by Selvam Canagaratna
Continued From July 7
The RRP states (Page ii, Project Description) that the protected areas (PAs) comprise "9,700 square kilometres and account for 15 per cent of the total land area.. .". The seven PAs chosen for this pilot project will initially impact on 40,000 households or 180,000 people living in 192 villages near the pilot PAs. Considering its scale, and notwithstanding the ADB’s possibly self-serving conclusions as to the severity of the potential threats to the environment, one cannot underestimate the significance of the impacts the Project could have on some of the most species-rich and endemic-rich ecosystems in Asia and, most importantly, on the 180,000 people living around those PAs. In the light of the Supreme Court’s observations quoted above, one must assume that if the ADB was actually prompted by a genuine concern to help the poor of this country and also preserve its globally precious environmental biodiversity, it would have insisted, nay demanded, as a first step, that a detailed environmental impact assessment be carried out on what, on its own admission, is an experimental, pilot project involving some of the most species-rich and endemic-rich ecosystems in Asia. That it has not done so, but instead gone to great lengths to justify not doing a detailed EIA before launching the Project, renders its motivations highly suspect, and adds weight to the charge of a hidden agenda. After all, the simple question that needs to be asked is: Does, or does not, the ADB fully endorse the preventive and precautionary principles embodied in the Stockholm and Rio De Janeiro Declarations of the United Nations Organisation? A simple ‘yes’ or ‘no’ answer will suffice.

The Eppawela judgment, referring to the contention of counsel for the respondent mining company that the complaint of the seven residents of the area was a "public interest" matter and hence could not be entertained under the provisions of the Constitution, said:

"...the petitioners, as individual citizens, have a Constitutional right given by Article 17 read with Articles 12 and 14 and Article 126 to be before this Court. They are not disqualified because it so happens that their rights are linked to the collective rights of the citizenry of Sri Lanka - rights they share with the people of Sri Lanka.... It is in that connection that the confident expectation (trust) that the Executive will act in accordance with the law and accountably, in the best interests of the people of Sri Lanka, including the petitioners, and future generations of Sri Lankans, becomes relevant." (emphasis added)

On the subject of what needs to be done, and when, in matters relating to the environment, the Supreme Court had this to say:

"...the law, for good reasons,. . .requires the prescribed procedures to be followed. The times prescribed are vital. Project proponents cannot decide when, if ever, they will comply with the law. There are many things that have to be done at the very earliest of stages for very good reasons. There is also a prescribed time if and when an environmental impact assessment has to be done."

There are some striking parallels in the "undertakings" given by the Government to the mining company in the Eppawela case and the "assurances" the ADB claims (in the RRP) to have received from the Government as pre-conditions for granting the loan needed to implement the Protected Area Management and Wildlife Conservation Project.

Referring to one such ‘undertaking’ in the Eppawela case [The Government shall render all reasonable assistance to the Company to obtain all approvals, consents, grants, licences and other concessions as may be reasonably be required from any Government Authority] the Court posed the question:

".. .having regard to the undertaking... what comfort may the petitioners derive?", and added: "They are... .entitled to be apprehensive that even if there was an environmental impact assessment submitted to the Central Environmental Authority, such authority may not have been able to act impartially and independently. Of what use are biased decisions or decisions reasonably suspected to have been made under pressure?..."

Now for a closer look at some of the other "Assurances", as set out in the RRP. on Pages 31/32/33:

"The Government has given the following assurances, in addition to the standard assurances, which have been incorporated in the legal documents:

(i) Within one year of loan effectiveness, the Government will have prepared and submitted to Parliament a bill for wildlife conservation, amending the Fauna and Flora Protection Ordinance in accordance with the National Wildlife Policy of 2000."

What has advisedly NOT been set down under "Assurances", but which is a far more serious, even suicidal commitment by the Government, is to be found elsewhere in the RRP, namely on Page 11 which states:

"The new National Wildlife Policy, prepared with support from ADB, commits the Government to amend legislation, as necessary, to support the implementation of this policy. Thus, the FFPO of 1937 will be amended to make specific provision for several policy priorities, including participatory PA management and benefit sharing, ecotourism development, involvement of the private sector, and ex situ conservation activities. The amended FFPO will be superseded by entirely new legislation before the end of project year 5..." (emphasis added)

If the undertaking to merely "amend" the FFPO within one year of loan effectiveness qualified as an "Assurance", how was it that what literally amounts to a ‘blank cheque’ government commitment "to amend legislation, as necessary, to support the implementation of this policy", nor the specific assurance that "the amended FFPO will be superseded by entirely new legislation before the end of project year 5..." did not qualify for a place under VI - ASSURANCES? Clearly, a deliberate attempt by the ADB, with the acquiescence of the Government bureaucracy, to hoodwink the people of Sri Lanka.

