achieved?

    • Vishakha Wijenayake

      Yes or course Sri Lanka has struggled through a bitter armed conflict and yes, it is an opportune moment to focus on economic development. However, it is unclear how mega construction projects such as shopping malls, condominium complexes and casinos located predominantly in Colombo which cater towards the upper class Colombites and foreigners are going to benefit all – all the Sri Lankan citizens you speak of. Especially given all Sri Lankan citizens also include poor farmers in the South and the North Central Provinces and displaced persons in the North and East who have needs more basic than formula one racing tracks.How can real reconciliation take place when the impression is that development is not reaching those who were worst affected by war.
      I am in no way proposing that development is absolute evil. However, the type of development that we must pursue needs reconsideration. This is not an issue exclusive to Sri Lanka but something that requires global consciousness.The world is finally waking up to the catastrophic effects of climate change.
      A global agenda of Sustainable Development Goals are being drafted as we speak.
      Surely, economic development and protecting our environment for the benefit of all, including the future generations, do not have to be seen as being mutually exclusive.

      • Nick Hart

        All good points. But when you speak of reconciliation you might want want to consider the ongoing efforts by well-funded Tamil diaspora chances and fantasists to destabilise the government, with the help of other outside forces.

        Meanwhile, I would genuinely like to hear your views on the best way forward, and I mean specific, realistic, concrete suggestions and not vague hand-waving about a ‘global consciousness’ and ‘sustainable development goals’.

        • Vishakha Wijenayake

          Sure. I think that the best way forward is to support the agricultural industry and small and mid level entrepreneurship. To ensure that more and more educated youth would have incentive to go back to the rural areas. To change agriculture from a job that drives the poor man to commit suicide to one that the youth would find an appealing employment option. I don’t believe that selling our state lands to Dole Bananas is the answer to this either. Incorporating best practices of traditional farming with innovative technology that would help the small scale farmers and entrepreneurs would be the way to go.
          Super highways and power plants maybe necessary even to support small small and medium scale industry, agricultural or otherwise. However, when constructing this kind of infrastructure we must employ the option that causes least possible harm to the environment, natural and social.
          I could be more specific, but that would contradict the point my article was trying to make. Development should not be about what one or two individuals think it should be.I cannot profess to be omniscient about the development needs of all people. There needs to be open dialogue, the narratives of the vulnerable communities need to be heard and then only a truly participatory and therefore representative development agenda can be formulated. This aspect is sadly missing in Sri Lanka. Parliament and the provincial governing structures would have served that purpose to a certain extent, but in Sri Lanka we know how that the system rarely functions, if at all.

          • Nick Hart

            More good points. But I’m sure you’re aware of the arguments raging about whether the economies of developing countries should bear the brunt of containing or reversing the damage done to the global environment by largely western industrial development.

            Meanwhile, there is a rapidly growing consensus that one of the biggest mistakes Sri Lanka made was eschewing English as an official language at independence, and the adverse impact that has had on life and employment opportunities for Sri Lanka’s young people. What are your thoughts on that?

            Specific examples are the professions—legal, medical, engineering, academic, etc—where essential textbooks and professional publications are rarely translated into Sinhalese, and if and when they are, are years out of date.

      • Liberal One

        UNP’ers are starting to sound like JVP cadres day by day. If you think you can unseat the government using [edited out] leftist arguments and then convert back to liberal economic principles under a Wickramasinghe government you are so mistaken.

    • footinmouth

      Also, well done with the assumed-to-be-a-man-until-proven-otherwise brand of misogyny. The writer is a woman.

      • Nick Hart

        A cheap shot. You would presumably prefer that someone not sure of the gender, or making an unintentional mistake, should use ‘she’?

  • puniselva

    Thank you for bringing this to the attention of the readers.
    There must be EIA on what has been going on in the North in the last 7/8 yrs.

