Withanage Don Hemantha Ranjith Sisira Kumara Vs. Director Coast Conservation, CA no. 551/2005 (2005.03.29) (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. Application No: / 2005

Withanage Don Hemantha Ranjith Sisira Kumara,
Executive Director,
Centre for Environmental Justice,
59/14, Kuruppu Road,
Colombo 08.

PETITIONER

Vs.

1. Director,
Coast Conservation Department,
P.O.Box 556, New Secretariat,
Maligawatte,
Colombo 10.

2. Minister of Fisheries and Aquatic Resources,
Ministry of Fisheries and Aquatic Resources,
New Secretariat,
Maligawatte,
Colombo 10.

3. 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 March 2005.

The Petition of the Petitioner abovenamed 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.59/14, Kuruppu Road, Colombo 08, 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 laws relating to the protection of the environment and responding to the constitutional dictates enshrined in the Chapter on Directive Principles of State Policy and Fundamental Duties in the Constitution of the Democratic Socialist Republic of Sri Lanka, is interested in the performance of fundamental duty cast on every person by Article 28(f) of the said Constitution , to protest 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 15 years.

2. The 1st Respondent is a public officer appointed under and in terms of the provisions of section 3(a) of the Coast Conservation Act No. 57 of 1981, as amended and is the officer in charge of the Department of Coast Conservation. He is responsible for the administration and implementation of the provisions of the said Act, under and in terms of the provisions of section 4(a).

3. The 2nd Respondent is the Minister in charge of the subjects of fisheries and aquatic 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 2nd Respondent, are subject to his direction, control and supervision.

4. The 3rd Respondent is the Chief Legal Officer of the State and is made a Respondent for the purpose of giving notice of this application.

5. The Petitioner states that Sri Lanka is endowed with a diverse and resource rich coastal region which provides significant geological, ecological, economic, scientific, cultural, recreational and scenic benefits to the people. The coastal region accounts for 24% of the land mass and contains 32% of the total population of the country.

6. The coastline which is about 1585 km. in extent supports a diversity of coastal and marine habitats such as estuaries and lagoons, wetlands (mangroves, salt marshes, brackish water marshes and freshwater marshes), beaches and sand dunes, coral reefs and sea grass beds.

7. Coastal and Marine Systems comprise one of the four main ecosystems in Sri Lanka, the others being Forests, Wetlands and Agricultural Systems which together constitute the panorama of natural ecosystems and the array of basic habitats in the country. The Petitioner annexes hereto marked P2, the relevant pages of ‘A Framework of Action for the Bio-diversity Conservation in Sri Lanka’ published by the then Ministry of Forestry and Environment in 1999, in this regard.

8. The benefits, advantages and significance of the Coastal and Marine Ecosystem are as follows:

i. Economic and Social –

a. Coastal region provides preferred living space and is one of the most densely populated areas containing 32% of the total population

b. Coastal region is the location for about 90% of the industrial units thus playing a vital role in the economy

c. Coastal region contains most of the principal transportation infrastructure

d. Coastal zone beaches are major tourist attractions and it contains about 80% of the tourist infrastructure thus playing a pivotal role in the tourist industry

e. Coastal region is the location for the bulk of aquaculture activities

f. Coastal zone contributes to about 80% of the total annual fish production

g. Coastal region contains important minerals such as illmenite and monazite bearing beach sands, silica sand, miocene limestones, kaoline clay, copper magnate and peat, all potential industrial raw materials

ii. Cultural and Recreational –

a. Coastal zone contains many sites of archeological, historical, cultural and religious significance representing part of the nation’s heritage

b. Coastal zone’s scenic resources make it a focus of people’s recreational activities

iii. Ecological and Geological –

a. Coastal and marine habitats such as estuaries and lagoons, wetlands, coral reefs and sea grass beds, so common along the coast line are among the most productive ecosystems in the world and are rich in genetic resources

b. Coastal and marine habitats support nation’s coastal fisheries

c. Mangroves stabilize shore line: their stems and roots trap fine sand and soil particles, forming an erosion resistant layer. By inhibiting wave damage they provide the coast with a buffer against sea’s erosive forces

d. Mangroves are a major source of food and nutrients to estuarine, lagoonal and nearshore coastal waters and provide a nursery for the early stages of commercially important crustaceans and fish

e. Mangrove stands help control runoff thereby reducing siltation in estuaries and seagrass beds

f. Salt marshes provide nutrients to nearshore coastal habitats, provides habitats for avifauna, supply seed fish for coastal aquaculture and function as a discharge area that can absorb storm water runoff

g. Coral reefs are rich in bio-diversity and are important for the sustenance of coastal fishery

h. Coral reefs dissipate wave energy and thus enhances coastal stability by containing erosion

i. Sea grass beds comprise a highly productive habitat that support many commercially important organisms

j. Sea grass beds bind sediment and stabilize the coast against erosion

k. Sand dunes serve as protective barriers particularly during storm conditions

9. The Petitioner states that the coastal zone is the interface between land and sea and includes that part of the land affected by its proximity to the sea and that part of the sea affected by its proximity to the land.

