Hemantha Withanage,Executive Director, Centre for Environmental Justice

Today,(26 june, 2020) CEJ sent a letter of demand to the Secretary of the Ministry of Environment demanding him to protect the 5/2001 circular which brought residual forest/other forests under the protection of the Forest Department. At the moment there is a huge pressure by certain parties to cancel this circular and return those forest back to the full control of the District Sercretaries  and Divisional Secretaries. Why this became an issue?

History

The British Govt. enacted the ‘Crown Lands (Encroachments) Ordinance‘ No.  12 of 1840 also called as the Crown Lands Ordinance or Waste Lands Ordinance. Under this law it was declared (in Section 6 ) that :a) all forest, waste, unoccupied or uncultivated land was to be presumed to be the property of the Crown until the contrary is proved, since then most of the lands in Sri Lanka became Crown lands. It abolished the concept of common lands which was not own by any single person but used as a common property under customary rights.

Most peasants who had only users’ rights were not able to produce title deeds to prove ownership to ‘their’ lands The British abolished this peasant’s private right to cultivate on Crown land. Waste Lands Ordinance, No. 1 of 1897 broughtgave the facility to the Crown to declare vast tracts of land in the country as Crown land. (Senaka Weerarathne, 2016)

Forest Ordinance No. 16 of 1907 and Fauna and Flora Protection Ordinance  No 2 of 1937 were also brought during the British period. They also established the Forest Department and the Wildlife Department   Yet, many crown lands were governed by the Government agents until 2001.

In 80s 500 acre land plots have been allocated for business tycoons. Some received 50 acres. They only destroyed the trees but not much cultivation done. Most of the forest lands governed by then  Government Agent called GA forests have been encroached  by 90s by local people and by the powerful politicians. Government agents were not able to save these forests or partly degraded lands from encroachments, illegal logging or habitat destruction.

5/2001  and 02/2006 Circulars-

Those residual forest patches with high biological diversity and  important animal habitats animal corridors which are State Lands that have not been identified under the Forest Ordinance No.16 of 1907 or Fauna and Flora Protection Ordinance No. 02 of 1937 as forest reserves, proposed forest reserves, village forests, Strict Nature Reserves, Nature Reserves, National Parks, Trails and Sanctuaries were unprotected while they were governing under Divisional Secretariats before issuing the Circular of 05/2001.

As a mean of addressing this issue and the target, 05/2001 Circular was issued by the Ministry of Environment on 10.08.2001, giving provision for these areas with forest patches, which were previously managed by the Divisional Secretariats, to be now managed, developed and protected by the Forest Conservation Department. This Circular prevented the Divisional Secretariats from transferring the ownership of these areas to non-state entities at their own discretion. Therefore, these lands and the natural resources of these lands were protected under this Circular after 2001 although there were many threats, conflicts and disputes over such land plots. 

Section 5 of the said Circular, the State residual forests need to be managed under this Circular and the section 4 states that the process which is mandatory for starting a new project in these forests. The approval for any project proposal must be taken from the Inter-ministerial Committee which is headed by the Secretary of Ministry of Environment before using these lands for any use. This project proposal must be taken under the approval of the District Land Use Committee first and then those recommendations need to be sent to the Inter-ministerial Committee. This Committee would study this proposal and inform the project proponent for conducting an Environmental Impact Assessment under National Environmental Act No. 47 of 1980 only if it can be approved. When there is a need of an Environmental Impact Assessment report, the project proponent need to be submitted it to the Minister and then the Minister decides whether to release the land or not.

This Circular has already been amended by the Circular No. 02/2006 dated 17.05.2006 for releasing the other lands (Barren Lands) which are not forest lands. If the lands are needed for State development activities, this amendment has already furnished that requirement and, therefore, remaining residual forests must not be unguarded for this purpose.

Since  the issuance of circular No 5/2001 and No 02/2006 many of those forest have been demarcated and included in the existing forest reserves. But there are few conflicting forest areas in Anuradhapura, Monaragala and Ampara.

There are two judgments were already given to protect such lands referring to the said Circular in the past years; first one is given under CA-Writ-2047/2003 and the Court of Appeal issued a Writ of Mandamus directing Secretary, Ministry of Environment and Natura Resources and Forest Conservator, Forest Department to take appropriate steps under the relevant laws to protect the portion of forest which was called Patapilikanda forest that mattered in this case, second one is given under SC. Appeal No.78/2006, of the appeal case of the same, confirming the previous judgment that the Conservator of Forests has a legal duty and authority to protect the forest. By this precedent the law has already become a part of the soft law.

