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Rights of Indigenous Peoples

Nepal Participatory Constitution Building Booklet Series NO. 6

Indigenous Peoples Nepal Participatory Constitution Building Booklet Series NO. 6 Centre for Constitutional Dialogue (CCD)

Centre for Constitutional Dialogue (CCD)

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Rights of Indigenous Peoples

No. 6

Rights of Indigenous Peoples

1

Introduction

1

Basic concepts and definitions

2

Nepal's Indigenous Nationalities

3

International standards

5

Legal and policy instruments available in Nepal

6

Conclusion

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Rights of Indigenous Peoples

1

Rights of Indigenous Peoples

Introduction

The rights of indigenous peoples have come to the forefront in Nepal recently and are hotly debated, in particular in the context of drafting the new Constitution. It has become an increasingly politicized issue. There is considerable ethnic diversity within the population of Nepal, with more than a third of the population belonging to indigenous peoples. There is a history of exclusion and marginalization, and the socio-economic differences among various national groups are stark.

Nepal is one of the 20 countries (and the only one in Asia) to have ratified the primary international legal instrument on this subject, the Convention on Indigenous and Tribal Peoples of the International Labour Organization (ILO, no. 169) in September 2007. It also has a law related to indigenous nationalities since 2002. These instruments afford a number of significant rights to indigenous groups and individuals. This includes the right to exercise control over their own institutions, ways of life and economic development and to develop and maintain their identities. The non-binding UN General Assembly Declaration on Indigenous Peoples of 2007 is even more far-reaching. These documents have become the key reference and advocacy documents for the advancement of indigenous peoples' rights.

The debate about indigenous peoples' rights also includes a general call for more participation, self-government and empowerment in many segments of society, indigenous or not. The debate is how the new Constitution should best guarantee the widest possible degree of autonomy for Nepal's indigenous communities, and what mechanisms can best ensure effective implementation, while preserving a balance with interests of the whole population at large, with general standards of human rights and democracy, and with the goals of establishing an integrated, governable and prosperous Nepal.

Many countries in the world are faced with the challenge to accommodate the legitimate needs and aspirations of indigenous peoples. The marginalization of indigenous peoples spans over decades or even centuries. Recent years have seen more awareness worldwide of their plight. While past injustices can most

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often not be undone the challenge is to find ways of compensating for them Nepal has embarked on a constitutional debate on this subject. It needs to be aware of the limitations any constitutional model or provision entails, and that the constitution can only be one element leading to an eventual 'solution', but cannot be the solution itself.

Basic concepts and definitions

One of the most difficult and contentious issues regarding indigenous peoples is their definition. This is in particular relevant as a number of rights are designed as collective rights. Elements for definitions include historical interpretations, anthropological and social aspects, legal criteria (which differ from country to country) and self-definition of the groups concerned.

The term indigenous generally designates people who were the "original" inhabitants of a given territory, i.e. people who were already there before the currently dominant ethnic group arrived or established state borders. This is easier to establish in countries with a history of colonization and massive population movements, such as in the Americas and Australia. It also refers to people who have been living independently or largely isolated from the influence of the claimed governance by a nation-state, such as rainforests. An additional criterion is that such people have maintained at least in part their distinct linguistic, cultural and social/organizational characteristics, and are differentiated in some degree from the surrounding populations and dominant culture of the nation-state. Another essential factor is that they self-identify as indigenous, and/or are recognized as such by other groups.

This definition has a number of problematic aspects. Even if all the above criteria are fulfilled, some people may either not consider themselves as indigenous or may not be considered as indigenous by governments, organizations or scholars. The individual identification might also differ from the collective one. Moreover, peoples have invaded colonized and migrated into each others' lands since before recorded history and so the division into indigenous and non-indigenous, original inhabitant and settler or colonizer is a matter of judgment.

Nevertheless there is also a greater awareness today of the identity and rights of indigenous peoples. This awareness has led to greater pride and a demand for recognition.