What sinister game is the ADB playing here, no doubt with the active connivance of a small, self- seeking group within the executive branch of government? I ask this in all seriousness, because the FFPO, a major piece of environmental law which, by and large, has served this country well since 1937, is to be amended in Year 1 of the Project and is to be superseded by entirely new legislation before the end of Year 5 of a six-year experimental undertaking! ‘Superseded’ here can only mean that the new legislation will be devoid of all the checks and balances in the current FFPO which have proved a major stumbling block to unscrupulous entrepreneurs eager to exploit and enrich themselves without heed to the long-term detrimental environmental consequences in at least two principal areas: the first being the country’s ecotourism potential, and the second being the vast export potential (a.k.a. big-piracy) in a global biodiversity hot spot such as Sri Lanka. If the ADB’s track record - in Sri Lanka and in the rest of the Third World - is anything to go by, the Protected Area Management and Wildlife the Conservation Project will, after the six-year experiment, be recorded as another of its disastrous ‘achievements’. But, to be sure, the ADB will be far from unhappy at such an outcome, for its hidden agenda would have been achieved, anyway, that being to remove from our statute book the legislation which up to now has managed to a large extent to frustrate the nature-exploiters in our midst.

The next "Assurance" reads as follows:

"97. (iii) No disbursements for Component D of the Project will be made until (a) arrangements satisfactory to the ADB have been made with one or more cofinanciers, in addition to GEF, for the contribution of an amount equivalent to at least $4.0 million to the Protected Area Conservation Trust (PACT), and (b) the PACT will have been established in a form satisfactory to ADB and the Government and a board of trustees and/or board of directors, as the case may be, acceptable to ADB will have been appointed."

The above "assurance" makes clear that the Government has (in tandem with ADB) the right of approval only on the establishment of PACT in a "satisfactory" form, and on nothing else. Arrangements to be made "with one or more cofinanciers, in addition to GEF," and the establishment of "a board of trustees and/or board of directors, as the case may be," require only ADB approval. This is a totally unacceptable arrangement, considering that the whole "experiment" is to be carried out on Sri Lanka’s own wildlife and its precious eco-systems. No independent nation could possibly agree to such conditions that go to the very root of its sovereignty. Has the Attorney-General approved this clause? Again, just ‘yes’ or ‘no’, please.

Another "Assurance" in 97 (iv) reads:

"The Government will refrain from any action that may interfere with the independence of the PACT."

Once more, a simple question: Has the Attorney-General approved this too?

Yet another "Assurance" in 97 (iv) reads:

"The Government will ensure that, to the extent allowed under the laws of Sri Lanka, relief from any taxes and levies will be granted in respect of the funds of the PACT, including income earned on such funds, and any assets of the PACT. In the event of a change in the law. . .the Government will make its best efforts to assist in restructuring the PACT in such a way that its holdings and income earned therefrom will not be subject to any taxes and levies." (emphasis added)

This is strange, to say the least. (The use of similar/identical phrases in the Eppawela Agreement had the Supreme Court concluding that ". . .the paramount consideration will be the interests of the Company rather than those of the occupants of the affected areas."). What is the need for any additional "assurance", if all that is requested is in any case only "to the extent allowed under the laws of Sri Lanka"? This is what the Supreme Court had to say on a similar provision in the Eppawela Agreement:

"In terms of the proposed agreement, although there is an undertaking to comply with the laws of the country, which in my view, is an unnecessary undertaking, for every person, natural or corporate must in our society which is governed by the rule of law, comply with the laws of the republic. What is attempted to be done is to contract out of the obligation to comply with the law..."

It gets to the stage where one harmful ‘Assurance’ follows another. For example, 97 (xi) states:

"Within six months of loan effectiveness, the Government will have engaged a consortium of international NGOs acceptable to ADB to undertake baseline surveys in the first year and independent impact assessments in the third and sixth years of the Project."

