Perspective from the Indigenous Peoples of Nepal in ‘The Indigenous World-2017’
Krishna B. Bhattachan-
According to the 2011 census, the indigenous nationalities (Adivasi Janajati) of Nepal comprise 36% of the total population of 26.5 million, although indigenous peoples’ organizations claim a larger figure of more than 50%. The 2011 census listed the population as belonging to 125 caste and ethnic groups, including 63 indigenous peoples, 59 castes, including 15 Dalit castes,1 and 3 religious groups, including Muslim groups.
Even though indigenous peoples constitute a significant proportion of the population, throughout the history of Nepal indigenous peoples have been discriminated, marginalized, excluded, subjugated, dominated, exploited and internally colonized by the dominant caste groups in terms of land, territories, resources, language, culture, customary laws, political and economic opportunities and collective way of life.
The new Constitution of Nepal promulgated in 2015 denies the collective rights and aspirations for identity-based federalism of indigenous peoples,2 in spite of the fact that Nepal has ratified ILO Convention 169 on Indigenous and Tribal Peoples and passed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the WCIP Outcome Document. The implementation of ILO Convention No. 169, UNDRIP and the Outcome Document is still wanting. It is yet to be seen how the amendments in, or rewriting of, the new constitution and drafting of new legislation will comply with the provisions of these international human rights standards.
Failure in the implementation of the Constitution
The new Constitution of Nepal, promulgated in 2015 amidst controversy and the use of state violence against indigenous peoples and the Madhesi, has by and large failed in its implementation due to wrangling among the main political parties, a lack of meaningful inclusion of all groups in society in the drafting process, and continued protests by indigenous peoples and Madhesis (cf. Indigenous World 2016). As the new constitution lacks so many fundamental elements, such as the names of all seven provinces were not given, no special, protected or autonomous regions were set, elections were not held for federal and provincial parliaments, and elected local bodies were nowhere in sight, difficulty in implementation is obvious. Although the main political parties have claimed that the new constitution has many positive elements, including federalism, secularism, inclusive representation, and affirmative action, indigenous peoples’ experts, movements and leaders have heavily criticized these as being doctored and misused in order to deny the collective rights of indigenous peoples. The Lawyers’ Association for the Human Rights of Nepalese Indigenous Peoples (LAHURNIP) has identified four categories of discrimination against indigenous peoples in the constitution. These are as follows: (a) five provisions give racial supremacy to the Khas Arya caste group, (b) 11 provisions are against indigenous peoples, (c) 23 provisions discriminate against indigenous peoples, and (d) 49 provisions exclude indigenous peoples.3 The indigenous peoples’ movement (and also the Madhesi movement) are thus demanding either total amendments, from the preamble through to the annexes, or a complete rewriting of the constitution in line with the UNDRIP, ILO Convention No 169 and the Outcome Document. Failure could, at worst, either lead to a dictatorship or result in protracted ethnic and regional violence. The year 2016 thus ended with such uncertainties unresolved.
Rising controversy over amendments to the Constitution
Indigenous peoples, especially the Tharus, as well as the Madhesis, have been demanding a rewriting of the constitution to fulfil the mandate of the people’s movement of 2006, Madhesi and indigenous peoples’ movements of 2007, the interim Constitution of Nepal of 2007, which was agreed by all political parties of Nepal, and the indigenous peoples’ movements. As the government, led by the Communist Party of Nepal-Unified Marxist-Leninist (CPN-UML), in coalition with Nepali Congress and other smaller political parties, has not taken any initiative to amend the constitution in order to address the demands of the Tharus and the Madhesis, successive governments led by the CPN Maoists, in coalition with the Nepali Congress and other smaller political parties, made efforts to table a bill in Parliament to amend the constitution. Opposition parties, namely the CPN-UML and political parties of Madhesi and indigenous peoples took it as necessary but not sufficient.
