Title:
Bulankulama and Others v. Secretary, Ministry of Industrial Development and others
Party:
Sri Lanka
Región:
Asia y el Pacífico
Type of document:
National - higher court
Date of text:
Abril 07, 2000
Data source:
InforMEA
Court name:
Supreme Court of Sri Lanka
Seat of court:
Colombo
Justice(s):
Amerasinghe
Wadugodapitiya
Gunasekera
Reference number:
(2000) LKSC 18
Link to full text:
Resumen:
The representatives of the Government and Freeport Mac Moran, a U.S. company, had come to a so called “Mineral Investment Agreement” in respect of a deposit of phosphate rock in the Anuradhapura district. The proposed agreement granted the Company the exclusive right (a) to search and explore for phosphate and other minerals in the Exploration Area (b) to conduct test or pilot operations and (c) to develop and mine under Mining Licences any phosphate deposits found in the Exploration Area.
The petitioners being residents of the relevant area engaged in cultivation and owning lands there complained of infringement of their rights under the Constitution by reason of the proposed agreement. They were of the opinion that the proposed agreement would be an environmental and economic disaster.
The Supreme Court analyzed, among others, questions related to the fundamental rights of the residents, examined the proposed agreement for exploration and mining of phosphate as well as environmental and development policies applicable to exploitation of natural resources, and interpreted international standards and requirements of domestic law.
It concluded that the court had jurisdiction to determine the alleged infringement of fundamental rights notwithstanding the claim that the Government and not the court was the "trustee" of natural resources of Sri Lanka. The individual petitioners had standing to pursue their rights under the Constitution. They were not disqualified on the alleged ground that it was a "public interest" litigation. The court was concerned with the rights of individual petitioners even though their rights were linked to the collective rights of the citizenry of Sri Lanka, rights they shared with the people of Sri Lanka.
The court emphasized that the rate of mining would increase to an amount which would exhaust all proven phosphate reserves. Phosphate was a non - renewable resource. Hence the scheme of exploration would not be in the interest of future generations. As per international norms, natural resources had to be preserved to meet the needs of future generations.
The mining operations would also leave large pits providing breeding grounds for mosquitoes and lead to malaria and Japanese encephalitis. There was also no provision for the safe disposal of Phospho - Gypsum, a by-product of the project which would pollute the environment. Furthermore, there was no sufficient provision for the restoration of areas affected by mining. Even though Mac Moran USA initialed the agreement, liability was placed on a local Company with a small issued share capital. Finally, environmental impact assessment had to be done first to the satisfaction of the Central Environmental Authority with notice to the public to enable public comments and representations.
Under these circumstances, there was an imminent infringement of the petitioners’ fundamental rights under the Constitution. The relief was granted.