ILO 169: Nepal as a model

From The Nepali Press
ILO 169: Nepal as a model

FROM ISSUE #541 (18 FEB 2011 - 24 FEB 2011) | TABLE OF CONTENTS

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ILO Country Director for Nepal, Shengjie Li, spoke to Himal Khabarpatrika's Santa Gaha Magar about ILO Convention 169 concerning Indigenous and Tribal Peoples and the challenges in implementing it in Nepal.

Himal Khabarpatrika: How was it that Nepal became the only country in South Asia to ratify ILO 169?
Shengjie Li: ILO Convention 169 concerns indigenous people, and 37 per cent of Nepal's population is made up of 59 different groups of indigenous peoples. Not many countries in the world have such indigenous diversity in their population. If you look at the decade-long conflict it is clear that the social exclusion of the indigenous people contributed to the war. This is why ILO promoted the ratification of this Convention for almost a decade and Nepal ratified the Convention in 2007. It is significant that Nepal is the first country to ratify the Convention in the South Asian region, and the second country in the Asia-Pacific region. There are a lot of indigenous people in Myanmar, Bangladesh, Indonesia and Philippines, but those countries haven't ratified the Convention yet. We hope that Nepal can use this Convention as a dialogue tool for the peace-building process.

But how satisfied are you with its implementation?
Ratification of this Convention by Nepal is significant. However effective implementation would be even more significant. It is always the case in Nepal as well as in elsewhere in the developing world that there is a huge difference between two legal framework and practice. ILO has provided technical support in preparing a National Action Plan on the implementation of the Convention. Unfortunately, the Cabinet has not yet endorsed the National Action Plan due to the political uncertainty. But different line ministries have gone ahead with activities, so I think there has been important movement on implementation of the Convention.

What does ILO 169 actually mean in practice for a country like Nepal?
Convention 169 emphasises several fundamental rights which the indigenous peoples should have in the new constitution, for example the right to be consulted and to participate in decision making and implementation. Indigenous peoples have their own traditions, culture and language and if they are not consulted or allowed to participate, these traditions are slowly lost. We need to protect their traditional occupations as well. Normally, people who live below the poverty line are socially excluded, so the Convention is also about giving priority to economic empowerment.

Which of these fundamental rights do you think are most important for Nepal?
All of these rights are equally important for indigenous peoples. On land reform in general there has been less progress. It is not only about indigenous people, but the people of the whole country. This is one of the areas the government should take action in. The government has achieved a lot in the participation of indigenous people in politics. There have been pilot programs introduced to protect mother tongues. But in terms of economic empowerment, there is no national policy on how to generate jobs and income-generating programs for indigenous people. We have been running a few projects like the one with the Ministry of Local Development in Ramechhap, where the minimum benchmark on jobs creation was set according to the proportion of indigenous peoples in the district.

Which countries have successfully implemented Convention 169?
In terms of using the Convention as a dialogue tool to stabilise the country, Bolivia and Guatemala in Latin America are ahead. The percentage of indigenous people in Bolivia is more than half the population, and the country has actually seen economic empowerment through ensuring indigenous rights. Guatemala is another Latin American country that has moved ahead.

What are the challenges in implementing the convention in Nepal?
Generic challenges for the whole work of development aside, there are some specific challenges. We have to ensure effective participation and meaningful representation of indigenous people in the decision-making process. Although there are rules and regulations to ensure a minimum percentage of the participation of indigenous people, in reality it falls short.

The second challenge is the formal endorsement of the National Action Plan on indigenous people. If there is strong political will it can be done. Another challenge is to get the constitution out within the May deadline and ensure that the rights of indigenous people are enshrined in it. If these rights are not included in the new constitution, this may create another conflict.

Do you think the draft preamble is adequate?
What has been written in the draft on the chapter on fundamental rights falls short of what is needed, it is not as comprehensive as it should be. Even the interim constitution doesn't fully reflect the issue.

