Pro Public v. Godavari Marble Industries, 068–WO–0082 (April 15, 2016)
Supreme Court of Nepal
Over a 20 year period, advocate Prakash Mani Sharma and the NGO Pro Public pursued public interest litigation to close a marble mine in the Godavari hills outside Kathmandu, Nepal. The Godavari area is described as a “living museum” of cultural and biological significance and has been negatively impacted by the mining operations.
During the pendency of a separate case seeking to close the mine (filed before the Court in 2001), the Department of Mines and Geology issued a decision allowing the mining company to continue operations for a 10-year period, until 2021. Pro Public challenged the decision as arbitrary, mala fide and unlawful, asking the Court for an order canceling the permit, designating the Godavari area closed to mining, and ordering the company to restore the environment.
The Supreme Court determined that the mining operations are inconsistent with the constitutional rights to a healthy environment and to live with dignity, and Nepalese laws on environmental protection. The decision contains an eloquent exposition on the importance of nature to human life:
“The Nature and its environment are regulated by the rule of the Nature. Any activities done against those rules which are also known as the eco-system may cause disturbance to the balance of the Nature. Even through animals and the flora and fauna follow this rule of the Nature knowingly or unknowingly, human beings are trying to transgress its limits. Modern men who boast of having reached the pinnacle of development are becoming dependent on machines. The food and living habits, daily routine and certain activities seem to be unpalatable to the society and thus contrary to the natural rules. In the name of ultra modernism such unnatural and polluted methods are being imported at a swift speed towards an undeveloped and backward society.” P. 16.
The Court also touched on principles of sustainable development:
“In totality, the continued existence of every creation or object of the Nature has its own natural reason and significance. Every object has its own different norms and values. It cannot be acceptable to dismantle the basic norms and values of the Nature for the sake of some body’s vested objective or financial interest. The things like air, water, forest and biological diversity which are interlinked to identity and existence of the Nature have not been made only for one generation. They should not be allowed to decay on any pretext. Nobody can claim to have freedom to destroy the basic form and norms of the Nature and its constituents and their norms in the name of development. The benefits resulting from development activities cannot be compared to the value of the gifts given by the Nature. So even if any significant profit is likely to accrue from physical development activities, no activity causing negative impact or destruction of the Nature and environment should be allowed to continue.
As we cannot talk about destroying our snow capped mountains (Himal) and hills or filling up the seas for the sake of any development or economic benefit, similarly the value of biological diversity cannot be exchanged with marble or stone and concrete. There can be no price for the religious and cultural heritage, biological diversity, birds, insects, butterflies and vegetation exposed to extinction and eco-system and natural beauty of Godavari area. Because such invaluable natural heritage is worth protecting and worthy of preservation even for the distant posterity, not marble, even if gold or diamond is to become available, not to talk of destroying a life giving hill like Godavari which is full of biological diversity, one cannot be allowed to even scratch it.” Pp. 57-58.
The Supreme Court concluded by quashing the Department’s decision to allow marble mining to continue and directing government officials to designate the Godvari area closed to mining. In addition, the Court required officials to constitute a committee to evaluate environmental damage to the area caused by marble mining and make recommendations to restore the area to its natural state. The parties are required to report to the Court every three months on their progress in implementing the ruling. Pp. 60-62.