Legal Aspects of LTA’s Proposed Site Investigation in the Central Catchment Nature Reserve

In 2016, the Land Transport Authority (“LTA”) announced its plan to carry out site investigation works in the Central Catchment Nature Reserve, a nature reserve, “for planners to better understand ground conditions so mitigation measures can be put in place to reduce safety or environmental risks while constructing [a proposed] underground [MRT] tunnel” under the reserve (“Cross Island Line site investigation works to be modified to reduce environmental impact”, Channel News Asia (5 February 2016) <http://www.channelnewsasia.com/news/singapore/cross-island-line-site/2490766.html>.

The National Parks Board (“NParks”) also subsequently announced it had given its approval for the site investigation works(NParks, “Site investigation works approved to proceed, 08 Jun 2016”, <https://www.lta.gov.sg/data/apps/news/press/2016/20160205_CRLFactsheet.pdf>). This announcement is troubling because, in my view, it is beyond NParks’ legal competence to give such approval.

It is implied that the Commissioner for Parks and Trees (“Commissioner”) has the power under the PTA to approve certain activities in national parks and nature reserves. In particular, it is an offence under s 8(3) of the PTA for anyone (including the government, which pursuant to s 3 of the PTA, is bound by the provisions of the Act) to carry out the activities under s 8(1) in a national park or nature reserve without the approval of the Commissioner. These activities are:

(a) cut, collect or displace any tree or plant or any part thereof;

(b) affix, set up or erect any sign, shrine, altar, religious object, shelter, structure or building;

(c) clear, break up, dig or cultivate any land;

(d) use or occupy any building, vehicle, boat or other property of the Board; and

(e) wilfully drop or deposit any dirt, sand, earth, gravel, clay, loam, manure, refuse, sawdust, shavings, stone, straw or any other matter or thing from outside the national park or nature reserve.

Likewise, the contravention of sections  9(1) is an offence under s 9(4). Section 9(1) restricts certain activities from being carried out in a national park or nature reserve without the approval of the Commissioner, namely:

(a) capture, displace or feed any animal;

(b) disturb or take the nest of any animal;

(c) collect, remove or wilfully displace any other organism;

(d) use any animal, firearm, explosive, net, trap, hunting device or
instrument or means whatever for the purpose of capturing any animal; or

(e) carry or have in the person’s possession any explosive, net, trap or
hunting device.

Furthermore, s 12 of the PTA provides that an application for approval to carry out or cause the carrying out of any activity referred to in sections 8(1) or 9(1) shall be made to the Commissioner in such form and manner as may be prescribed, further confirming his power to give approval for such activities

However, while the Commissioner has the power to approve the activities in s 8(1) and 9(1), he has no power to approve the contravention of sections 8(2) and 9(2).

Section 8(2) provides that “[n]o person shall carry out any activity within any national park or nature reserve which he knows or ought reasonably to know causes or may cause alteration, damage or destruction to any property, tree or plant within the national park or nature reserve; and s 9(2) provides that “[n]o person shall carry out any activity within any national park or nature reserve which he knows or ought reasonably to know causes or may cause injury to, or the death of, any animal or any other organism within the national park or nature reserve”. The contravention of these provisions are offences under sections 8(2) and 9(4) respectively.

In any case, before the Commissioner gives his approval under s 8(1) or 9(1), it is implied that in the discharge of his functions in respect of the nature reserves, he must at least take into consideration the statutory purposes for which nature reserves are set aside. It is not clear whether the Commissioner may approve activities that fall outside or even conflict with such purposes. Arguably he does not.

In this regard, s 7(3) of the PTA provides that national parks and nature reserves are set aside for all or any of the following purposes:

(a) the propagation, protection and conservation of the trees, plants, animals and other organisms of Singapore, whether indigenous or otherwise;

(b) the study, research and preservation of objects and places of aesthetic, historical or scientific interest;

(c) the study, research and dissemination of knowledge in botany, horticulture, biotechnology, or natural and local history; and

(d) recreational and educational use by the public.

It is submitted that carrying out site investigation works to investigate the suitability of the site for an MRT tunnel falls outside the purposes for which nature reserves are set aside and may even conflict with these purposes. It is therefore arguably beyond the Commissioner’s power  to approve the carrying out of activities in a nature reserve under sections 8(1) and (9)(1) of the PTA that are incompatible with such statutory purposes; and beyond the Commissioner’s power to approve activities that contravene sections 8(2) or 9(2) of the PTA.

What about the Minister for National Development then? Can he approve the site investigation works? The Minister has a power under s 58 of the PTA to exempt any person or works from ANY provisions of the Act, but I would submit that s 58 does not give the Minister the power to exempt any person or works from s 7(3) of the Act, which sets out the purposes for which national parks and nature reserves are set aside. He may be able to do so under s 62 of the PTA, which allows him to redraw the boundaries of nature reserves and revoke the designation of land (wholly or partly) previously designated as nature reserves.

