Land is not capital to which we have property rights; rather it is the place for which we have moral responsibility in reciprocity for its gift of life. Here is the question we must at last confront: Is land merely a source of belongings, or is it the source of our most profound sense of belonging? We can choose.’’[1]
–Robin Wall Kimmerer
Protected Areas
Among the 6,555 National Parks worldwide, 31 are in Pakistan.[2] Protected Areas, including National Parks, come with multiple benefits, such as:
- mitigation of climate change
- safeguarding of biodiversity
- preserving food security
- maintaining water quality
- conserving natural resources
- providing economic efficiency for local areas
- recreation, etc.[3]
The International Union for Conservation of Nature (IUCN) estimates that “the global network of protected areas stores at least 15% of terrestrial carbon.”
Kirthar National Park
Kirthar National Park (KNP) is the second largest National Park in the country and the only one in the province of Sindh. It was the first national park in Pakistan to be included in the United Nation’s listing of National Parks in 1975 and is listed as a protected Category II area by the IUCN. Recently, there has been evidence of a major housing development project built adjacent to KNP stretching its reach into the borders of KNP itself. In a case concerning Bahria Town Karachi’s use of land allocated for its use, the Supreme Court ordered a survey of land occupied by the housing society. The court-ordered survey found Bahria Town Karachi (BTK) to be in possession of 3035 acres more than the legally sanctioned land it was meant to possess. Additionally, of these 3035 acres, 2222 acres fall in district Jamshoro, while 813 acres fall in Malir district.[4] GIS imaging, attached with this article, shows evidence of this encroachment into KNP.
Map courtesy of Omer Darwesh, a Geographical Information System (GIS) expert and an indigenous resident of the area. It has been developed by extensive on-ground surveys and indigenous knowledge of the area. It differs from official records.
According to the late historian, Gul Hassan Kalmati, the mega housing development in question has been built in a mountainous region. He wrote that many of these mountains were destroyed in building the housing project, as were forests. According to eyewitness accounts, machinery belonging to the housing developers has been cutting through forested areas in KNP to make way for construction. Kalmati writes that rare animal species present in KNP such as the Sindh ibex and the urial sheep, will become extinct due to the development.[5]
International Law on Protected Areas
Given the vast benefits and essential functions of protected areas, there are several international treaties that aim to conserve, protect, maintain and preserve the world’s natural heritage. One of these is the Convention on Biological Diversity, adopted by world leaders in 1992 at the Earth Summit in Rio de Janeiro. It is a comprehensive strategy for sustainable development in the face of increased human need for the earth’s resources. It’s preamble states that, “the Earth’s biological resources are vital to humanity’s economic and social development,” thus encapsulating the significance of our dependence on resources such as forest cover, vegetation, water, and generally the maintenance of the ecological balance, including the preservation of wildlife. The absence of an appropriate environmental assessment, damaging these critical natural resources in an ecologically rich area such as the KNP, a notified protected area, would, therefore, be counter to our economic and development needs.
Pakistan is a contracting party to the Convention and is bound by the duties laid out therein. The various articles of the Convention highlight the importance of and procedures that need to be undertaken for the sustainable development it aims to achieve in the world.
Article 8 requires all contracting parties, as far as possible and as appropriate, to:
- establish protected areas or any areas “where special measures need to be taken to conserve biological diversity’’ (Article 8 (a));
- “regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use’’ (Article 8 (c));
- “promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings’’ (Article 8 (d); and
- “promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas” (Article 8 (e)).
Importantly, on the subject of activities likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, these need to be identified and their effects monitored through sampling and other techniques (Article 7 (c)).
The encroachment in KNP raises the question about adherence to duties of taking special measures to conserve biological diversity, regulating biological resources, promoting the protection of ecosystems, and most importantly, promoting environmentally sound and sustainable development in areas adjacent to KNP. There is a substantial housing development, owned by the same developers, directly adjacent to KNP. The government and regulators are obligated to ensure that any development that goes on in this area is sustainable, causing no adverse environmental consequences to KNP.
