As media reported, the new Petroleum Resources Bill was passed in Parliament with amendments recently. The Government introduced the Bill to facilitate the establishment of a Petroleum Development Authority and formulation of a national policy on the upstream petroleum industry.
The new Act will replace the Petroleum Resources Act of 2003 and will enable the regulation of domestic petroleum resources through modern exploration, development and management practices in Sri Lanka. Speaking during the 2nd Reading Debate in Parliament, the Minister of Energy Udaya Gammanpila said, the Bill enables to develop a mechanism to help explore oil and gas deposits near the Mannar basin. He also said the Bill will enable them to formulate the legal framework and an opportunity to that purpose. It is estimated that gas deposits near the Mannar basin is around US$ 280 billion.
Life is believed to have started in the oceans. Oceans are described by scientists as the origin of life being an island nation, the ocean is never too far from us and our lives are very much linked to it. We know the beauty as well as bounty the ocean brings us.
We know and understand the power of the ocean. We also know how the gentle ocean can unleash its entire wrath and fury on us from the food we eat to the air we breathe, the ocean plays a part in our lives, whether we live on the coast or inland.
The ocean is a source of energy, a medium of transport and provider of a variety of medicines, minerals and natural resources, the weather system, climate and rainfall. It has also been the inspiration for many art and science projects.
Coastal and marine resources
Sri Lanka is a small island in the Indian Ocean with a coastline of about 1,760 km. The ‘territorial limits’ of the island extend to 12 miles (19.2 km) offshore, beyond which lies the ‘contiguous zone’ under the provisions of the UN Law of the Sea. Sri Lanka has jurisdiction over an Exclusive Economic Zone (EEZ) which extends 200 nautical miles outwards from the shoreline and covers an area of over 230 000 km of the ocean. Along its coast line are a variety of ecosystems which include sandy beaches, rocky shores, lagoons and estuaries, mangrove stands, salt marshes and sand dunes.
In the shallow waters off the coastline there are sea grass beds, coral growths and coral reefs. The other coastal ecosystems of significant importance are the mangroves and coastal wetlands. They serve as habitats for a large number of commercially important species, such as food producers, run-off retainers, salt traps, water purifiers and as coastal stabilisers.
Mangroves are among the few woody plants which can tolerate the undiluted salinity of the open sea. The seas overlying the Continental Shelf are referred to as coastal. They support our coastal fisheries, which are the main source of marine fish production. Beyond the edge of the Continental Chelf is the ‘Continental Slope’, which descends rather steeply to the floor of the deep ocean. The waters beyond the continental edge form our ‘offshore’ ocean waters.
Marine biological resources include fishery, shrimps, lobster, crash, sea cucumber, economically valuable sea weeds, and a large number of ornamental fish.
International protection
The United Nations Convention on the Law of the Sea was adopted by the third United Nations Conference on the Law of the Sea (UNCLOS III) on April, 30, 1982 after lengthy conference negotiations at which 157 Governments took part.
On December, 10, 1982 the Convention was signed by 119 delegations. The final Convention consisted of a preamble and 445 Articles, divided in to 17 parts and 9 annexes.
The Law of the Sea Convention is not restricted to codifying, consolidating and reaffirming the existing international law. In addition, it establishes novel concepts such as the Exclusive Economic Zone (EEZ), the regime for archipelagic state and the common heritage of mankind.
Article 2 of Part II provides for the breadth of the territorial sea to be up to a limit of 12 nautical miles. Article 46 provided for the establishment of a 200 nautical mile Exclusive Economic Zone. Article 118 of Part II introduced a new concept of Archipelagic baselines, helping to delimit the territorial sea and other zones of Archipelagic States.
There are special provisions in Articles 56, 61, 62 and 119 of the UNCLOS III for conservation of the living marine resources. Article 91 of the UNCLOS III is also important concerning the rights and duties of coastal states.
As an universal document, Articles from 192 to 236 of Part XII of UNCLOS III make provisions for protection of marine resources of all seas.
Article 192 of UNCLOS III mentions that States have the obligation to protect and preserve marine environment. It is relevant to the territorial sea and other sea areas. In terms of Article 193 of UNCLOS III, States have the sovereign right to exploit the natural resources in conformity with environmental policies that will protect and preserve the marine environment.
Sri Lanka is a party to the Law of the Sea Convention acceded to by Sri Lanka on December, 10, 1982 and exercises jurisdiction over the Territorial Sea, Continental Shelf, the Exclusive Economic Zone and the Contiguous Zone in keeping with the definitions laid down in that Convention.
