Polluter Pays Principle in Forest Conservation

By Lakshman I. Keerthisinghe | Published: 2:00 AM Nov 25 2020
Columns Polluter Pays  Principle in Forest Conservation

By Lakshman I. Keerthisinghe

“National authorities should endeavour to promote internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”.

Principle 16- UN Declaration on Environment and Development (Rio de Janeiro 3-`14 June 1992)

If man doesn't learn to treat the oceans and the rain forest with respect, man will become extinct.

Peter Benchley - American Author

On 16 November 2020 the Court of Appeal in Sri Lanka delivered a historic judgment which referred to Principle 16 of the UN Declaration on Environment and Development (Rio de Janeiro 3-`14 June 1992), quoted at the outset hereof, wherein the Polluter Pays Principle (PPP) has been enshrined. This application was for orders in the nature of a Writ of Certiorari and Mandamus under and in terms of the provisions of Article 140 of the Constitution made by the petitioner - Centre for Environmental Justice (Guarantee) Ltd., 20A, Kuruppu Road, Colombo 08.

Our Constitutional principles 

Displaying the highest standards of judicial activism the Court stated: ‘Taken in the context of our Constitutional principles and provisions, these “orders” constitute one of the principal safeguards against excess and abuse of executive power; mandating the judiciary to defend the sovereignty of the People enshrined in Article 3 against infringement or encroachment by the Executive, with no trace of any deference due to the Crown and its agents. Further this Court itself has long recognised and applied the “public trust” doctrine: that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes. (Heather Therese Mundy v. Central Environmental Authority and Others).The Court further stated that: ‘Chapter VI of the Constitution enumerates the Directive Principles of State Policy which are to guide the Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of the country for the establishment of a just and free society. 

Article 27 (14) of the Constitution, mandates that the State shall protect, preserve and improve the environment for the benefit of the community. The order P4 declaring several areas as reserved forest in terms of the Forest Conservation Ordinance are a practical application of this constitutional directive. It makes the provisions of Section 7 of the Forest Conservation Ordinance applicable to the land in dispute and seeks to conserve the reserved forest. The evidence before Court establishes that vast extent of reserved forest land has been cleared and used for the resettlement of IDPs in breach of the provisions of the Forest Conservation Ordinance…. The rule of law in its fundamental meaning requires that all acts must be according to law. Where land has been declared as reserved forest in terms of the Forest Conservation Ordinance, no person is entitled to act contrary to law and carry out activities such as clearing of forest, construction of houses and roads within this area….However there is evidence that it was the 7th Respondent Mr. Rishad Bathiudeen, Minister of Industry and Commerce who was instrumental in getting this land released for the resettlement of IDPs.’

In its final order, the Court directed that: ‘Therefore, Court issues an ancillary or consequential order directing the 7th Respondent Rishad Bathiudeen to bear the full cost of such tree planting programme applying the polluter pays principle since according to the evidence before Court he was instrumental in using the reserved forest land for the re-settlement of the IDPs. The Conservator General, Department of Forest Conservation (1st Respondent) is directed to calculate the costs of the tree planting programme directed by Court and inform the 7th Respondent of this cost and the details of the account to which the said sum should be paid by him within two-months of the date of this judgment. The 7th Respondent shall pay the said sum within one month of such notification.’ Although there is provision to appeal against this judgment to the Supreme Court, which may overturn this judgment on other legal grounds as it stands at present it is evident that the Court of Appeal had acted in the best interests of forest conservation in Sri Lanka.

In conclusion, in Environmental Law, the polluter pays principle (PPP) is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received from most Organisation for Economic Cooperation and Development (OECD) and European Union countries. It is a fundamental principle in US Environmental Law.

The writer is an Attorney-at-Law with LLB, LLM, MPhil. (Colombo)[email protected]

By Lakshman I. Keerthisinghe | Published: 2:00 AM Nov 25 2020

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