Demande directe (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Népal (Ratification: 2007)

The Committee notes the communication of August 2014, whereby the International Organisation of Employers (IOE) included Nepal in its observations concerning the application of the Convention. It invites the Government to submit any comments it deems appropriate on the observations made by the IOE.

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments.

The Committee is of the view that the Convention is essentially an instrument for promoting dialogue, consultation and participation. It reminds that Parts VII and VIII of the report form, approved by the ILO Governing Body, state that the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country through their traditional institutions on the measures taken to give effect to the present Convention and in preparing reports on its application. The Committee invites the Government to promote such consultation with the social partners and organizations of indigenous peoples to reply in detail in its next report due in 2013 to the matters raised in this direct request.

Article 1 of the Convention. Self-identification. The Committee notes that 59 groups of indigenous and tribal peoples are recognized through section 2(a) of the National Foundation for Development and Indigenous Nationalities (NFDIN) Act 2002. The adivasis (original inhabitants of the country) form 37.2 per cent of the Nepalese population. The Government states in its report that the process of ascribing identities is complex given the political context in Nepal. The Committee requests the Government to provide information on the actions of the High-level Task Force for Revising Schedule of Adivasi Janajati and on the progress made on the adoption of the bill for amending the schedule of the NFDIN Act 2002.

Articles 2 and 33. Systematic action with participation. Administration. The Government states that, in late 2008, it formed a High-level Task Force under the Chairmanship of Secretary of Ministry of Local Development to review laws, policies and programmes under the Convention. The Committee notes that the public authorities responsible for carrying out these measures include the Ministry of Local Development, the Social Committee of the Council of Ministers, the adivasis’ District Coordination Committees, the NFDIN and the National Human Rights Commission. The Committee further notes that the NFDIN took measures to contribute to uplifting the adivasis by supporting policy initiatives, implementing some relevant programmes, facilitating and following up government and non-governmental agencies and organizations to initiate and implement programmes under the Convention. The Ministry of Local Development is responsible for dealing with issues and development of the adivasis. It restructured its organization and formed the Gender Equality and Social Inclusion section. The Government provided focal points for social inclusion in all ministries. The Ministry of Local Development has also instituted the adivasis District Coordination Committee in all districts. The Cabinet has sent the draft of the National Action Plan for the Implementation of the Convention to the Social Committee of the Council of Ministers for scrutiny and approval. The Committee invites the Government to specify in its next report if there is any institution whose duties include monitoring the general application of the Convention or some mechanism for coordination between the various bodies with respect to protecting the rights of the adivasis. Please indicate the measures taken to ensure that programmes are coordinated, with the participation of the indigenous peoples, at all stages, from planning through to evaluation, in accordance with Article 2(1), and Article 33(2)(a) and (b), of the Convention. The Committee also invites the Government to provide further information on any progress on the National Action Plan and its implementation and its budget implications and on the Ministry of Local Development’s programmes and policies.

Articles 3 and 4. Human rights applied without discrimination. Positive action. In its report, the Government states that article 13 of the Interim Constitution of Nepal 2007 stipulates that discrimination based on religion, race, and other grounds is strictly prohibited with the provision that certain groups or sections of society that are disadvantaged can be especially treated, in a positive way, in order to empower or uplift them. Both article 29 of the Interim Constitution and the Local Self-Governance Act 1999 seek to enhance the participation of all people, including the adivasis, in mobilizing and allocating means for the development of their own region. Under the NFDIN Act 2002, the NFDIN has responsibilities to preserve and promote languages and cultures of the adivasis through programmes regarding protection of people, institutions, cultures, environment and community. Other measures concerning social inclusion are part of the Three-Year Interim Plans (2007–08 to 2009–10) and the sectorial annual plans. The Committee invites the Government to indicate any special measures which have been adopted, in practice, to apply Article 3 of the Convention. The Committee also requests the Government to indicate any special measures which have been found appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the adivasis.

Article 5. Recognition of indigenous peoples’ values. Participation and cooperation. The Government states that it is considering establishing policies, programmes and time-bound studies to mitigate the difficulties faced by the adivasis even though their participation is not yet entirely ensured. The Committee notes that this provision of the Convention was in its initial stages of application during the last reporting period. The Committee invites the Government to provide in its next report an evaluation of the impact of the National Cultural Policy. The Committee also asks the Government to report in detail how the participation and cooperation of the adivasis are ensured in all the matters covered by Article 5 of the Convention.

