Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Nepal (Ratification: 2007)

Observations from the International Organisation of Employers (IOE). In observations transmitted to the Government in October 2014, the IOE describes the difficulties encountered by governments in implementing proper consultation processes due to an insufficient understanding of the requirements of the Convention. The Committee requests the Government to make any comments it deems appropriate on the observations made by the IOE. It also asks the Government, when preparing its next report, to consult the social partners and interested indigenous organizations, as requested by the report form.

Article 1 of the Convention. Scope of application. The Committee notes that the Constitution promulgated in September 2015 recognizes, under article 3, that Nepal is a multi-lingual, multi-religious and multi-cultural nation. The Government indicates in its report that the study prepared by the High-Level Task Force responsible for revising the schedule of Adivasi Janajati (indigenous and tribal peoples) is under consideration by the relevant committee of the Council of Ministers, before being sent to Parliament for discussion of the amendments to the National Foundation for Development of Indigenous Nationalities (NFDIN) Act, 2002. The criterion of “self-identification” was taken as one of the fundamental guidelines for the preparation of the study. The Committee notes that the 2011 census recorded the existence of 64 groups regarded as indigenous and tribal peoples. The Government indicates that the National Planning Commission and the Central Bureau of Statistics have jointly started to collect data on the status of the different castes and ethnic groups in the country, including indigenous and tribal peoples, in relation to national development. The Committee requests the Government to provide information on the progress made in amending the schedule of Adivasi Janajati contained in the NFDIN Act, 2002.

Articles 2 and 33. Coordinated and systematic action. The Committee notes that the 2015 Constitution created the Adivasi Janajati Commission, whose functions and organization are to be regulated by federal laws. The Government indicates in its report that the Ministry of Federal Affairs and Local Development (MoFALD) is responsible for coordinating the various activities relating to the Convention through its Gender Equality and Social Inclusion section and 75 Adivasi Janajati District Committees. It adds that coordination mechanisms for the application of the Convention have been reinforced through the establishment of Village Development Committees, in which the Adivasi Janajati are represented. The Committee notes that the National Action Plan for Indigenous Peoples has not yet been adopted. It also notes that the Government refers to the Convention as the basis for determining the measures that are needed to enable the realization of the economic, social and cultural rights of indigenous peoples. The Committee requests the Government to provide information on the actions taken by the MoFALD, in coordination with Adivasi Janajati District Committees and Village Development Committees, to guarantee the application of the Convention. Please also include information on the operation of the Adivasi Janajati Commission and on the progress made in adopting and implementing a National Action Plan for Indigenous Peoples.

Articles 3–4. Human rights applied without discrimination. Special measures. The Government indicates that it has adopted a National Human Rights Action Plan for the period 2014–19, under the 1993 Vienna Declaration and Programme of Action. One of the cross-cutting themes of this Plan is the inclusive development of indigenous peoples. The Government adds that the competent government entities, in consultation with indigenous peoples, have launched initiatives to review the Country Code and other national laws to bring them into conformity with the Convention. The Committee requests the Government to provide information on the impact of the action taken for the inclusive development of indigenous peoples within the framework of the National Human Rights Action Plan. It also requests the Government to provide information on the special measures taken, with the participation of indigenous peoples, to safeguard the persons, property, cultures and environment of indigenous communities, especially in the areas affected by the 2015 earthquake.

Article 5. Preservation of indigenous values. Protection of cultural heritage. The Government indicates that it has given priority to the implementation of the National Cultural Policy for the preservation of the cultural heritage of the different communities, ethnicities and caste groups. The Committee notes the creation of the Intangible Cultural Heritage Preservation Council, which is responsible for documenting and preserving the intangible cultural heritage of the country, including that of the Adivasi Janajati. The Government indicates that indigenous peoples can participate in the planning and implementation of the activities of the Council. The Committee requests the Government to provide further information on the impact of its National Cultural Policy. It also requests the Government to provide information on the activities undertaken by the Intangible Cultural Heritage Preservation Council, indicating how indigenous peoples concerned have participated in and cooperated with the Council.

