Photo by Frank Barning. Used under a Pexels license.
In 2015, Nepal adopted a new constitution and transitioned to federalism. The 2015 Constitution of Nepal encourages participation from all marginalized communities, regardless of gender, caste, or ethnic group; however, federalism remains a novel concept for the country. Although these provisions are in place, Nepal's Indigenous peoples, who make up 36 percent of Nepal's population, continue to face systemic discrimination and struggle to obtain cultural rights, self-determination, and fair representation in government.
The 2015 Constitution established Nepal as a secular federal republic, acknowledging the rights of Indigenous communities and maintaining guarantees of reservations for minority groups. The constitution (2015) states that local-level governments have sole authority to form their own laws and policies, formulate annual budgets, develop plans and implement them.
The Local Government Operation Act 2017 (LGOA), enacted on October 15, 2017, serves as a foundational legal framework for local governance in Nepal. It was established under Article 296(1) of the Constitution of Nepal, aiming to enhance local leadership and governance by delineating the roles, responsibilities, and powers of local government entities such as municipalities and rural municipalities. LGOA defines the roles, powers, and procedures of local government bodies and can theoretically facilitate smoother implementation.
The LGOA also empowers municipalities to form local laws, regulations, and criteria for the conservation of environmentally protected areas and species, environmental pollution and hazard control, solid waste management, and more.
While these are all seemingly positive steps, this article explores the missing links between the Local Government Operation Act 2017 and the concerns of Nepali Indigenous People.
Indigenous People in the LGOA
Many Indigenous people in Nepal hoped that the state's transition to federalism would also signal the end of a centuries-old political system that systematically discriminated against them. Yet even today, Indigenous peoples’ hope for a fairer share of development and also more social and cultural rights still remains abstract.
The government has yet to take action on implementing treaty body recommendations and court decisions to further strengthen Indigenous populations’ rights and freedoms. This inaction has resulted in continued oppression and harsh treatment against Indigenous peoples. While there are issues around compensation and corporate social responsibility (CSR), the larger issue is how the state fails to respect or ratify Indigenous People’s rights.
Indigenous Peoples still face limited participation in decision-making processes at the local level, despite provisions that encourage inclusion. Their voices are not adequately represented in local government councils and committees.
Local governments have long complained about ambiguities in their operational provisions and federal encroachment on their exclusive jurisdiction. They seek clear legal safeguards to prevent federal or provincial governments from infringing on their powers. Though the government is preparing to amend the Local Government Operation Act ( 2017) as some of the provisions of the act contradict other laws, instability within the government has continued to be left out of the discussion.
Even though the Constitution of Nepal emphasizes the principle of inclusivity, it is not explicit about the recognition of Indigenous Peoples’ rights to continue traditional governance and livelihood systems. The contradictions between the Forest Act and the provisions of the Local Government Operation Act introduce more ambiguities in the law regarding the jurisdiction of the local governments. The Local Government Operation Act 2017 is silent on the rights of the Indigenous people and fails to meet international conventions such as UNDRIP and ILO Convention 169.
Fake consent
While the state's constitutional, legal, and institutional efforts to protect the human rights of Indigenous nationalities are commendable, many activists say they are insufficient for effective protection. For example, Indigenous Peoples’ right to free prior and informed consent (FPIC) is a collective right, but FPIC is not practised in Nepal. Fake FPICs, where prior and informed consent is created through forged documentation, and malicious FPICs, where people are manipulated or pressured to obtain consent, are both used extensively in Nepal by both government and businesses.
Activists have long been asking local government officials to ensure these rights by developing their own acts and regulations in their municipalities. There have been several cases that have failed to incorporate Indigenous Peoples’ voices in hydropower projects, which the government considers transformative for the national economy, but actually, it is going to be disruptive to local communities and often attached to false promises of financial compensation, jobs, a new school and a health posts. Hence, there seems to be a gap between the commitment and the implementation of the FPIC and the government's responsibility to follow mandatory human rights commitments.
Local Laws versus Federal Laws
Another issue is that local laws are often inconsistent with federal and provincial laws on matters aligning with national legislation and international laws. The politically elected Ward Chairs, Mayors, Deputy Mayors and members have no clear understanding of the international treaties and conventions and how they might take ownership of their implementation. Indigenous communities are asking to be consulted at every possible opportunity to ensure that their voices are heard and integrated into the governance process. This can enable an inclusive environment that respects their rights and promotes sustainable development.
Article 11 of LGOA provides rural municipalities the right to formulate laws on various subjects. These provisions have been an opportunity for Indigenous Peoples to develop their local laws with an assurance of recognition of customary institutions. One example of this is the “Barghar” and “Bhalmansa” Indigenous customary self-governance system of Nepal's Tharu community. The introduction of the Barghar Act to institutionalize the traditional customary leadership system of the Tharus is commendable, but it has instead posed new challenges to the community’s traditions of self-governance and mutual support due to politicization.
Photo by Author: Screenshot of the gazetted local government act on Indigenous Peoples Development plan.
To create more equitable participation, activists are asking local government to incorporate the policy of proportionate inclusion to ensure Indigenous Peoples and local communities have meaningful participation and decision-making powers in the formulation of laws, plans, policies, programs, and their implementation as well as in the monitoring processes. This is particularly crucial when developing acts and regulations in line with climate change adaptation plans as prepared by the Ministry of Forest and Environment. However, the absence of human resources and lack of understanding of the local government’s powers have failed to prepare the local government authorities to oversee Indigenous Peoples’ issues and concerns, especially recognition of their rights to continue their traditional livelihoods, knowledge system, and cultural practices. Initiation to have an Indigenous Focal Point in each local government would be one of the milestones to incorporate Indigenous issues at the root level along with Indigenous-led research and education for evidence-based policy advocacy and dialogue with the government authorities.
To make it an Indigenous-friendly development, any initiatives need to be based on the principle of Indigenous Peoples’ Sustainable Self-Determined Development (IPSSDD) for sustainable development. One such example is the development of the gazetted Indigenous Peoples Plan Development Act by Bhumlu Rural Municipality in Kavre. This initiation will also contribute to the promotion, protection and recognition of Indigenous knowledge, cultural values and customary governance systems to be enhanced for the protection of the environment and dealing with climate change.