This ‘Assurance’ needs to be considered along with what is said on Page v of the RRP under Consulting Services, which claims that:

"... a total of 172 person-months of domestic and 128 person-months of international consulting services will be required in addition to a consortium of international NGOs. The consultants and NGOs will be recruited in accordance with ADB’s Guidelines on the Use of Consultants and other arrangements satisfactory to the ADB for the engagement of domestic consultants." (emphasis added)

This, like the Assurances in 97 (iii) and (iv), are unacceptable, for they allow the ADB to use this Project for employment-creation and poverty-alleviation globally rather than locally! They are doubly unacceptable because we Sri Lankans have to pay back 12 million US dollars (with interest) over the next 32 years for this ADB largesse.

Next comes "Assurance" 97 (xii) which reads:

"Within two years of loan effectiveness, DWLC will have commenced the implementation of contracts with local communities/private sector for their environmentally low-impact operation of all DWLC tourist bungalows retained for tourist purposes..

This "Assurance" too needs to be read with what is said on Page 5 under Private Sector Involvement (16) and on Page 13 under Promoting Ecotourism Development (39). Even more alarming is what is said on the ADB internet website relating to this Project under Policy Dialogue, despite several denials issued locally. Let’s study, firstly, what is said in each of the above paragraphs in the RRP, and on the website and then consider their collective impact.

Paragraph 16 (Page 5) states: "Private sector involvement is a national priority reflected most recently in the National Wildlife Policy of 2000, which commits the Government to encourage the private sector to join as a full partner in wildlife conservation. Private sector involvement in wildlife and PA management is largely inhibited, however, by public concern that it should not undermine the legitimate and necessary role of DWLC as the chief regulator of wildlife and PA use. This reflects an appreciation of the fragility of natural ecosystems and a suspicion that the short-term perspective of private enterprise might cause irreversible damage to natural systems...". (emphasis added)

[To digress for a moment, the author of the highlighted sentences in the above paragraph would, without doubt, be the best potential ‘witness for the prosecution’ in, say, the case of The People vs. ADB.]

Paragraph 39 (Page 13) states: "...The Government meanwhile, with ADB encouragement, has agreed to end DWLC management of tourist bungalows. Their subsidized prices inhibit private investment, managing them distracts DWLC from its primary role as regulator of PA use, and DWLC is subject to pressure to provide use of the bungalows at commercially nonviable rates to those with influence...." (emphasis added)

The ADB website, under Policy Dialogue, states: "The Bank is actively emphasizing the need to actively involve the private sector in the management of protected areas and the development of nature based tourism. The Project will actively explore the transfer of the management of the national park (sic) to the private sector or NGOs." (emphasis added)

So, taken as a whole, there can be little doubt that with a little more "ADB encouragement", the people of Sri Lanka can be convinced that the rationale for this country’s very existence is to make it a paradise, no, not for themselves, but for tourists. Of course, Sri Lankans themselves will need to put their noses to the grindstone, their shoulders to the wheel, and work themselves to the bone, while their wildlife and their national parks are kept almost exclusively for the enjoyment of ‘ecotourist’ foreigners paying rates the private sector considers ‘commercially viable’ (or a.k.a. ‘making a killing’.)

Next comes Assurance 97 (xiii) which reads

"...To the extent that there would be a need to relocate people living within the boundaries of a pilot PA, DWLC will prepare and implement a resettlement plan in accordance with the ADB Handbook on Resettlement and satisfactory to the ADB."

Why "in accordance with" the ADB Handbook? Are our own rules (and, presumably, our laws) relating to relocation and resettlement of people so primitive, unfair, inhumane and inequitable? That probably explains why what’s paramount in the RRP is the ADB’s ‘satisfaction’, not that of the displaced Sri Lankans or their Government.

Considering the ADB’s new-found commitment to "sustainable development", one needs to remind the executive branch of the government that the Eppawela judgment dealt at some length with the Principles in the UN Stockholm Declaration and the UN Rio De Janeiro Declaration (both of 1972). This is what the judgment noted:

"Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. (Principle 14, Stockholm Declaration). Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration)..."

