Written by Harindrini Corea
01 Oct, 2018 | 9:15 am
Beaches are a natural treasure and one of the most important coastal ecosystems of Sri Lanka. Several communities live in the coastal regions of Sri Lanka and various livelihoods, industries and activities have developed along the coast. As a result, the coastal areas are subject to various types of pollution.
It is alleged that most of the waste on beaches is domestic ‘land waste’ (waste dumped on the beach or materials that are washed out through inland waterways) while the rest is sea waste out of which only about 5-10% are from neighboring countries.
Unfortunately, on a visit to the beach it is normal to see plastics and polythene bags on parts of the shore and to find parts of bottles, ice cream cups, plastic spoons and broken pieces of containers floating in the waves that wash up on shore.
The beach is a national resource that is held in trust by the government for the benefit of the public; thus, providing all citizens of the country with the right of access to and use of the beach. Therefore, it is the state that is responsible for the preservation and maintenance of the beach. The Ministry of Environment and Renewable Energy is the primary policy making body with regard to the environment and is involved with strategies for coastal management. The Coast Conservation Department has identified coastal pollution as a severe problem and focuses in particular on protection of the coastal region through the preparation of many plans and policies over the years to deal with it. However, the issue of marine pollution or domestic ‘land waste’ on the coast and in the sea, remains a difficulty that the country has yet to overcome.
It is in this context that the question of how to preserve the coast arises and recognizing the rights of the beach in assigning legal personality to the beach seems a possible answer to this crisis.
Who or what is a legal person? It is an entity that is given the same rights and responsibilities as a human being and is accordingly allowed to sue and be sued in its own name during court proceedings.
Christopher Stone in his famous thesis ‘Should Trees Have Standing’ argued that legal personality and rights must be conferred on the environment because then that would bestow on nature itself “a legally recognized worth and dignity in its own right,” different to the status quo where it is assumed that nature exists only for the benefit of humans.
In New Zealand the Whanganui river was the first in the world to be declared as a legal person. The legal recognition afforded to the river now entails it to be represented in court proceedings. In that instance the river (Te Awa Tupua) was said to be a “living entity in its own right….incapable of being ‘owned’ in an absolute sense” and accordingly it was not a resource to be protected but a rights-holder recognised for its “inherent value”.
River guardians were appointed, from the Iwi (a Maori tribe) and from the Crown, to protect Te Awa Tupua and act and speak on its behalf, whilst bearing in mind, that they owe their responsibilities to Te Awa Tupua and not to those who appointed them.
In March 2017, the High Court of Uttarakhand in India, declared that River Ganga and Yamuna were to be given legal personality. In the judgement it was stated that, “Thus, to protect the recognition and the faith of society, Rivers Ganga and Yamuna are required to be declared as the legal persons/living persons. Rivers Ganga and Yamuna are central to the existence of half of Indian population and their health and well being. The rivers have provided both physical and spiritual sustenance to all of us from time immemorial. Rivers Ganga and Yamuna have spiritual and physical sustenance. They support and assist both the life and natural resources and health and well-being of the entire community. Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea.”
This decision was reached considering the historical and religious value of River Ganga and Yamuna to the country and its people and also considering the necessity to protect and preserve the existence and value of River Ganga and Yamuna which was being threatened.
However, this judgement was stayed by the Supreme Court of India in July 2017, as the provision of legal personality to Rivers Ganga and Yamuna led to a series of further legal and administrative issues that needed to be decided. These included whether it was the duty of the Centre to formulate rules for management as Rivers Ganga and Yamuna flow through several states and also how to address whether the state of Uttarakhand would be liable in case of pollution in the rivers in another state through which the Rivers Ganga and Yamuna also flow.
It may be argued that the beaches in Sri Lanka could be provided with legal personality for the protection of its well-being for its own sake or for the protection of the interests of the citizens of the country who have an interest in preserving the good condition of the beaches for future generations.
Where the beach or shoreline of Sri Lanka is provided with legal personhood it becomes a ‘person’ in the eyes of the law and is accordingly bestowed with rights and responsibilities under the law; these rights of the coast may include the right to exist, persist and maintain itself in a healthy and ecologically balanced state. The beach itself would be represented in court proceedings and may sue or be sued as is deemed fit. In practice this would mean the setting up of a board or trust which would act on behalf of the beaches as its representative. Accordingly, the beach would then have legal standing upon which it may sue, directly, through private prosecution or private plaint, perpetrators of pollution who cause damage to the beach and thus infringe upon its rights.
In such an action by the representative for the beach against the perpetrator of pollution the emphasis would be on the actual impact to the beach as opposed to only assessing economic loss; therefore, this would include the impact on the existence and condition of the shore. Furthermore, remedies, including monetary compensation, would apply to the beach itself directly and could include cleaning up of the beach or even long-term plans and programs for preserving the beach.
Nevertheless, there are also several concerns with providing beaches with legal personality. These include identification and appointment of the representatives or guardians who will act on behalf of the shore and the avoidance of bureaucracy and red tape that will interfere with such representation. It may be argued that a variety of persons from the state and from the private sector would form an efficient and committed public private partnership that would protect the beach from pollution.
A potential solution to address the problem of marine pollution and its destructive effect on our beaches is the recognition of the beach as a rights holder in itself. It is ultimately this change in focus that may lead to a strengthened commitment towards conservation of our coastal ecosystems.
10 Dec, 2018 | 09:57 PM
10 Dec, 2018 | 09:29 PM
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