by Jagath Gunewardana
The continued existence of our wild animals and plants needs the protection of individual species and their habitats. Protecting one without the other will not be successful. Therefore, several enactments have provisions to declare habitats as "protected areas". This simply means an area of land in which the plants and animals are given special degree of protection. There are three enactments, that can be widely used to achieve this. They are the Fauna and Flora Protection Ordinance (FFPO), the Forest Ordinance (FO) and the National Heritage Wilderness Areas Act. The Fisheries and Aquatic Resources Act has provisions to give protection to aquatic habitats only, thus having a more restricted scope than the others.

The first law that provided protection to habitats in order to conserve wildlife is the Fauna and Flora Protection Ordinance, brought in 1937 and in operation since 1938. The mandate of this act is to protect the indigenous wild plants and animals and to prevent their commercial exploitation. Therefore, all the areas declared under this act are intended to achieve this end. The protected areas declared under the FFPO can be divided into two categories. They are the National Reserves and Sanctuaries. A National Reserve can be made only on state land while a sanctuary can be declared on state and private land.

There are seven types of National Reserves. They are the Strict Natural Reserves (SNR), National Parks (NP), Nature Reserves (NR), Jungle Corridors, Refuges, Marine Reserve and Buffer Zones. The declaration of any of these is done by the minister in charge of the subject (at present, the Minister of Environment and Natural Resources) by an order published in the government gazette. If the designated area has privately owned land, they have to be acquired before the declaration.

The highest degree of protection is afforded to Strict Natural Reserves. These are not accessible to people for observations and recreation. One has to obtain a permit from the Department of Wildlife Conservation (DWLC) to enter and remain within a SNR. This permit can be issued for two purposes only. They are the carrying out of official duties and for scientific research. A permit will have a set of conditions that have to be adhered to by those who enter an SNR. These strict conditions and controls are in place to ensure that wildlife within these areas is not disturbed by human activities. This is especially important to protect particularly sensitive ecosystems and habitats. There are only three SNR which are Ritigala, Hakgala and Yala (situated within the Ruhunu National Park,) which is often referred to as the Yala National Park. The Wasgomuwa SNR is no longer in existence, being incorporated into the Wasgomuwa National Park in 1984.

The other six types of National Reserves enjoy the same degree of legal protection. The amendment in 1993 abolished the type known as Intermidate Zones. These were areas where a person could hunt wildlife under the authority of a permit. At present, no one can hunt within a National Reserve. This means that entry is restricted to the study, observation and enjoyment of wildlife and for recreational purposes only. Although the conditions of entry into National Parks is provided (Section 5) and those for others not specifically given, it does not make any difference in law enforcement. This is because both Section 3 (Essential features) and Section 6 (Prohibited acts) strictly and clearly set out the possibilities and restrictions. There is nothing unclear or ambiguous as some claim, who probably get this notion by reading a particular section alone.

Three types of National Reserves were added by the last amendment (act No. 49 of 1993). These are the Rufuge Marine Reserve and Buffer Zone. But, no area has been declared as such upto now. The different names of some of these National Reserves need clarification. A jungle corridor is denoted to mean a link between two National Reserves. For example, the proposed Nilgala Jungle Corridor is intended to link the National Parks of Gal Oya and Maduru Oya. A Refuge is so named because it is intended to provide refuge to a highly threatened species of animal or plant. The term Marine Reserve makes it clear that the area covers an extent of the sea. The difference in the name, however, does not affect the status. For example, the Hikkaduwa Sanctuary (declared on 18.05.1979) was upgraded to a National Reserve and named as the Hikkaduwa Nature Reserve (declared on 14.08.1998). Since the area is in the sea, it would have been much clear if it was named Hikkaduwa Marine Reserve. But, this oversight has not affected the legal status of the upgrading at all.

