An Assessment of the Implementation of the Nepalese Government's International Commitments on Traditional Forest Related Knowledge (TFRK) from the Perspective of Indigenous Peoples

By: Parshuram Tamang Bijay Kumar Singh

(A Case Study Paper prepared for presentation at the International Expert Meeting on the Implementation of Proposals for Action under the IPF/IFF/UNFF jointly organised by the International Alliance of Indigenous and Tribal Peoples of the Tropical Forests and the United Nations Forum on Forests and hosted by the Government of Costa Rica to be held in San Jose, Costa Rica, Dec. 6-10, 2004)

ABBREVIATIONS AND ACRONYMS

AGRBS Access to Genetic Resources and Benefit Sharing APP Agriculture Perspective Plan BD Biodiversity CBD Convention on Biodiversity CBO Community-Based Organization CF Community Forest CFUG Community Forest User Group COP Conference of Parties DFRS Department of Forest Research and Survey GDP Gross Domestic Product HMG His Majesty's Government of Nepal IDRC International Development Research Council IFF Intergovernmental Forum on Forests IP Indigenous Peoples IPF Intergovernmental Panel on Forests IUCN The World Conservation Union GMF Government Managed Forest ha Hectare LHF Leasehold Forest m Meter m3 Cubic Meter MAP Medicinal and Aromatic Plant MFSC Ministry of Forest and Soil Conservation MOAC Ministry of Agriculture and Cooperatives MOLD Ministry of Local Development NAP National Action Programme NBAP Nepal Biodiversity Action Plan NBS Nepal Biodiversity Strategy NCS National Conservation Strategy NFDIN National Foundation for the Development of Indigenous Nationalities NGO Non-Governmental Organization NTFP Non-Timber Forests Products PA Protected Area PFA Proposals for Action TK Traditional Knowledge TFRK Traditional Forest Related Knowledge UN United Nations UNFF United Nations Forum on Forest UNFCCC United Nations Framework Convention on Climate Change UNCCD UN Convention to Combat Desertification USC Unitarian Service Committee

An Assessment of the Implementation of the Nepalese Government's International Commitments on Traditional Forest Related Knowledge (TFRK) from the Perspective of Indigenous Peoples

I. Introduction and Background

Since the 1970s, the international community has started to develop both legally binding and non- legally binding instruments, resolutions and decisions on major global concerns including those related to environmental conservation and the safeguarding of natural resources. Initiatives such as these have in part been developed to make States aware of their 'common but differentiated responsibilities' to halt further degradation of the natural resource base and the environment, and to promote sustainable development – based on the pillars of environmental conservation, economic development and social equity and well-being.

The International community has recognized the role of traditional knowledge in relation to achieving sustainable forest management as expressed through the internationally agreed objectives of sustainable forest management and the conservation of biological diversity. For example, the governments agreed the Stockholm declaration, the World Charter for Nature, the Rio Declarations, the non-legally binding authoritative Statement of Principles for a Global Consensus on the Management, conservation and Sustainable Development of all Types of Forests (Forest Principles), Agenda 21’s Chapter 11 (“Combating deforestation”) and Chapter 26 (“Recognising and strengthening the role of indigenous people and their communities”), the Convention to Combat Desertification (UNCCD) as well as the Convention on Biological Diversity (CBD). Nepal is a Party to 18 environment-related conventions or treaties (see Appendix 1), of which the Forest Principles, CBD and UNCCD directly or indirectly include provisions on the utilisation of TK in the conservation and sustainable management of natural resources.

Since the 1992 Rio Summit, both the Intergovernmental Panel on Forests (IPF), and the Intergovernmental Forum on Forests (IFF), have made several decisions and have taken a number of initiatives to mainstream Traditional Forest Related Knowledge (TFRK) for the management of forest resources. The IFF and IPF have developed over 200 Proposals for Action (PfA) on this area, of which 78 PfA are directly or indirectly related to indigenous peoples and other holders of TFRK. Furthermore, over 20 PfAs are specific to TFRK.

This case study reviews the various policies and programs of the Nepalese government in order to assess how far the government has implemented its international commitments in relation to the traditional forest related knowledge of indigenous peoples and local communities. This study has six sections. The second section highlights the status of forest and indigenous peoples in Nepal; section three overviews several laws, policies and programs that are relevant to the traditional forest related knowledge of indigenous peoples; section four presents a critical assessment of the implementation of international commitments on TFRK; section five describes problems and obstacles faced in the implementation; and section six concludes the study by recommending measures for effective implementation. The study shows that the government of Nepal has recognised 59 ethnic groups as Indigenous Peoples but that government forestry laws and policies have not yet accepted indigenous peoples as rights- or stakeholders, or as knowledge holders. The analysis clearly outlines that there is yet much to be done to make progress in the implementation of Nepal’s international commitments related to TFRK.

II. National Situation of Forests and Indigenous Peoples a) The State of Nepal's Forests and Forest-Biodiversity

Nepal is a Himalayan landlocked country sandwiched between India in the south and China in the north. The northern part of the country includes major ecological zones of High Mountains, Middle Hills and Shiwaliks while the southern part includes the Terai (plains). The altitude ranges from less than 63 m in the southern plains to more than 8,000 m in the northern Himalayas, including the highest peak on earth, Mount Everest (8,848 m). The climatic variation from subtropical monsoon conditions in the Terai region to alpine conditions in the Great Himalayas enables a large diversity of plants and trees. Annual precipitation is approximately 1,800 mm in the eastern Terai, whereas in the West it is 760 to 890 mm. Average winter temperatures vary from 19 degrees Celsius in the southern Terai region to 13 degrees Celsius in the inter-mountain basins, with summer temperatures varying from 28 to 21 degrees Celsius in the same regions1.

Out of the total land area (14.72 million hectares), forest covers about 4.27 million hectares (29%) and shrub covers 1.56 million hectares (10.6%). Thus, forest and shrubland together cover 39.6% of the total land area of the country. The tree species in terms of the proportion of total stem volume are Sal (Shorea robusta), constituting 28 % of total volume; Oak (Quercus species), constituting 9.3%; Asna (Terminalia alata), constituting 7.6%; Chir pine (Pinus roxburghii), constituting 6.3%; Abies spectabilis, constituting 4.4%; Rhododendron species, constituting 4.2%; and Alnus nepalensis, constituting 2.9%. The accessible forest area of Nepal is 2.18 million hectares (about 52% of total forest area); the rest is distributed in remote areas far from settlements, and also within national parks and reserve areas. From 1978/79 to 1994/95, the forest area has decreased at an annual rate of 1.7%, whereas forest and shrub together have decreased at an annual rate of 0.5% (DFRS, 1999).

Figure 1: Forest and shrub map of Nepal

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Source: MFSC (1999), Forest Resources of Nepal (1987-1998), November 1999.

The total stem volume of Nepal is 388 million m3, giving a mean stem volume of 178 m3 m3/ha of forest. The average number of stems per hectare is 408.

The forest is the main basis of most indigenous peoples’ livelihoods, providing energy, food, medicine, housing, earnings, fodder for livestock and compost for subsistence agriculture. Forest resources provide 81 percent of the total fuel supply and more than 50 percent of fodder for livestock. They are also one of the main economic resources of the country, contributing about 14 percent to national GDP5. While revenue from non-timber forests products (NTFPs), including medicinal herbs and aromatic plants, accounts for 5 percent of the total national revenue collected from the forestry sector, in certain areas NTFPs alone provide up to 50 percent of family income6.