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1. jange

As with most other things our politicians have signed the treaty without considering what it says and what its implications are. It is not without reason that only 22 countries have ratified it so far. Especially noteworthy is that none of the permanent members of the UNSC have signed it.

The treaty essentially gives one set of people ADDITIONAL rights in addition to rights which they are already entitled to as citizens.�

As per the convention, everyone everyone in Nepal could be classified as indigenous or , alternatively, no one.

Another can of worms.

Posted on: 18 FEB 2011 | 10:49 AM NST

2. jange

From ILO 169

1. This Convention applies to:

� (a) tribal peoples in independent countries 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;�

� (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.�

Is there anyone in Nepal that cannot claim that they have entitlements according to this convention?

As for part (b) it will be interesting to find out who colonised who and when etc. etc.

Posted on: 18 FEB 2011 | 11:05 AM NST

3. DG
ILO-169 concerning Indigenous and Tribal Peoples.

What is the definition of " Indigenous' , clarfy it in the Nepalese Context first and foremost. United Nation should explain why it cannot have a universal definition adopted.
Why it has not been able to come up with a definition of indigenous?
So it is left with the individual country or rather to the people or the tribe itself to do a "SELF-identification.,as a fundamental criteria for determining the groups. -a person identifies as belonging to a particular indegenous or tribal people. There are large population missing in the list of indenous peoples in Nepal and so ther their clainms now. THey have not claimed themselves as Tribal though,as they are not tribals. It is funny that even Newars have claimed as tribals ( janajati as translated in Nepali) as yhey are the first urbanized community of Nepal., char kaji ruled the country during Shah-Rana regime. They got the benefit of Durbar School and Bir Hospital etc as against other s communities of hill and tarai..

TheIndigenos and Tribals are different. So classify them separately in our contest. The indgenous rights belong to those who ,being indigenous , are defined by being the original settlers of land that has been invaded by outsiders and colonized.When we speak of indigenous peoples we phenomenon of occupation, and the relation that these societies have with the colonial powers.

The UN adopted the Declaration on tyhe Rights of Indigenous {eoples lastly in Sept. 2007. It is interesting to note that: Four nations with significant indigenous populations voted against the declaration: United States, Canada, New Zealand and Australia. b But they changed later.
In Nepali context we can take , Indigenous as Adibasi and Tribals as janjati .The Government of India.s stand is that all citizens of India are indigenous. Nepal as in similar situation , land mass continuation, culture, history and guiding phylosophy( Hindu- Buddhist) i no different. The rights of tribals arenot challenged and no one will be deprived of their rights then.

Special rights ,called agradhikaris an anomaly, politically never accepted; neither Un allows that type of discriminat ion . But affermative action is permitted and should be given to the poor and down-trodden.

But it should be given after defining the Creamy Layer of the society .
The Indian provision is given below about Creamy Layer. One Example:
Parameters:to identdfy socially,advanced persons/sections0f OBCs.
Their children are not illegible for 27% reservation to centrally aided educational institutions
!.annual income more than Rs.2.5 lacs.
2. holding constitutional posts.
3. Group A- class one officers.
Group b -class two officers.
icl.PSUs,Banks,insurances,Cos,and universities.
4. Officers of Armed Forces of the rank of Colonel or equivalen tpost and above.
5. Proffessionals and those who engage in trades,bussiness ,industry. 6.Holding irrigated lands..

Posted on: 18 FEB 2011 | 12:24 PM NST

4. Arthur
jange #1 and #2 the article explicitly mentions "37 per cent of Nepal's population is made up of 59 different groups of indigenous peoples".

That is very precise so you can just lookup or guess the list of 59 different groups. Why pretend that it is ambiguous?

DG #3, are you saying that Newars are included in the list of 59 groups? I thought it included only "janajatis".