National protection
Environmental protection has received Constitutional recognition in Sri Lanka under the 1978 Constitution of Sri Lanka. Chapter VI on Directive Principles of State Policy and Fundamental duties of the 1978 Constitution makes specific reference for promoting environmental well being. (Article 27(14)
Under the 13th Amendment certified on November, 14, 1987, powers and functions of Government are categorised into three lists, namely the Provincial Councils List (List 1), the Reserved List (List II), and the Concurrent List (List III). Protection of the environment has been listed as a concurrent subject in List III.
This means that Parliament may make laws with respect to the protection of the environment after consultation with all provincial councils, as it seems appropriate.
Under List 1, the function of environmental protection within the province is assigned to provincial councils to the extent permitted by or under any law made by the Parliament. Article 5 of the Constitution of the Democratic Socialist Republic of Sri Lanka – 1978 states that the territory of the Republic of Sri Lanka shall consists of the 25 administrative districts and its territorial waters. The Article 170 of the Constitution mentions as “Territorial Waters” as the territorial sea and the historic waters of Sri Lanka.
Legislative protection
During the British period in Sri Lanka from 1796 – 1948, they paid some attention to the protection of costal and marine resources in the country. Accordingly several relevant statutes were enacted. Since Independence in 1948, successive Governments had extensively paid attention towards the protection of coastal and marine resources.
The Crown Lands Ordinance (1947) was enacted among other things to provide for the administration and control of inland waters and to define the crown’s rights in what are known as Res Publicae and Res Communes in Roman Dutch Law.
The Crown Lands Ordinance (1947) defined the foreshore to mean ‘the shore of the island between high water mark and low water mark’ (section 110), a definition adopted in latest statues. In Section 58 the Crown Lands Ordinance provided that the administration, control, custody and management of the foreshore are vested in the State. It also authorised the State to make regulations restricting and controlling the use of the foreshore by the public and to lease out parts of it.
However, the State must be satisfied that this lease will not substantially prejudice the rights of the public. (Sections 59.61) The legal position regarding State control over the foreshore must now be ascertained by reference to the Crown Lands Ordinance, the Coast Conservation Act, and other Statutes regulating land use and development.
The Coast Conservation Act No 57 of 1981 also defines foreshore in a slightly modified and specific manner as the ‘area of the shore of the sea between the mean high water and the mean low water mark. (Section 42). Nevertheless it does not qualify the provisions of the Crown Lands Ordinance regarding the State’s right to control and manage the seashore and issue permits in respect of it.
It merely affirms that the ‘administration, control, custody and management of the coastal zone (a much wider area as defined in section 42) is in the Republic in Sri Lanka’. (Section 2)
The legal position regarding the sea is also a matter for international law. However, today Sri Lankan statutes contain provisions that regulate State rights and interest in respect of the sea. We shall briefly refer to the Maritime Zones Law No 22 of 1976 the major legislation that regulates this subject (sections 11, 12) and the Marine Pollution Prevention Act No 59 of 1981.
‘The sea’ for the purposes of our law has been defined by the Marine Pollution Prevention Act as ‘Sri Lankan waters’ (section 37). This is defined as including specific areas of the sea around the island by the Maritime Zones Law. This law declares the extent of territorial sea and the other maritime zones of Sri Lanka.
It gives the President of the Republic the power to declare by the proclamation published in the Gazette the limits of the territorial of sea of Sri Lanka, specifying the base lines from which such limits may be measured.
The law also provides for a similar declaration of the limits of the contiguous zone, which shall extend seawards from the outer limits of the territorial sea (section 4). Other areas which can be declared as part of the Sri Lankan waters are ‘the Exclusive Economic Zone’, (an area adjacent to the territorial sea, and its sea bed and subsoil) and the pollution prevention zone (an area adjacent to the territorial sea, its sea bed and subsoil but which may not necessarily coincide with the Exclusive Economic Zone) (section 7). The Marine Zones Law purports to declare the ‘Continental Shelf ‘(section 6) and this too is part of our territorial waters.
The Maritime Zones Law vests the State (the Republic of Sri Lanka) with sovereign rights in the territorial sea and its bed and subsoil. (Section 2(3). This includes the air space above the territorial sea. The State is vested with rights over the all natural resources within the Exclusive Economic Zone. It has also exclusive right to control scientific research in this area and in regard to construction, maintenance and operation of scientific devices that are necessary for exploring and exploiting the resources of this Zone or for any other purpose.
It has the sovereign rights of economic use and the right to explore, exploit, conserve and manage the natural resources of this zone (Section 5)2)(3)). Similar rights have been vested in regard to the Continental Shelf. (Section 6).