10. The physical nature of the coastal zone is not static; it is dynamic and subject to long term and short term changes. Therefore, any human intervention in the dynamics of coastal behavior needs careful planning and impacts of unplanned activities can have significant deleterious effects.

11. The Petitioner states that the physical and ecological character of many of the coastal habitats makes them especially susceptible to degradation. These habitats are small and lack resistance and have a low threshold for irreversible change. Activities that occur inland often have an over-riding impact on coastal habitats.

12. These factors amply demonstrate the need to manage the coastal zone in order to ensure that the carrying capacity of the zone and its resources are not surpassed.

13. Notwithstanding the multiplicity of statutes that are expected to act as deterrents, the petitioner states that degradation of coastal and marine habitats continues to take place due to deficiencies in the law and law enforcement.

14. The threats to the environment from coastal zone activities arise mainly from over-use and/or misuse of resources and by lack of sufficient planning and management of such activities.

15. The activities that threaten the stability of the coastal zone and its habitats include:

i. Destruction of Vegetation –

Mangroves are quickly being depleted; are cut for timber and fuel wood and the habitat is converted to aquaculture sites or human settlements. Since vegetation absorbs some of the water’s energy slowing down potentially erosive currents, clearing coastal vegetation removes this natural protection and therefore, accelerates coastal erosion.

ii. Sand Mining –

Sand mining on the coast results in reduced beach replenishment causing increased coastal erosion. River sand mining causes erosion of river banks and deepening of river beds; the latter results in the intrusion of salt water into the river endangering water supply schemes. Further river sand mining results in reduction of sand available for beach maintenance.

iii. Coral Extraction –

a. Reef Breaking –

Coral reefs along the coast have been significantly degraded by breaking of reefs for raw materials required for the production of lime for the construction industry. Reefs are blasted to provide navigation access to fishing boats.

Besides destroying the ecologically valuable habitat for vulnerable species, reef breaking reduces the size of the fringing reef and its natural ability to absorb the energy of breaking waves thus making them less effective in wave reduction and erosion mitigation. Also most reefs will not be productive for fisheries.

b. Collection of Coral rubble –

Coral ruble is one of the sources of beach material. By collecting large amount of coral ruble from the beach, the amount of nutrients available for beach nourishment is reduced, accelerating erosion. Coral ruble also assists in reef building through consolidation by binding organisms which leads to new reef formation.

c. Inland Coral Mining –

Destruction of inland coral deposits results in conversion of productive land into water logged areas. Such low-lying areas would in turn result in reduction of coastal stability.

iv. Destructive Fishing Methods –

Certain fishing methods are destructive and hence diminish living coral reefs and sea grass beds.

v. Coastal Pollution –

Urban pollutants such as heavy metals, petro-chemicals, sediments and feacal matter degrade marshes, estuaries, lagoons, coral reefs, and other coastal habitats and directly threaten the sustainability of nearshore fisheries. Further, increased levels of pollution degrade coastal environment and endanger coastal tourism.

Discharge of untreated pond effluent in aquaculture activities also contributes to coastal pollution. Further aquaculture can lead to increased salt water intrusion and increased pollution of water sources. A lack of access to uncontaminated water for consumption is a grave hazard to human health.

vi. Improper Constructions –

Improperly cited coastal buildings and other maritime structures interfere with the dynamics of the natural coastal processes. They aggravate or cause coastal erosion in adjacent areas resulting in loss of such building and structures and in failure to meet the objectives for which they were originally planned.

Further such buildings and constructions restrict and/or hamper the longstanding traditional access to and along the beach (vertical, lateral and visual access) by the public.

16. The Petitioner states that Coastal erosion is a severe problem in Sri Lanka that results in damage to and /or loss of houses, hotels, and other coastal structures, undermines transportation networks, contributes to the loss or degradation of valuable land and disrupts fishing, navigation, recreation and other activities.

In economic terms, the public and private costs of coastal erosion have now reached staggering proportions. Enormous amounts of money are being spent annually to cope with the losses created by coastal erosion as well as on measures to reduce coastal erosion.

