Whether you live on the border of a forest or in central Colombo, the destruction of our natural resources affects us all. It is the responsibility of Sri Lanka’s citizens to protect and ensure that our country’s forests and wildlife are managed wisely; it is our responsibility to hold those who have committed to the care and conservation of our natural resources accountable.
Deforestation is presently taking place on the legally declared Forest Reserves of Maraichukkaddi-Karadikkuli (Kallaru Forest), Vilaththikulam and Veppal, in clear violation of the forest conservation laws and regulations in Sri Lanka. Commencing in 2009 at the Northern Sanctuary, bordering the Wilpattu National Park, deforestation has taken place with the aim of developing housing schemes for allegedly displaced persons during the ethnic conflict between the Government of Sri Lanka and the LTTE.
The Environmental Foundation (Guarantee) Ltd. (EFL) together with the Wildlife and Nature Protection Society filed a Fundamental Rights application against the Forest Department, the Minister of Environment and Mahaweli Development Rishad Bathiudeen (Minister of Industry and Commerce) and several others on 31March 2017. This questioned the illegal release of land within these Forest Reserves, in the District of Mannar, for alleged ‘resettlement’ purposes. The Petition probed into several matters regarding the said release, inter alia:
a)The release of lands within the said Forest Reserves by the Senior Deputy Conservator of Forests, to the Divisional Secretariat of Mannar, for the alleged purposes of “resettlement”, and the clearing of the Maraichchukaddi-Karadikkuli (Kallaru), Vilaththikulam and Veppal Forest Reserves.
b)The decisions, permissions and/or endorsements taken/granted by the relevant authorities, in releasing forest reserves to cater to the land and/or settlement demands of The Presidential Task Force for Resettlement Development and Security – Northern Province and the Inter- Agency Committee appointed by the Task Force.
c)The irreparable, irreversible and grave environmental damage caused to the Maraichukaddi-Karadikkuli (Kallaru), Vilaththikulam and Veppal Forest Reserves due to the imprudent and/or incautious and/or unlawful acts and/or omissions of the relevant governmental authorities.
d)The construction and forest clearing allowed by the Forest Department, within the above mentioned Forest Reserves, being carried out by unauthorised private contractors with funds obtained from the Government of Qatar, in violation and/or in disregard of the laws, procedures and/or regulations set out in the National Environmental Act, as amended.
Discoveries in brief
- Prior to litigation, EFL took this issue up with the Conservator General of Forests, the Chairman of the CEA and the District Secretary of Mannar respectively, in January 2017. The District Secretary of Mannar answered the issues raised by EFL in February 2017, stating inter alia, that the necessary approvals and clearances have been allegedly issued and/or granted by the Conservator General of Forests and further that “resettlement work had been implemented under the resettlement policy.”
- It appears that the Senior Deputy Conservator of Forests, by letter dated 8th May 2013 has informed the Divisional Forest Officer of Mannar, that 770 acres of land on either side of the Silavathurai- Maraichukkaddi road and 650 acres of land adjoining the Pichchai– Vannikulam road has been identified as the land necessary for the purpose of resettlement of displaced individuals. The decision was made at a meeting attended by Mr. Susil Premajayantha, Minister of Environment and Renewable Energy (at the time), Mr. Rishad Bathiudeen, Minister of Industry and Commerce and Mr. Unaiz Farook from the Electoral District of Vanni.
- The said letter of the Senior Deputy Conservator of Forests, further requires that the Divisional Forest Officer of Mannar, mark the boundaries of the forest in the aforesaid areas, and in doing so, should also indicate the boundaries of the lands required to fulfill the aforementioned requirements for “resettlement,” from among the lands lying outside the forest boundary, which have been damaged due to illegal and other activities.
- It is pertinent to note that the clearing of forests in the declared Forest Reserves is beyond the released extent mentioned above. Further that there is no indication that an Environmental Impact Assessment (EIA) and/or an Initial Environmental Examination (IEE) have been conducted prior to the release of any such forestland. This goes against the terms of the provisions of the National Environmental Regulation (No.772/22 of 1993) as provided for in the National Environmental Act (as amended), which is the overarching applicable law for environmental protection in the country.
