The Eppawala example

The Eppawalans' environment is Safe, all credit to local activism.

t was the common man's victory. For the seven residents of Eppawala, the judgement by Sri Lanka's Supreme Court was more than a mere victory over the state institutions and the giant multinational company they had taken to court. It was a reaffirmation of their fundamental right to have control over life and work, and above all, their right to be part of the decision-making process that brings change to a traditional way of life.

On 5 June, which happened to be World Environment Day, a three-judge bench ruled in favour of the seven petitioners, among them rice farmers and a Buddhist monk, who had dared to take on the United States mining Goliath, Freeport MacMoran, which had all the legal and engineering resources of a For-tune 500 company at its disposal.

In the judgement, Justice Amerasekera said that the petitioners have established an imminent danger to their fundamental rights by a large-scale mining project, backed by Freeport MacMoran. The company proposes to mine a huge phospate deposit in the Eppawala locality in central Sri Lanka, to produce fertilisers for export.

The petitioners argued that their fundamental right to have choice over livelihood and residence was being threatened by the proposed mine. The project would cover a core area of 56 square kilometres with a buffer zone of another 10 kilometres, and would displace 12,000 people, including the seven petitioners. They pointed out that the multinational was attempting to circumvent Sri Lanka's environmental laws, which call for public participation in project appraisal, and effectively trying to isolate the residents and public opinion from the decision-making process.

The company has stayed silent on the judgement. Its local partner, Sarabhumi (Pvt) Limited, threatened to take the government to court for breach of promise, shortly after the judgement was delivered, but has since kept a low profile.

The government caught the worst of the Supreme Court's disapproval over the proposed mine. In 1997, a government committee held a final round of negotiations with Freeport MacMoran and its subsidiary IMC Agrico, arriving at a mineral investment agreement that gave the company exploration and mining rights for 30 years in the core and buffer area. In exchange, the government only claimed a 10 percent shareholding in the new joint venture set up to mine the deposit.

The huge mineral deposit, close to the ancient capital of Anuradhapura, was 'discovered' by scientists in the early 1970s. Since then, the government has been using very limited quantities, 40,000 metric tonnes a year, to produce phosphate fertiliser for local needs.

Twenty years ago, the state began hunting for a foreign joint venture to exploit the deposit and rake in foreign exchange for the government coffers. Sporadic bouts of negotiations followed by long years of slumber discouraged many an investor, but not Freeport MacMoran and IMC Agrico. The first round of official negotiations with the company commenced in 1994 and ended with the mineral investment agreement in 1997, at a time when the government was hard pressed to raise cash to fight the ongoing civil war against the militant guerilla group, LTTE.

Initial studies at Eppawala show a proven deposit of 25 million metric tonnes of high-grade phosphate and a probable reserve of 35 million MT. The Ministry of Industrial Development has stated that the company would mine just 26.1 million MT in 30 years, leaving the country with a substantial deposit at the end of contract.

The lack of thorough scientific study on the extent and area of de-posit was a factor that kept surfacing during the court hearing. The Supreme Court clearly directed the government to desist from entering into any contract before comprehensive exploration determines the ex-act extent, quantity and quality of the mineral deposit. The court agreed that the government's shareholding of the mining company, at 10 percent, would be woefully small if the deposit was found to be much larger than earlier estimated. This would translate to a lop-sided profit sharing, leaving the country at a disadvantage while the multinationals make their billions and leave a trail of destruction.

Freeport MacMoran's reputation in the gold mines of Iriyan Jaya in Indonesia was a factor played up by the environmental lobby opposing the project. The company's track record of pollution, destruction and bad public relations with indigenous communities, was a huge blot against the local company, which eventually tried to distance itself from Freeport MacMoran.

Unlike many large-scale environmental issues fought by NGOs and lawyers in sterile legal battles, Eppawala is refreshingly different since the people of the area were not overawed by the aura of a giant company. The case was filed by residents imploring the Supreme Court to prevent the imminent danger to their fundamental rights guaranteed by the Constitution. The petitioners, including Buddhist monk Mahamankadawela Piyaratna, success-fully argued that the government, through the mineral investment agreement, has ignored their rights to life, work and residence in the area of their choice.

The state institutions and the company tried to argue that the threat is imagined and not real until the company completes exploration, and then go on to decide the extent of the mine. But the court ruled: "Fairness to all, including the petitioners … and not the comfort of the mining company should be the deciding factor."

The proposed mine ploughs through an ancient irrigation system, designed over 2000 years ago to support rice agriculture. Engineers of the past used a system of underground aquifers to feed mineral nutrients into the irrigation channel, Jaya Ganga (river of triumph), which carried the fertilised water to rice fields north and west of Eppawala. Thus irrigation channel still supports a huge cultivated area and provides drinking water to 100 villages upstream. Heavy mining would cause immeasurable harm to the channel, pollute its waters and create a hazardous situation for farmers dependent on its water.

The judgement, while ordering the state to carry out comprehensive studies of the deposit and means of its use, also prohibited the state from contracting any such project outside the premise of national environmental laws.

Quoting the Rio Declaration, the judges stated: "Human beings are at the centre of concerns for sustainable development. To achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it." Indeed.

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Himal Southasian