Although s 58 of the PTA apparently gives the Minister the power to exempt any person or works from any provision of the PTA, s 62 of the PTA empowers the Minister to order the alteration of the boundary of a nature reserve subject to his prior consultation of the Nationals Board, and printing the order to Parliament for info immediately after making the order. This leads to an anomaly because s 58 does not come with any safeguard but s 62 does. Therefore to read the power in s 58 literally as a power that extends over the nature reserves protection provisions is an unreasonable interpretation.

In fact, an examination of the legislative history of the PTA and s 58 in particular suggests that Parliament did not intend the power to exempt under s 58 being read in that way. This power was introduced in 1987 to the PTA of 1975 to give the Minister and the then Parks and Recreation Department (“PRD”) flexibility in managing the public parks including the Singapore Botanic Gardens (which at the time was managed by the PRD) and tree conservation areas.

At the time, nature reserves were protected under the Nature Reserves Ordinance 1951 and managed by the Trustees of the Nature Reserves Board, The Ordinance did not give the Board or Minister a power of exemption of any provision in the Ordinance. The power to revoke the designation or redraw the boundary of a nature reserve was vested in Parliament itself. However, in 1988, Parliament’s power to revoke the designation or amend the boundaries of nature reserves was  delegated to the Minister, for the administrative convenience of regularising these changes as soon as possible, subject to the safeguard that the Minister must consult the Nature Reserves Board before doing so. The Minister also informed Parliament at the time that Parliament would be kept informed of these changes.

The nature reserves provisions and newly created national parks provisions were subsequently moved to/put under the National Parks Act 1990 (“NPA 1990”), and the nature reserves and national parks were also put under the management of NParks with the establishment of NParks under NPA 1990. NParks was a merger between the Nature Reserves Board and the Botanic Gardens Division of the Parks and Recreation Department, and had responsibility over the nature reserves and the newly established ‘national parks’. An additional safeguard was added at the time in respect of the Minister’s power to revoke the designation or alter the boundaries of national parks or nature reserves. Aside from consulting NParks (as the successor of the Nature Reserves Board), the Minister was also required to present any order to amend the schedule (of the boundaries of the national parks and nature reserves) to Parliament for information as soon as possible.

(The  NPA 1990 was subsequently repealed and re-enacted in 1996 to merge the Parks and Recreation Department with NParks The nature reserves provisions were re-enacted in the NPA 1996.)

When the PTA 1975 was repealed and a new Parks and Trees Act 2005 was re-enacted, the nature reserves provisions were moved out of the NPA 1996 and included in the PTA for the first time. As the then Minister explained, the purpose of that re-enactment was to streamline both Acts so that the regulatory functions of NParks came under the PTA while the corporate functions were retained in the National Parks Act (renamed the National Parks Board Act).

It therefore clearly was not Parliament’s intention to give the Minister any additional power to exempt any person or works from the nature reserves provisions as well, not least without similar safeguards to those that apply for revoking the designation or modifying the boundaries of the nature reserves under s 62 of the PTA (that was originally found in the Nature Reserves Ordinance and subsequently re-enacted in the NPA 1990 and NPA 1996).

If the Minister wishes to allow the LTA to go ahead with the site investigation, the legally correct procedure would be to redraw the boundary of the nature reserve to exclude the area of the site investigation using his power under s 62 of the PTA, and not s 58 of the PTA. This is a very drastic step, and the Minister will have to carefully consider the justification for doing so. The legal protection and safeguards for national parks and nature reserves rightly represent Parliament’s seriousness of purpose in committing to set aside land for the specified purposes set out in the Act. The safeguards are not absolute, and not even substantive. Instead, they are procedural. The Minister is under an obligation to consult NParks, and must therefore consider the advice. Presumably (the PTA is silent on this), NParks will give advice on the significance of revoking the designation of the area as a nature reserve, not only on the area de-designated, but also on the remaining areas still designated, in terms of the purposes specified. Parliament retains a final word on the matter as the Minister must present the order for altering the boundaries of a nature reserve to Parliament as soon as possible after the order is made. Parliament would naturally or should want to know what advice NParks has given the Minister, and the basis on which it gave the advice. Indeed, in the past, whenever the Minister sought Parliamentary resolution to modify the boundary of a nature reserve, he would inform Parliament of his justification as well as the views of the Nature Reserves Board. Section 58 of the PTA has none of these safeguards and was enacted to facilitate the routine maintenance of public parks by contractors, and should not be interpreted in a way that thwarts the safeguards in the form of sections 7(3) and 62 of the PTA that Parliament has enacted to protect national parks and nature reserves for specified statutory purposes.

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One thought on “Legal Aspects of LTA’s Proposed Site Investigation in the Central Catchment Nature Reserve

  1. Thanks. I haven’t heard much of the legal aspect of this. Would Minister really have to do this drastic step of redrawing the boundaries, or could they just keep mum about it and quietly continue with the site investigations? I.e. Is presenting to Parliament a necessary step or they could just carry on..

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