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ILO Convention 169 defines that the rights afforded through it apply to: (1) Tribal peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and (2) Peoples who are regarded as indigenous on account of their descent from the populations which inhabited a region at the time of conquest or colonization or the establishment of present State boundaries and who retain some or all of their own social, economic, cultural and political institutions. In addition, ILO 169 sets out that self-identification as indigenous or tribal shall be regarded as a fundamental criterion (but not the exclusive factor, notably) for determining the groups to which the Convention applies.

Nepal's Indigenous Nationalities

According to the 2001 Census, indigenous peoples (known as indigenous nationalities – Adivasi Janajati), comprise 36.31% of the total population of Nepal (then 22.7 million, now estimated at around 28 million). They are in the majority in 27 of the 75 districts. Nepal has identified and recognized 59 nationalities of Nepal through the enactment of the National Foundation for Development of Indigenous Nationalities Act, 2002. According to the Act, "indigenous refers to those ethnic groups or communities who have their own mother tongue and traditional customs, different cultural identity, different social structure and written or oral history". Four of them (Magar, Tharu, Tamang, Newar) have population sizes of between 1 million and 3, 6 million, five have between 100,000 to 1,000,000. Several have fewer than 1000 members. The annex to that Act listed 59 indigenous nationalities by name.

MOUNTAIN

1. Bara Gaunle

7. Lhomi (Shingsawa)

13. Thakali

2. Bhutia

8. Lhopa

14. Thudam

3. Byansi

9. Marphali Thakali

15. Tingaunle Thakali

4. Chhairotan

10. Mugali

16. Topkegola

5. Dolpo

11. Siyar

17. Sherpa

6. Larke

12. Tangbe

18. Wallung

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HILL

1. Bankaria

9. Hayu

17. Newar

2. Baramo

10. Hyolmo

18. Pahari

3. Bhujel/Gharti

11. Jirel

19. Rai

4. Chepang

12. Kushbadia

20. Sunuwar

5. Chhantyal

13. Kusunda

21. Surel

6. Dura

14. Lepcha

22. Tamang

7. Fri

15. Limbu

23. Thami

8. Gurung

16. Magar

24. Yakkha

INNER TARAI

1. Bote

4. Kumal

7. Raute

2. Danuwar

5. Majhi

3. Darai

6. Raji

TERAI

1. Dhanuk

5. Kisan Santhal

9. Tajpuria

2. Dhimal

6. Meche

10. Tharu

3. Gangai

7. Rajbanshi (Koch)

4. Jhangad

8. Satar/(Rajbanshi)

In comparison to the national average, the majority of indigenous nationalities in Nepal are lagging behind in terms of economic advancement and other human development indicators. Estimates show that over half of the population of indigenous nationalities falls below the poverty line. Structural discrimination, manifested in low levels of political representation, lack of access to education, training and employment opportunities and empowerment has perpetuated and deepened poverty of indigenous peoples. In terms of political representation, indigenous nationalities traditionally ranked above Dalit but under other caste groups.

Indigenous peoples in Nepal predominately inhabit rural areas and are primarily engaged in subsistence agriculture. Traditional occupations continue to be practiced by many indigenous nationalities in Nepal. Despite the overall predominance of subsistence agriculture, there is also a wide variety between the 59 indigenous peoples in terms of modes of production and occupations. They range from urban to rural, from hunter-gathers and those engaged in subsistence modes of production to porters, traders and carpet weavers.

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International standards

The Indigenous and Tribal Peoples Convention, 1989 (No. 169) has been ratified by 20 countries. It covers a wide range of issues, including land rights, access to natural resources, health, education, vocational training, conditions of employment and contacts across borders. The core concepts are consultation, participation and self-management. This places a responsibility on governments to consult indigenous and tribal peoples and ensure that they fully participate at all levels of decision-making processes that concern them

The Convention includes a number of provisions which lay down responsibilities for the Government as well as rights for indigenous peoples and individuals. Governments have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.

Indigenous peoples have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well- being and the lands they occupy or otherwise use. They also have the right to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they have the right to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

With the adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly in 2007, the UN as a whole has taken a major step forward in the promotion and protection of indigenous and tribal peoples' rights throughout the world. The non-binding Declaration outlines the individual and collective rights of indigenous peoples, and goes substantially beyond the formulations of the more moderate ILO Convention 169. But the provisions of the Declaration and Convention No. 169 are compatible and mutually reinforcing. The Declaration provides for a specific role of UN agencies to support the realization of its provisions. In particular the ILO has an important role to play in this context.

