“Judicial struggle by the residents of Gorano has helped them get at least some relief”

Zubair Abro is an environmental lawyer based in Karachi. For more than a decade, he has been engaged in public interest litigation about environmental degradation and displacement caused by development projects and climate justice.

He is now pleading the case at the Sindh High Court for residents of Gorano, a village in Tharparkar where wastewater generated by coal mines is being dumped. Following are excerpts of an interview that Earthwise conducted with him about the proceedings in the Gorano case: 

What were the circumstances that led to the filing of the petition at the Sindh High Court regarding the dumping of wastewater at Gorano? 

People in some parts of Tharparkar have been protesting since 2013 against certain aspects of coal mining and coal-based power generation in their district. These protests have mostly focused on the issues and problems caused by land acquisition for coal-related projects and the dumping of wastewater generated by mines and power plants. People of Gorano, a village where wastewater has been dumped since the start of coal mining, have been particularly vociferous in their opposition to these developments. They, indeed, held numerous protest demonstrations, hunger strikes and rallies for close to two years between 2016 and 2018 without a break. 

Simultaneously with these protests, around ten residents of Gorano filed a petition at the Hyderabad circuit bench of Sindh High Court in 2016. The petitioners alleged that the coal-related developments had led to a blatant infringement of their fundamental rights especially their right to life and right to property. They also accused the provincial government of Sindh and coal companies of either bypassing the due process of law or violating it completely as far as the protection of natural environment, wildlife and local culture and heritage was concerned. They, similarly, prayed to the high court to take note of the permanent threat to their right to life posed by the dumping of wastewater in what were once their fields and grazing lands.   

What were the specific contentions and please of the petitioners? 

They accused the provincial government and coal companies of commencing the dumping of wastewater next to Gorano without complying with a mandatory provision of Sindh Environmental Protection Act, 2014. This provision required the government and coal companies to have carried out an environmental impact assessment (EIA) before starting the dumping of wastewater. They also needed approval for this assessment from Sindh Environment Protection Agency (SEPA). This approval, in turn, required the holding of a public hearing, especially involving the people to be most affected by the wastewater. The petitioners contend that none of these actions were taken. 

The government and coal companies later told the court that an EIA was, indeed, prepared and was also approved by SEPA. The petitioners, on the other hand, contended that a public hearing for this EIA was conducted within a coal mine where their entry was strictly prohibited, purportedly, for security reasons. More importantly, they argued, the EIA also did not pertain to the dumping of wastewater at Gorano but rather concerned the laying of a 37 kilometer long pipeline to take wastewater out of coal mines to another locality called Dukkar Chou. 

The petitioners also contended that the wastewater was being dumped on a land which has been declared a wildlife sanctuary under Sindh Wildlife Protection Ordinance, 1972. This ordinance, they argued, prohibits the use of land marked as a wildlife sanctuary for any industrial, commercial and residential purposes. They similarly contended that wastewater dumping violated Sindh Cultural Heritage (Preservation) Act, 1994, because the dumping site included several historical places of worship. 

“This outcry forced Sindh government and coal companies to launch a counter offensive through news media, repeating their claims that the water being dumped at Gorano posed no threat to local population and local flora and fauna.”

Zubair Abro

What did the court do? What was the ultimate outcome of the petition? 

Hyderabad circuit bench of Sindh High Court initially acknowledged that the dumping of wastewater was not duly approved by the concerned government authorities. So, on 6^th December 2016, it appointed a four-member committee to examine the EIA report, as well as other relevant research work carried out on the project as a whole, to examine the effects of wastewater dumping on wildlife and environment and to find out if adequate arrangements have been made to protect local residents from any hazardous effect or medical consequences of wastewater dumping. 

Sindh government notified the creation of the committee on 18^th January 2017, requiring it to submit its findings within two months as per the court order. The committee complied but soon it was revealed that it had heard all the parties to the petition except the petitioners themselves. 

These developments nevertheless heartened the petitioners. They still expected that the committee’s findings would be a sufficient reason for the court to take note of the infringement of their fundamental rights and the violation of the laws of the land. 

The petitioners, however, were hoping against hope. 

