Community Empowerment and Social Justice Network (CEMSOJ), Save Nepa Valley (SNV) Movement and Thāe Bāe Yā Lwāpu made a joint submission for the 4th Universal Periodic Review (UPR) of Nepal. The UPR is a unique process which involves a review of the human rights records of all UN Member States and is held under the auspices of the UN Human Rights Council. The submission presents key human rights challenges faced by indigenous Newa communities, particularly in the context of “development” and business projects in Nepal and the systematic violations of rights to housing and property as well as cultural rights of the Jugi community within the Indigenous Newa nationality of Nepal. It also examines the compliance of the Government of Nepal with relevant recommendations received during the 3rd and 2nd UPR cycles of Nepal related to the rights of Newa and other Indigenous nationalities.
The groups making this submission are particularly concerned that Nepal’s legislative processes and development policies and projects as well as private investments in the country violate the rights of Indigenous Newa and other communities and their overall well-being. While those affected Indigenous communities, particularly Indigenous women, have limited participation in decision-making processes in Nepal’s State structures, they are further alarmed by restrictions on freedom of assembly in Nepal manifested through the use of excessive security force to suppress protests. This contributes lack of access to justice, which makes it further difficult for those groups to demand remedies for the harms they suffer.
While discussing the human rights challenges faced by Indigenous Newa communities, the submission demonstrates that the Government has failed to effectively or fully implement the recommendations related to the rights of Indigenous Peoples, including to traditional lands and resources that are recognized by United Nations Declaration on Rights of Indigenous Peoples (UNDRIP), and freedom of assembly along with proper platform and recognition for redressing grievances with timely respond, among others. Accordingly the following specific, measurable and result-oriented recommendations are made to address to ensure sustainable development with respect for the rights of individuals and communities.
A. Regarding Guthi Bill and encroachment of Guthi lands
a. The Government should recognize the rights of indigenous peoples to maintain and develop their own customary systems and institutions such as the Guthi of Newa people with separate legal arrangement and autonomy for Guthis, including full ownership and control of their lands and resources and management of their internal and local affairs.
b. The Government, in conjunction with the concerned Indigenous communities and their customary and representative institutions, should undertake appropriate measures to identify, demarcate and title their traditional lands and resources as well to return such lands and resources lost by the communities to State, business or other actors, where feasible, or provide effective remedy for such loss if return is not possible.
B. Regarding the Fast Track Expressway and other “development” projects
a. In the context of “development” projects such as Kathmandu Valley Road Improvement Project, Kathmandu – Terai/Madhesh Fast Track Project, Kathmandu Outer Ring Road, Smart Cities, Bagmati River Basin Improvement Project, and Thankot – Bhaktapur Transmission Line Project affecting Indigenous Newa and local communities, the Government, in line with the recommendations of the Committee on the Elimination of Racial Discrimination (CERD)49, Committee on Economic, Social and Cultural Rights (CESCR)50 and the Special Rapporteur on the rights of Indigenous Peoples51, should
i. adopt appropriate measures to ensure that the concerned Indigenous communities are meaningfully consulted, through their own representative institutions, and to obtain their Free, Prior and Informed Consent (FPIC) before launching any development project as well as in the planning and undertaking of such a project that affects their traditional land or resources.
ii. provide redress to the communities or affected families for their loss of land or access to natural resources (such as fair and adequate compensation for those forcibly evicted or whose houses were demolished for road expansion or return of land already acquired in Khokana and Bungamati for Fast Track Expressway) incurred without their free, prior and informed consent when that loss has occurred by the establishment of development projects’.
b. With regards to private and communal lands and resources of Newa and other Indigenous communities acquired in the past for various purposes such as “development”, business or other projects, the Government should return them to the original landowners if those lands and resources are not used in their original purpose or the concerned landowners or communities do not agree with the changed purpose of the land or resource use in line with national and international legal obligations of Nepal.
C. Regarding the housing crisis of Jugi community
a. The Government should ensure that the Jugi families residing in Satachhen since generations are allowed to continue their residence and immediately halt any form of action that contributes or causes the displacement and eviction of Jugi community from the Satachhen.
b. The Government should review registration of Satachhen as Paati (public property) through meaningful consultations with the Jugi community’s representatives and undertake necessary documentation of those structures. Accordingly, Satachhen should be registered as “housing” of the concerned family. In case where Satachhen have been registered as under the ownership of the government or any Guthi, such registration should be nullified or voided.
b. The Government should not use re-building of these Satachhen as an excuse to evict the residents. Rather, if the Government deems the structure necessary to be rebuilt, the process of re-building must ensure involvement of the resident family of Jugi community in its decision making, with a provision of alternative housing during the process of rebuilding and ensuring the return after the structure is rebuilt. In exceptional situations where return is not possible, those families should be provided with a permanent residence elsewhere, and as close as possible to their traditional, ancestral, historical home.
D. Regarding legislative and institutional framework
a. The Government should, in conjunction with representative institutions of Indigenous Peoples, undertake a comprehensive program for amendments to the constitution and existing laws or formulation of necessary new laws, policies and plans for implementation of Nepal’s commitments under the ILO Convention 169 and the UNDRIP. Such program should particularly ensure the rights of Indigenous Peoples to their lands, territories and resources, to FPIC, to development and to self-determination, including for Indigenous women, in line with the recommendation of the Committee on the Elimination of Discrimination against Women (CEDAW).
b. The Government should strengthen implementation of those provisions to ensure access by members of marginalized indigenous communities, particularly Indigenous women, to employment in civil service and public institutions.
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