Article 6. Effective consultations. The Committee notes that the Local Self-Governance Act 1999 provides for participation of the local adivasis in the development process, programmes and outcomes of local bodies. It further notes that the meetings organized by the Ministry of Local Development between governmental agencies, the NFDIN, and affiliated adivasis’ organizations and indigenous experts seek to fill the void and take action. Key decision-makers were discussing measures to be taken on courses of action that include consultation with the adivasis through their representative institutions when making legislative or administrative decisions that may affect them directly. The Committee requests the Government to specify in its next report the manner in which the adivasis are consulted when consideration is being given to legislative or administrative measures which may affect them directly, including in the development of consultation mechanisms. Please also indicate the manner in which the participation of the adivasis in decision-making has been facilitated.

Article 7. Consultation and participation. Impact of projects. The Committee notes that the National Planning Commission directs ministries and local bodies through the Ministry of Local Development to formulate periodic plans with resource estimates and requests ministries to prepare annual programmes with an estimated annual budget based on the periodic plans. The National Planning Commission developed its own standard procedures for formulating, implementing, monitoring and evaluating plans and emphasizes strongly on the participation of the adivasis. The National Planning Commission formally approved the Three-Year Interim Plans formulated by the adivasis’ organizations. The Committee also notes the indications provided in the Government’s report that the adivasis’ rights activists do not feel content with the way the National Human Rights Commission is protecting and monitoring the rights of the adivasis. The Adivasi Janajati Joint Struggle Committee and the then coalition Government were committed to form the Indigenous Peoples’ Commission. The Committee requests the Government to provide in its next report information on the measures taken for the development of the regions and how the participation of the adivasis in the formulation, implementation and evaluation of these measures is assured. Please also indicate whether studies have been carried out to assess the impact on the adivasis of planned development activities and how they have been associated with them. The Committee further requests the Government to indicate the measures taken to protect and preserve the environment of the territories inhabited by the adivasis and how they have been associated with these measures.

Article 8. Customary laws. The Committee notes that the customs and customary laws are recognized by the first Muluki Ain (Country Code) of 1854. The Country Code and the Trust Corporation Act 1976 recognize the authority of the relevant community to manage Guthi (trusts of traditional type). The Committee notes the Government’s intention to study customary laws and social, cultural, religious, economic, political and judicial institutions of the adivasis to formally recognize them. The Committee invites the Government to provide information on the studies performed and examples of the procedures established to resolve conflicts which may arise in the application of Article 8.

Article 9. Customary offences. The Government states that all Nepalese citizens are under the uniform national legal system. The customary or separate laws do not apply to the offences committed by the members of the adivasis except for cases of minor offences resolved by community mediation or local bodies. The legal framework is contained in the Country Code (amended in 1964), the State Cases Act 1993, and the Evidence Act 1976. The Committee invites the Government to provide examples of application of the aforementioned legislation in practice with regard to customary offences.

Article 10. Penalties. The Committee notes that judges have discretion to impose penalties and to make recommendations on mitigating the punishment in two types of penalties, namely life imprisonment and life imprisonment with confiscation of whole property. The Committee invites the Government to provide examples of the practice followed in the application of this Article.

Article 11. Prohibition of compulsory personnel services. The Committee notes that the Government has formed a Commission to resolve problems of rehabilitation of free Kamaiyas (bonded agricultural labourers) to expedite the rehabilitation process. The Government indicates that the vigilance has increased against illegal activities. It has drawn the attention of the relevant agencies to affirmative action programmes. The Committee recalls its previous comments on the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). The Committee invites the Government to provide further information on the methods of supervision and how they work in practice, as well as the sanctions prescribed to ensure the application of this Article.

Article 12. Legal proceedings. The Government indicates that the Interim Constitution of Nepal 2007 provides discretion to the Supreme Court to issue orders and writs for enforcing any legal right. Through the judiciary, the adivasis may institute legal proceedings to protect their rights. The National Human Rights Commission is also responsible for protecting the adivasis’ human rights. The Government indicates that it legally assists the economically marginalized adivasis in legal proceedings under the Legal Aid Act 1997. The Committee invites the Government to provide further information on the methods used to ensure that members of the adivasis can understand and be understood in legal proceedings. Please also indicate how it is ensured that the adivasis representative organizations are able to take legal proceedings to ensure the rights provided for in the Convention.

Articles 13 and 14. Land rights recognized and protected. The Government indicates that the lack of citizenship certificates hindered the process of obtaining land titles. Communal ownership of lands was abolished by the Land Reform Act 1964. Collective ownership is still in practice. The Land Revenue Act 1978 contains provisions that establish land ownership based on occupancy and use. According to the Government’s report, the Rautes (nomadic communities) are not leading a settled life except for around 35 households in far Western Nepal. The Committee further notes that the Ministry of Land Reform and Management has been taking initiatives to identify lands traditionally occupied by the adivasis and to protect their rights to these lands through the Commission for the Solution of the Problems of Landless People and the High-level Commission relating to the Scientific Land Reform. The Committee requests the Government to indicate in its next report the steps taken to identify the lands concerned and to guarantee the effective protection of the rights of the adivasis to these lands. Please also indicate whether procedures exist to resolve land claims by the adivasis and examples illustrating their use.