Amendment 65 of 2009 to the Forest Ordinance

In 2009 there was an amendment to the Forest ordinance which has set this circular part of the Forest ordinance. [Section 20 state. (1)  No person shall clear, set fire to, or break up the soil of, or make use of the pasturage or of the forest produce of, any forest not included in a reserved or village forest, except in accordance with rules to be made by the Minister. Such rules may, with respect to such forests or with respect to any particular forest-

1. regulate or prohibit the cutting of or setting fire to forest, or the issue of grants or leases by the State with respect to land on which trees enumerated in Schedule II are growing;
2. regulate or prohibit the kindling of fires, and prescribe the precautions to be taken to prevent the spreading of fires;
3. regulate or prohibit the felling, cutting, sawing, conversion, collection, removal and transport of trees and timber and the collection, removal and transport of forest produce;
4. regulate or prohibit the building of houses or huts, the occupation of such houses or huts, the quarrying of stone or coral, or the digging for plumbago or gems, or the burning of lime or charcoal;
5. regulate or prohibit the cutting of grass and the pasturing of cattle, and regulate the payments (if any) to be made for such cutting or pasturing;
6. regulate or prohibit hunting, shooting, fishing, poisoning water, and setting traps or snares or guns, constructing or using ambushes, or the use of explosives;
7. regulate the sale or free grant of timber or other forest produce; and
8. prescribe, or authorize any forest officer to prescribe, subject to the sanction of the Minister, the fees, royalties, or other payments for such timber or other forest produce, and the manner in which such fees, royalties, or other payments shall be levied whether in transit, or partly in transit, or otherwise.

Nothing in this section shall be deemed to affect any existing rights of any person in or over pasturage.

(2) Any person who abets the commission of any offence specified in this Chapter or causes any such offence to be committed shall also be guilty of an offence and shall on conviction be liable to the same punishment as provided for the offence.

(3) The Minister may, by notification in the Gazette from time to time, exempt any person or class of persons or any local area the limits of which shall be defined in such notification, from the operation of any such rule, and may from time to time cancel any such exemption.](Act No 65 of 2009)

How much Forest is under protection?

Although Forest Department claim they have 29% forest lands under protection it’ s not true. They included forest plantations such as Teak, Eucalyptus, Pinus etc. and also these other forests. I don’t consider plantations as forests.

Sri Lanka’s forest cover amounts to approximately 2.1 million hectares. Of this extent 2.04 million hectares represent natural forest and 0.7 million hectares planted forest. Of the area under natural forests, 1.58 million hectares are close canopy forest covering 23.9% of the land area. The natural forests are very unevenly distributed with 86% being concentrated in the dry and intermediate zones. These two zones carry 85% of the closed canopy forests in the country and 90% of the sparse and open forest.( Ananda Wijesooriya, ) Approximately 0.5million hectares of other forests or residual forests found in Sri Lanka.

Deforestation is one of the most serious environmental issues in Sri Lanka. In the 1920s, the island had a 49 percent forest cover but by 2005 this had fallen by approximately 26 percent. Between 1990 and 2000, Sri Lanka lost an average of 26,800 ha of forests per year. This amounts to an average annual deforestation rate of 1.14%. Between 2000 and 2005 the rate accelerated to 1.43% per annum. (Wikipedia) During the REDD readiness project it was found that approximately current annual forest loss is around 8000 hectares.

(Unna Chokkalingam and Anuradha Vanniarachchy -2011)

The Circular which manages, develops and protects valuable State residual forest patches is going to be taken away and abolished by you giving back the authority from the Forest Conservation Department to the Divisional Secretariats who earlier failed to protect them with their powers. Some of those remarkable detrimental causes of this myopic decision can be;

1. Stable and rich biodiversity, valuable archeological areas, water resources and fauna and flora of these lands will be destroyed permanently and thus it will be an irreparable damage to the country and the environment.
2. The forestry percentage of the country will be dropped down dramatically even under 17% after this action.
3. Elephant corridors will be destroyed permanently and as a result, Human Elephant Conflicts will be the increased.
4. By removing this Circular, river reservations and lake reservations also will be turned into unprotected and vulnerable areas before law.
5. A flood gate will be opened for the encroachers to enter into these lands after they became unprotected by law. Then the other natural resources of the country such as sand, soil and granite of these lands which are well protected under the permit of the Director General of the Forest Conservation Department at the moment also will be unguarded when this Circular is denied.
6. Environmental Impact Assessment will not be needed for any development project in this area anymore after removing this Circular. It is also an inferior effect to the biodiversity and the fauna and flora of these lands.

I believe the pressure to cancel the 5/2001 circular is not disconnected from the current Environmental Ministers harmful acts in the past few months. It was found the District Secretaries in Anuradhapura, Monaragala, Ampara are very much active in this front. It is obvious that those districts have the majority of lands currently protected under this circular. However, it has been already included in the Forest ordinance amendment 65 of 2009. Secretary himself cannot withdraw the  circular or issue new circulars anymore. It has to go through the parliamentary process.

Under the previous Rajapaksha regime Forest Department had the target of increasing the forest cover of the country to 35% from the 24% at that time. The coverage was then increased to 29% adding plantation as forests. Since achieving 35% forest cover target was not easy, it was reduced to 32% by the next regime. At the moment this target remains same. It is obvious that other forests plays a key role in increasing the Forest Cover in Sri Lanka. If not, Forest Department has to declare grass lands as forests.(End)