While the ILO Convention does not mention the term self-determination, the more recent UN General Assembly Declaration is very clear: Its Article 3 states that "indigenous peoples have the right to self-determination. They freely determine their political status and freely pursue their economic, social and cultural development." It adds, however, that the Declaration may not be

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interpreted as implying that anyone can engage in any activity contrary to the Charter of the United Nations. It explicitly does not authorize or encourage any action which would dismember or harm the territorial integrity or political unity of sovereign and independent States.

Legal and policy instruments available in Nepal

In recent years, there has been increased recognition of the multi-ethnic and multi-cultural character of Nepali society and the need for respecting this diversity for political stability and social progress. The Government has included specific references to rights and needs of indigenous peoples in a number of important legal and policy documents. These include constitutional law and special legislation as well as references in core government planning documents.

Beginning with the Ninth Plan (1992- 1997), the Nepal government fully recognized the presence of indigenous nationalities. Subsequent plans included increasing commitments by the Government to the all-round development and upliftment of indigenous nationalities. In 2000, the Government abolished the Kamaiya bonded-labour system which mainly affected the indigenous Tharus. The 1999 Local Self-Government Act made special quota provisions for indigenous people in elected local bodies. Representation of indigenous peoples in local bodies was significantly higher (29%) in comparison to other sectors (but local bodies were suspended in 2002).

In 2002, the National Foundation for the Development of Indigenous Nationalities (NFDIN) was established. NFDIN is an autonomous governmental body whose aim is to develop and empower the Indigenous Nationalities. its activities focus on establishing district-based units to monitor indigenous/ ethnic programs in 75 districts. These units would work in close co-operation with District Development Committees (DDCs), which, as already stated, have been defunct since 2002. NFDIN has the following objectives:

1. To promote the overall development of indigenous nationalities by formulating and implementing programmes,

2. To preserve and promote indigenous languages, script, culture, literature, arts, and history,

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4. To promote the participation of indigenous nationalities in overall national development by maintaining good relations, goodwill, and harmony between different indigenous nationalities, castes, tribes and communities.

Several NGOs and advocacy groups have also emerged in recent years. The Nepal Federation of Indigenous Nationalities (NEFIN), an umbrella organization of organizations representing the 59 indigenous nationalities, works towards the upliftment and empowerment of indigenous communities.

Following the end of the conflict and the people's movement of April 2006, this process was further strengthened. In addition to ILO 169 (ratified in September 2007), Nepal ratified a number of other international instruments which protect the rights of indigenous communities and their members. According to the Nepal Treaty Act, 1990 (Art. 9), the provisions of treaties are applicable like laws in Nepal. Following ratification, in case the treaty provisions conflict with the provisions of domestic laws, the latter shall be held invalid to the extent of such conflict. The provisions of the treaty shall be applicable in that connection as Nepal laws.

These developments were also reflected on the constitutional level, and thus entered the Interim Constitution and the basic principles under which the Constituent Assembly currently operates. The Constitution of 1990 declared Nepal as a multiethnic, multilingual and multicultural country. However, several constitutional provisions were still widely perceived as discriminating against indigenous peoples (Hindu kingdom, Nepali as official language) and the implementation mechanism and accountability on the part of the state were not ensured.

The Interim Constitution, 2007 includes more far-reaching provisions regarding the rights of indigenous peoples. Apart from declaring Nepal a secular Republic – a long-standing demand of many indigenous groups - it also adopts a policy of proportional inclusion in all structures of the state. The Fundamental Rights Section (Art. 21) includes a right to social justice which gives indigenous nationalities and others the right to participate in state structures on the basis of principles of proportional inclusion. The Responsibilities, Directive Principles and State policies section includes a related state responsibility (Art. 33 (d1)) and a state policy to uplift the economically and socially backward indigenous nationalities by making provisions for reservations in education, health, housing, food security and employment for a certain period of time as well as a policy of making special provision on the basis of positive discrimination (Art 35 (10), (14)). Similarly, Art 144 (4A) provides that enlisting of indigenous nationalities and others into the armed forces on the basis of the principles of equality and inclusiveness shall be ensured by law.