Article 15. Natural resources. Water resources. The Government indicates that it encouraged debate on the subject of natural and water resources to gain insights into problems to fulfil obligations under Article 15(1). The Committee notes that the Government emphasizes on participatory conservation. Different community development programmes are being implemented, some with the assistance of international donors in the buffer zones of the protected parks, wildlife reserves, and conservation areas. Although the adivasis are benefiting from these activities, their living conditions have not substantially improved. The Committee notes that no laws and procedures set out the basis for consulting the adivasis as required by this provision of the Convention. The Committee requests the Government to indicate in its next report how the rights of the adivasis to natural resources have been specially safeguarded and how they are exercised. It further requests the Government to indicate whether the State retains the ownership of any resources pertaining to lands and, if so, what procedures exist or are envisaged to apply paragraph 2 of this Article.

Article 16. Relocation. The Committee notes that under Nepalese legislation, people can be removed from their land for different grounds or purposes, which are not in conformity with the Convention. Notices are published in Nepali in the Government daily Nepali newspaper (Gorkhapatra) and sometimes in the national and local daily newspapers published by the private publishing companies. No procedures seem to exist under paragraph 2. The Committee requests the Government to provide in its next report updated information on amendments envisaged or submitted by the authorities to ensure that the adivasis shall not be removed from the lands they occupy (paragraph 1). Please give particulars of the cases in which persons or groups belonging to the adivasis have been removed from their habitual territories and of the measures taken for their relocation and/or compensation (paragraph 2). Please also describe in particular the steps taken to obtain their free and informed consent in such cases and if this could not be obtained through the procedures established by national laws and regulations for taking such decisions (paragraph 3).

Article 17. Transmission of land. Consultation. The Committee notes that customary laws relating to the lands are surviving only among the indigenous communities of some villages of Manang and Mustang districts due to the strong community tradition. The transmission of land rights outside the community is not possible today. The Government states in its report that the current laws are not sufficient and specific regarding the recognition of procedures established by different groups of the adivasis for transmitting land rights among their own members. The Committee also notes that the Land Revenue Offices of Tarai were required in the 1980s to verify the process, protect the adivasis and discourage the land alienation from them. The current laws in Nepal are also inadequate in preventing outsiders to take undue advantage of their customs or lack of understanding of the laws among them to secure ownership, possession or use of lands belonging to them. The Committee requests the Government to provide in its next report updated information on proposed or envisaged amendments of the laws. The Committee also invites the Government to specify what procedures have been established by the adivasis for the transmission of their land rights among their own members, and clarify whether there is any limitation on their right to alienate their lands or otherwise transmit their rights outside their own community (paragraph 1). Please also indicate what measures have been taken to apply paragraphs 2 and 3.

Article 18. Infringements. The Government states that the Country Code 1854 (amended in 1963), the Land Reform Act 1964 and other laws impose penalties on unauthorized intrusion upon or use of lands legally owned and possessed by others. The NFDIN has started discussions for measures to deal with these offences. The Committee requests the Government to provide in its next report an evaluation of the NFDIN’s discussions on the measures to prevent these offences and the sanctions prescribed in case of infringements.

Article 19. Land reform. The Committee notes that the Three-Year Interim Plans (2007–08 to 2009–10) contemplated an agricultural employment programme with the priority to create opportunities for self-employment in villages for the adivasis. The Land Reform Act 1964 (amended in February 2002) provides that lands made available from the new ceiling will be distributed to the freed Kamaiyas and the landless adivasis. In April 2007, the High-level Commission on Scientific Land Reform was formed to study problems of tenant farmers and landless people, issues of use and management and land ceiling problems in increasing productivity of land and recommending measures to end feudal land ownership and to make distribution and management of lands more scientific and just. In 2009, the Government also formed the Commission for the Recommendations on Suggestions of Solving Problems of Landless People, which is studying problems of illegal occupation and settlement, and shanty towns at the outskirts of major cities to recommend measures to address these problems. The Committee requests the Government to provide in its next report an evaluation of the measures undertaken by the High-level Commission on Scientific Land Reform and the Commission for the Recommendations on Suggestions of Solving Problems of Landless People and their impact on the indigenous and tribal peoples of Nepal. The Committee also invites the Government to include more particulars of the national agrarian programmes and of any other measures taken to give effect to this Article and to explain how the views of the adivasis are expressed and taken into account in both Commissions.

