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Eng. Channa Fernando responds
View(s):My article aspired to draw public attention to some real facts in wider national interest, when other misinformation was in circulation. It was clearly stated that there was no intention to bring any party into disrepute; and that the objective was to rectify and learn from mistakes. The shortcomings could be of the SLPA, Government of Sri Lanka, Developer or regulators. It would appear, however, that the Developer alone took offence and is attempting to disassociate itself from misdoings.
The Developer has mooted a new idea, for the first time, by interpreting and defining the Concession Agreement as a Public Private Partnership (PPP) Agreement. It is up to the SLPA or Sri Lanka Government to comment on this but a PPP arrangement typically has wider meaning and objectives than the mere signing of an agreement by a private company and a state entity.
It is said the writer was unprofessional in intentionally suppressing the fact that he was a member of the Review Committee. The names of the members of the Review Committee appointed by the Prime Minister were disclosed in Parliament and in the media. Hence, there was no benefit to be accrued from the intentional suppression of such information as it was already in the public domain. The writer did choose not to claim the privilege of being a Committee member as the article was written as a citizen and as a person with knowledge in the respective field.
The writer neither accessed the Developer’s confidential information nor does he have the possibility of doing so. When the Project Company was publishing successive paid advertisements about the “benefits” of the project, the writer did not see any issue with giving a different point of view, for greater public awareness, based on information available with official agencies. This is the right to information Sri Lanka expects to achieve while in some countries it may still be an alien concept.
Repeated attempts to trace a feasibility report failed. The response was, “No such document available”. It shall also be noted that project feasibility from the investor perspective is quite different to technical, socio-economic, environmental and financial feasibility from a country’s perspective. The argument appears to be that, “If the project/investment is good enough for the lender, it should be good for the country, as well”.
It is argued that the Port City cannot be compared with the South Port project because the former is a private investment and the latter, a public one. The Developer seems of the view that those involved with public funds should undergo public scrutiny, while others shall not. Sri Lanka’s citizens have the right to know details of any mega project that affects the country and their lives.
The writer stands by the fact that no information related to project feasibility covering technical, social, economic, environmental or financial has been made available to any of the regulatory agencies. This caused the approvals granted by agencies to be highly conditional or withheld.
Writer stands by the fact that, at the time of pursing project approvals, this was not a well-conceived development plan. This is evident from the manner in which various plans were presented for approval and engineering studies (for example, the plan presented in the Addendum to the EIA is quite different from what is being presented now or used in the engineering studies). There was unusual urgency to obtain regulatory approvals. In the absence or lack of project information, local institutions designated to carry out due diligence could not perform their tasks.
Being a Fortune 500 company, the Developer has an obligation to respect the laws of a country. Merely stating that the responsibility lies with the SLPA or Sri Lanka Government cannot exclude the Developer from the responsibility of ensuring all approvals are in place prior to embarking on construction.
Nowhere did the writer say the TOR for the original EIA was drafted by the Developer. It was the Addendum to the EIA (that has given rise to crucial issues and inadequacies) that was formulated at the will of the Developer.
Developer says preliminary approval was given by CCD on four conditions. Those conditions were attached to the preliminary approval granted for the original 120ha development. The permit issued by the Coast Conservation and Coastal Resources Management Department for the expanded 233ha had 42 conditions! The Developer has not complied with several of these. The CC & CRMD should not have issued a permit, in the first place, with such a vast number of issues unresolved. Irrespective of developer’s claim that he has no responsibility in obtaining approvals, he should comply with the conditions tied to any regulatory approval. That responsibility cannot be passed onto the SLPA or Government of Sri Lanka. Non-compliance leads to permit being invalid.
The Developer confirmed that a few individuals, but no institution of repute, have prepared the Initial Technical Feasibility Study.
Developer claims there is no socio-economic impact on fisheries and fishermen. Quote from the EIA report (Section 4.2.3- Impacts on fishing grounds): “There will be no reduction in their extent of fishing grounds due to the project”. This is all that could be found in the report. It is up to readers and ecologists to comment on this. One key reason for the CEA to reject the IEE report on sand extraction was presence of fish breeding grounds close to proposed burrow areas.
The Developer says the CEA “did not reject the IEE report, but withheld full approval…” The Developer opted to use the word “withheld” in lieu of “rejected”. Whatever the jargon, fact is that the CEA has not approved the IEE study for sand extraction, mainly on two counts: impact on fish breeding grounds and in adequacies in sand availability.
It is a blatant distortion of facts to say the Company was permitted to start reclamation works forthwith on September 16, 2014, the day the agreement was signed. The SLPA requested permission to carry out limited sand extraction for the purpose of the inauguration ceremony. The CEA granted temporary approval by its letter of September 12, 2014, stating that permission was only for the purpose of the inauguration. Project is yet to obtain environmental clearance from CEA for sand extraction.
The Developer claims the agreement provides time for rectification of pending approvals. This is again a distortion. The governing laws of the said agreement are the laws of Sri Lanka. Under the National Environment Act, no sand extraction can be done without the CEA’s environmental clearance. The SLPA is not the approving agency.
Time can be granted for pending approvals but they shall be in place prior to commencement of construction.
The reason for saying the development was “ad hoc”: The original proposal was for 120ha. Current scale, according to the Developer, is 233ha. The increase is 194%. Latest information indicates net reclamation as 277ha (230% of the original).
Surprisingly, the Developer, while disassociating himself with all previous non-fulfillments of regulatory requirements, has challenged the prevailing law on sand dumping on the sea bed. If the Developer felt there was some inapplicability, it should have clarified this with MEPA in Sep 2013, rather than taking the interpretation of the law into its own hands, and violating it.