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Rights of Indigenous Peoples

The Constituent Assembly (CA) itself has been formed on the basis of achieving a full representation of indigenous nationalities. The IC provides that principle of inclusiveness shall be taken into consideration by political parties while selecting candidates and that the political parties shall ensure the proportional representation of indigenous and other groups, in accordance with the electoral law (Art 63). The Council of Ministers is also obliged to nominate persons from among indigenous nationalities who otherwise fail to be represented as members among the 26 non-elected members. The result is that around 218 of the 601 CA Members belong to indigenous nationalities, including its Chairman.

The IC has also laid down a number of basic principles which the CA is to follow in drafting the new Constitution. It declares Nepal a Federal Democratic Republic "accepting the aspirations of indigenous nationalities" and others "for autonomous provinces with full rights." The IC further states that the CA shall determine the number, boundary, names and structures of the autonomous provinces and the distribution of powers and resources, while maintaining the sovereignty, unity and integrity of Nepal (Art 138 (1A)).

Conclusion

There is need for extensive discussions to ensure the rights of indigenous peoples while drafting the new constitution. It would be equally important to take inspiration from international human rights law and other relevant international standards. The most important aspect is the need for a continuous effort to make constitutional provisions for an appropriate mechanism so that indigenous peoples are empowered to enjoy the rights in practice as mentioned in the constitution. For instance, the new Constitution could in addition to establishing certain rights, also provide for a special body in charge of overseeing its implementation in this regard. Some countries also list their indigenous communities in an annex to the Constitution itself (e.g. India's 'scheduled tribes').

In any event, it is important not to expect the text of the Constitution itself to solve all possible grievances of indigenous groups and respond to their aspirations. A commitment to indigenous people’s rights must go beyond the constitution and into laws, policies and appropriately funded government programmes to ensure their implementation. A lasting, balanced and constructive relationship between the state and indigenous peoples can only emerge if ways are found to resolve differences through partnership and cooperation.

About this booklet series

This series of papers is intended to provide a basic background for Constituent Assembly members and the interested public on issues related to the constitution building process. They are not position papers, proposals or intend to preempt any constitutional outcome in any other way. They are the result of a cooperative effort of Nepali and international constitutional experts, coordinated by UNDP’s Support to Participatory Constitution Building in Nepal project.

These papers are living documents, and feedback and comments are strongly encouraged. The more they will lead to informed, engaged and constructive discussion and exchanges, the more will their objective be attained. As comments are received further versions of this document or additional issues may be prepared.

In translating them into some of Nepal’s major national languages, all effort has been made to achieve a high level of quality standards and the correct terminology, which will be understood by a majority of the speakers of those languages. However, future debates within the various linguistic communities on the proper and correct use of terms can be expected. CCD did not want to preempt that discussion in any way, but rather sought to maximize the reach and inclusiveness of this effort by including those languages.

This booklet is part of a series of documents to be developed by the Centre for Constitutional Dialogue (CCD) on themes relevant to the constitution building process in Nepal.

The objective of this series is to engage Constituent Assembly members as well as the interested public with key constitutional concepts and issues. Each document is available in the major languages used in Nepal – Nepali, Maithili, Bhojpuri, Tharu, Magar, Tamang, Newar and English. Each document is also available in audio format as well as online.

In the first phase it is envisaged that the publication series will include the following themes: State and Religion, Federal System, Human Rights in the Constitution, Rights of Indigenous Peoples, Minority Rights, Systems of Government, Independent Judiciary, Local Self-Governance, Diversity and Social Inclusion, and Participatory Constitution Making Process.

Centre for Constitutional Dialogue (CCD) 3rd floor, Alfa beta Complex, new baneswor, Kathmandu telephone 977-1- 4785466 / 4785486 / 4785998 email: info@ccd.org.np Website: www.ccd.org.np