Flora and Fauna Protection (LK0009)

In addition to the aforesaid laws the Fauna and Flora Protection Ordinance No.2 of 1937 as amended (FFPO) and the North Western Province Environmental Statute No.12 of 1990 as amended (NWPES) also provide for the IEE/EIA process. However, unlike the NEA and CCCRMA, the FFPO and the NWPES require that IEEs are open for public comments. It needs to be stressed that where public law allows comments on IEEs/EIAs, the decision making agencies need to be accountable for the public comments received. In order to ensure the same, the decision-making agency must list the comments received on IEEs and EIAs and indicate whether the comments were addressed or not when arriving at the project approval decision.

Therefore, it is proposed that:
(a) Relevant amendments are made to (i) the NEA and its regulations; and (ii) the CCCRMA, the CCCRMP and regulations to restore/include the public’s right to study and comment on IEE Reports before projects are approved; and
(b) Relevant amendments are made to (i) the NEA and its regulations; (ii) the CCCRMA, the CCCRMP and regulations (iii) the FFPO and its regulations and (iv) the NWPES and its regulations to include provisions ensuring government accountability on public comments on IEEs and EIAs.
Fauna and Flora Protection Ordinance (FFPO) and North Western Province Environmental Statute (NWPES) Amendments

1. One or two meetings/discussions each with the DWLC and NWPEA to advocate the need for the relevant amendments to the FFPO and NWPES and its regulations New Sep 2016 Nov 2016
2. Drafting amendments to the FFPO and NWPES and its regulations to ensure government accountability on public comments received on IEEs and EIAs.
PILF can assist the DWLC and NWPEA in this endeavour. New Nov 2016 Jan 2017
3. Amendments to FFPO and NWPES and regulations with aforesaid provisions passed by Parliament and the North Western Provincial Council New Jan 2017 Nov 2017
4. Enforcement of the amendments to FFPO and NWPES and regulations by the DWLC and the NWPEA New Nov 2017
5. DWLC and the NWPEA to facilitate the enforcement of the aforesaid amendments to the FFPO and the NWPES and regulations by strengthening its EIA units with adequate staff, necessary budgetary allocations and other required facilities New Aug 2017 July 2018
6. Approx. 03 workshops to create awareness amongst respective government agencies and public officers on government accountability provisions. New Jan 2018 July 2018
7. (A) Approx. 04 programmes each on State owned television and radio to create public awareness on the government accountability provisions in the FFPO and NWPES.
(B) Dissemination of aforesaid information through the websites of the DWLC and NWPEA New Jan 2018 July 2018

9. Fauna and Flora Protection Ordinance and North Western Province Environmental Statute Amendments

Commitment Text:

Transparent Environmental Decisions: Restoring the Public’s Right to Comment on Initial Environmental Examination and Government Accountability on Public Comments

(C) – Fauna and Flora Protection Ordinance (FFPO) and North Western Province Environmental Statute (NWPES) Amendments

[…]

Main Objective:

Ensure government accountability on public comments on Initial Environmental Examinations (IEEs) and Environmental Impact Assessments (EIAs).

Milestones:

• 1 Preliminary Discussions: One or two meetings/discussions each with the DWLC and NWPEA to advocate the need for the relevant amendments to the FFPO and NWPES and its regulations.
• 2 FFPO and NWPES Amendments Drafted: Drafting amendments to the FFPO and NWPES and its regulations to ensure government accountability on public comments received on IEEs and EIAs. PILF can assist the DWLC and NWPEA in this endeavour.
• 3 FFPO and NWPES Amendments Passed: Amendments to FFPO and NWPES and regulations with aforesaid provisions passed by Parliament and the North Western Provincial Council.
• 4 Enforcement: Enforcement of the amendments to FFPO and NWPES and regulations by the DWLC and the NWPEA.
• 5 DWLC and NWPEA Facilitation: DWLC and the NWPEA to facilitate the enforcement of the aforesaid amendments to the FFPO and the NWPES and regulations by strengthening its EIA units with adequate staff, necessary budgetary allocations and other required facilities.
• 6 Government Awareness Workshops: Approx. 03 workshops to create awareness amongst respective government agencies and public officers on government accountability provisions.
• 7 Civil Society Awareness Programs and Information Dissemination:

(A) Approx. 04 programs each on State owned television and radio to create public awareness on the government accountability provisions in the FFPO and NWPES.