"Admittedly.... these Principles... are not legally binding in the way in which an Act of our Parliament would be. It may be regarded merely as ‘soft law’. Nevertheless, as a member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions."

Having earlier in the judgment noted that "the organs of State are guardians to whom the people have committed the care and preservation of the resources of the people", the Supreme Court said that the public trust doctrine relied upon by counsel for both sides in the Eppawela case was, in its view, comparatively restrictive in scope and preferred, instead.

"...to continue to look at our resources and the environment as our ancestors did, and our contemporaries do, recognizing a shared responsibility" and went on to say.

"The Constitution today recognizes duties both on the part of Parliament and the President and the Cabinet of Ministers as well as duties on the part of ‘persons’, including juristic persons like the 5th and 7th respondents. (the reference here is to the two locally registered companies representing the multinational mining conglomerate). Article 27 (14) states that ‘The State shall protect, preserve and improve the environment for the benefit of the community.’ Article 28 (f) states that the exercise and enjoyment of rights and freedoms...’ is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in Sri Lanka to protect nature and conserve its riches.’

In the light of the above, are not the organs of State such as the Department of Wildlife Conservation and the Central Environmental Authority required by law to take note of the Court’s directives as well as the ‘concerns’ contained in the judgment in the Eppawela case insofar as they relate to decision-making in all matters relating to the environment and natural habitat? The Court concluded that what was being proposed by the Eppawela agreement "... was to substitute a procedure for that laid down by the law. It was assumed that by a contractual arrangement between the executive branch of the government and the Company, the laws of the country could be avoided. That is obviously an erroneous assumption, for no organ of Government, no person whom so ever, is above the law". The Court’s "Order", while noting that "there is no assurance of infallibility in what may be done; but, in the national interest, every effort ought to be made in minimize guesswork and reduce margins of error", directed that "any project proponent whom so ever obtains the approval of the Central Environmental Authority according to law, including the decisions of the superior Courts of record of Sri Lanka."

The actual number of RRPs floating around, each different in some particular, but all still valid, has become the joke of the new millennium. Although there is an RRP -R144-01 dated 6 September 2001, public comment was called for was on the RRP: SRI 31381 dated a year earlier, September 2000! One may be forgiven for assuming that, logically, the later version of the RRP would be a fine-tuned document which evolved from the former. But, then, ADB logic is something else, as we are finding out to our cost. Compare and consider:

RRP of September 2000: Objectives and Scope - "The Project aims at assisting the Government to conserve the nation’s valuable natural resources and preserve its wildlife biodiversity for the well- being of current and future generations. More specifically, by addressing institutional and legal deficiencies in PA management and pilot-testing participatory adaptive management in priority PAs, the Project is expected to stimulate nature-based tourism and to contribute to the development of a sustainable PA management and wildlife conservation system for Sri Lanka." [emphasis added]

Now for what is stated in RRP: R144-01 dated 6 September 2001 :Changes to Component D (Sustainable Financing for Community Partnership Building)

"5. Instead of establishing and endowing the PACT under the Project, ...PACT will be converted into the Protected Area Conservation Fund [PACF]. The objective of PACF is very similar to that of the PACT, namely to finance on a pilot basis community and participatory works that benefit conservation and the PAs over about six years... The activities of the PACF will be confined to the seven pilot protected areas included under the Project. This will allow models for community empowerment conservation to be developed for protected areas that represent the various ecological and social conditions encountered in the country. The models, if proven successful, will be suitable for replication on a wider scale. In addition, mechanisms will be developed and tested that will ensure the empowerment process is sustainable..." [emphasis added]

The highlighted words/phrases above establish beyond any doubt whatever that the seven Protected Areas which the ADB itself concedes in the RRP are "some of the most species-rich and endemic-rich ecosystems in Asia", are to be used by the ADB for seven major ‘experiments’ spanning six years. What if the experiments prove, not just unsuccessful, but disastrously so? In such an eventuality, would the Supreme Court judgment in the Eppawela case be applicable?