The Coast Conservation Act No 57 of 1981 by its Section 2 places the administration, control, custody and management of the Coastal Zone in the hands of the state. The Coast Conservation Department is the agency with authority over the Coastal Zone.
The Coastal Zone is the area lying within 300 km landwards of the mean high water line and the area within 2 km seawards of the mean low water line. In the case of water bodies connected to the sea, the landwards boundary extends 2 km from the natural entrance points. (Section 42).
The Coast Conservation Act No 57 of 1981 and its amended Act No. 64 of 1988 prohibits any person to engage in a development activity within the coastal zone, unless such person is authorised by a permit issued by the Director of Coast Conservation.
The Director may require the applicant to submit an Environmental Impact Assessment (EIA) report for the protection of the territorial sea.
Sub section 16 (2)(6) of the Coast Conservation Act states that EIA report should be necessary for mining and excavating minerals in the coastal and off sea areas. Section 6 of the Act provides for the appointment of a Coast Conservation Advisory Council mandated with advising the Minister of Fisheries on all development activities proposed to be commenced in the Coastal Zone, reviewing the Coastal Zone Management Plan (CZMP) and forwarding recommendations to the Director/ Coast Conservation.
The Marine Pollution Prevention Authority (MPPA) was established by the Marine Pollution Prevention Act No 59 of 1981, it gives effect to the following five international conventions:
1. The International Convention on the Prevention of Pollution of the Sea by oil 1954, as amended.
2. The International Convention on Civil Liability for Oil Pollution Damage, 1969.
3. The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971.
4. The International Convention relating to Intervention on the High Seas in Case of Oil Pollution Casualties, 1969 and the International Convention for the Prevention of Pollution from Ships, 1972 and the Protocol of 1978.
The National Aquatic Research Development Agency (NARA) has been established under the Act No.54 of 1981 for development of marine resources and it handles research and some aspects of development of this subject.
This is a comprehensive Act with regard to Fisheries Regulations made in 1941and 1981.
The National Aqua Culture Development Authority was established under the Act No. 55 of 1998. Fauna and Flora Protection (Amendment) Act, No 49 of 1993 provides for six categories of protect areas – among which are a marine sanctuary and natural reserve.
The Act also has provision to certain categories of animals and plants wherever they are found including in threatened species of corals, fish, turtle and all marine mammals in Sri Lankan waters. Fisheries and Aquatic Resources Act No 2 of 1996 provides for the management and regulation of fisheries and aquatic resources in Sri Lanka and its repeals the Fisheries Ordinance No 24 of 1940, the Chank Fisheries Act No. 08 of 1953, Perl fisheries Ordinance No 2 of 1925 and the Whaling Ordinance of No. 02 of 1936.
The Marine Environment Protection Authority Act of 2008 provides for the prevention, reduction and control of pollution in Sri Lankan territorial sea, coastal areas as well as other sea areas.
The Act established the Marine Environment Protection Authority as a regulatory body to administer the Act.
The Coast Guard Act No. 14 of 2009 that incorporated the Department of Coast Guard and its operational activities was enacted by Parliament.
The Act provides teeth to the coast guards to combat illegal activity and to play a supervisory role on the seas.
The impact of shipping on marine environment
The rise of global industry directly affects ocean pollution and poses a huge risk to the marine eco system. These maritime crises are mainly caused by ship wrecks for a number of reasons. Some are caused by ship collisions, internal technological issues, human mistakes and weather. It can impact the marine ecology, ocean water and coastal region.
Eight months after the MT New Diamond disaster, a fire broke out on the MV X-Press Pearl on May 20, 2021. According to the view of experts if Sri Lanka wants to avert future incidents, it should at least form a risk analysis body.
This will help us to improve our ranking since we are rated as one of worst ocean polluting nation. Regardless of who owns the land, those Governments should act quickly to put out the fire and prevent any oil or chemical spills in to the ocean.
The experts, said that a chemical safety and hazards investigation board must be established to simulate and analyse the fundamental causes of such incidents in order to prevent future occurrences.
After the accidents, media attention and public concern should not be separated, but instead these should be used to establish safety standards and partnerships with other parties in future.
Minor occurrences and near- misses should also be recorded to prevent future serious accidents. Near – misses may be signs of future significant issues according to experts. To reduce the effects of oil spills the Government should establish oil-absorbing technology and research bodies.
(The writer is a retired Professor in Law at the University of Sri Jayawardenepura. He is an Attorney - at - Law practised in courts and holds a PhD in Law, with four other university post degrees)