The Sanghiya Samajbadi Forum, a political party of the Madhesi and Hill indigenous leaders, has had strong objections to the work of the Local Body Restructuring Commission (LBRC) on the grounds that local bodies should be decided by the respective provinces and not by the current central government.
Predatory restructuring of local bodies
As part of the process of implementing the new constitution, the government has established the Local Body Restructuring Commission (LBRC). This commission is mandated to suggest a restructuring of local bodies due to an urgent need to hold elections for these. It began its work on 17 March 2016 and was mandated to recommend the number and format of local bodies by 15 December 2016, which it did not do. The most problematic issue in the commission’s work is that many indigenous peoples are worried about the suggested division of their local ancestral lands and communities into two or more village institutions known as Gaunpalika (“Village Councils”). The Sanghiya Samajbadi Forum, a political party of the Madhesi and Hill indigenous leaders, has had strong objections to the work of the LBRC on the grounds that local bodies should be decided by the respective provinces and not by the current central government. It should be noted that no free, prior and informed consent was sought from the indigenous peoples in question, as required by the UNDRIP and the WCIP Outcome Document.
Establishing the commissions
The Constitution of Nepal has provided for the establishment of two commissions: one for indigenous peoples and the other for the Tharus. While the idea is commendable, in reality it looks as if these two commissions will be powerless, with no judicial or other significant power or authority besides looking after some development work, such as income-generating activities, interactive programs, and capacity building of indigenous peoples’ organizations. Former Prime Minister K. P. Oli expressed a view that the National Foundation for the Development of Indigenous Nationalities (NFDIN) should be shut down. Further, as the constitution states that the government shall review the need for these commissions 10 years after their establishment, it is very likely that it will be discontinued after this review.
Consultation on enhancing the participation of indigenous peoples in the General Assembly
As a part of the follow-up to the World Conference on Indigenous Peoples Outcome Document of 2014, a four-member advisory body formed by the UN Secretary-General to advise on enhancing indigenous peoples’ participation in the General Assembly (GA), consultations on venue, modalities, representation and selection criteria are ongoing. Krishna B. Bhattachan, representing LAHURNIP, participated in a consultation held at the UN headquarters on 14-15 December 2016 and made statements focused on granting unique, permanent observer status to indigenous peoples. Concerning the criteria by which to define indigenous peoples, LAHURNIP suggested, in the Nepalese and South Asia context, including those who do not belong to the Hindu fourfold Varna and caste systems.4
Protests against aggressive developments
Protests against aggressive developments being pursued by the central and local governments of Nepal, many in collaboration with the World Bank and the Asian Development Bank (ADB), especially in hydropower projects, electricity transmission lines, road expansion and hunting ground reserve areas, intensified during 2016. More than 100 indigenous and local individuals signed a memorandum on road expansion in the Kathmandu Valley: “The memorandum calls for scrapping of the criteria drafted without consultation and consent of indigenous Newars and other locals as per their rights guaranteed in the Local Self Governance Act 1999 as well as International Labour Organization (ILO) Convention 169 and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The memorandum further states that any development program should be undertaken only with Free, Prior and Informed Consent of indigenous peoples in the municipality and warns of protests if the demands are not addressed”. 5 A total of 23 committees of indigenous Newars were formed in 2016 to protest against road expansion projects being implemented by the Kathmandu Metropolitan City. The committees stated they would close down the Kathmandu Valley on 4 January in protest.
Abuse of “Organized Crime Act”
New legislation known as the Organized Crime Act of 2014 reared its ugly head this year with the arrests of 13 political cadres associated with the Mongol Mulbasi Rastiyra Force. Generally, organized crime denotes drug lords, the illegal arms trade and trafficking but, in Nepal, any organized efforts by an organization, including political, not registered with the government and which engages in the disruption of communal harmony would be considered organized crime, as denoted by the government. The activities of organized groups’ whose mission is to achieve political goals should not be treated as organized crime but, unfortunately, this is the case in Nepal.