Article 6. Consultation on legislative and administrative measures. The Committee notes with interest that 27 per cent of the seats in the 2013 Constituent Assembly were reserved for representatives of the Adivasi Janajati. It notes that article 42 of the 2015 Constitution recognizes the right of the Adivasi Janajati to take part in the organization of the State’s institutions on the basis of the principle of inclusion. The Constitution provides for the reservation of seats for Adivasi Janajati in legislative organs. The Government indicates that the MoFALD has begun to systematize consultation procedures with the Adivasi Janajati, both at the village and district levels. The Committee notes that Adivasi Janajati District Coordination Committees are responsible for consulting concerned stakeholders on issues relating to district level planning. The Committee requests the Government to provide information on the progress made in the development of procedures for the consultation of indigenous peoples on legislative or administrative measures that may affect them directly. It also requests the Government to indicate the measures taken to ensure that indigenous peoples are consulted and can participate in an appropriate manner, through their representative institutions, in the design of consultation procedures. Please also provide information on existing consultation mechanisms with indigenous peoples and on their functioning.

Article 7. Participation. Development projects. The Committee notes that article 51(j) of the 2015 Constitution establishes the obligation of the State to make special arrangements to ensure the participation of the Adivasi Janajati in decision-making processes that concern them. The Government indicates that its Thirteenth Plan (2014–16) defines social inclusion as one of the key aspects of national social, economic and cultural development. It adds that indigenous peoples can participate in planning and development processes through machinery established at the local level. For this purpose, the relevant ministries have adopted directives to include indigenous peoples in the various user groups and other local management committees. The Government indicates that the Ministry of Forest and Soil Conservation has been implementing procedures for the inclusion of indigenous peoples in community forest user groups. It also reports that, in order to improve the living conditions of indigenous peoples, the Poverty Alleviation Fund has implemented social inclusion programmes. The Committee requests the Government to provide information on the measures taken to promote the development of areas inhabited by indigenous communities, with an indication of how the participation of these communities in the formulation, implementation and evaluation of such measures is guaranteed. Please also indicate whether studies have been carried out to assess the impact of planned development activities on the Adivasi Janajati and how they have been associated with them. The Committee further requests the Government to provide information on the measures taken to protect and preserve the environment of the territories inhabited by the Adivasi Janajati, indicating how their participation in the drafting and implementation of these measures have been ensured.

Articles 8–10. Customary laws. Imposition of penalties. The Committee notes the adoption of the Mediation Act, 2012, containing provisions on community-based mediation. It also notes that a draft criminal code recognizing indigenous customary laws and practices in criminal matters is under consideration by Parliament. The Government indicates that courts give due consideration to the economic and social conditions of offenders when determining penalties. The Committee requests the Government to provide information on the application of the Mediation Act, 2012, in resolving conflicts involving members of indigenous communities. Please provide examples of the practice followed in accordance with the methods customarily used by indigenous peoples to deal with offences committed by their members, including examples of judicial decisions in this regard.

Article 11. Prohibition of compulsory personal services. The Government indicates that it has set up committees for the rehabilitation of freed Kamaiyas (bonded agricultural labourers) at both the central and district levels. It reports that kamaiya households have received financial support from the Government to buy lands and for the education, training and employment of freed Kamaiyas. The Government adds that it has started legal action against those who hire young girls as Kamlari (girls sold into indentured labour). A total of 3,573 Kamlaris benefited from capacity building programmes in the 2012–13 period. The Committee requests the Government to continue to provide information on the impact of the measures adopted with a view to preventing, supressing and punishing the exaction of compulsory personal services by members of indigenous peoples.

Article 12. Legal proceedings. The Government indicates that economically marginalized groups receive legal assistance under the Legal Aid Act, 1997. The National Foundation for Development of Indigenous Nationalities (NFDIN) and representative organizations of indigenous peoples also provide support to the Adivasi Janajati to assert their rights. The Committee requests the Government to indicate the methods that have been applied to ensure that members of indigenous and tribal peoples can understand and be understood in legal proceedings.