  • Jayalath

    It is a great thought of Vishakha . I admire your effort of doing every thing possible to your capacity to protect the environment . I think , There are only handful of people who genuinely worry about the environment and the harm does to it by people that you are one of them . You probably know better than me that world we live today is highjacked by handful of criminals ( so called rich people) and every single thing today will be there to gratify their desires and needs which is a common plague all over the world .

    My worry is that danger of ominous threat to the nature not seen by those who damaging the environment in terms of life style that need to be fixed into their requirements , therefore the most of things has been exposed lately not suitable to the balance of nature . as far as I concern to many of the developments that we need to know how important the nature to our habitat as well as the developments .
    you also must know about our ordinary people who have no idea of what could happen tomorrow ,most of them are living like their heads are hit by a stick and others are just think of making money and be rich being leaned to any criminal or doing any dirty thing .this is the truth every where you can find . They do not heed of future , which is shame .
    .however, I should say this as well that I have no objection for the developments which is necessary ,it has to be done by following the necessary environmental rules and regulations which is important to sustainable development in the country . That is my point
    But I have a doubt of how the things can be worked in a place like Sri Lanka and in a such scenario we should grateful to your commitment about exposing the possible environmental threats to our land and sea by those proposed city development projects .
    And many people only dream about future employments by those project ,and they are ignored and give blind eye to the environment and health issues .
    I may not hesitate to point out possible pollutions might happen in the future by those project if the authorities did not take the appropriate attention to safe environmental methods .therefore ,
    There are number of reasons why the pollution is bad for our environment .and there we identify serious break through as follows ….water pollution ,air pollution , noise pollution , soil pollution , light pollution , pollution from oil spills . These pollutions have been commonly found in major cities in the world that consistently harm to the environment which mean for us . So , those challenges are remained unanswered for many countries and the relevant authorities are struggling to tackle them as many employments opportunities are readily available in the big cities , therefore the cities getting bigger and bigger has become inevitable . And environmentally unfriendly .
    . .
    If you just think of water pollution alone which is key to number of environmental problems . The declining of fresh water resources mean that there isn’t enough safe drinking water , the humans and animals can drink water filled with various chemicals and others which can experience of positioning and deaths . Water pollution also easily lead to creation of so called ” dead Zones ” which animal and plants cannot survive due to the severe shortage of OXYGEN .
    So, it is very important to think what kind of potential developments are suitable to us in long run. AND those needs to be concluded after very carefully analysed the economical benefits and the safe heaven of environment .unless we are not oppose to the developments or envious to others life stand

  • Nick Hart

    Regarding ‘self-serving diatribe’, there are agendas at work in Sri Lanka, amply funded and supported by outside interests, as was the war, as I am sure you know. Their intention was and is to gain political and geographical advantage by constantly attacking and destabalising the government.

    Regarding the MR harbour, if properly managed it could provide a huge boost to Sri Lanka’s economy. As container ships get bigger and bigger, fewer and fewer ports are able to handle them. As this traffic increases between the Far East, particularly China, and Europe, it would be a major advantage for Sri Lanka to be one of the few, perhaps only, port in South Asia able handle these megaships, and to tranship the containers.

    Finally, where do you think the money is going to come from to pay for the massive rebuilding and infrastructure development that the country is and must undertake if it is to make up for 30 years of lost time. Sri Lanka must—must—attract substantial foreign investment, one way or the other. Profiteering? That’s what ALL companies do. It’s why they exist.

    As for local fishermen, for environmental sustainability it would be vastly better for Indian Ocean fish stocks if there were many fewer of them.

  • Bandara

    Actually some people sitting with laptop and talk about traditional farming, empowering medium scale industries is silly. [Edited out] I am living in Kurunegala and we have one coconut picker in my village. His son is an engineer and the daughter is a dental surgeon. So if you have enough common sense and imagination in your head, you will know what happens in next ten – twenty years to the people who depend on very small agricultural lands. Because their lands are getting smaller and smaller after each generation. Actually she knows nothing about farming nor Dole Bananas. thanks