The longest land dispute


Human-elephant conflict or for short, HEC has been around for so long that it has become a subject that continues to make headlines. Lots of progressive measures have been taken in terms of addressing the issue but none so far has proven to be an effective and sustainable solution. However, that is not to say that all the measures that have been invented so far have not shown promise because some of them really have shown results but either due to lack of funding or lack of backing up by the authorities or both, the measures somehow have been limited to the prototypes or just some really good ideas, without being able to make some real difference in terms of alleviating the woes of people living with elephants.

Recently, the Leo Club of Faculty of Law, University of Colombo launched ‘Manuwaruna’ – their scholarly discourse which gathers experts in a particular area to a one arena to discuss burning issues faced by the public of Sri Lanka – and the first instalment of Manuwaruna focused on the concurrent issue that is HEC. Joining the online webinar was the Chairman, Trustee, and Scientist of Centre for Conservation and Research (CCR) Dr. Prithiviraj Fernando, Senior Lecturer and the Head of the Department of Bio Science, University of Vavuniya Dr. S. Wijeymohan, Chairman of the Centre for Environmental Justice (CEJ) Attorney-at-law Ravindranath Dabare, Journalist and the presenter of the ever-popular nature show of Rupavahini Sobadara Anuradha Devapriya, and Chairman of Friends of the Earth, former Executive Director and current Senior Advisor of CEJ Hemantha Withanage. The webinar was moderated by the Professor at the Department of Public and International Law, Faculty of Law, University of Colombo Prof. Kokila Konasinghe.

Culture and reality

Sri Lanka is a country with a rich cultural heritage that has a deep intertwined history with elephants and tuckers. Not only elephants have been used in battles and in labour the country is used to venerate elephants as gods even. Tuskers are celebrated as national treasures and come the Esala Perahera season, many are in awe of the gentle giants adorned in vibrant clothes parading the streets in their usual grandeur, carrying the sacred relic casket. Nadungamuwe Raja – perhaps the most decorated tusker which was burdened with the task of carrying the sacred relic casket of Esala Perahera – though was recently deceased, still considered as a national icon of veneration. On social media there are plenty of evidences supporting this claim, showing people gathering to pay homage to the graceful tusker on the street, some even worshiping the animal as if it is a member of clergy. In rural areas when the paddy harves is collected the farmers make sure to leave some of the harvest left intact for the elephants to enjoy, not out of obligation but purely as a token of coexistence. It is an animal that is adored, respected and to a certain extent, feared even.

On the other end of the spectrum we have the same humans snatching baby elephants from their mothers for illegal elephant trade, setting up snares and traps of the most painful and inhumane way possible to capture the gentle giants and in some rare gruelling news we hear about some heartless men severing the tusks of a dying elephant while it is still alive.

How come there is this vast contrast in the way we perceive these animals? How come such hatred is generated towards these animals from within the same community that adores and cries for the safekeeping and justice for the elephants? The answer is rather simple. As Withanage pointed out HEC is not a matter that can be solved by discussing the matter in an air-conditioned room in Colombo by few experts who may have book knowledge about the elephants. The issue is at the grassroots levels where the bulk of the conflict actually happens. As such, the conflict has two main angles we have to look carefully at before arriving at a solution; the human side of it and the elephant side of it. In this article we will talk about the latter, leaving the human side of the issue to be discussed in a future article.

History of HEC

Although HEC is a much talked-about issue of the recent decades it is not an old issue. The conflict occurred relatively recently with the ill-managed development projects such as the Mahaweli Project which essentially settled humans in the areas where elephants roamed, ultimately resulted in HEC. Now after decades since the initiation of Mahaweli Project the once-forested areas have now become rather populated and urbanised that it is hard to determine who the true owners of the land really are. Legally speaking, the people are the owners of the land but to the elephants the human law means nothing.

The annual elephant deaths due to HES have been on a steady rise since 2000 with the number reaching an all-time high in 2019 when it recorded 405 deaths. This was the first time the elephant deaths due to HEC surpassed 400 mark. Last year, the number was slightly less with 369 but still a cause for concern. In other words, every day of the year somewhere in Sri Lanka an elephant dies due to HEC.

“Causes of elephant deaths include snares, hakka pattas, falling into farm wells, shooting, electrocution by illegal electric fences and so on,” elaborated Dr. Fernando. “In terms of catching the perpetrators of these elephant deaths, the elephants deaths due to live wires is rather easy because the elephant dies on the spot and the illegal electric fence is around the property of the perpetrator.”

Is the law lacking?

