The eppawela phosphate mining project: Breaking new ground in natural resources management

Asia Pacific Journal of Environmental Law

Volumn 5, Issue 3, 2000, Pages 275-289

  Guneratne, C ^a  

^a NONE

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[No Author keywords available]

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EID: 0002670670     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1009902303187     Document Type: Note

References (46)

1. 1 Bulankulama v. The Secretary, Ministry of Industrial Development (2000) Volume 7 No 2 South Asian Environmental Law Reporter 1. This case was filed on 8 October 1999 and judgment was delivered on 2 June 2000.
2. Article 126(1) reads: The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognised by Chapter III or Chapter IV."
3. (The eight Respondents in the case were: 1) (The Secretary, Ministry of Industrial Development; 2) (The Board of Investment of Sri Lanka; 3) (Geological Survey and Mines Bureau; 4) (Central Environmental Authority; 5) (Sarabhumi Resources (Private) Ltd.; 6) (Lanka Phosphate Ltd.; 7) (Geo-Resources Lanka (Private) Ltd.; and 8) The Attorney General.
4. This information is taken from the petition and written submissions filed in the case.
5. In the meantime from about February 1997 the place of Freeport MacMoran was taken by IMC Agrico Company, a partnership registered in the U.S. comprising Freeport MacMoran and IMC Global Inc.
6. Brohier describes the Jaya Ganga or Yodi-ela as "an ingenious memorial of ancient irrigation skills" and says: The magnificient Yodi-ela about 40 feet wide which carried the copious drainage of the north western slopes of the Matale hills from Kalawewa to Anuradhapura and onward, was undoubtedly designed to serve as a combined irrigation and water supply canal. ⋯ It today feeds no less than 60 village tanks and provides a reliable source of drinking water to more than 100 villages and to the town of Anuradhapura."
7. See, R. L Brohier Ancient Irrigation Works of Ceylon Part II (Ceylon Government Press, Colombo: 1935) 7-8.
8. Trincomalee Harbour on the eastern coast of Sri Lanka is the world's fifth largest natural harbour. The surrounding area particularly around the harbour is known for its scenic beauty with unspoilt beaches to the south against a backdrop of hills.
9. Article 12(1) provides: "All persons are equal before the law and are entitled to the equal protection of the law"; Article 14(1): "Every citizen is entitled to ⋯ (g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise; (h) the freedom of movement and of choosing his residence within Sri Lanka."
10. Number 47 of 1980 as amended by Act No 56 of 1988 (Sri Lanka). Part IV C of the Act requires an Environmental Impact Assessment for a gazetted list of prescribed projects. The project would come within the item "Mining and Mineral Extraction"
11. See Gazette Extraordinary No 722/22 of 24 June 1993 (Sri Lanka).
12. One of the difficulties faced by the petitioners was the inability to obtain information regarding the signing of the MIAs. The issue was addressed in the judgment of the Court. At the preliminary hearing the Court ordered the State to produce the MIA to Court if it had been signed. However, at the time of filing action the MIA had only been initialled.
13. (1997) 1 SCC (Supreme Court Cases) 388 (India).
14. R. L Brohier Ancient Irrigation Works of Ceylon Part II, Ibid at 407.
15. R. L Brohier Ancient Irrigation Works of Ceylon Part II, Ibid.
16. See for instance, H. W. Tambiah Principles of Ceylon Law (H. W. Cave and Co, Colombo: 1972) Chs 3 and 4.
17. Note 1 at 11.
18. Cose Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1998) 37 ILM 162.
19. See also, Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law" (1998) 3 APJEL 101 at 118-123 for a discussion on Judge Weeramantry's separate judgment.
20. (1998) 37 ILM 162 at 210-211.
21. see also note 1 at 12.
22. Vice President Weeramantry in his separate opinion in the Danube case also observed: "In drawing into international law the benefits of the insights available from other cultures, and in looking to the past for inspiration, international environmental law would not be departing from the traditional methods of international law, but would, in fact, be following in the path charted out by Grotius. Rather than laying down a set of principles a priori for the new discipline of international law, he sought them also a posteriori from the experiences of the past, searching through the whole range of cultures available to him for this purpose. From them, he drew the durable principles which had weathered the ages, on which to build the new international order of the future. Environmental law is now in a formative stage, not unlike international law in its early stages. A wealth of past experience from a variety of cultures is available to it It would be pity indeed if it were left untapped merely because of attitudes of formalism which see such approaches as not being entirely de rigueur." Note 16 at 207.
23. Note 1 at 12.
24. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law", Ibid at 13.
25. Articles 27 and 28 are contained in Chapter VI of the Constitution entitled "Directive Principles of State Policy and Fundamental Duties". Article 27 contains the Directive Principles and Article 28 the Fundamental Duties, neither of which are justiciable. However, Article 27(1) states that: "The Directive Principles of State Policy herein contained shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society."
26. 22 Note 1 at 14.
27. In M. C. Mehta v. Kamal Nath, note 11, Justice Kuldip Singh at 407 noted: "According to Prof. Sax the Public Trust Doctrine imposes the following restrictions on governmental authority: Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."
28. Article 126 of the Constitution of Sri Lanka.
29. Note 1 at 10.
30. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 14.
31. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 15.
32. Article 17 of the Constitution of Sri Lanka reads: "Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter."
33. Note 1 at 15.
34. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 18.
35. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 62.
36. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 64.
37. The concept of sustainable development and other principles within it have been cited in decisions of the Supreme Court of India. See for instance, M. C. Mehta v. Kamal Nath, note 11. The Court in this case referred to previous decisions of the Indian Supreme Court in Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 (India) and Indian Council for Enviro Legal Action v. Union of India (1996) 3 SCC 212 (India). It was addressed for the first time in international case law in the separate opinion of Judge Weeramantry in the Case Concerning the Gabcikovo-Nagymaros Project, note 16.
38. Note 1 at 30.
39. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 28.
40. 1972 Stockholm Declaration (1972) 11 ILM 1416, Principles 14 and 21, and later Principle 5; and 1992 Rio Declaration (1992) 31 ILM 874, Principles 1 and 4 and later Principle 3.
41. Note 1 at 30.
42. See also Philippe Sands Principles of international environmental law I (Manchester University Press, Manchester: 1995) 199.
43. Section 17 of the Act entitled "Natural Resources" states: "The (Central Environmental) Authority in consultation with the [Environmental] Council shall 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."
44. Note 1 at 38.
45. Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law, Ibid at 53.
46. The Article reads: "The exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph "law" includes regulations made under the law for the time being relating to public security.