- Considering the extent of Forestland being destroyed which appear to have remained intact as pristine forests even before 1984 (as per Google Earth images), the pretense of clearing these areas for the alleged purpose of “resettlement” of displaced communities “as a resettlement policy” is capricious and exudes bad faith.
The extent of the Maraichukkaddi-Karadikkuli (Kallaru), Vilaththikulam and Veppal Forest Reserves is in total 46,072 acres. Approximately 2,208 acres have been cleared as per Google Earth maps by December 2015. The cleared areas are as follows:
- Veppal Forest Reserve – an extent of 157 acres
- Vilaiththakulam Forest Reserve – an extent of 700 acres
- Maraichukkaddi/Karadikkuli – extents of 284 acres, 215 acres, 38 acres and 814 acres – equaling to 1351 acres.
A moderately large housing scheme was under construction in Potkerny within the Vilanththikulum Forest Reserve. The area has been provided with electricity and a well-established transmission line system. The construction appeared to be in several stages as there were completed houses, semi-completed houses and extensive power transmission lines being drawn well into parts of the forest reserve that is still intact.
The primary concern
The Marichchukaddi-Karadikkuli, Vilanthikulam and Veppal Forest Reserves, being duly declared Forest Reserves are entitled to protection under the provisions of the Forest Conservation Ordinance, No. 16 of 1907 and the National Environmental Act, No 47 of 1948. They are also entitled to protection in terms of a number of International Conventions and Agreements to which Sri Lanka is a party such as the Convention on Biological Diversity, Convention on the Conservation of Migratory Species and Wild Animals, the Convention on Wetlands of International Importance and most recently, the Paris Agreement.
Under the provisions of the Forest Conservation Ordinance, human activities such as clearing of trees, and the construction of buildings and roads and use thereof are prohibited within Forest Reserves unless done in accordance with any regulation made by the Minister or with the permission in writing of a forest officer empowered to grant such permission. However, the discretion of the Minister or the forest officer in this regard must be exercised subject to the provisions of the National Environmental Act (“NEA”).
The NEA provides that any approval or permission for the implementation of any undertaking within a Forest Reserve involving human activities such as those mentioned above must, mandatorily, be preceded by an assessment of environmental impact. The failure to exercise discretionary power subject to this protective mechanism amounts to an illegal and arbitrary exercise of power and would render any approval and/or permission granted following such exercise illegal and of no force and avail in law. In light of the ecological importance of the Marichchukaddi-Karadikkuli, Vilanthikulam and Veppal Forest Reserves, such an exercise of power would also be imprudent and amount to a grave violation of the public trust doctrine.
Courts in Sri Lanka have recognised that the organs of State are guardians to whom the people have committed the care and preservation of the natural resources of the country. This recognition of the doctrine of public trust, places a tremendous responsibility upon the government to preserve and protect the environment and its resources.
Thus far, the Conservator General of Forests in his limited objections has denied the allegation that the release of land from forest reserves in the Mannar district is illegal. However, the objections do not address our primary concern, viz the apparent failure to conduct an assessment of the environmental consequences of the proposed actions as required by the NEA prior to the release of a Forest Reserve.
The limited objections filed by the Minister of Industry and Commerceinvokes the “right to return” of the Internally Displaced Persons concerned as justifying the conduct of the State parties in the present matter. While the Government of Sri Lanka certainly has a duty towards IDPs, what is argued in this case is that the enforcement of this responsibility must be within the established legal framework of the country. The unlawful exercise of power cannot be justified because it facilitates the fulfillment of the rights of a particular group. The law provides a mechanism by which the organs of state can balance the enforcement of competing interests.
In just the last two years, floods, landslides, drought and epidemics such as Dengue have battered Sri Lanka. Many have lost their lives due to direct and indirect results of badly planned, illegal and unsustainable development in many parts of the country. If the responsibility to keep all citizens of the country safe is shirked by not performing the necessary studies and not keeping with the law of the country, then the Government has failed in its duty on several fronts.
Please feel free to write to Environmental Foundation on firstname.lastname@example.org visit website http://efl.lk/ if you require further clarification or would like to be sent a full report that has been compiled on the case.