The country is a mixing ground of species originating from various adjoining places. Sino- Japanese elements are visible in the eastern region, Mediterranean elements to the west, Tibetan flora in the Trans-Himalayan region to the north, and North-Indian vegetation in the southern Tarai region. Nepal can be categorized into many types of vegetation based on altitudinal differences. Plant explorations have shown an impressive range of floral resources in Nepal: The listed species include 5856 species of angiosperms, 28 species of gymnosperms, 380 species of pteridophytes, 853 species of bryophytes, 687 species of algae, 1,822 species of fungi, and 465 species of lichens (for citations see HMGN 2000). Microorganisms, especially the bacteria, are yet to be studied. Of these plants, about 700 plants are known to possess medicinal properties. Most of them have yet to be systematically investigated from phytochemical points of view. Nepal’s rich animal diversity includes 181 species of mammals, 844 species of birds, 100 species of reptiles, 43 species of amphibians, 185 species of fish, and many recorded and unrecorded species of invertebrates (HMGN 2000). This immense diversity can be appreciated by the fact that Nepal comprises only 0.9% of the world’s terrestrial landmass, but ranks 25th in global biodiversity tables (HMGN 1998). b) Nepalese Indigenous Peoples and Traditional Knowledge

Nepal is a multi-ethnic, multi-lingual, multi-religious and multi-cultural country. Racially, the Nepali people are divided into four groups: Mongoloids, Dravidians, Austroloids and Caucasoids - the first three groups are regarded as Aadibasi and / or Janajati Peoples of Nepal

After 1303 A. D. Hindu castes from India fled to Nepal's hills due to the Muslim invasion. Before this most indigenous nationalities were autonomous and self-ruling in different parts of Nepal, areas which they consider their homelands. They still have compact populations in those areas and are known by their names1. They were egalitarian societies without caste and class divisions but with communal lifestyles governed by the Kipat System (a system of communal land ownership)

The different parts of Nepal are known as North West Nepal – Jadan; West Middle – Khasan; East of Khasan below the Kali Gandaki – Magarat (Land of Magar); North of Kali Gandaki – Tamun Mai Hyulla (Land of Gurung); East of Budhi Gandaki West of Dukh Kosi – Shyensant, Tamsaling (Land of Tamang) and in the center – Nepa (land of Newar); East of Dudh kosi and

1 Magarat, Tamu Mai Hyulla, Tam Saling, Nepal, Khambuwan, Limbuwan, Tharuwat, Koch, etc. are the traditional homelands of the Magar, the Gurung, Tamang, Newar, Rai, Limbu, Tharu, Rajbanshi, etc. 3

West of Tamur, the tributary of Arun- Rai (Kirat) and East of Tamur till Mechi – limbu; East Terai – Kochila; West of Kosi and East of Kamal – Mithila; West of Kamala till Mahakali – Tharuwat (Land of Tharu), etc. There are other small indigenous and minority populations within these larger communities (See Map showing regional distribution of indigenous nationalities' homelands). Figure 2: Homelands of major ethnic groups in Nepal

By the latter half of the 18th Century, the Gorkhali Conquests brought them under the control of the autocratic Hindu Nation State and all these racially and culturally diverse groups were put into a melting pot in order to homogenise them and create a uniform social structure according to the principles of Hindu social law. From the social view point, Prithvinarayan Shah has described the new Kingdom in his Dibya Upadesh as a garden of four castes and thirty six Verna. The ethnic composition of the ruling class and nobility of Gorkha was composed of Chhetri, Thakuri and Brahman (upper castes of Hindu society). This structure of ruling class and nobility has continued till now (See Annex 3).

According to the census of 2001, Nepal has a population of 2.38 million with an annual growth rate of 2.06 percent. Women constitute 50.04 per cent of the total population and men comprise 49.96 per cent. The average life expectancy is 54.6 years. The literacy rate is 40 percent.

Nepal is very rich in cultural diversity. The census has recorded a total of 100 castes, indigenous nationalities and religious groups and three unknown/unidentified groups (Annex 2). The Census identified 43 indigenous nationalities, missing out the remaining 16 for several reasons, including the lack of awareness of those groups who live in remote areas. Out of the 43 censused indigenous nationalities, 5 are from the mountain region, 20 from the Hills, 7 from inner Terai and 11 from the Terai plains region. Among them 4 have populations of 1 million to 3.6 million, 5 have 0.1 million to 1.0 million, 6 have 50,000 to 100,000, 11 have 10,000 to 50,000, 13 have 1,000 to 10,000 and 4 have the lowest, that is, 164 to 660 (Annex 2).

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Among the top ten most populated caste/ethnic groups, the Chhetri and Brahmans are the first and second (non-Indigenous groups), the Magar is the third, the Tharu the fourth, the Tamang the fifth and the Newar the sixth (Indigenous Peoples), the Muslims the seventh (Religious group), the Yadav the eight and the Kami the ninth (non-Indigenous groups) and the Rai the tenth (Indigenous group) most numerously populated group in the country. The Indigenous nationalities who have more than five percent of the total population are the Magar (7.14), the Tharu (6.75), the Tamang (5.64), and the Newar (5.48), and those who possess one to three percent of the population are the Rai (2.79), the Gurung (2.39), and the Limbu (1.58). Other indigenous communities constitute less than one percent population of the country. Indigenous peoples of Nepal are very diverse and have different forms of settlement, ranging from nomadic or semi nomadic to forest dwellers and city dwellers.

Nepal is primarily an agrarian country and almost all the indigenous peoples of Nepal live at subsistence or below subsistence levels of economy. Modern agricultural technology in the form of improved varieties of crops, chemicals and tools are in fact limited to a few crops like rice, wheat and maize and a few vegetables and fruits. Farmers, particularly indigenous peoples, have accumulated an enormous wealth of knowledge about food, medicinal plants and agricultural systems ranging from knowledge of plants and crop varieties, preparation of foods and medicines, to cultivation practices on the most difficult terrain, terracing, hunting wildlife and gathering wild food, and so on. The interdependent relationship between farm, animal and forest is strong and is the inheritance of the indigenous peoples of Nepal, based on community solidarity (Sherchan, 1999). c) Key Government Agencies related to Forests, TFRK and IPs

The Ministry of Forests and Soil Conservation (MFSC) The MFSC is the focal point for forest and biodiversity conservation. The ministry also coordinates with national and international agencies related to forestry, biodiversity, soil and watershed management. The ministry is responsible for preparing policies and strategies and taking initiatives for the formulation and implementation of the Forest Act, National Parks and Wildlife Conservation Act, and Soil and Watershed Conservation Act, which are ultimately approved by the Parliament. It also prepares programmes/projects related to forestry and biodiversity and executes them through its departments. The ministry is responsible for submitting national reports on the implementation status of international commitments such as the CBD and other forestry related obligations.

Ministry of Local Development (MOLD) and National Foundation (NFDIN) MOLD is the focal ministry for Indigenous Nationalities. In 1995, the government approved the list of 61 nationalities while forming the National Committee for the Development of Nationalities. In 2001, the Parliament of Nepal passed a bill on the establishment of a National Foundation for the Development of Indigenous Nationalities (NFDIN) that recognised 59 ethnic groups as indigenous nationalities. The main objective of the foundation is the overall development of indigenous nationalities through plans and programmes related to the economic, social, educational, cultural (language, script, history, arts, literature, knowledge) and technological development of Indigenous nationalities but its mandate does not cover traditional forest related Knowledge. The Governing Council of the Foundation has been formed under the chairmanship of the Prime Minister and every recognised indigenous nationality has the right to be represented at the governing council (Nepal Gazette, Part 51, Additional Issues 67 on 7 Feb. 2002).

Ministry of Agriculture and Cooperatives (MOAC)

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The MOAC is the focal point for the International Treaty on Plant Genetic Resources for Food and Agriculture. The Ministry is responsible for planning, and programme preparation related to agro- forestry and agro-biodiversity.

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III. Review of the Implementation of International Commitments related to the TFRK of Indigenous Peoples a) A Review of national Reports to the UNFF and CBD

The MFSC submitted its national report to the Third Session of the UNFF on Progress and Issues Related to the Implementation of IPF/IFF Proposals for Action in February 2003. The Ministry is responsible for decision making in the forestry sector. The report states that the Department of Forests, the Department of Soil Conservation and Watershed Management and their district offices, District Development Committees, NGOs and local communities (user groups) are involved in local level decision-making processes. The long-term concept of forestry sector development has been adopted following a 21-year long-term forestry development Master Plan (1988).

