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Environmental Foundation (Guarantee) Ltd. (EFL) is one of the oldest public interest litigation firms in Sri Lanka. EFL raised its concerns over the Cabinet decision on the transportation of sand and other minerals and change of procedure in issuing mining permits for certain minerals.
On 4 December 2019, the Government made a decision regarding the permit requirement for transport of sand and other minerals and subsequent decision change in the process of issuing quarry permits and the Circular No 173/12/2019 issued by the Geological Survey and Mines Bureau (GSMB) on 31 December 2019, changing the procedures set out in the National Environmental Act No 47. Of 1980 as amended, Urban Development Authority Act No. 41 of 1988 as amended, and the Mines and Minerals Act No. 33 of 1992 as amended.
Irregularities regarding the circular No 173/12/2019
The procedure set out in the abovementioned circular is in contravention of the relevant provisions of the law and seeks to change the procedures set out by the Acts of Parliament. If such procedures are to be amended, it has to be through an amendment to the relevant Acts and regulations.
Further, amendment of the procedure to simplify the process by relaxing the requirements related to environmental recommendations pose a severe threat to safeguarding the water resources of people, natural environment and the natural resources of the country.
Constitutional provisions and relevant laws; irregularities related to the Cabinet decision on the transport permit for certain minerals
Cabinet, as one of the key Executive Branches of Government, is to be guided by the Directive Principles of State Policy and Fundamental Duties per Article 27 of the Constitution. Further, the Cabinet of Ministers is collectively responsible to the Parliament per Article 42(2) of the Constitution.
Mines and Mineral Act vests the power to decide matters related to issuing permits, licenses, etc. for mining, storing, processing and transporting sand and other minerals with the Geological Survey and Mining Bureau. The specific procedure for granting licenses is set out in Regulation No 794/23 of 26.11.1993.
According to Section 12 of the Act, functions of the Bureau include:
These functions are set to ensure that the process of licensing for commercialisation and use of minerals and mineral based products are carried out through a specialised institution with the expertise and niche knowledge on the subject.
GSMB is given authority to issue licenses with a view to regulate the process as per Section 13, 28 and Section 61 of the Act.
Section 13 of the Act lists the powers of the Bureau which includes:
The power to issue licenses for explorations consequent to the receipt of an application or by the advertising and calling for Expressions of Interest:
(ii) mining;
(iii) transport;
(iv) trade-in;
(v) storing; and
(vi) export of minerals.
Section 28 of the Mines and Minerals Act which provides that no person shall explore for, mine, transport, process, store, trade in or export any minerals except under the authority a licenses issued under the Act. Section 35 Licensing within the Act intends to specify the limits of the area in respect of which the licensee is authorised to explore for or mine, transport, process, store, trade in or export minerals; [they are also required to specify the mineral which they have obtained the authorisation for. Per 35(2)(b), (c) amended by s 15 of Act 66 of 2009.]
Sec. 61 – the holder of a licence issue under the Act, shall carry out the activities authorised by licenses in compliance with the standards and procedures set out by the National Environmental Act No 47 of 1980.
Rationale for the Requirement for Permits and Licenses for Mining, Processing, Transportation and Other Activities in the Process of Commercialisation of Mineral Resources.
The permit procedure for mining, processing and transportation of sand and other minerals is based on the need to regulate mining and related activities, which is also based on issues related to over-exploitation of sand and minerals. Exploitation of sand and gravel at a higher rate than their natural replenishment rate in a river lead to a range of direct and indirect impacts. Large scale sand mining affect river bed characteristics, water quality and quantity, biodiversity and living conditions of the people living along the river banks. And it is estimated that more than 35 of the 103 rivers in Sri Lanka are subject to illicit river sand mining, that more than 50% of all sand used in the construction sector is sourced from unlawful operations, and that 10 times more sand is extracted than what is legally permitted (Sri Lanka Water Partnership).
Some of the key environmental and technical aspects that are examined when issuing a quarry permit are the impact to the ground water table of the area, availability and rate of depreciation of the mineral, intensity of extraction, the loss of biodiversity and green cover, impacts on rivers or surface water bodies in the vicinity, landslide risk, dust and particle emission, sound pollution and impacts from the use of explosives and waste and residue management. Assessment of these aspects require technical knowledge on the relative subject areas which are essentially constituted with the relevant government agencies such as the GSMB and the CEA that consists of knowledgeable and trained personnel to evaluate such impacts. Hence, permits for quarrying cannot be issued by any government institution or servant who does not possess the required technical knowledge and the skills to do so.
Concerns regarding the simplification of the permits procedure
A decision to simplify the permit process for mining would cause four main issues among others.
The main issue is that the power is currently vested with the GSMB who are trained and equipped with the necessary technical and expert capacity to make the decisions regarding the areas, level of activities that can be allowed in line with the economic concerns and environmental concerns.
Secondly the officers are not trained or equipped to create and survey the areas and update the maps in terms of the environmental, economic and other relevant aspects that need to be considered.
Thirdly, the matter will be handled by an officer who is tasked with different other types of duties which do not cultivate the expertise and specialisation visualised in section 12 of the Act.
Fourthly the regulation would not be effective since in different areas the priorities and the manner in which the permits are given and the conditions attached to them would differ based on a number of factors including the individual officer handling the permits process.
Finally, it would create great difficulty in generating maps and collecting data regarding how many permits are issued, the status of the mines and minerals in different areas, since if the proposal is effected a greater level of coordination would be necessary to gather the relevant data (which is currently in possession of and collected by the GSMB as the sole institution issuing license and permits).
Impacts of climate change
“The river sand mining (RSM) issue needs to be viewed in the context of the current climate induced changes including a prolonged drought which already has had a detrimental impact on Sri Lanka’s water security,” says Sri Lanka Water Partnership Senior Advisor Kusum Athukorala.
Media scans reveal that RSM is negatively impacting on agriculture, especially small holders and drinking water supply, both rural and urban. Bank collapse, lowering of river beds, damage to ground water tables and loss of permanent crop lands bordering river beds such is being increasingly reported in RSM areas. The long-term impacts of damage to ecosystems and rural communities may lead to escalating social tensions and finally rural out migration.