There have been problems in declaring National Reserves and Sanctuaries in certain instances when these have covered land where a community has traditionally engaged in some activity. The most famous of these is the incorporation of some land where Veddas have been engaged in hunting, into the Maduru Oya National Park. The FFPO has provisions to address this kind of situation. According to Section 3 (3), a person who has acquired a right by law, custom or usage to carry out an activity in any land in a National Reserve or Sanctuary can carry out this as before even after the declaration. The existence of the Patanangala fishing village inside the Ruhuna National Park and the permission for the Veddas to hunt inside the Maduru Oya National Park are examples. However, if this right is not exercised continuously for a period of two years, then it lapses and cannot be practised again (Section 3 (4) ). It has been repeatedly seen that those who exercise traditional rights inside protected areas need to be carefully monitored to ensure that abuses do not take place.

The prohibited acts inside these areas are not limited to killing or injuring wild animals and harming and destruction of plants. They extend to clearing land, mining, burning of land, making roads, erecting temporary or permanent structures and planting of crops. It is also an offence to commit any act that disturbs or is likely to disturb animals. The wording of this (Section 6 (1) (c) ) is such that the act need not really disturb animals, but the possibility is sufficient to bring a charge. In the case of Sanctuaries, a certain relaxation is in place for some of the prohibited activities if done in private land. Those allowed within private land include clearing of plants, erecting of buildings, making roads, mining and planting crops. Although these were intended to strike a balance between private rights and conservation needs, it has at places, seriously compromised the value of sanctuaries. An activity that is even permitted inside state land of a sanctuary is fishing. This had been allowed by gazette No. 8366 of 29.04.1938.

A threat faced by some National Reserves and Sanctuaries is industrial pollution that damages, degrades and destroys the habitats. These pollutants come from sources situated outside the boundaries. At present, the FFPO does not have provisions to deal with pollution and have to rely on either the Central Environmental Authority (CEA) or the local government bodies to deal with it. This is seen to be quite unsuccessful. Therefore, the FFPO needs a section to deal with those who release pollutants into a protected area from a source outside the scope of a protected area. The Coast Conservation Act has a provision (Section 25) to deal with this kind of situation. A section along these lines with suitable changes would be greatly helpful to save these areas from waste and pollutants.

Another problem faced in Sanctuaries is that a venture that uses hazardous substances or produces toxic waste could be located in a private land inside a sanctuary. A person who wants to do such a thing need not get any permission from the DWLC. If it is a prescribed activity under the National Environmental Act (NEA), it will need approval after submitting an Initial Environmental Examination (IEE) or an Environmental Impact Assessment (EIA). If it is not prescribed, it may only need to get an Environmental Protection Licence (EPL) to carry on. The problem is that there are no powers for the DWLC to intervene in such instances, either to stop or to impose standards. Even if there is continuous pollution from such a source, the DWLC has to seek assistance from CEA or the local government authorities. Fortunately, this kind of possibility is confined to Sanctuaries and not to any National Reserve.

There are instances where the status of a protected area or a part of it need to be changed. Sometimes, it is necessary to excise a part of a protected area due to it not being practical to keep it as part of a Sanctuary or National Reserve. For example, a Sanctuary or part could be upgraded into a National Reserve as happened in Hikkaduwa, Bundala and Horton Plains.

This upgrading may be only for a part, as done with a part of the Minneriya - Giritale Sanctuary being made into a National Park in 1998. It is also possible to upgrade any National Reserve of the other six types to an SNR, and vice versa. The amalgamation of Wasgomuwa SNR to the National Park is an instance where the status was downgraded.

There are some areas of Sanctuaries and National Reserves that get encroached. If remedial action is not taken in time, it will render these areas useless as habitats. In 1973, a wave of encroachments happened in the Gal Oya Valley (South West) Sanctuary, better known as the Sellakka-Oya Sanctuary. No action was taken and there came up even schools and temples, turning areas into villages. In 1998, this encroached part was excised and is no longer a part of the sanctuary (Gazette No. 1031/12 of 11.06.1998).

Unlike in declarations, these changes take effect not only by a proclamation, but only after the gazette is ratified by Parliament (Sections 2 (4) and 2 (5) ). This is a very important section that prevents politically motivated alterations of protected areas. Even if there is a gazette, it is invalid if it has not been ratified by Parliament. A recent example is gazette No. 1046/14 of 25.09.1998 that excised an extent of 2.093 hectares from the Minneriya, Giritale Nature Reserve. This was not ratified by Parliament and therefore has no effect. The process of ratification is a control and balance in case of the Protected Areas.