Some key tasks on climate change and REDD+ were undertaken by the government in 2016. Nepal signed the Paris Agreement on 22 April 2016 and ratified it on 5 October 2016. The National Adaptation Plan (NAP) was initiated by the Ministry of Population and Environment (MoPE) in 2016. The country’s Intended Nationally Determined Contribution (INDC) was submitted by the Ministry of Population and Environment. Nepal’s REDD+ Readiness Package (R-Package) prepared by the REDD+ Implementation Center/ RIC under the Ministry of Forest and Soil Conservation (MoFSC)) was approved by the World Bank’s Forest Carbon Partnership Facility (FCPF). The Emission Reductions Program Document (ERPD) for 12 districts of the lowlands (Tarai) was commenced by RIC under the MoFSC. The National Forest Reference Level (FRL) was submitted to UNFCCC. The government and international aid agencies continued to focus on carbon, ignoring the free, prior and informed consent (FPIC) of indigenous peoples and equal sharing of benefits.
All of these climate-change related actions have to be informed by, and be in line with, the UNFCCC Paris Agreement, which acknowledges the rights of indigenous peoples. Importantly, the Paris Agreement does not contradict any of the UN conventions or international instruments on indigenous peoples’ rights, including the UNDRIP. However, there are still challenges facing Nepal’s indigenous peoples in terms of participating in these programs and policy formulation processes due to a lack of awareness, access to information, advocacy, and the hegemonic mind-set of the policy makers. With the objective of ensuring indigenous peoples’ issues and rights, the Nepal Federation of Indigenous Nationalities (NEFIN), through its Climate Change Partnership Program, has been following climate-change related matters. NEFIN has been providing its input to the country’s REDD+ Readiness, including the National REDD+ Strategy and FRL. It has raised many issues, including capacity building, information dissemination and obtaining the FPIC of indigenous peoples on matters which affect them, during submission of the R-Package to FCPF. Secondly, NEFIN submitted a position statement on ERPD urging the government and relevant actors to ensure the collective rights of indigenous peoples in Emission Reductions Programs. So far, the National Adaptation Plan (NAP) development process has nine different Thematic Working Groups (TWG) in which indigenous peoples do not yet have any meaningful participation. NEFIN is in one TWG and is calling for more opportunities to engage. The INDC included very few indigenous peoples’ inputs, which runs the risk of including “false solutions” to climate change, such as mega hydro power projects. Furthermore, the government, INGOs, NGOs, bilateral and multilateral agencies are all working on climate change but have so far neither consulted with indigenous peoples nor dealt with indigenous peoples’ issues in an appropriate manner.
Notes and references
1 Hindu cosmology divides the population into hereditary caste groups who are ranked according to ritual purity and impurity. The Dalit castes form the lowest tier of the caste system, and are highly marginalized to this day. (Ed. note)
2 Six indigenous peoples were initially officially recognized in Nepal through the ordinance, Rastriya Janajati Bikas Samiti (Gathan Adesh) 2054. Indigenous peoples have been officially and legally recognized by the government since 2002 (2059 B.S.) through the National Foundation for the Development of Indigenous Nationalities Act (known as the NFDIN Act), which lists 59 distinct indigenous communities in the country.
3 LAHURNIP (2016) Adibasi jajati Adhikarko Sandrvama “Nepalko Sambidhan”ko Adyayan tatha Bisleshan (“A Study and Analysis of the ‘Constitution of Nepal’ in the Context of Indigenous Peoples’ Rights”). Kathmandu: Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP).
Krishna B. Bhattachan, is indigenous Thakali. He is one of the founding faculty members and former Head of the Department of Sociology and Anthropology at Tribhuvan University in Nepal now recently retired. He has published several books and articles on indigenous issues.
(This article is taken from “THE INDIGENOUS WORLD-2017′ and original title of the article is changed here.)