The National Conservation Strategy 1988, the Nepal Environment Policy and Action Plan 1993, the Agriculture Perspective Plan 1995, the revised Forestry Sector Policy 2000, and the Nepal Biodiversity Strategy 2002 are the main documents guiding the various decisions for the conservation and management of natural resources. Five year periodic plans prepared by the National Planning Commission and the annual budget of the Government generally guides policy matters. Strengthening the capacities of both the governmental and semi-governmental organizations at all levels - central to local - is essential for the successful implementation of these plans and strategies.

The report also highlights forestry sector projects and programmes, capacity-building, research and technologies. It states that individual members of the user groups and community development groups are able to participate actively in decision-making processes. Presently, usufruct rights to the national forest are provided to actual users – the people in the vicinity of the forest – to fulfil their basic livelihood needs.

However, the report is silent about those indigenous and local communities who are displaced due to encroachment, land reform (e.g. people confined to cultivated land and denied access to and control over traditional forests and grazing areas) and the establishment of protected areas. The Forest Principles state that the national forest policy should recognize and duly support the identity, culture and rights of indigenous peoples, their communities, and other communities and forest dwellers. Appropriate conditions should be promoted for these groups to have an economic stake in forest use, perform economic activities and maintain their cultural identity by harnessing traditional knowledge in the conservation and sustainable management of the forest. The report does not touch on the issues around traditional knowledge and the concerns of indigenous peoples. It is noted that the user groups do not necessarily address the issues of indigenous peoples. No report was made to UNFF4, which included TFRK among its priority issues. b) A Review of Government Policies concerned with TFRK

Ninth and Tenth Five Year Plans In 1998, for the first time in the planning history of Nepal, the Ninth Five Year Plan (1997-2002) recognised the role of indigenous and disadvantaged groups (DAGs) and included a separate chapter on the policy to explore their knowledge and skills and utilise them in development activities. The Tenth Five Year Plan (2002-'07) also had a separate chapter on strategies to protect, promote and utilise the traditional skills, technology and special information (knowledge) of indigenous nationalities. The Ninth Plan had identified the major challenges as related to the

7 underestimation of the skills and capacities of ethnic groups as a national asset in formulating a development approach; weak implementation of targeted programmes; lack of involvement of indigenous peoples in developing programmes; and lack of protection and conservation of culture, language and knowledge of the groups who are at present becoming extinct, and so on.

Forest Nationalisation Act 1957 Before the 1950s, forests remained under the control of feudal Rana rulers in Nepal. Despite the de-facto ownership of the indigenous communities, the de-jure control of forests remained with the state in the past. After the nationalization of forests in 1957, the Forest Act of 1962 and the Forest Act (Special Arrangement) of 1967 were promulgated with the premise that the state is the custodian of forests whereas people are the destroyers. This connotation in itself proved wrong later when the “people’s aspect of forestry” started becoming apparent through the documentation of the forests’ contribution to the subsistence economy of agrarian societies of poor nations all over the world. The government of Nepal, although it had good intentions in nationalizing Nepal’s forests, could not manage forests in the absence of capacity and resources. Consequently, there was a breakdown of traditionally existing stewardship and management by indigenous communities, resulting in massive deforestation after the 1960s.

More recently, a trend of public consultation over policies of public interest has rapidly been emerging. However, mandatory provision for the government to consult has yet to materialize. In essence, the public in general and all indigenous communities in particular, as ever, have remained on the receiving end of development policy and programs rather than getting involved actively in shaping them for their welfare.

The Gorkha Expansion, Control over Land and Land Reform Act 1964 Before the foundation of the Gorkha Empire over the present Nepal (1769), western Nepal was divided into more than 48 principalities (small Feudal States) and central and eastern Nepal was under different indigenous peoples. The Gorkha annexed the central, eastern part and Kathmandu valley of Nepal first. In several parts of both the eastern and western hill regions, a number of indigenous ethnic groups owned lands on a communal basis without any legal title under what was known as the Kipat system. The communal nature of Kipat tenure systems and its grounding primarily in ethnic affinity would appear to indicate its origin in the occupation of particular areas in the past by members of particular ethnic groups. The Danuwars, Sunuwars, Majhis, Tamangs, Lepchas, Kiratis and Limbus, who cultivated lands in their capacity as members of Kipat-owning ethnic groups, owed allegiance primarily to the community, not to the State (Regmi,1971). Kipat was inseparable from the peoples themselves; it stood for their way of life and thus symbolised the cultural vitality of the community; and a possession which served to define identity in an historical sense.

During the military campaign in the Jamuna-Sutlej region (1805-6), vast areas of cultivated lands were converted from Birta to Raikar, and Raikar, Birta, Guthi and Kipat to Jagir, land given to military persons. Kipat owners (Tamang and Rai Kirat) lost their Kipat lands after the Gorkha conquest. They were converted to Raikar and introduced Birta, Jagir and Guthi, a form of land grant system provided to the high caste Hindus and aristocratic families. The different systems of land tenure are listed in the box below.

System of Land Tenure Description Kipat A form of communal land tenure, prevalent among some groups of Mongoloid origin, such as the Tamang, Limbu, Rai, etc. 8

Birta A form of communal land tenure, prevalent among some groups of Mongoloid origin, such as the Tamang, Limbu, Rai, etc. Raikar State landlordism; land on which taxes are collected and appropriated directly or through intermediaries by the State. Guthi Land alienated by the State or by individuals to finance the performance of religious or charitable functions. Jagir Land assigned to government employees as emoluments, salaries.

The land grant and assignment policy followed by the Gorkhali rulers and their descendants, Ranacracy and Panchayatcracy, favoured particular classes and communities in the society to the exclusion of others. They tended to be concentrated for the most part among Brahmans, Chhetris and Thakuris, particularly from the western hill areas, who sustained the political authority of the new rulers. Gurungs, Magars, Tamangs, and Newars generally did not receive such favours (Regmi, 1971). The State made a feudal ruling class of landowners based on private property by confiscating the communal lands and forests of indigenous communities, whether they were in hill areas or terai. In 1964, a comprehensive series of land reform measures was announced by the government, with the intention of introducing programmes such as land ceilings; confiscation of lands over and exceeding the land ceilings as well as uncultivated forests lands; tenancy rights; and the scrutiny of loans and credits in all areas of the Kingdom. The Land Reform Act of 1964 became successful in converting the last Kipat tenures, remaining with Limbus of eastern Nepal, into Raikar tenure. At the end of 1968 the central government introduced an amendment to the Lands Act 1964 which allowed for the sale of Kipat land and the assessment of these lands at the rates of tax equivalent to those prevalent on raikar. The Land Reform came and Kipat land became raikar, as it seems that the rulers of Nepal were determined to abolish the kipat system once and for all.

Agriculture Perspective Plan (APP) Nepal has prepared a 20-year APP covering all aspects of agricultural development, including the conservation of agrobiodiversity. In the last decade, Nepal has organized national, regional and international conferences on biodiversity. Recent international conferences organized in the country include: The Regional Conference on Environment and Biodiversity (March 1994), the National Conference on Plant Genetic Resources (November 1994), the Global Conference on Livestock (August 1998), the International Conference on Environment and Agriculture (November 1998), the National Conference on Wild Relatives of Cultivated Plants in Nepal (June 1999), and the Biotechnology Application for Reforestation and Biodiversity Conservation (December 1999).

The adoption of high yielding crop varieties has resulted in the erosion of several landraces and breeds, and they have proven highly susceptible to many diseases and pests. Traditional farmers use a wide range of plants for protecting their crops against pest infestation, both in the field as well as during storage. Timur (Xanthoxylum alatum), black plum (Syzium cumini), tobacco (Nicotiana tobacum), neem (Azadirecha indica), bakaino (Melia azedarach), marigold (Tagetes erecta), titepati (Artemesia vulgaris) an asuro (Justicia athatoda) are all valuable in crop protection.

