Sand Mining, The Law & The Resource Curse In Sri Lanka

By Piyumani Ranasinghe –JULY 22, 2020

Piyumani Ranasinghe

The balance between sustainable development and environmental conservation in Sri Lanka is often undercut by the political leadership with policies best explained as short-sighted and environmentally unsound. Owing to this, the nation is caught up in a resource curse, where policies validate environmental costs in the name of economic development. It is no new truth that the issuance of mining permits for minerals such as sand, soil, clay and gravel generally get caught up in this vicious cycle. In theory, even if the mineral resources in Sri Lanka, are governed by the Mines and Minerals Act No. 33 of 1992 (as amended); in practice it is the politics of the day that gets to call the shots. Since the 4th of December 2019, a number of decisions made by the Sri Lankan Cabinet along with the Geological Survey and Mines Bureau (GSMB), have blatantly disregarded the existing laws, particularly in terms of issuing licenses/permits for mines and minerals. There are two specific cabinet decisions which underlies the issue at hand. Firstly, removing the requirement of a license to transport sand, soil, clay etc. Secondly, the proposal to amend the Mines and Minerals Act, so that the procedure to obtain mining licenses are much “simplified”.  Adding on to the tunnel-vision of the Cabinet decisions, the GSMB dispensed the requirement of environmental recommendations of the Central Environmental Authority (CEA) in issuing licenses/permits. However, on the 17th of July 2020 the Court ordered to take legal action against those transporting sand and rubble without permits, proving that the Cabinet cannot amend and invent laws at its own wish. Nevertheless, the saga of “relaxing” procedure continues, and the GSMB’s attempts to facilitate industrial and political needs by striking out any and all environmental compliance requirements is appalling and cannot be overlooked. 

The Crisis: The Cabinet and the GSMB Removing Transport Permits and Dispensing Environmental Concerns

The present crisis unfolded on the 4th of December 2019, where the newly appointed Cabinet of Ministers removed the existing requirement on obtaining permits for the transportation of sand, soil and clay to facilitate the construction industries in securing necessary minerals in an economical manner. On the 18th of December 2019 the Cabinet approved the proposal to amend the Section 28 and 30 of the Mines and Minerals Act citing the need to simplify the existing procedure of mining licenses to better facilitate the industrial needs. 

It is Section 28 of the Act that mandates a license to mine, transport, process, store, trade in or export any minerals in Sri Lanka. This section ensures that the issuance of a license is done according to the provisions of the Act, making it impossible for the GSMB to singlehandedly execute absolute authority in issuing licenses. Whilst there were restrictions explicitly mentioned in the Act under sections 29, 30,31 and 38 in terms of issuing licenses; it is section 61 of the Act, that clearly stipulates the requirement of a license holder to comply with the standards and procedures of the National Environmental Act No. 47 of 1980. Thus, protection of the environment cannot be overlooked in granting a license for mining related activities. Significantly, Section 61 ensured that a link was created between the National Environmental Act and the Mines and Minerals Act as well as the institutions created by these two Acts, namely the CEA and the GSMB. Whilst, this makes the licensing process a coordinated decision between these agencies it also shows that the environmental concerns indispensable.  

However, the decisions of the cabinet ministers, which came to effect from the 1st of January 2020, is completely aversive to the law laid down by the Mines and Minerals Act. More seriously, since the cabinet is an executive arm of the Sri Lankan government, it is also collectively accountable for overlooking its duty to protect and promote the environment of Sri Lanka under the Directive Principles of State Policy set out in the Constitution (Article 27). 

In the case Watte Gedera Wijebanda v Conservator General of Forests and Others [2009 1 SLR 337 at p. 362], Justice Shiranee Thilakawardena highlighted that, the power of the state and the public officials to grant or refuse licenses is derived from that fact that the State is a “public trustee”. In fact, “[T]he principle of inter-generational equity and the long-term sustainability of our delicate eco-system and biological diversity vests mainly in the hands of such officials”. Thus, the Cabinet and the GSMB is vested with the duty to protect the environment even for the generations to come. Yet, on the 31st of December 2019 the Director General of GSMB, indifferent to his duty as a public trustee, issued a Circular (Circular No. 173/12/2019) to amend the procedure of issuing permits/licenses citing the need to prevent any procedural delays in obtaining the licenses. With the new procedure, the GSMB can now issue mining permits/licenses to applicants who have not compiled with environmental recommendations of the CEA.  

What the Cabinet and the GSMB probably failed to comprehend was the fundamental reasons underlying the licensing process of utilizing environmental resources. Licenses are more than just paper work and procedure. They are issued to regulate and prevent the over exploitation of resources in order to ensure that development does not end up completely dismantling existing eco-systems. Thus, if the Cabinet and the GSMB is of the view that compliance with environment standards is a cause of delay – then the whole rationale behind granting licenses becomes completely obsolete. 

Flawed Decisions and the Resource Curse

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