A landmark judgment on the use of the Eppawela deposit

Before any use of the Eppawela phosphate deposit, there must be comprehensive exploration and study relating to the locations, quantity and quality of apatite (as it is known) and other phosphate minerals by the Geological Survey and Mines Bureau in consultation with the National Academy of Sciences of Sri Lanka and the National Science Foundation, a landmark judgment in 2000 by Justice A R B Amerasinghe states.

The case ‘Bulankulama and six others v Ministry of Industrial Development and seven others’ was heard by a three-judge bench comprising Justice Amerasinghe, Justice S W B Wadugodapitiya and Justice D P S Gunasekera. It was also held that results of such exploration and study must be published. And that any project proponent should obtain the approval of the Central Env i ronmental Authority (CEA) according to law, including the decision of the

Superior Courts of record of Sri Lanka.

The Supreme Court was petitioned against a proposed ‘Mineral I nv e s t m e n t Agreement’ signed between the Government and Freeport MacMoran, a US company, in the late 1990s for mass- scale exploitation of the Eppawela phosphate rock deposit.

Under the agreement, the company had exclusive right to search and explore for phosphate and other minerals in an area that stretched for tens of kilometres, conduct test or pilot operations and to develop and mine any phosphate deposits found the exploration area.

The petitioners lived and cultivated in the area and said the proposed agreement was an i n f r i n gement of their Constitutional rights, a harbinger of environmental and economic disaster.

The suggested rate of mining would exhaust phosphate reserves—a finite resource—in a short period of time, the Court observed, and would not be in the interest of future generations. The mining operations would leave large pits providing breeding grounds for mosquitoes and lead to malaria and Japanese encephalitis.

There was no provision for safe disposal of phosphor-gypsum, a by-product. There was insufficient provision for restoration of mined areas. The local company had only a minor share capital.

The Court insisted on an environmental impact assessment done to the satisfaction of the CEA with notice to the public to enable public comments and representations. Relief was granted to the petitioners on the basis of imminent infringement of their rights under the Constitution.

“The call for sustainable development made by the petitioners does not mean that further development of the Eppawela deposit must be halted,” the judgment said. “The Government is not being asked, to use learned counsel’s phrase, to ‘sit back and do nothing’.”

“In my view, the human development paradigm needs to be placed within the context of our finite environment, so as to ensure the future sustainability of the mineral resources and of the water and soil conservation ecosystems of the Eppawela region, and of the North Central Province and Sri Lanka, in general,” Justice Amerasinghe wrote. “Due account must also be taken of our unrenewable cultural heritage.”

“Decisions with regard to the nature and scale of activity require the most anxious consideration from the point of view of safeguarding the health and safety of the people, naturally including the petitioners, ensuring the viability of their occupations, and protecting the rights of future generations of Sri Lanka,” he stated.