Article 20. Conditions of work. The Government indicated in its report that some provisions of the Labour Act 1992 and the Labour Rules 1993 are relevant to give effect to the provisions of the Convention. The Labour Management and Employment Module in the Three-Year Interim Plans (2007–08 to 2009–10) seek to ensure access of the adivasis to employment to avoid discrimination. The Committee notes that measures required by the provisions are yet to be implemented in order to provide the adivasis workers with decent work opportunities. The Committee invites the Government to supply information on the measures taken in the application of paragraphs 2 and 3 of Article 20 and to indicate what measures have been taken to ensure adequate labour inspection in the areas concerned. The Committee further invites the Government to indicate the special measures adopted, within the framework of national laws and regulations, to ensure the protection provided for in paragraph 1. Please also indicate the measures adopted in cooperation with the adivasis to ensure effective protection with regard to recruitment and conditions of employment of workers belonging to the indigenous and tribal peoples.

Articles 21, 22, 23. Training and participation. The Committee notes that the Ministry of Industry, the Ministry of Land Reform and Management, the Ministry of Labour and Transport Management, and the Ministry of Education have started publishing their data on training programmes. The high costs of the training courses threaten and limit the access of the poor adivasis. The Government indicates that the Ministry of Industry has been implementing the Micro-enterprise Development Programme since 1998 with the UNDP’s support. It aims to reduce poverty through developing the knowledge and skills of the adivasis for enterprise management, establishing occupational service institutions and implementing package programmes of assistance to general income and capacity building of small entrepreneurs. The Committee invites the Government to provide further information on the measures taken to enable the adivasis to assure responsibility for the programmes envisaged and implemented. Please also provide further information on the impact of the measures taken with the participation of the adivasis to implement Articles 21, 22 and 23.

Article 24. Social security. The Committee notes that the Government devised a social security scheme to cover the adivasis where each person receives welfare benefits of 1,000 Nepalese rupees per month. The Government reports that a few members of the adivasis benefited from the social security scheme of 100 days in employment in 2007–08, 2008–09 and 2009–10. The Committee further notes that the Government intends to issue cards to provide the adivasis with social security allowances, subsidies, part-time employment and other opportunities. The Committee invites the Government to indicate what measures have been taken to extend the coverage of the adivasis under the social security schemes.

Article 25. Health services. The Government indicates that health posts and sub-health posts are situated in almost every densely populated village. Some 33.6 per cent of doctors belong to the adivasis. The Committee notes that the Ministry of Health and Population prepared a Social Inclusion Strategy in 2008–09 to make services of health institutions effective and accessible for the marginalized adivasis. It also notes that the Government has been promoting traditional medicines and healing practices that are popular mainly in the rural and indigenous communities. The adivasis have been benefiting from the Government providing free essential drugs and simple medical care to patients since 2008. The Committee invites the Government to provide an evaluation of the Social Inclusion Strategy and information on the impact of the measures taken to promote traditional medicines and healing practices.

Articles 26, 27, 28. Education. The Committee notes that the Gompa education (Buddhist monastery-based education) has been recognized along with standardization of curricula and textbooks. The School Sector Reform Programme has emphasized equity and social inclusion. The Curriculum Development Centre of the Ministry of Education annually revises textbooks of the Government. The Government indicates that it started to appoint mother tongue teachers for multilingual education along with gradually transferring management responsibilities of schools to communities and running a capacity-enhancement programme for community schools. The Committee invites the Government to continue providing information on traditional systems and educational institutions of the adivasis. The Committee further invites the Government to include updates on research to design and adapt education programmes towards educational attainment of socially, culturally and educationally disadvantaged adivasis. Please also indicate what measures have been taken for the training of members of the adviasis and their involvement in the formulation and implementation of these programmes.

Article 29. Education of children. The Committee notes that the Government has taken measures to impart general knowledge and skills to help the adivasis children have equal access to education. The measures include improvements in the curricula and textbooks, removing communication and language barriers between learners and teachers, and improvement in teaching methods. The Committee invites the Government to report on the outcome of the aforementioned measures taken.

Article 30. Raising awareness. The Government indicates in its report that some adivasis’ organizations and NGOs are informing and educating the adivasis about their rights through mass media, print materials, seminars and forums. The Committee also notes that the NFDIN has a programme to educate the adivasis about their rights and duties under the Convention. The Committee invites the Government to provide samples of the materials used in connection with this provision.

Article 31. Textbooks. According to the Government’s report, textbooks and reference books were reviewed and revised in the late 1990s. Offensive audiovisuals have been banned. The Committee requests the Government to provide an evaluation of the measures taken and to explain how the views of the adivasis are being taken into account.

Article 32. Cooperation across borders. The Committee notes that many indigenous groups live on both sides of the Nepal–India border. The open borders are regulated by the Nepal–India Friendship Treaty of 1950. Other open borders include the Nepal–China border. The Government states that it has been facilitating the adivasis’ organizations to develop cross-border relations, overseas contacts and cooperation by providing support for organizational strengthening through the NFDIN annually. The Committee invites the Government to include updated information on the operation of the bilateral treaties on the matters covered by the Convention.