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National Parks and Wildlife Conservation Act (1973), and Buffer Zones Over 18% of Nepal’s forests and other land fall under protected area systems (PAs). So far, 9 National Parks (NP), 3 Wildlife Reserves, 3 Conservation Areas, one Hunting Reserve and six buffer zones of designated NPs have been established in three ecological zones covering 18.32% of the country (26,971 square kilometres). Figure 3: Protected areas map of Nepal

Source: MFSC (2002), Nepal Biodiversity Strategy, Kathmandu

Buffer zones generally include human settlements, farmlands, common property lands and water bodies, as well as other natural capital upon which indigenous communities have traditionally depended for their livelihoods, cultural activities and recreation. Delineation and formal declaration of buffer zones however, brings all of these into the PA system. The management authorities of PAs nominate the representatives of user groups in buffer zones rather than the user groups nominating their representatives. Consequently, a transparent and democratic process is non-existent in the formation of buffer zone councils. No wonder therefore, that the decisions of such councils would be skewed in the interest of the PA rather than in the interest of the people affected by the PA management. The Buffer Zone Council tends to respond to the needs of the PA management rather than to those of the generally illiterate and relatively poor indigenous peoples of the buffer zones.

The legal framework entitles buffer zone councils to obtain up to 50% of the revenue generated from the PA in question and to mobilize it to implement their buffer zone development plans, geared towards the social and economic welfare of indigenous communities. So far, only a few PAs have been generating some considerable amount of revenue (e.g. Royal Chitwan National Park, Sagarmatha National Park and Royal Bardia National Park). Buffer zone management councils have been involved in the preparation of buffer zone management plans. Undoubtedly, the user communities have participated in the preparation of such plans. Nevertheless, it is yet to

10 be seen whether the participation process has empowered indigenous peoples enough to ensure their involvement in and influencing of implementation process planning; to what extent they are and/or will be involved in the implementation of such plans; and whether the benefits accruing from implementation will be shared on an equitable basis.

National Forestry Policy 1976 The National Forestry Policy of 1976 has shown concerns about people's participation but it has not accommodated the protection and use of traditional knowledge in policies on the conservation and management of forests, soil and water. The Forestry Sector Policy of 1988 includes a strategy of widespread dissemination of information and ensures local benefits if natural or plantation forests are protected.

Forest Act (1993):

Government Managed Forests and Indigenous Communities In Nepal all forests are national forests unless grown and registered as private forests. National forests include government managed, community managed, leasehold and religious forests. All forests inside Protected Areas (PAs) and/or those forests which have not been handed over as community forests (CFs), leasehold forests or religious forests, are government managed forests (GMFs).

GMFs can be considered strictly protected and broadly managed inside the PA system. PAs have technical as well as armed manpower with guard posts at strategic locations and relatively strict instructions to enforce compliance with the law. Traditional rights to certain forest products (e.g. thatching grass in the Terai plains) are regulated for specified seasons under the strict supervision of PA staff. Indigenous communities inside and surrounding all PAs have suffered the loss of social and economic welfare and rights, including the loss of life. Buffer zone management frameworks are geared towards creating natural capital and economic opportunities for communities that have lost traditional forest use rights inside Pas, but the issues and concerns of indigenous peoples and local communities have not been resolved properly yet, including their land rights, compensation for lost sources of income, needs and aspirations.

For example, in the past all parks and protected areas were under the control of indigenous peoples and local communities. Since the establishment of national parks and PAs, people living within and adjacent to them have been deprived of the management of the collection of medicinal herbs, food materials, fuel wood, timber, fodder and grazing for their animals, which are an integral part of the IPs’ lives. Many places have been developed as urban centers, and parks are controlled by the military.

Outside the PA system, GMFs in general suffer from a lack of the capacity and resources of District Forest Offices (DFO) that would be necessary for a reasonable level of management (except in cases where donor assistance has been available, which include 8 districts in central Nepal and 4 districts in the western region). The majority of GMFs, especially in the mid and high mountains, have never been subject to any management and protection initiatives since forests were nationalised in Nepal, and therefore face an “open access” situation unless they are handed over as CF or are managed and regulated by local communities traditionally dependent on them. A widely recognised result of such an open access situation has been the rapid loss of various highly valuable medicinal and aromatic plants (MAPs) from forests. Indigenous communities in the past had practiced traditional methods of regulating the collection and harvesting of such MAPs, but because of the known markets and high prices, these MAPs are subjected to indiscriminate over

11 collection, which is threatening the resource base. Consequently, there has been a rapid loss of traditional knowledge and practices related to these MAPs.

Community Forests and Indigenous Communities A little over 1.3 million households (31.44% of Nepal’s total households) organized into approximately 13,000 community forest user groups (CFUGs) are involved in managing over 1 million ha of CF. Out of a total of 6.3 m ha of forestland in Nepal, approximately 3.5 m ha have been identified as potential CF areas (HMG\N, 1991), almost 24% of which is currently being managed by local CFUGs.

Various studies have shown that the CF program has succeeded in greening the degraded and barren lands in Nepal. However, it has generally failed in securing the forest related traditional tenure rights of indigenous and local communities and especially of the socially marginalized and poor among them. The occupational castes e.g. cobblers, potters, blacksmiths and many others who traditionally used to produce various intermediary goods for use in rural households and for market livelihoods, have suffered constrained access to and use of forests after their traditionally used forests became CF. In general the livestock herders of high mountain districts who traditionally had access to forests in the mid-mountain districts have lost such access and use rights in the majority of cases, as most of such forests are now managed by local CFUGs.

Basically two distinct types of exclusion due to community management of forests are clearly visible in Nepal. Firstly, the poor and socially disadvantaged within communities remain excluded from mainstream participation and decision-making, and from equitable sharing of benefits accruing from CF management. Landless forest-dependent people suffer the most under CF, as the local CF regulators generally tend not to recognize their traditional use rights (in the name of the welfare of majority in the community). Secondly, seasonal and remote traditional forest users are prohibited from exercising their traditional rights to forest use, and this has had serious negative impacts on livelihoods, especially among the high mountain communities. A third type of exclusion from traditional rights to forest use has been accelerated due to the rapid demographic changes caused by market injected urbanization, whereby indigenous peoples (IPs) such as tharu, chepang, raji, dhimal, sattar, jhangad, majhi, and many other forest dependent indigenous communities have been displaced from their traditional settlements near forests. Such displacements have forced indigenous communities to adopt totally new livelihood strategies and occupations.

The Displacement of Majhi from resources and traditional occupation by a Wildlife Reserve

“Fishing is our prime occupation and source of livelihood for generations. We know different development stages of fishes and other aquatic animals of our rivers, water bodies and wetlands. Based on our generational experience, just observing few minutes in a rivers and wetlands, we can estimate the amount and types of fishes. These days, people use many harmful methods for fishing, such as using poisonous materials, exploding and very minute size fishing nets which are very harmful for the aquatic animals for their development. We are always against these harmful activities which are damaging our source of livelihood. Neither government informed us about any proposals for actions of IPF/ IFF/UNFF (PFAs). In my personal knowledge and information to our association, the Government has not consulted us on implementation of international commitments on forest, biodiversity and wetland conservation and rights of fishermen including TFRK. Rather our Mahi people are displaced from our resources and traditional occupation by the establishment of wildlife reserve such as Koshi Tappu Wildlife Reserve and the control over the

12 rivers and waterbodies by the local government such as Village Development Committees and District Development Committees. This is to note that Majhi were previously free to fishing in these water bodies, rivers and wetlands”.

Dhan Bahadur Majhi Vice-Chairperson Nepal Majhi Upliftment Association (Fishermen Folk)

The Nepal Biodiversity Strategy (NBS), 2002 includes the use of traditional knowledge and innovations as a cross-sectoral strategy and states that traditional “knowledge and innovations pertinent to the conservation of biodiversity will, therefore, be fully acknowledged and used wherever possible, at the same time providing optimum benefit to local indigenous communities in a sustainable manner (5.1.7)”. The NBS recognizes that indigenous knowledge of biodiversity is a well organized, dynamic system of investigation and discovery that yields information beneficial to its long-term conservation.

