The decade-long Wilpattu controversy came to a conclusion earlier this week with a resounding win for Sri Lanka’s community of environmentalists. The Court of Appeal decided in favour of the petition filed by the Center for Environmental Justice (CEJ) and ruled that the seventh respondent, parliamentarian, Rishad Bathiudeen will be financially liable for the full [...]


Emboldened by Wilpattu ruling, NGOs ready to count reforestation cost


The decade-long Wilpattu controversy came to a conclusion earlier this week with a resounding win for Sri Lanka’s community of environmentalists.

The Court of Appeal decided in favour of the petition filed by the Center for Environmental Justice (CEJ) and ruled that the seventh respondent, parliamentarian, Rishad Bathiudeen will be financially liable for the full cost of the reforestation programme that the first respondent, the Conservator General of Forests, would have to implement.

Environmentalists want an expert committee to be involved in the critical decision making that the Forest Department is about to embark on.

“Out of the 75 or so cases the CEJ has filed, this is one of the best verdicts we have ever received,’’ said centre director Hemantha Withanage, noting that most environmental disputes ended in settlements.

The precedent set with the constitutional responsibility of the courts to protect the environment of the country is one that will make any corrupt official, or politician, think twice before they exploit Sri Lanka’s environmental resources.

The Polluter Pays principle the court cited, forms the base that public funds cannot be used for reforestation.

Mr. Withanage estimates at least Rs. 1.5 million per acre for the reforestation of a dry zone area with a nine-month drought period.

His estimate is based on the fact that an IUCN forestation programme in Kanneliya, which is a wet zone, costs about Rs 800,000 an acre.

He emphasised that reforestation is not creating a plantation.

“Don’t plant a teak or pine plantation where a forest is supposed to be,” he said.

Studying this well and making an accurate calculation with due consideration for irrigation, elephant attacks protection mechanisms, and structure removals, calls for an expert committee, Mr Withanage said.

“Since no one has ever reforested 3,000 hectares of dry zone — work to pay won’t work here,” he held.

Lawyer, Ravindranath Dabare, counsel for the CEJ, told the Sunday Times that the accurate calculation of the cost of reforestation would need to be meticulously done.

“It would be a great disrespect of the expectations of the public and the court if a miscalculation results in insufficient funds being taken,” he said.

He also said that the Forest Department’s failure was the reason that this issue had dragged on.

“We hope that they will be more responsible from hereon following the verdict.”

The legal battle began in 2015 with the CEJ as the flagbearer of the legal movement against the settlement of internally displaced persons within protected forest areas.

“While housing the people is an extremely important thing, we cannot break the laws of the country in doing so.’’

Mr. Dabare also claimed that a majority of the houses built on the illegally obtained land have been closed.

He believes that settlers were not really IDPs, but people who simply wanted to own another property.

The court has decided that their presence is illegal, which Mr. Dabare maintains, makes it the Conservator General’s responsibility to remove them.

“If required, alternative lands must be given to these people, through government initiatives,” he said.

Conservator General of Forests, W.A.C. Weragoda, noted that a committee of Forest Department officials would be set up for the decision making processes related to the verdict. They would calculate the cost of reforestation of 3,000 acres as well as inspections and investigations over the next two months.

The committee will be finalised by next week.

Decisions about which land will be used are also pending and will be so until officials of the department visit the area and report.

“Should the land be insufficient or inappropriate, we will have to find alternative space for reforestation,” he said.

Mr Weragoda also said that the verdict on the future of the illegal settlers was unclear and that the Forest Department was awaiting further legal advice.

Environmentalist, Nayanaka Ranwella, the general secretary of the Wildlife Conservation Forum, said that the verdict was one of the most progressive ones that Sri Lanka had produced in a long time. “We are extremely happy with it,” he said. He believes however, that their job as environmentalists is not yet done.

“The Forest Department has the authority to remove illegal settlements from protected lands, ensuring that this happens is an ongoing responsibility we will have to oversee.”

He also echoed other environmentalists over the caution with which the reforestation calculations need to be done. Expert advice should be sought.

“We recommend the formation of an expert committee,’’ he said.

According to him, the decisions about any alternative land used will also have to be made after evaluating many factors, which will require understanding of the multi-faceted eco-systems of the country.

Mr. Ranwella estimates that the reforestation of one acre of land will cost about Rs. 1.2 million, with a tending period of 10 years.

Exerting the right pressure is important as officials’ negligence has been a common occurrence of the past. He also held that all government officials that signed off on this violation of law must be held accountable.  Renowned conservationist, Rukshan Jayawardene, also stressed the importance of building a succession forest instead of a plantation.

He recommended the use of a technique known as ‘rewilding’, which refers to a method whereby the natural process of a forest can be accelerated.

This is a technique that has resulted in the successful creation of forests in dry zones as seen on a smaller scale in the Dambulla Arboretum.

Environmental Lawyer, Jagath Gunawardana, is satisfied with the ruling because it extends beyond the scope of the matter at hand.

“It has established several legal principles which will have a very vibrant effect on environmental conservation,” he said.

The writ action was based on legal principle, not enactments.

The principal enactment that the court wanted the Forest Department to take action against illegal settlement is the Forest Conservation Ordinance. According to the legal expert, the forest department can even take action under the State Lands, Recovery of Possessions Act.

Mr Gunawardana said a highlight of the proceedings is the mention of the court being an organ of the state that is also bound by article 27 chapter 14 of the Constitution.

This makes it mandatory for the court also to help in the conservation and protection and development of the environment for the sake of the community.

“It is a very good extension of the article 27 despite the fact that article 29 states that article 27 and 28 cannot be invoked by a court of action,” he noted, adding that the court has however found a way to do so as the court itself has the power and obligation to ensure that this provision is enforced.

He said none of the respondents can disregard the decision.

If the writ is not carried out, then the petitioner or any other party can take action against the respondent under article 105, sub article 3 of the Constitution for contempt of court.

In this case, the provisions of article 28 that gives citizens responsibility that the obligation to protect the environment, had been given an extended meaning and it has been linked to the Polluter Pays principle, which makes lawmaker Mr Bathiudeen liable for his actions.

The extension of the Polluter Pays principle to cover any destruction or any degradation of the environment is welcome because the principle has only been observed in Sri Lanka in its infancy so far.

He believes that the judgement has far reaching consequences.

“People will now think twice before they embark on any destructive activity that they will not only be liable in criminal court, but will also be liable to pay compensation for damages where they may have to pay the cost of recovery which will be several times higher than the quantum of damage.’’

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