Petition to the United Nations concerning human rights violations connected the Southern Transit Development Project (STDP) (Legal background)

BACKGROUND LAW

NEA - EIA PROCESS

The proposed expressway is a project that needs to obtain approval under Part IVC of the National Environmental Act No.47 of 1980 as amended by Acts No.56 of 1988 and 53 of 2000.

The proposed expressway falls inter alia within items (7),(2) and (12) of Part I of the schedule of an Order under section 23Z of the NEA published in gazetted extraordinary 772/22 of 24.06.1993 as amended by gazettes extraordinary 859/14 of 23.02.1995 and 1159/22 of 22.11.2000. Therefore, it is a prescribed project for which approval is necessary in accordance with Part IVC of the NEA read with National Environmental (Procedure for Approval of Projects) regulations gazetted in the aforesaid gazettes. The approval has to be obtained by the Project Proponent from the appropriate PAA concerned or connected with such prescribed project.

SCOPING

Under the National Environmental(Procedure for Approval of Projects) regulations and as described in CEA publication on Guidance for Implementing the Environmental Impact Assessment Process No 2 :A General Guide for Conducting Environmental Scoping, the Project must go through a Scoping exercise. This involves discussions with Affected People and their representatives. This is done prior to the preparation of an IEER or an EIAR

REQUIREMENT OF AN IEER OR EIA REPORT

Part IVC of the NEA requires the submission of an initial environmental examination report (IEER) or an EIA report in respect of prescribed projects. The PAA must on receipt of an EIA report submitted to such PAA by a project proponent, by notice published in the gazette and in one newspaper each in Sinhala, Tamil and English languages notify the place and times at which such report can be inspected by the public and invite the public to comments on the same. The public has a 30 day period for commenting.

The PAA may where it considers necessary in the public interest afford an opportunity to any person of being heard in support of his written comments.

If the PAA approves the prescribed project, such approval has to be published in the gazette and newspaper each in the aforesaid three languages.

The PAA shall determine the procedure it shall adopt in approving any prescribed project submitted to it for approval based on the guidelines prescribed by the Minister of Environment.

The CEA has published the following guidelines inter alia in relation to EIA which are of direct relevance to the proposed project:

· Guidance for Implementing the Environmental Impact Assessment Process -No.1: A General Guide for Project Approving Agencies (the “General Guidelines”)

· Guidance for Implementing the Environmental Impact Assessment Process -No.2: A General Guide for Conducting Environmental Scoping

· Guidance for Implementing the Environmental Impact Assessment Process -No.3: Public Participation Handbook (the “Public Participation Guidelines”)

· Environmental Guidelines for Road and Rail Development in Sri Lanka (the “Road and Rail Guidelines”)

If the PAA refuses to approve a prescribed project the person or body of persons aggrieved by that decision has a right of appeal to the Secretary of the Ministry of Environment. A person affected by a project that has been approved by the PAA does not enjoy this right under the NEA.

ALTERATIONS NEED FRESH APPROVAL

The NEA requires that alterations made to prescribed projects for which approval has been granted must be informed to the PAA and where necessary fresh approval obtained for such alterations. Similarly regulation 17(ii) of the National environmental (Procedure for approval of Projects) regulations states that the project proponent should where necessary obtain fresh approval in respect of any such alterations that are intended to be made to prescribed projects.

Further condition III of the CEA’s letter of approval requires that fresh approval in terms of Regulation 17(1)(a) should be obtained in respect of any alterations that are intended to be made to the proposed expressway.

It is evident that according to the law and the approval of the CEA the FT needs to be approved afresh before implementation. The deviation is a significant one and falls within the meaning of the law whether or not required by the CEA’s conditions of approval.

But there is perhaps an even more important reason why significant deviations require fresh approval. The EIA procedure under Part IVC of the NEA is designed in such a way that the duty to ensure environmental compliance is with the PAA (in this case the CEA). The CEA cannot abdicate that duty to the project proponent (in this case the RDA) and as stated in the Supreme Court Judgement

“The CEA was not empowered to delegate that power and duty to any other body, and least of all to the project proponent itself - for that would make the project proponent the sole and final judge in its own cause. The 1999 CEA approval did not constitute, and cannot be construed as constituting, an absolute, uncontrolled and irrevocable delegation to the RDA to determine the Final Trace.”

Besides the involuntary resettlement of more than 100 families itself is a criteria in the EIA regulations for requiring prescribed projects to go through the approval process. In other words if the deviation affects more than 100 families (and the Applicants contend that the alteration to the proposed expressway does), then that fact by itself will trigger the EIA approval process for the deviation. The CEA has failed to even examine this factor.

Since the Applicants had neither notice of the alteration of the expressway nor an opportunity to comment thereupon they are being deprived of their property without a hearing and without the benefit of the legal provisions of assessment, comments and hearing contained in Part IVC of the NEA and regulations made thereunder.

LAA - Land acquisition

Acquisition of the Applicants’ lands for the proposed expressway has to be done in terms of the provisions of the Land Acquisition Act No.9 of 1950 as amended by Act No.13 of 1986.

If the Minister of Lands decides that land in any area is needed for a public purpose he can direct the acquiring officer of the District in which that area lies (in this case the Divisional Secretary of Akmeemana) to cause a notice to be exhibited in some conspicuous places in that area.

The said notice must be in the languages of Sinhala, Tamil and English. It must state that the land in question is required for a public purpose and acts authorized under the LAA that includes surveying and taking level of that land will be done to investigate the suitability of that land for that public purpose.

Where the Minister considers that a particular land or servitude over a particular land should be acquired for a public purpose he shall direct the relevant acquiring officer to cause a notice to be given to the owner of that land and to be exhibited in some conspicuous places on or near that land. The said notice must be in the languages of Sinhala, Tamil and English. It must contain a description of the land/servitude which needs to be acquired. It must state that the land/servitude in question is required for a public purpose. Written objections to the intended acquisition should be called upon by it to be lodged with the Secretary of the Ministry of Lands, inter alia. Such objections are to be considered and such objector should be given an opportunity to be heard in support thereof.

The LAA also empowers the acquiring officer to cause a notice to be published in the gazette in the said three languages calling for claims of compensation inter alia.

Thereafter the acquiring officer must hold an inquiry into the claims of compensation as specified in the law. After an award under section 17 is being made the Minister may make an Order for taking possession of the land.

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