In September 2017, the case was transferred to Sindh High Court’s principal seat in Karachi where it was heard by a special bench comprising two judges. This bench dismissed the petition on 10^th May 2023, saying that the dumping of wastewater in and around Gorao was not just legal but it also posed no environmental threat to local population, wildlife and heritage.  

What is your critique of Sindh High Court’s judgment? Do you think that it has shut the doors of justice on the petitioners?  

In my opinion, the judgment failed to consider two major facts. Firstly, the provincial government had admitted before the court that the dumping of wastewater at Gorano was never approved by the relevant authorities because the original plan proposed by coal companies had no mention of Gorano in it. Secondly, the government had also admitted that this dumping was done without any environment impact assessment. 

The court also did not consider water testing reports submitted by the petitioners and, instead, only considered the water testing reports submitted by the government and coal companies. 

Yet, this judgment does not mean that the petitioners have hit the end of the road as for as their search for justice is concerned. This explains why they moved the Supreme Court of Pakistan against Sindh High Court’s judgment in the summer of 2023. The case is awaiting hearing and we hope that the highest court of the land will take note of the errors in the judgment. 

Having said that, I must highlight here that this judicial struggle by the residents of Gorano has not been entirely in vain. For instance, initially the government and private companies did not even acknowledge the villagers’ ownership of the land being used for wastewater dumping. As a consequence of the court battle case and prolonged protests, this ownership was finally acknowledged and people started receiving compensation for the land they had lost to wastewater dumping. 

You have mentioned water testing results submitted by the petitioners to Sindh High Court. Can you please elaborate how and when these tests were conducted and why the court did not accept those?   

The tests were carried out by a team of experts belonging to Mehran University of Engineering and Technology, Jamshoro. The samples for them were collected from several sites near coal mines (because the researchers were not allowed to go inside the mines) and in and around Gorano. They were later tested at the same university’s laboratory which is duly authorized by SEPA to do so. Later, the legal validity of these tests and their results was vetted by Dr Mark Chernaik, a globally renowned environmental lawyer who has been working on Pakistan’s environment sector since the 1990s. 

The results of these tests clearly showed what people of Gorano have been saying all along: That water being dumped next to their village was harmful for local population, livestock and vegetation since it contained many hazardous substances. As soon as these results became public in early 2023, there was a strong public outcry for justice for the residents of Gorano. 

This outcry forced Sindh government and coal companies to launch a counter offensive through news media, repeating their claims that the water being dumped at Gorano posed no threat to local population and local flora and fauna. To support their claims, they particularly cited a report by the International Union for Conservation of Nature (IUCN) which gave a clean bill of health to the wastewater accumulating around Gorano, calling it fit for bio-saline fishing and declaring it as an addition to the sites used by birds for rest during their migration to and from lower parts of Sindh. 

Those who portray this report to be incontrovertibly true do not consider the fact that it was prepared in 2019 when wastewater had just started accumulating around Gorano. They also ignore the fact that its authors report admit to visiting the wastewater dumping site only for a couple of days and conducting no tests on the quality of its water. 

Many non-government organizations and think-tanks have carried out a number of research studies on the impacts of coal mining and coal-based power generation in Tharparkar. Do you think these can help the case of Gorano’s residents at the Supreme Court of Pakistan?     

Most of these studies have been conducted after the original petition was filed at Sindh High Court about eight years ago. Making them a part of the court record, therefore, posed serious challenges. Firstly, it required amendment in the petition which would weaken its initial legal and judicial rationale and, secondly, their inclusion slowed down the judicial process because the other side then needed to submit responses to them.   

Still, I would argue that a research report by CREA, [the Centre for Research on Energy and Clean Air – an independent think tank] on the degradation of Thar’s air quality in the wake of coal-related developments and the medical impacts of this lower air quality has been very useful for us during hearings at Sindh High Court. Same was the case with Dr Mark Chernaik’s legal analysis of the water tests [mentioned above]. This analysis was important to counter the other aide’s claims that the petitioners’ contentions were not supported by any technical reports. 

Though these reports have failed to convince Sindh High Court, we expect that the Supreme Court of Pakistan will give them due consideration while hearing and deciding the petition.