Wetland Policy (2003) The Wetland Policy 2003 could be considered as a major progressive policy, which acknowledges the traditional knowledge, skills, practices and innovations of the indigenous and local communities (e.g. Fisher-folk). One of the objectives of this policy is to identify the knowledge, skills, practices and innovations of the local communities and protect and utilise them for the conservation of wetland. The policy encourages the conservation and management of wetlands by ensuring the protection of the experience, practices, skills and knowledge of indigenous communities dependent on wetlands.

The Sustainable Development Agenda for Nepal endorsed by HMG in July 2003 has adopted a goal of involving local communities near protected areas in the management and sharing of economic benefits.

Non-Timber Forest Product Policy (2004) The Non-Timber Forest Products (NTPF) Policy (2004) recognizes that a legal framework will be established related to NTFPs and related TK, skills, research, techniques and practices and rights of person, community or state over intellectual property. Such TK, skills, and practices will be registered for the conservation of Nepal’s genetic property.

Draft Bill on Access to Genetic Resources and Benefit Sharing (AGRBS) Concrete efforts started in 2002 after the drafting of the policy and legal framework on Access to Genetic Resources and Benefit Sharing (AGRBS). The policy and draft bill is yet to be formally adopted, but they are considered to be milestones for the conservation of biodiversity and related TK in Nepal. The AGRBS draft bill and policy recognizes the sovereign right of the Government of Nepal over biological/genetic resources and related TK. It proposes a sui generis system that documents and registers biological resources and associated TK at the community level, as formal documentation to deal with intellectual property issues. A multidisciplinary and inter-sectoral National Genetic Resources Conservation Authority consisting of representatives from environmental science, botany, biology or micro-biology, agriculture, forestry, environmental law, economics, marketing and management, under the chairmanship of the secretary of the Ministry of Forest and Soil Conservation, will be established, prohibiting the collection and export of any biological and/or genetic resources/material without government approval and Prior Informed Consent from the knowledge holders. The bill sets out a formal process to be adopted by those seeking access for research purposes and prohibits them from any 13

IP related claims in the future. As specified in the Draft Bill, consumers/exporters and bio- prospectors seeking access to and the use of genetic resources must submit a proposal to the National Genetic Resources Conservation Authority. After the Authority's scrutiny, the proposal is subject to a public hearing. A full Environmental Impact Assessment (EIA) is mandatory for selected proposals prior to entry into any contractual agreement. The Bill also sets out the clauses for contractual agreement, ensuring IP arrangements between providers and recipients of biological/genetic resources. A prohibition to enter into contractual agreement could be made if the proposal is detrimental to soil quality and productivity as well as human, animal and plant community health; or if the proposal does not comply with existing regulations related to the environment and biodiversity. The provisions of the bill relevant to this study are as follows:

a. The State will have sovereign rights over all the genetic resources and genetic materials. b. Ownership of genetic resources and materials remaining in an individual’s or organization's land, forest and water resources will belong to the corresponding individual or organization. c. Rights to traditional knowledge, skills, innovations, technologies and practices of the local communities will be vested in the concerned communities. d. If any community possesses TK, skills, innovations, technologies and practices related to utilization of genetic resources, the community will be given priority for access, utilisation and benefit sharing of such resources and materials, which are under the ownership of an individual, organisation and the government. e. An individual, local community, organisation, local bodies or HMG jointly or separately shall document traditional knowledge, skills, innovations, technologies and practices of the local communities. f. If the local community is the owner of biodiversity and genetic resources, the community shall keep 50 percent of the benefits obtained from it. If HMG is the owner of such resources, 20 percent shall be given to local communities.

His Majesty's Government of Nepal has prepared a Draft National Legislation Bill regarding Biodiversity and Traditional Knowledge (Access to Genetic Resources and Benefit Sharing) and also a National Biodiversity Strategy Action Plan, without proper consultation with Indigenous Peoples. The Draft Bill on AGRBS is silent with respect to indigenous Peoples and their identities, lands, territories and natural resource rights.

Registration of Genetic Resources and Related Traditional Knowledge Projects The government of Nepal approved their Biodiversity Strategy in 2002. As per the Strategy, the IUCN has initiated the collection of data/information on biodiversity and traditional knowledge for registration purposes. For this, forms are used to collect three kinds of information: (i) information on location; (ii) information about local communities living at the location over several generations; and (iii) information on animals/wildlife, birds, crops, vegetation and medicinal herbs, patterns of use and conservation practices. A fourth form is also filled in before these three, which is called "form for prior consent of the individual, family and community".

The goal of this project is to enhance the capacity of the government and other concerned agencies for the management of traditional knowledge and biodiversity. The specific objectives are: (i) to conserve and promote biodiversity, protecting the TK of different indigenous peoples and communities; (ii) to prepare the register of traditional knowledge to be conserved as national property, and to ensure evidence of the property of indigenous peoples or communities; and (iii) to determine procedures, conditions and services for benefit sharing with communities and to make information accessible for study/research related to the traditional knowledge of Nepalese indigenous peoples and communities.

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We Chepangs are not aware of TFRK Commitments

“We, the Chepangs, live in the midhills of the Chitwan, Makwanpur, Gorkhs and Dhading districts of Nepal. We still derive our foods from forests commonly known to the people asre Taro (Colocasia esculenta), Yam/Vyakur (Dioscoria sp.), Bamboo shoots (Bambusa species) and Chiuri ( Bassia Butyracea), etc. We know how to manage the forest and harvest its products without harming its health and biodiversity. Symbiotic relationship of Chepang-butter-trees (forest)- traditional bee-keeping is very popular and well-known in the central region. There is a proverb, "Where there is Chepang, there is Chiuri (butter tree) and traditional bee-keeping". Butter tree is called Chiuri in Nepali from which they extract butter oil for their home use and also for sale. I am the Secretary of our association but I am not aware of any international commitments on TFRK. Neither our association nor personally I know any proposal for actions (PFAs) recommended by IPF/IFF/UNFF and implemented by Nepal government in our regions and community”.

- Santa Bahadur Chepang General Secretary, Nepal Chepang Association

The National Environmental Coalition of Indigenous Nationalities has recently drawn the attention of the institutions concerned to this process by means of a press release. The documentation and registration of traditional knowledge, without the participation or free and prior informed consent of indigenous peoples and without proper national legislation on access to and control over genetic resources and traditional knowledge and intellectual property rights, is questioned by indigenous peoples. In addition, there are also some other INGOs / NGOs who are involved in documentation of genetic resources, agro-biodiversity and traditional knowledge without the knowledge of indigenous peoples. Such activities of registration and documentation can encourage bio-piracy and violate Indigenous Peoples' rights over their resources and knowledge.

Draft National Action Programme (NAP) on Land Degradation and Desertification (2002): The NAP that is awaiting government endorsement has been prepared as an obligation under the UNCCD, with the objectives of identifying and implementing preventive and rehabilitative measures to combat land degradation and desertification, mitigate the effects of drought, and alleviate poverty. NAP analyses existing traditional knowledge and local practices related to the management of soil, water and other natural resources and includes an action programme on indigenous knowledge and practice. It emphasizes the refinement of practices and technologies through scientific inputs, to make them cost effective and locally appropriate. The proposed programme is on the utilization of indigenous knowledge and the replication of proven techniques and conservation practices. The action aims to refine and replicate proven conservation techniques, raise awareness and develop capacity for use. However, it does not recognize knowledge holders such as indigenous peoples, farmers and local communities.

Other Acts and Strategies Related to Forest Conservation The following acts and strategy documents are also part of the strategic and legal environmental framework, but they do not specifically mention the role of traditional knowledge, innovations, and practices for the conservation of natural resources and forests:

 The Soil and Watershed Conservation Act (1982)  The King Mahendra Trust for Nature Conservation Act (1982) 15

 The Master Plan for Forestry Sector (1988)  The National Conservation Strategy (1988)  The Water Resource Act (1992)  The Environmental Protection Act (1996)  The Environmental Strategies and Policies for Industry, Forestry, and Water Resource Sectors (1998)  The Self-Governance Act 1999  The Water Resources Strategy, 2002  The Leasehold Forestry Strategy (2002)  The Nepal Environment Policy and Action Plan (1993)

IV. A Critical Assessment of the Implementation Status of the TFRK

The following table provides an overview of the progress made on international commitments in Nepal, following the structure laid down in the Annexes to the Terms of Reference for the current set of case studies.

