Rights of

Indigenous Peoples
Nepal Participatory Constitution Building
Booklet Series
NO. 6
Centre for Constitutional Dialogue (CCD)
PUBLISHED BY
Centre for Constitutional Dialogue (CCD) - 2009
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Rights of Indigenous Peoples
No. 6
Rights of Indigenous Peoples 1
Introduction 1
Basic concepts and defnitions 2
Nepal's Indigenous Nationalities 3
International standards 5
Legal and policy instruments available in Nepal 6
Conclusion 8
1
Rights of Indigenous Peoples
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 ratifed
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 signifcant 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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Rights of Indigenous Peoples
often not be undone the challenge is to fnd 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 defnitions
One of the most diffcult and contentious issues regarding indigenous peoples is
their defnition. This is in particular relevant as a number of rights are designed
as collective rights. Elements for defnitions include historical interpretations,
anthropological and social aspects, legal criteria (which differ from country to
country) and self-defnition 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
infuence 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 defnition has a number of problematic aspects. Even if all the above criteria
are fulflled, some people may either not consider themselves as indigenous or
may not be considered as indigenous by governments, organizations or scholars.
The individual identifcation 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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Rights of Indigenous Peoples
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
ILO Convention 169 defnes 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-identifcation 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 identifed 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,
fve 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.
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Rights of Indigenous Peoples
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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Rights of Indigenous Peoples
International standards
The Indigenous and Tribal Peoples Convention, 1989 (No. 169) has been
ratifed 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 specifc
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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Rights of Indigenous Peoples
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 specifc 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 signifcantly 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,
3. To preserve and promote traditional indigenous knowledge, skills, and
technology,
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Rights of Indigenous Peoples
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 confict and the people's movement of April 2006, this
process was further strengthened. In addition to ILO 169 (ratifed in September
2007), Nepal ratifed 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 ratifcation, in case the treaty provisions confict with the provisions of
domestic laws, the latter shall be held invalid to the extent of such confict. The
provisions of the treaty shall be applicable in that connection as Nepal laws.
These developments were also refected 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 offcial 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 peoples 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 UNDPs
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 Nepals 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 frst 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