According to Dr. Fernando about 60 elephants deaths were recorded last year that were results of illegal live wires set up but property owners who just didn’t want elephants entering their properties. While using electric fences to deter elephants is perfectly within the law to use domestic voltage in a fence is not only illegal but also inhumane and quite evidently, deadly to the elephant that is unfortunate to come in contact with it.

Since it is not that hard to determine the cause of death it is an electrocution due to an illegal live wire, one might think taking legal action against the perpetrators is a fairly easy process in at least electrocution deaths of elephants but sadly, the reality is lots of these elephant deaths go unpunished and the rare cases that manage to reach courts take ages to result in a verdict that deters setting up live electric fences. Why is that? Is the law if Sri Lanka lacking in terms of protecting its precious elephants? Dabare stepped in to answer.

“When it comes to the law the Sri Lankan elephant is well-protected. The Flora and Fauna protection Ordinance (FFPO) clearly states out provisions needed to protect elephants. According to the Ordinance, even following or chasing an elephant without a permit or a licence is a punishable and an un-bailable offence,” Dabare said.

However, what about unlicensed elephants, in other words, wild elephants? What happens to the protection of those elephants, Dabare had more answers. “According to FFPO unlicensed elephant is considered as a public property and if one causes hard to such an elephant that person can be brought before a court of law and punished accordingly,” Dabare revealed a vital bit of information.

This means that in order to save elephants the legal action should be sought not within the FFPO but also in the Public Property Act as well. Elaborating further Dabare urged any legal person who is interested in environmental law to not just be limited to one Act or an Ordinance but to seek legal help in multiple avenues to solve a case quickly and successfully.

“There is no question that the law should be enacted to the fullest but we have to depend on different avenues of law to find a long term solution for this. Only looking at FFPO will not solve this. For example, take building constructions in elephant corridors. Taking legal action against these actions is not something that can be done only according to FFPO but according to some other Acts and Ordinances but legal action in these cases are rather slow. First, we need to have a complete understanding of elephant corridors.”

As Dabare went on another some more obstacles along the legal path came to light. In order to gain a full understanding of elephant corridors in Sri Lanka a complete census of elephant corridors has to be conducted, which is a time consuming effort. However, lack thereof has proven to be problematic, especially during the previous regime when the former President granted farmers land for cultivation, disregarding the fact that they were along known elephant corridors. “If we can’t take strict legal action against these other contributing actions to the HEC, we won’t be able to solve this issue sustainably any time soon,” Dabare feared.

Political illiteracy

In terms of solutions for the HEC, Ceylon Today has also published multiple articles in the past revealing many a sustainable solution, one of them which is the electric fence – the most effective solution there has ever been for the HEC. However, as it has been pointed out in our previous articles, as long as the fence is in the wrong place, the fence is not effective. In other words, if there are elephants on both sides of the fence, the fence provides no service and in fact, aggravates the HEC. Through his research Dr. Fernando has come up with the concept of community fences and seasonal fences. Community fence is an electric fence that is built around the village rather than around a forest and the seasonal fence is a fence built around a farmland. Once the harvesting is done, the farmer can then remove the fence, allowing the elephants to come and enjoy the residue of the farmland and even earn some extra cash by promoting tourism, making it a win-win situation for both human and the elephant.

Few years ago Ceylon Today revealed this concept in an article and showed successful examples from Galgamuwa where community fences have proven to be effective. These concepts along with many other suggestions were included in the 2020 National Action Plan for Mitigation of Human Elephant Conflict, a document which was submitted to the then Government but sadly, no action was ever materialised out of that plan.

“This is the problem in our country. When it comes to issues such as HEC the literacy among politicians of these matters is highly questionable. Although there are suggestions and recommendations made by experts in the subject, the politicians go on to make their own judgement and decisions which aggravates the HEC. Take digging elephant trenches for example. It is highly ill-advised to a country such as Sri Lanka where there is a heavy rainfall year around and we had to go to courts to put a stop to that. Allocating lands for farmers along elephant corridors, giving farmers lands along forest reserves in Malwathu Oya Project are some of the short-sighted and ill-advised decisions taken by the politicians,” elaborated Withanage.

In Sri Lanka there is only about 38 per cent of land mass where elephants don’t roam. Only 18 per cent of land is there for elephants to roam freely without having to encounter humans but the majority of their territory – 44 per cent of Sri Lanka’s total land cover – is an area they have to share with humans. “In a country like Sri Lanka we might not be able to prevent HEC 100 per cent. We have to look for a middle ground. At some point we have to think of compromising and come to terms that are beneficial for both humans and elephants, if not we will never be able to find a sustainable solution for the HEC,” Withanage opined.

(In our next article we will focus more on the human aspect of the HEC and listen to what Dr. Wijeymohan and Journalist Devapriya have to say of the matter) 

By Sanuj Hathurusinghe