Articles 13–14. Land rights recognized and protected. The Committee notes the adoption of a Land Use Policy in 2012 aimed at preserving lands of historical, cultural, religious and geographical value. It notes that in 2010 the Scientific Land Reform Commission concluded a report on land reform in Nepal. The report reveals that the rates of land ownership by the Adivasi Janajati are low. The Government indicates that it is making efforts to implement the Commission’s report recommendation. In this regard, policies and programmes have been adopted to distribute land among landless people. The Committee requests the Government to provide more specific information on the progress made in the identification of lands traditionally occupied by the Adivasi Janajati. Please also provide information on land entitlement and registration processes, including indications on the surface area covered by land title and the beneficiary communities. The Committee also requests the Government to indicate whether procedures exist to resolve land claims by the Adivasi Janajati, together with examples illustrating their use.

Article 15(1). Natural resources. The Committee notes that the Community Forestry Guideline, 2008, provides for the inclusion of the Adivasi Janajati in the Executive Committees of forest user groups. Some 37 per cent of households involved in community forestry groups belong to Adivasi Janajati communities. The Committee notes the establishment of District Forest Coordination Committees, which include representatives of the Adivasi Janajati. The Government indicates that it has designated 20 protected areas comprising traditional indigenous territories, and that 30 to 50 per cent of the revenues generated by protected areas are to be spent on programmes designed by indigenous communities. The Committee requests the Government to provide information on the impact of the measures taken to support the participation of the Adivasi Janajati in the use, management and conservation of forest resources. Please also indicate how the rights of indigenous peoples to natural resources pertaining to their traditionally occupied lands are safeguarded by national legislation.

Article 15(2). Natural resources. Water resources. The Committee notes that the Government has outlined a procedure for environmental impact assessment of infrastructure development projects, including hydro power projects and road construction. This procedure envisages consultations with the local population, including the Adivasi Janajati. The Government indicates that it has facilitated a model for the distribution of the benefits of hydro power production to local communities. The Committee requests the Government to provide more specific information on the procedures envisaged for the consultation of the indigenous communities affected by resource extraction projects. Please indicate how indigenous peoples participate in the benefits of programmes for the exploitation of natural resources pertaining to their traditionally occupied lands.

Article 16. Relocation. The Government indicates that relocation is regulated by the Land Acquisition Act, 1977. It adds that, in the event of relocation, landowners are entitled to monetary compensation or resettlement. The Committee notes that a policy on land acquisition, compensation, resettlement and other support is under consideration by the Council of Ministers. The Committee requests the Government to provide information on the progress made in the process of adopting regulations to ensure that indigenous communities are not removed from their traditionally occupied lands, except in the extraordinary circumstances provided for by the Convention. Please also describe the steps taken to obtain the free and informed consent of indigenous communities before relocation, and the procedures to be followed when their consent cannot be obtained.

Article 17. Transmission of land. Consultation. The Committee notes that matters relating to land transmission are regulated by the Land Act, 1964, and the Revenue Act, 1977. The Government indicates that indigenous peoples are free to transfer their land entitlements among their members. The Committee requests the Government to indicate how the existing legislation and policies on land transmission provide for consultation with indigenous peoples whenever consideration is being given to the capacity of these peoples to alienate their lands or otherwise transmit their rights outside their own community.

Article 18. Intrusion on indigenous lands. The Government indicates that any encroachment or intrusion on the lands of the Adivasi Janajati is prohibited by law and that legal action can be taken against the infringement of land ownership rights. The Committee requests the Government to indicate the measures taken to prevent intrusion on the lands of indigenous peoples.