SN Commitments Implementation Status Remarks 1. Traditional Forest Related Knowledge (Annex 1: Intergovernmental commitments on TFRK and related forest issues under IPF/II and UNFF) 1.1 Recognise the need to widen the In 2004, the collection of TFRK Documentation application of TFRK, innovations and has been started for registration and Prior informed practices in forest management, with purposes in some districts. This consent are not the approval of the holders of such also includes prior informed supported by knowledge throughout the process consent. legislation. 1.2 Promote the participation of Participation of local However, IPs have indigenous peoples and other forest- communities is promoted not been involved dependent people who possess TFRK particularly in relation to in the planning, in the planning, development and community forests and leasehold development and implementation of national forest forests. implementation of policies and programmes national forest policies and programs. 1.3 Identify, recognise, respect and Identification and registration of maintain TFRK relevant to the TFRK has been recently started conservation and sustainable use of in some districts. forest and forest biodiversity 1.4 Include measures in National Forest TFRK has not been directly Programmes to rehabilitate and included in the National Forest protect TFRK and recognise and Programmes. It is said that support traditional resource use forest user groups and their systems forest management plans include TFRK but CFUGs may not be IPs. 1.5 Include TFRK in developing national TFRK has not been included criteria and indicators for sustainable among the criteria and indicators forest management within the context for sustainable forest 16

of national forest programmes management. 1.6 Develop new instruments to enhance Over 80 percent of the total the security of forest dependent population are dependent on communities and holders of TK forest resources for livelihood. Forest policy and laws do not have a legal instrument to ensure the protection of TFRK for forest dependent communities and holders of TK. 1.7 Promote activities to increase TFRK aspect is new to Nepal's understanding of the role of TFRK in forest management. Nepal has forest management, including capacity not yet started on capacity building and training components of building and training through TFRK in National Forest Programmes academic/training centres for and in training for forest managers forest officials and neither for legally designated community user groups. 1.8 Develop and support protection A Bill on AGBRS has been regimes for TK and the fair and drafted but not yet approved. equitable sharing of goods and The fair and equitable sharing of benefits derived from its application in the benefits of TK to its holders accordance with Article 8j of the CBD or communities has not been legalized. 1.9 Take measures to prevent illegal There is no legal framework to trafficking in TK and establish formal prevent illegal trafficking in agreements by which TFRK may be TFRK. accessed 1.10 Identify ways to catalogue and access HMG adopted a format for BD The BD TFRK and assess its potential for use documentation in May 2003. documentation in forest management and The format, which is used in TK format was widely conservation and use of forest data collection for registration, distributed. ecosystems … "with the free and includes information such as the However, the informed consent of the holders of name of TK, skill, technology format does not TFRK" material, and prior informed cover forest consent. A project on TK conservation and documentation is ongoing. management practices. 1.11 Develop and implement strategies for Forest policies, laws and BD the protection of the full range of strategies realise forest values. forest values, including cultural, social, Social, cultural and spiritual spiritual, environmental and economic aspects have not been aspects addressed. 1.12 Support capacity building of Capacity building of forestry user No specific indigenous people and other forest- groups is in progress and capacity building dependent people who possess TFRK indigenous peoples if involved as activities for to participate in agreements that apply legally recognised forestry users indigenous peoples TFRK for sustainable forest or buffer zone (protected area) management users. However, it does not 17

exclusively address indigenous peoples in particular. 2. Selected Major Activities to implement Article 8(j) and Related Provisions (Annex II: Intergovernmental commitments relevant to TFRK under the CBD) 2.1 Take measures to enhance and No forestry programmes specifically Capacity strengthen the capacity of indigenous include capacity building of IPs building of and local communities to be effectively related to the use of their TK, the user involved in decision-making related to innovations and practices. groups in CF the use of their TK, innovations and Nevertheless, in the management of and LHF practices community forests and leasehold enhanced. forests by poor people such knowledge is applied if IPs have a majority in such user groups. This does not apply to national forests, i.e., government-managed forests. 2.2 Develop appropriate mechanisms, Policies, laws, strategies and guidelines, legislation or other guidelines exist to enhance and initiatives to foster and promote the promote the effective participation of effective participation of indigenous local communities (which also include and local communities in decision- indigenous peoples in different areas/ making, policy planning and locations if they are forestry or buffer development, and implementation of zone users) in planning, programming the conservation and sustainable use and decision-making concerning a of BD … including access and benefit particular forest (community or sharing. leasehold forest) and buffer zone. However, there are no explicit Acts, regulations, or guidelines related to forestry that identifies and recognizes IPs as a separate user group. 2.3 Support activities of indigenous and There are no support activities for the local communities involving use of use of TFRK in biodiversity TFRK in biodiversity management management. 2.4 Strengthen the capacity of, and The Non-Timber Forest Products provide incentives for, indigenous and (NTPF) Policy (2004) recognizes that local communities to generate a legal framework will be established opportunities for sustainable use of related to NTFPs and its related TK, forest BD and for access to markets. skills, research, techniques and practices and rights of an individual, community or state over intellectual property. Such TK, skills, and practices will be registered for the conservation of genetic property of Nepal. 2.5 Strengthen the capacity of indigenous HMG has a policy to issue land rights Some IPs and local communities to resolve land to landless people (Sukumbasi) but have not even rights and land use disputes in order not to indigenous peoples. The IPs received to sustainably manage forest BD who have been using the land for citizen generations have not been awarded certificates

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land title and tenure rights e.g. because of Chepang, Santhal, Satar, Raute, etc. non- recognition of traditional land rights. 2.6 Encourage the conservation and In principle, the conservation and sustainable use of forest BD by sustainable use of forest BD by indigenous and local communities indigenous peoples is recognised, but through their development of adaptive local communities are involved in CF management practices, using as and LF conservation. Local appropriate TFRK communities are free to develop and manage such forests using their TK. However, CF and LHF do not identify and recognize the IPs as a separate user group. 2.7 Provide incentives for the maintenance There is no instrument to provide of cultural diversity as an instrument incentives for the conservation of to enhance forest BD cultural diversity to enhance forest biodiversity. 2.8 Develop and implement education and The government has approved the awareness programmes on traditional Nepal Biodiversity Strategy 2002. use of forest BD in accordance with However, in the forestry sector, there Article 8(j) is no government programme to specifically address Article 8 (j) of the CBD. However, some IP Organizations and The National Environmental Coalition of IPs organize awareness programmes in this regard. 2.9 Create an environment that fosters The recently begun registration of TK No legislation respect, and stimulates, preserves and is the first initiative to document, exists to maintains TK related to forest BD, preserve and utilise the TK, establish the innovations and practices of innovations and practices of rights of IPs indigenous and local communities indigenous and local communities. related to TK. 2.10 Establish mechanisms to facilitate the HMG has institutionalised benefit Draft bill on sharing of benefits at local, national, sharing from protected areas, i.e. 30 AGRBS regional and global levels to 50 percent of the revenue proposes to generated will be given to buffer zone create a users for community development but mechanism it does not specifically include IPs. but does not The NTFP Policy 2004 has also include IP established a mechanism for equitable representative benefit sharing from the utilization of in it. genetic resources and genetic materials. 2.11 Strengthen capacity of indigenous and This has not been initiated yet. local communities to negotiate benefit sharing arrangements

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2.12 Implement effective measures to Protection of TK realised and included protect TK and values in forest laws in the draft bill on Access to Genetic and planning tools Resources, drafted in 2001 and currently waiting for approval. 2.13 Implement effective measures to These measures are not in practice. recognise, respect, protect and maintain TFRK and values in forest- related laws and forest planning tools, in accordance with Article 8(j) and related provisions of CBD

V. Problems and Issues

Loss of Indigenous Traditional Knowledge There is no doubt that there has been a rapid erosion of traditional forest related knowledge in Nepal. The government policy to nationalize community-owned forests, the abolition of the Kipat (communal land ownership) system, the conversion of community land into private ownership (e.g. Raiker, Birta, Guthi, Jagir), the settlement of the ruling class and high-caste Hindus in tribal areas, the land ownership ceiling by the Land Reform Act, and the encroachment of outsiders in previously single ethnic areas has resulted in the loss of traditional cultural practices which are instrumental to the management of natural resources. Such a rapid loss of traditional knowledge is apparently attributed basically to:

 The marginalization of indigenous/ethnic communities caused by exclusion by government from decision making processes at all levels.  Insensitive government policies towards traditionally developed and adopted forest-based livelihoods and related skills, technologies and innovations.