17. Such factors highlight the need for an integrated multi-disciplinary approach in planning of coastal development activities and the need to adopt conservation measures to safeguard the living organisms and their habitats as the means of ensuring that development activities will remain sustainable and to ensure that coastal environment will remain attractive and healthy.

18. Unless urgent management measures based on qualitative geomorphological information for coastal stabilization are initiated on a priority basis the Petitioner states that the financial costs of erosion management would far outweigh any possible benefit from investment on the same requiring large scale relocation of communities, economic activities and infrastructure networks.

19. The measures that could be taken to prevent the destruction and degradation, and conserve the coastal zone and its habitats and environs include:

A. Coastal Habitat Management –
i. preservation of coastal and marine habitats and promotion of sustainable utilization of resources found within such habitats

ii. preservation of mangroves as an important habitat for wildlife, a nursery for fish, a nutrient trap and a buffer against coastal erosion

iii. maintenance of water quality and fishery habitat in estuaries and lagoons

iv. ensuring sustainable use of salt marshes as a water fowl habitat and a buffer against flooding

v. preservation of seagrass beds as a habitat for fishery and marine creatures

vi. prevention of degradation and depletion of coral reefs

B. Coastal Erosion Management –

i. conservation of barrier beaches, dunes and spits

ii. prevention of excessive sand mining

iii. identification of erosion trends and formulation of appropriate mitigation measures

iv. reclamation and nourishment of suitable coastal frontiers

v. regulation of location of development activities

C. Coastal Pollution Control –

i. minimizing effluent discharges in to the coastal zone

ii. reduction of solid waste disposal in the coastal zone

20. The Petitioner states that the natural processes in the coastal zone are in a stable dynamic equilibrium. They are never in a permanently balanced static condition. The richness and the bio-diversity of the coastal zone and its environs which are prime national heritage need to be wisely utilized, managed and protected for the benefit of the nation and its future generation. Current knowledge shall be utilized in planning human activities in the coastal zone in order that they will harmonize with nature and provide for the sustained use of coastal resources. Measures shall be taken to mitigate deleterious impacts on such resources to prevent the depletion and degradation.

21. The Petitioner believes the aforesaid facts, circumstances and objectives were taken into consideration in the establishment of the Coastal Protection Zone (a 2 km wide band of the ocean and the adjoining ribbon of land extending 300 m inland except where a water body connected to the sea occurs where the zone extends 2 km inward from the mouth of the water body), under the provisions of the Coast Conservation Act No. 57 of 1981, as amended and the demarcation of Setback Areas (areas left free of any physical modification to allow for dynamics of seasonal and long term fluctuations of the coast line and to ensure physical and visual access to water front) under the Coastal Zone Management Plan prepared by the Coast Conservation Department prepared in accordance with the provisions of the section 12 of the said Act and thus having statutory potential and the promulgation of Coast Conservation Regulations No. 01 of 1982, under the provisions of section 32 of the said Act by the then Minister of Fisheries.

The Petitioner annexes hereto true copies of the said Coastal Zone Management Plan, 1997 and the said Coast Conservation Regulations, 1982 marked P3 and P4 respectively and Coastal 2000: Recommendations For A Resource Management Strategy For Sri Lanka’s Coastal Region (Vols. I and II) marked P5 (a) and P5 (b).

22. The Petitioner states that although, certain activities are totally prohibited and/or restricted within such Zone and Areas, such prohibitions and/or restrictions are not strictly complied with and/or adhered to. Furthermore, the traditional right of the public to have access to and to use and enjoy any portion of the beach, which has been given statutory recognition in terms of the provisions of section 31 D (3) of the said Act, has been obliterated and/or denied at many places.

The Petitioner annexes hereto a report entitled ‘Survey of Public Access To And Along The Beaches’ marked P6 and photographs marked P7(a) – P7(h) in this regard.

23. 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 18 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.

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

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.

24. 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 agents, as the guardian of the natural resources of Sri Lanka on behalf of the present and future generations of the people of Sri Lanka.

25. 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 Generations Towards Future Generations, 1997
vii. Johannesburg Declaration on Sustainable Development, 2002

The Petitioner annexes hereto true copies of the aforesaid instruments marked P8 (a) – P8 (g) respectively.

26. In the aftermath of the devastation caused by the recent Tsunamis, the Government of Sri Lanka has decided to declare a Coastal Conservation (Buffer) Zone of 100 m around the coastal belt except in the Northern and Eastern Provinces where it is of 200 m with the declared objectives of safeguarding the lives of coastal population and to protect the coastal environment. The Petitioner believes that in declaring such Buffer Zone the government was motivated by the fact that in places where the natural coastal eco-systems remained intact the damage caused by the Tsunamis was minimal. However, the future of the said Buffer Zone remains uncertain since it has no legislative sanction and due to the opposition by certain political parties and segments of the public. The Petitioner annexes hereto some newspaper cuttings marked P9 (a) – P9 (h) in this regard.