Posted on: 18 FEB 2011 | 6:13 PM NST

5. Gole
Yes for theory in many ways. The Human Right office included.
Nepali syndrome or weakness is that any thing as innovation from the west is welcome. They don,t care to watch even what or how their neighbor are taking it. Treading sfotly and carefully understanding fully the implications of the new move always saves future problems. Taking decisions in haste and regretting afterward is no good. Marginalized communities should always the priority and they should be supreme ,the king, no doubt. But in doing so ultras are not welcome. Never be either in the invisible colors, ultra-violet or infra-red of the spectrum. There are seven visible colors in every spectrum . It is necessary to stay within them.; violet to red.
As Nepal ,which was never a colony , an independent country as Thailand in Asia Nepal could have done the reforms voluntarily; it had no reason to wag the ILO's tail. Unlike the former colonial countries of South America, Africa, or Australia or New Zealand ,the conditions of conquest is not here. The condition of Fiji is different from Nepal. Nepal now has to undertake g course correction to accommodate every community, . Win win for all is the solution. The histiria should now be over and with raising the aspirations of only some groups and ignoring others healthy and lasting result will not be achieved. Ther is a fault in the definition of the word itself;ie of the word indigenous in Nepal's context.

As we are proud of the Buddha and claim him the Nepali, which is absolutely right. Why not accept Asit ,his family Guru ,who presided at his birth celebration; as Nepali too. Asit being a Brahmin , he cannot be an Indian. Look at Nidana or Ashshwo Ghosha,s Buddhacharita or Chittadhar Hridayas books ,there are Brahmin mentiioned ever-where. It is no use to look at Harkha Gurung's Dor Bahadur Bista's books in this respect. Look at history c with cool head and don't be carried away by the agendaists if problem are to be solved. Buddha is always right; adopt peaceful co-existence policy. The country cannot be hijacked by activists and vote-bankers.

Posted on: 19 FEB 2011 | 5:30 AM NST

6. DG
4# Arthur.
Newars are the most urbanized communitity . They wererunning and also ruling the administration o f Nepal under the Rana regime. As threre were $ Kajis to run the country during Rana/Shaha rule all the time as they were trusted and as familiar class. Ofcourse Kajis were Chha Tharis mostly Rajbhadaris or Pradhans and Mathemas. Later on Shresta,the Panchh Tharis joined the show. Royal Palace was full of Kajis fr Rajbhandaris, ShinghSuwals, Chitrakars etc. Kaji was the highest rank in civil administration. Singhs are jyapus and Chitrakars considered lower caste those days. So nodiscrimination on the ground of religion as both Hindus and Buddhists were inducted in the service at the highest level.

Posted on: 22 FEB 2011 | 10:39 AM NST

7. DG
#4 Arthur.
Newars enjoyed the privilege of attending school, the Durbar High school or Bir Hospital as from The Valley of Kathmandu;unlike other communities. They lead in trades and commerce. They can only complain about being persicuted to some extent during a short period in the Rana rule as some Ranas were not in favour of their language. ,although the place were full of Newar girls as rani-shahibas.
So it was only by trickery that they became successful to get insude the band-wagon. You know our politicians are soft and populist and more so the UMLs.

Posted on: 22 FEB 2011 | 10:46 AM NST

8. Rajajaram Nepali
Indigenous is different with Tribal. In the Nepali context inorder to go with ILO-169, Indigenous is Adibashi and Tribal is janjati.
Bahun-Chhetri are also adibashi ,indigenous as they are found in Nepal during the time of Lord Buddha in recorded history. Look at Buddhist text ;Ashwo Ghosha,s Buddha Charita, or Nidana or Even Chittadhar Hridayas Sugata SAurabha. As Buddha is indigenous Nepali soare his priests and gurus; who the hell is a better authority than these great souls?
I throw my gauntlet before them. It solves most of our problems of the day.
Ilo 169 was moved by activists in a hurry and most of the country was not taken into confidence. Tato khau, jaldi marau?

Posted on: 22 FEB 2011 | 5:22 PM NST