Given the widespread poverty and illiteracy especially among the majority of indigenous peoples, women, a poor and socially marginalized sect of Nepalese society, it has always been difficult for the people to raise their voices for their fair share of participation in forest related policy and programme formulation. The centralized power structure of the government has also often hesitated to make the policy and programme formulation process a transparent and democratic one. Indigenous peoples in general are ignored in the mainstream of policy development.

The situation is now gradually changing, with growing literacy levels and awareness in indigenous communities. The media is also gradually taking responsibility for raising the voices and concerns of civil society, and plays a crucial role in educating the masses through published materials.

Non-Recognition of Indigenous Knowledge Holders by the Forests Laws and Policies As a State party, the Nepalese government has the responsibility to respect and implement the provisions of the CBD by formulating a National Biodiversity Strategy (NBS), a National Biodiversity Action Plan (NBAP) and National legislation on Access to and control over Genetic Resources, traditional knowledge and Benefit Sharing (AGRBS). The government of Nepal has approved NBS 2002 but has not yet made the NBAP and AGRBS effective. The Convention contains a clear provision that the national government should implement activities relating to conservation, sustainable use and benefit sharing, and to translate the objectives and provisions of the Convention in partnership with and through the participation of Indigenous peoples and local

20 communities at the national level. Moreover, no government policy recognizes the indigenous peoples as knowledge- and right-holders, except the Wetland Policy (2002).

The Eviction and Displacement of Indigenous Peoples due to Population Transfer and Development Aggression During the Gorkha's Expansion, the government's planned settlement policy for ruling castes and classes in tribal lands and territories, and current development and conservation policies and programmes, such as the establishment of protected areas, have caused the forced eviction and/or involuntary migration of many indigenous peoples from their traditional homelands, which have caused the loss of traditional knowledge and thereby ethnic identity of indigenous peoples of Nepal. Examples of eviction and displacement include the Chepang, Bote and Tharu from Chitwan National Park; the Tharu from Bardia National Park, and the Tamangs from the Shivpuri Reserves and Langtang National Park.

The Lack of Effective Participation of Indigenous and Local Communities The nationalisation of all forest lands in 1957 and the subsequent protectionist practices by the government undermined indigenous management systems and took away all the forest lands managed by indigenous communities according to their traditional customary rights. Forest policy and program development and the implementation process have never involved the indigenous communities, especially before the emergence of community forestry in Nepal in the mid 1970s. Even the development of the community forestry policy has not seen the involvement of indigenous communities. However, after the reinstatement of democracy in 1990 the people’s elected representatives in parliament did have opportunities to review the policies and bills drafted by the central government authorities. But the extent to which they were able to judge and justify them from the perspectives of indigenous peoples is questionable. From planning to implementation, and in decision-making for developmental and environmental management and conservation programmes, indigenous peoples are not being consulted by the government, environmental INGOs and agencies. There is no appropriate mechanism that has been developed that protects and addresses the rights and concerns of Indigenous Peoples in Nepal.

Insurgency and Forestry Developments A number of bilateral and multilateral aid organisations, different international non-governmental organisations (INGOs) and Nepali non-governmental organisations (NGOs) working in Nepal in various sectors of environment and development have been contracting themselves. As the government's presence is limited virtually only to the district headquarters and major towns, NGOs have become the only link to deliver services to the poor and disadvantaged communities in most parts of the country. However, the Communist Party of Nepal (Maoist) started its People's War in early February of 1996 and expanded over the rural areas of the whole country, and the increasing conflicts in rural areas have created considerable insecurity in many parts of the country, making it difficult for various agencies to carry out development activities. In particular, it is difficult to work in the forests, which are often controlled by the Maoists or the security forces.

Government Budgetary Constraints Nepal relies heavily on foreign assistance (both grants and loans). The country has become highly dependent on international donors for its forestry programmes. During the current Tenth Plan

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(2002-2007) as a whole, it has been projected under the normal case scenario that foreign financing would be equivalent to 58 percent of the development budget - about the same ratio (56 percent) as under the Ninth Plan - while domestic borrowing would finance 21 percent and the revenue surplus the remaining 21 percent. Nepal's increasing dependence on external economic assistance and its growing debt service payments have had a negative impact on the overall development of the country. Although Nepal's external debt was contracted on highly concessional terms, the amount to be repaid every year is high17. The present value of Nepal's external debt service is about 118 percent of its exports and 31 percent of its GDP18.

Lack of Awareness on International Commitments Most of the interviewed forestry officials, forest dependent peoples such as Chepang, Danuwars, Majhis, Bote, Tamangs, and policy makers such as the then Parliamentarians (since the parliament was dissolved two years ago) are not aware of the international commitments related to TFRK. Thus, policies, plans and programmes are not made as per international commitments to achieve the goals set by the international community.

VI. Conclusion and Recommendation All the forestry-related government policies, strategies and Acts recognize "user groups" or "committees" as the main vehicle to conserve and manage the forests (for example community forest user groups, leasehold groups, irrigation user groups, community development committees etc.). But none of these Acts recognizes the identity and rights of indigenous peoples. It is assumed that these "user groups" and/or "committees" include the indigenous peoples and address their issues and concerns, which is not true. Many studies show that the elite of a community have a hold over the decision-making of the "user groups" and "committees", and most of the indigenous people fall into a minority group. Thus, the user groups and/or committees do not properly address their concerns and issues in decision-making.

Nepal has recognised the need for the protection and utilisation of TK, skills, innovations, and practices, particularly for the conservation of natural resources. Nepal’s Biodiversity Strategy acknowledges the need for institutionalising this protection and utilisation. However, government policies and programmes are not an adequate response to the decisions and commitments of governments made during the meetings of IFF and IPF, and also the provisions of the conventions.

Nepal is at the initial stage of documenting traditional knowledge related to biodiversity, and such knowledge related to forests is yet to be specifically documented and utilised in a way that ensures that local communities benefit from such activities. In a nutshell, there is still much to be accomplished in policies, strategies and activities related to the protection and utilisation of traditional knowledge, innovations and practices. Once suitable measures are in place in the national documentation, there is also a need to translate them into action through programmes and activities.

9. Recommendations for Improved Implementation

For the effective implementation of international commitments related to TFRK, the recommendations are as follows: 1. Awareness of International Commitments on TFRK: The policy makers, forestry officials from central to field level, user groups and knowledge holders of TK should be

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made aware of international commitments and government policies, programmes, and implementation with respect to TFRK. An awareness programme should be launched through media, training, publications and electronic means. The government machinery (Government Departments), local bodies, civil society and organizations of indigenous peoples will be effective means to launch an awareness programme. 2. Reformulate Forestry-Related Government Policies to Recognize TFRK of indigenous peoples and its Importance for Sustainable Resource Management: The Government should reformulate forestry-related policies such as the Master Plan for the Forestry Sector, Leasehold Forestry Policy and other policies in order to recognize the importance of TFRK for sustainable forest management. Such policies should also be translated into enforceable laws and injected into regular forestry programmes/projects. 3. Effective Participation of Indigenous Peoples in policy making, implementation and benefit sharing: It has been realized that Indigenous peoples who are the main TK- holders are merely consulted in the policy and program/project formulation and many problems are raised during the implementation phase. Thus, it is recommended that they should be involved in the forestry related policy making, and in the implementation of programme/projects and benefit sharing. 4. Free and Prior Informed Consent of IPs: Before making use of TK, free and prior informed consent must be granted by the IPs and communities who are the holders of traditional knowledge. Legal provision should be made for this purpose. 5. Capacity Building of IPs and the Country related to TFRK: A capacity building programme should be launched for the staff of forestry organizations, TK holders and communities with TFRK. It should be included in the curricula of training courses and forestry training. 6. Encourage Co-Management of Protected Areas: PAs should be managed through co- management by government and Indigenous Peoples and local communities who are living inside or around the protected areas and who are the traditional users of the PAs. They should be made partners in the management of protected areas. Eviction of IPs and local communities should stop totally.