27. On account of the aforesaid facts and circumstances, the Petitioner states that strict compliance and/or adherence with the variable setback limits imposed by the Coastal Zone Management Plan is much more pragmatic since the said limits are based on empirical research and scientific criteria and more accurately reflect the coastal dynamics.

28. Thus, for the aforesaid reasons, the Petitioner both in his capacity as a citizen of Sri Lanka and the Executive Director of the said Center for Environmental Justice in the public interest and responding to constitutional dictates enshrined in the said Directive Principles of State Policy and Fundamental Duties of the Constitution requested through his Attorney at Law the 1st Respondent, being the officer responsible for the administration and implementation of the provisions of the said Coast Conservation Act, by letter dated 07.02.2005. which was copied to the 2nd Respondent to take cognizance of the aforesaid facts and circumstances and to take prompt action in the performance of his statutory duty in compliance with the provisions, particularly of sections 4(a) and 4(b), 19, 24(2) and 31(2) and (5) of the said Act or otherwise as required by law as being consonant also with the provisions contained in Article 27(14) and 28(f) of the Constitution. A true copy of the said letter is annexed hereto marked P10.

The Petitioner, by the said letter, requested the said 1st respondent to take action inter alia to strictly enforce prohibitions and/or restrictions in relation to the Coastal Protection Zone and Setback Areas (particularly in recent Tsunamis affected areas) and to ensure and guarantee the right of the public to have access to and to use and to enjoy any portion of the beach. However, the said 1st Respondent has failed to respond and to take necessary action satisfactorily in this regard upto date.

29. The Petitioner states further that the said 1st Respondent has failed to revise the existing Coastal Zone Management Plan which came into operation in 1997 ; the provisions contained in section 12(5) of the said Act mandates the revision of the said Plan once in 4 years. The existing Plan shall be updated to encompass protection against coastal natural hazards as a priority area of coastal zone management.

30. The Petitioner states that the said 2nd Respondent has failed to give necessary orders, directions and guidance to the said 1st Respondent in this regard.

31. Being aggrieved by the said inaction and / or failure to act and / or neglect to perform duty by the said 1st and 2nd 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 by the said 1st and 2nd Respondents is wrong, illegal and contrary to law.

ii. It is submitted with respect that the said 1st Respondent by the said unlawful and / or illegal and / or wrongful inaction and / or failure to act and / or neglect to perform duty has failed to perform the public statutory duty imposed on the said Respondent by the provisions of said Coast Conservation Act.

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

iv. It is respectfully submitted that the said inaction and / or failure to act and / or neglect to perform duty by the said Respondents is / are detrimental to and / or in violation of the fundamental rights of the citizens of Sri Lanka , declared recognized and guaranteed particularly by Articles 12(1) and 14(1)(f) and (h) of the Constitution and thereby the said Respondents have failed in the constitutional duty imposed on all organs of government by Article 4(d) to respect, secure and advance the fundamental rights declared and recognized by the Constitution.

v. It is respectfully submitted further that the said inaction and / or failure to act and / or neglect to perform duty by the said Respondents is/are inconsistent with and/or repugnant to the Directive Principles of State Policy and Fundamental Duties, particularly those enunciated in Articles 27(2)(a) and (c) , 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 government in which the said Respondents are components and / or agents, are the guardians to whom the people have committed the care and preservation of natural resources, including the bio-diversity of the country and thus, the said Respondents have failed 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 by the said Respondents is / are in violation and / or derogation of the Concepts and Principles of Environmental Law enshrined in the international conventions and declarations indicated in paragraph 25 above. Particularly the Concepts of Sustainable Development and Inter-generational Equity, Principle of Precautionary Action and Doctrine of Public Trust, which as has been judicially determined, have become part of the domestic Law of Sri Lanka.

32. 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 strictly enforce prohibitions and / or restrictions in relation to the Coastal Protection Zone and Setback Areas; to ensure and guarantee the right of the public to have access to and to use and enjoy any portion of the beach and to revise the said Coastal Zone Management Plan;

c. Grant and issue an order in the nature of a writ of mandamus ordering the 2nd Respondent to give necessary orders, directions and guidance to the 1st Respondent for the protection, conservation management and sustainable use of the coastal zone and its resources;

d. Grant costs of this application ;

e. Grant such other and further reliefs as to Your Lordships’ Court shall seem meet.
……………………….
Attorney at Law
For the Petitioner