The provisions in the Eppawela Agreement relating to environmental compliance and restoration, the Supreme Court judgment said, are

".. .the product of outdated mainstream economic thought: They appear to be based on the views of persons who at best nominally recognize the environment or have considerable difficulty in placing a ‘value’ on it. Today, environmental protection, in the light of the generally recognized ‘polluter pays’ principle (e.g. see Principle 16 of the Rio Declaration), can no longer be permitted to be externalized by economists merely because they find it too insignificant or too difficult to include it as a cost associated with human activity. The costs of environmental damage should, in my view, be borne by the party that causes such harm, rather than being allowed to fall on the general community to be paid through reduced environmental quality or increased taxation in order to mitigate the environmentally degrading effects of a project. This is a matter the Central Environmental Authority must take into account in evaluating the proposed project and in prescribing terms and conditions."

In the light of this judgment, and considering the experimental nature of the ADB Project, should not the ‘polluter pays’ principle be incorporated in the RRP, the more so as the citizens of this country will be paying for this ‘experiment’ for the next 32 years, regardless of success or failure? It is in this context that one asks again: has the Attorney-General approved each and every clause in the RRP?

If the ADB’s previous disastrous interventions in Sri Lanka in support of poverty alleviation or what- have you is any guide, the Government and all the people of this country are condemned to pay a heavy price once again for the ADB’s reckless adventurism that this Project represents.

Evidence of the highly experimental nature of ALL of the ADB’s projects in the Third World are to be found in the RRP itself. It’s a classic case of "fooling around at other people’s expense". For instance,

"Lessons drawn from ADB’s integrated conservation-development projects (ICDPs) are the following: (i) there is a complex and indirect relationship between the provision of income-earning alternatives for local communities and the achievement of conservation objectives... These findings were supported by a recent review of 21 ICDPs in Indonesia, which concluded that only a minority of projects could claim that biodiversity conservation has been significantly enhanced by project activities..." [emphasis added] and the next paragraph too endorses the above view. It says:

"Many of the same lessons can be drawn from the GEF portfolio of stand-alone projects...".

The obvious conclusion, considering the ADB’s appalling record of costly failures in the Third World, is that the ADB has been disproving, in its spectacularly unique way, the modern business motto "If you fail to plan, you plan to fail". The ADB plans, all right. No question about that. And fails, nevertheless. Every time. Because that’s the way it’s meant to be.

The following quotations from the ADB’s RRP on how bad our ‘legislative framework’ is, how terribly weak and inward looking our ‘institutional capacity’ is, and how woefully unprepared we are to meet the challenges of the new millennium, are all part of the strategy of ‘setting the stage’ to plunder Sri Lanka’s valuable biological resources. No matter if the quotations also reveal just how much the international funding agencies themselves have, by design, contributed to our state of wretchedness.

On Page 4, under ‘Legislative Framework’ it says "The Fauna and Flora Protection Ordinance (FFPO) of 1937 ... despite various amendments... is outdated and ineffective as a tool with which to address pressures on the country’s ecological resources. New legislation is needed to support new standards for ecosystem and habitat management, the role of communities living in the buffer zones, and the role of the private sector in supporting PA management and ecotourism development...."

Then, on Page 5, under ‘Institutional Capacity’ it says: "DWLC has been transferred repeatedly to different ministries, and has experienced high turnover of directors. Its operations and culture follow largely a reactive, centralized "command and control" model that is no longer able to deal with the complexities it faces. It is inward looking in its thinking and procedures, when most challenges are best met by looking outward in a strategic and proactive manner..."

But two pages later, on Page 7, under ‘External Assistance to the Sector’ it says: "Efforts to strengthen DWLC in the last two decades involved two major externally-assisted projects: (i) through the Mahaweli Environment Project, the United States Agency for International Development provided assistance in the 1980s to develop basic institutional capacity for biodiversity conservation and PA management, especially in the Mahaweli development area; and (ii) through the Development of Wildlife Conservation and Protected Area Management Project, the United Nations Development Programme (UNDP) and GEF provided assistance during the 1990s, which, among others, built capacity through staff training;...and prepared management plans for 10 PAs..."

And again on Page 8, under ‘Lessons Learned’ it says: "Final evaluation of the UNDP/GEF Project concluded that future GEF support should be conditional on DWLC being restructured and decentralized under new leadership, and the introduction of process mechanisms to allow better planning and budgeting. Other lessons from this project..."

As one can see, it’s a matter of experimenting, and learning, to fail every time.

To the ADB, failures are the pillars of, well, yet more, and grander, failures.
(Concluded)