Domestic Legislation and Laws on Protected Areas
Our domestic legislation also provides for the protection, preservation, conservation and the sustainable use of wildlife by establishing, managing and maintaining protected areas. The Sindh Wildlife Protection, Preservation, Conservation and Management Act 2020 prohibits:
- the killing of wildlife (section 9 (1) (a));
- destroying floral resources (section 9 (1) (c));
- polluting, draining, or diverting a water source for any purpose other than one which is essential for wildlife (section 9 (1) (b)); and
- the damaging of “infrastructure and culturally significant natural structures, defacing, counterfeiting the boundary marks, encroachment, cultivation or changing the land use’’ of any protected area or wildlife habitat within the province (section 9 (1) (d)).
Building a housing development in a protected area will inevitably change its land use from one of a national park to that of a housing development with built-up structures. The cutting, damaging, and destroying of floral resources is an offence and these are likely to occur in the clearing of land. Other applicable offences include damaging infrastructure and culturally significant natural structures and the killing and injuring of wildlife, amongst others. In allowing construction to occur in a National Park, the regulator is not only breaching its duties under the law but also contributing to the destruction of our natural heritage. It is uncertain if any measures are being taken to protect wildlife and floral resources during the course of construction and clearing.
Significantly, Article 9 of the Constitution of Pakistan, which guarantees that “no person shall be deprived of life and liberty save in accordance with law’’, and Article 14, which safeguards human dignity, have been interpreted by the Supreme Court to include the right to a clean and healthy environment. It has most clearly been laid down in the landmark case of Shehla Zia v WAPDA (PLD 1994 SC 693). The Supreme Court also introduced the ‘precautionary principle’ of environmental law into Pakistani jurisdiction through this case. This principle is enshrined in the Rio Declaration on Environment and Development. According to this principle, “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” A development in a national park, such as the one under discussion, has the potential to cause irreparable loss to natural habitat. There are sure to be cost-effective alternatives to the environmental degradation that will be caused by the development.
Features of Kirthar National Park
Accoridng to a 2001 baseline study of Kirthar National Park conducted by the University of Melbourne, a total of 475 plant species were found in the sample area. The survey (in which at least 67% of the park flora was recorded) estimated that the total park flora would be in the vicinity of 700 species if a full census were to be conducted. Regarding fauna, the survey found 277 species of vertebrates, including 203 species of birds. Among these, 6 species of birds, 8 of mammals, and one species of reptile appear on the IUCN Red List of internationally endangered species. The survey, which was conducted over 23 years ago, noted that KNP has a long history of human occupation and that much of the fauna had adapted to human activity. However, it noted that in years recent to the survey, when human population increased significantly, many vertebrate species went down significantly or disappeared completely. At the time of writing though, the population of the Sindh ibex has increased significantly. While this is the case, any imbalance in the ecosystem of the area will have a significant adverse impact on wildlife in the area, especially any that is caused by human activity as in the form of housing construction.[6]
Recommendations
Aside from enforcement of rules, laws and regulations, including Pakistan’s international commitments, an effective method for the preservation and protection of protected areas is building capacity amongst local communities for community-based management. Community-driven protection and monitoring has had positive effects on conservation globally as well as in Pakistan. These are ecosystems that are voluntarily conserved by local communities. Since local communities have a stake in the well-being of the area (in terms of reliance upon the land for food, water, medicine, housing, etc.), oftentimes lasting generations, community-based management is an effective and self-sustaining means of monitoring development activities. They have been most impactful in Chitral Gol National Park. According to Salimuddin, Chair, Chitral Gol Community Development and Conservation Association, Village Conservation Committees (VCCs) have had exponentially positive effects on the conservation of wildlife, forests, and mountains in the area. Ownership is the driving force behind this effective management.[7] Similar patterns could be adopted in KNP, as well as other protected areas around the country.
References:
[1] https://lithub.com/robin-wall-kimmerer-greed-does-not-have-to-define-our-relationship-to-land/
[2] https://www.iucn.org/news/pakistan/202007/pakistans-protected-areas-initiative
[3] Protected Areas Have a Lot of Benefits. Here’s How to Maximize Them. – National Geographic Society Newsroom
[4] https://www.dawn.com/news/1823529
[5] Bahria Town under construction in Karachi and the future of Sindh (Episode 4) – Sangat Mag
[6] Report available on request
[7] Personal interview
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