Article 19. Land reform. The Government indicates that the Adivasi Janajati are guaranteed treatment equivalent to that accorded to other sectors of the population in relation to means to promote land development. The Government indicates that the Agriculture Perspective Plan, implemented between 1995 and 2014, introduced policies to empower the Adivasi Janajati in agricultural development programmes. The Committee requests the Government to further describe how Adivasi Janajati communities have benefited from agricultural development programmes. Please also indicate how the views of the Adivasi Janajati are taken into account in the formulation and implementation of such programmes.

Article 20. Conditions of work. The Government indicates that it has initiated a youth employment programme for economically deprived groups, including the Adivasi Janajati. This programme provides support to unemployed youth and people with traditional skills to engage in income-generating activities. The Government reports that, by mid-June 2013, a programme conducted with the support of the Youth and Small Entrepreneur Self-Employment Fund generated self-employment for 13,862 young people in areas such as animal husbandry, agriculture, floriculture and cottage industries. The Government indicates that it is working, within the framework of its Labour and Employment Policy, to ensure access of the Adivasi Janajati to employment. The Committee requests the Government to provide information on the impact of the special measures taken, in cooperation with the Adivasi Janajati, to ensure effective protection with regard to recruitment and conditions of employment, particularly of young workers. Please also indicate the action taken to prevent all discrimination in relation to the various measures covered by Article 20(2) of the Convention, and to ensure adequate labour inspection in the areas where indigenous workers are employed.

Articles 21–23. Training and participation. The Government indicates that the Technical and Vocational Training Council allocates 5 per cent of its scholarships to the Adivasi Janajati. It indicates that the Ministry of Industry has implemented a Micro-Enterprise Development Programme, in which emphasis is placed on the traditional skills of indigenous peoples, and that 38 per cent of the beneficiaries of the programme belong to the Adivasi Janajati. The Committee requests the Government to provide information on the impact of the measures taken to promote the voluntary participation of members of indigenous peoples in vocational training programmes of general application, as well as on any special training programmes implemented based on the economic, environmental, social and cultural conditions of indigenous peoples.

Article 24. Social security. The Committee notes that in 2012 and 2013, 18,828 members of endangered indigenous groups and about one third of Adivasi Janajati senior citizens over 70 years of age benefited from social security coverage. The Government indicates that the social security scheme is gradually expanding each year. The Committee requests the Government to provide information on the measures taken to continue expanding the coverage of the social security scheme to the Adivasi Janajati.

Article 25. Health services. The Government indicates that the Ministry of Health has launched a Gender and Social Inclusion Programme with the aim of providing access to health services for underprivileged sectors of the population. It indicates that traditional health systems and practices are recognized. The Committee requests the Government to provide information on the activities carried out by the Gender and Social Inclusion Programme to ensure that adequate health services are made available to the Adivasi Janajati.

Articles 26–28. Education. The Government reports that, as of November 2012, the total number of registered students from extremely disadvantaged Adivasi Janajati, comprising 22 ethnic groups, was 90,405 at the primary level, 31,513 at the lower secondary level, 14,377 at the secondary level and 2,737 at the higher secondary level. During the 2012–13 period, a total of 59,785 students from highly marginalized Adivasi Janajati groups were granted scholarships to educational institutions. The Government adds that the proportion of teachers belonging to the Adivasi Janajati was 29.4 per cent at the primary level, 18.9 per cent at the lower secondary level and 17.3 per cent at the secondary level. The Committee notes that the Ministry of Education has issued Multilingual Education Implementation Guidelines, according to which children in basic education level can be educated in their mother tongue. The Committee requests the Government to continue providing information on the impact of the measures taken to ensure the education of members of the Adivasi Janajati at all levels. Please indicate how members of the Adivasi Janajati have been involved in the formulation and implementation of educational programmes and services concerning them.

Article 32. Cooperation across borders. The Committee notes that the Government is conducting studies on cross-border issues relating to indigenous peoples living in the China–Nepal frontier zone. The Committee requests the Government to provide information on the outcome of the studies carried out on the situation of indigenous peoples living in frontier areas. Please also provide information on the measures adopted to facilitate contacts and cooperation between indigenous and tribal peoples across borders.