Govt. sandbagged by victory ruling for environmental group

Sand transport licences restored by Court of Appeal

In a victory for the environmental lobby, the Court of Appeal has mandated licensing for the transport of sand, soil and clay, reversing a Cabinet decision last year that was interpreted as suspending the requirement to issue permits.

The court ordered all transportation to be carried out lawfully and ordered the Acting InspectorGeneral of Police to pursue legal action against those who acted otherwise. Exploration, mining and trading licencees shall again require a permit to move mineral-bearing substances or minerals.

Court of Appeal President A.H.M.D. Nawaz held that the licensing system remained valid and enforceable because the Mines and Minerals Act 33 of 1992 had not been amended. Justice Sobhitha Rajakaruna joined Justice Nawaz on the two-judge bench.

The Centre for Environmental Justice (CEJ), which challenged the December 2019 Cabinet decision in the Appeal Court, said the ruling would help regulate sand mining. Illegal mining increased sharply after licensing requirements for sand transport were suspended. “But further steps now have to be taken,” the CEJ said.

The so-called temporary abolition of permits led to virtually unchecked sand excavation and transportation. The illegal activities are headed by local politicians, CEJ Executive Director Hemantha Withanage alleged. “Sand mining has become a lucrative trade controlled by a mafia,” he said.

“The transport licence was the only way in which the authorities and police could monitor the process,” he said. “That is why we took this to court and I am happy to see the rule of law still active.”

The court was told how the removal of a requirement to hold licences had bred more clashes between excavators and concerned society groups. There was a heightened danger of soil erosion, collapse of riverbanks, landslides and enlargement of river mouths and inlets as well as intrusion of seawater into rivers, despoiling freshwater supply.

Counsel for the CEJ pointed out, too, that Cabinet’s original decision – on a memorandum put forward by the Environment and Wildlife Minister – was to appoint an appropriate expert committee to review and make recommendations to improve the prevailing permit system for the transport of sand, soil and clay.

Notwithstanding this, the Acting IGP notified the Geological Survey and Mines Bureau (GSMB) Chairman in writing on June 8, 2020, that the ninister had verbally instructed him to suspend the licensing system, backdated from June 1, till further notice.

When the case was taken up on Friday, the AttorneyGeneral’s Department told Court that the law had not been changed and, therefore, the previous legal position prevailed.

The court held that, accordingly, the IGP and other authorities had wrongly interpreted the Cabinet decision and that all actions taken thus far to allow the conveyance of soil, sand or clay with permits were not valid in law. It also ruled that Cabinet had no power to change the law by way of a decision.

The government had maintained that cancelling the transport licence for building materials such as sand would provide relief to small-scale sand miners but it only led to an increase in illegal sand mining, predominantly around Seruwawila and Kantale. The authorities claimed helplessness.

The CEJ alleges that some GSMB officers had supported unsustainable sand mining for years, with excavation often carried out with the “blessings of the subject Minister”.

“We have said from the beginning that a more formal methodology needs to be implemented,” the Chairman of the Central Environmental Authority (CEA), Siripala Amarasinghe, said. “A recommendation should be obtained to use land for a particular industrial activity and it is the CEA that must decide whether or not a location is suitable for mining and what impact it would have on the environment.

“We have the required technical knowledge,” Mr Amarasinghe said. “I suggest that the excavation permit that is obtained before the transport permit is of better quality with more formal recommendations.” The CEA now hopes to deploy additional officers to control illegal sand mining.

The decision to suspend transport licences was taken to provide “proper and more effective relief ” to the public, GSMB Chairman Anura Walpola claimed. He also said the GSMB now intends to introduce a fixed price for sand.

The price of sand has risen to around Rs. 6,000 a load. When it arrives from Manampitiya to Colombo, this rises to Rs. 7,000-8,000 because of increased demand.

Mr. Walpola said the GSMB had also introduced a smart mobile app to register vehicles conveying sand but it needed improvement. The intention is to allow anybody to log in and check whether a particular transportation of materials is valid, how many cubes are allowed to be excavated and whether there is any deviation from the expected route, he said.

The law provides for fines of up to Rs. 2 million and six months imprisonment for wrongdoers.

In the case now settled by the Court of Appeal, Deputy Solicitor-General Parinda Ranasinghe appeared for the AttorneyGeneral’s Department while the CEJ was represented by Ravindra Dabare, Nilmal Wickremesinghe and Nimmi Sanjeevani.

The so-called temporary abolition of permits led to virtually unchecked sand excavation and transportation. The illegal activities are headed by local politicians, CEJ Executive Director Hemantha Withanage alleged.