(B) Dissemination of aforesaid information through the websites of the DWLC and NWPEA.

Responsible institutions: Ministry of Sustainable Development and Wildlife; [125] Ministry of Mahaweli Development and Environment (MMDE) and North Western Province Environmental Authority (NWPEA)

Supporting institution: Department of Wildlife Conservation (DWLC)

Start date: July 2016 End date: July 2018

Editorial Note: The text of the commitment was abridged for formatting reasons. For full text of the commitment, see the Sri Lanka National Action Plan 2016–2018 at http://bit.ly/2wv3jXR. To improve readability, the IRM researcher will evaluate the other milestones as part of Commitment 7 and Commitment 8.

Commitment Aim:

This commitment aimed to facilitate government accountability in environmental decision making. It sought to do this by formally mandating government responses to public comments on Initial Environmental Examinations (IEEs) and Environmental Impact Assessments (EIAs). This would entail the amendment of related provisions under: (1) the Fauna and Flora Protection Ordinance (FFPO) [126] under the primary purview of the Department of Wildlife Conservation (DWLC); and (2) the North Western Province Environmental Statute (NWPES) [127] under the purview of the North Western Province Environmental Authority (NWPEA).

Status

Midterm: Not Started

Implementation of this commitment had not commenced by the midterm (Milestones 9.1–9.7). The Public Interest Law Foundation (PILF) speculated that stakeholders agreed that the legislation required better enforcement, but that it did not require further amendment. PILF noted that provisions for public commenting were already included in the existing law. [128]

End of term: Not Started

Milestones 9.1–9.7: According to civil society, there continued to be no progress toward amending the two laws (FFPO or NWPES) to introduce provisions for government accountability. [129]

The Ministry of Environment, DWLC, or NWPEA could not be reached for comment.

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Did Not Change

At the outset of the action plan, environmental decisions linked to the FFPO and NWPEA had no provision for government accountability in responding to public comments. Unlike the NEA and CCCRMA, these laws did contain legislative provisions for public comments. However, as the implementation of this commitment did not start, it did not improve open government. Specifically, there was no change in access to information or civic participation as a result of this commitment.

Although the commitment aims to introduce and enforce government accountability in decision making, until the content of the amendment is deliberated and finalised, the precise mechanism to do so remains unclear. Preliminary discussions among stakeholders, as well as the drafting and passing of relevant amendments, are prerequisites to facilitate introducing provisions on government accountability. [130]

Carried Forward?

Sri Lanka’s second action plan was not released at the time of this report. Unlike the laws in Commitments 7 and 8, the FFPO and NWPEA already mandate public commenting. However, as stakeholders achieved limited success in pushing through amendments in relation to government accountability on public comments, this commitment may also require a revised approach.

Toward this end, the IRM researcher proposes that all key stakeholders, including the Ministry of Environment, DWLC, NWPEA, and Ministry of Sustainable Development and Wildlife Conservation, convene consultations to re-examine: a) the obligation of enforcing legislative provisions on public commenting, and b) the importance of facilitating government accountability in responding to public comments. These consultations could include public environmental agencies, members of civil society, environmentalists, and other relevant stakeholders for an inclusive approach.

[125] The Ministry of Sustainable Development and Wildlife (MSDW) was established under the Extra Ordinary Gazette Notice 1933/33, dated 21 September 2015, and thus, postdates the formulation of this commitment. As the Department of Wildlife Conservation is an institution that falls directly under the purview of the new ministry, the MSDW is introduced as one of two institutions primarily responsible for this commitment.

[126] Fauna and Flora Protection Ordinance, No. 2 of 1937 (as amended by Acts No. 44 of 1964, No. 1 of 1970, No. 49 of 1993, and No. 22 of 2009), http://www.dwc.gov.lk/documents/FFPO.pdf and http://www.dwc.gov.lk/documents/ordinanceeng.pdf.

[127] North Western Province Environmental Statute, No. 12 of 1990 (as amended by Statute No. 2 of 1999).

[128] Mihiri Gunawardena (Public Interest Law Foundation), interview by IRM researcher, 9 October 2017.

[129] Mihiri Gunawardena (Public Interest Law Foundation), interview by IRM researcher, 20 September 2018.

[130] Id.