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Bibliography

APP (1995) Agriculture Perspective Plan, Kathmandu, Nepal AGRBS (2002) Draft Bill on Access to Genetic Resources and Benefit Sharing, Kathmandu Caplan, C. (2000), Land and Social Change in East Nepal, Himal, second edition, Lalitpur. CBS (2001). Population of Nepal. Central Bureau of Statistics, Kathmandu, Nepal. DFRS, 1999. Forest Resources of Nepal (1987-1998). Department of Forest Research and Survey, Kathmandu, Nepal. HMG (1993) Forest Act. Kathmandu, Nepal HMG/N, (1993), Nepal Environmental Policy and Action Plan, Kathmandu. HMG/N, (2002), Nepal Gazette, Part 51, Additional Issue 67 on 7 Feb. 2002. MFSC, 1976. Forestry Sector Policy. Kathmandu, Nepal MFSC (2002) Nepal Biodiversity Strategy, Ministry of Forest and Soil Conservation, Kathmandu, Nepal. MFSC (2003) Wetland Policy. Ministry of Forest and Soil Conservation, Kathmandu, Nepal. MFSC (2004) Non-Timber Forest Products Policy, Ministry of Forest and Soil Conservation, Kathmandu, Nepal. MPFS, 1988. Master Plan for Forestry Sector, Ministry of Forest and Soil Conservation, Nepal. NAP (2002) Draft National Action Plan on Land Degradation and Desertification, Kathmandu NPC (1997). Ninth Five Year Plan, National Planning Commission, Kathmandu, Nepal NPC, 2002. Tenth Five Year Plan, National Planning Commission, Kathmandu, Nepal Regmi, M. C. (1971), A Study in Nepali Economic History, Manjushree Publishing House, New Delhi, India. Sherchan, K. (1999), Agro-biodiversity and Indigenous Peoples' Knowledge in Nepal, (ed. Tamang, Bhattachan & Shrestha) in Proceedings of the Asian Regional Conference on Reasserting Indigenous Knowledge Systems. Held in Kathmandu, from 1-3 Nov. 1997. Tamang, P.R. & et. al. (2001), Tamang Healing in the Himalaya, MiliJuli Nepal, Kathmandu. Tamang, P.R. (2000), Janajati ra Rastrabad, Jana Sahitya Prakashan Kendra, Kathmandu.

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Annex 1: Environment-related conventions or treaties to which Nepal is a Party or which Nepal has signed

A. Natural Resource Management 1. Plant Protection Agreement for the South East Asia and the Pacific Region, 1956 2. Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973 3. Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention), 1971 4. International Tropical Timber Agreement (ITTA), 1983 5. Agreement on the Network of Aquaculture Centres in Asia and the Pacific, 1988 6. Convention on Biological Diversity (CBD), 1992 7. UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD), 1994

B. Cultural Heritage 8. Convention for the Protection of the World Cultural and Natural Heritage, 1972

C. Nuclear Weapons 9. Treaty Banning Nuclear Weapon Test in the Atmosphere, in Outer Space and Under Water, 1963 10. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, 1967 11. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, 1971 12. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction, 1963

D. Marine Environment 13. Convention on the High Seas, 1958 14. Convention on the Law of the Sea, 1982

E. Waste Management 15. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 16. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (Basel Convention), 1989

F. Ozone Layer Protection 17.1 Vienna Convention for the Protection of the Ozone Layer (Vienna Convention), 1985 17.2 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), 1987 17.3 London Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (London Amendment), 1990

G. Climate Change 18. United Nations Framework Convention on Climate Change (UNFCC), 1992

Nepal has also signed the following instruments but is not a Party to them, as they have not been ratified or accessed. A signatory country may not be a Party and a Party may not have signed the instrument. It is noted that a delegate could sign the instruments but its ratification or accession should be based on the country's legal regime.

19. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on their Destruction, 1972 20. Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958 21. Convention on the Continental Shelf, 1958 22. Stockholm Convention on Persistent Organic Pollutants, 1999 23. Cartagena Protocol on Biosafety, 2002 25

Annex 2: Table 1. Population by caste/ethnicity and by sex (Census of 2001)

CASTE/ETHNICITY MALE FEMALE TOTAL % TOTAL Population of Nepal 11,359,378 11,377,556 22,736,934 100.0 DOMINANT CASTE Total 3,464,273 3,558,947 7,023,220 30.89 1 Chhetri 1,774,709 1,818,787 3,593,496 15.80 2 Brahman - Hill 1,426,915 1,469,562 2,896,477 12.74 3 Thakuri 164,643 169,477 334,120 1.47 4 Sanyasi 98,006 101,121 199,127 0.88

INDIGENOUS AND MINORITIES All Total 7,895,105 7,818,609 15,713,714 69.11

INDIGENOUS NATIONALITIES Total 4,090,839 4,181,136 8,271,975 36.31 Mountain Sub-Total 95,354 94,753 190,107 0.82 5 Sherpa 77,511 77,111 154,622 0.68 6 Bhote 9,959 9,302 19,261 0.08 7 Thakali 6,216 6,757 12,973 0.06 8 Byangsi 1,094 1,009 2,103 0.01 9 Walung 574 574 1,148 0.01

Hill Sub-Total 2,967,139 3,071,367 6,038,506 26.51 10 Magar 784,828 837,593 1,622,421 7.14 11 Tamang 641,361 640,943 1,282,304 5.64 12 Newar 620,213 625,019 1,245,232 5.48 13 Rai 312,363 322,788 635,151 2.79 14 Gurung 259,376 284,195 543,571 2.39 15 Limbu 174,760 184,619 359,379 1.58 16 Gharti/Bhujel 58,023 59,545 117,568 0.52 17 Sunuwar 48,065 47,189 95,254 0.42 18 Chepang (Praja) 26,685 25,552 52,237 0.23 19 Thami 11,392 11,607 22,999 0.10 20 Yakkha 8,132 8,871 17,003 0.07 21 Pahari 5,803 5,702 11,505 0.05 22 Chhantel 4,545 5,269 9,814 0.04 23 Brahmu/Baramu 3,441 3,942 7,383 0.03 24 Jirel 2,582 2,734 5,316 0.02 25 Dura 2,377 2,792 5,169 0.02 26 Lepcha 1,935 1,725 3,660 0.02 27 Hayu 892 929 1,821 0.01 28 Yehlmo 281 298 579 0.00 29 Kusunda 85 79 164 0.00

Inner Terai Sub-Total 123,975 127,142 251,117 1.11 30 Kumal 48,883 50,506 99,389 0.44

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31 Majhi 36,367 36,247 72,614 0.32 32 Danuwar 26,192 27,037 53,229 0.23 33 Darai 7,195 7,664 14,859 0.07 34 Bote 3,881 4,088 7,969 0.04 35 Raji 1,111 1,288 2,399 0.01 36 Raute 346 312 658 0.00

Terai Sub-Total 901,813 885,173 1,786,986 7.85 37 Tharu 774,924 758,955 1,533,879 6.75 38 Rajbansi 48,234 47,578 95,812 0.42 39 Santhal/ Sattar 21,515 21,183 42,698 0.19 40 Jhagar/ Dhagar 20,892 20,872 41,764 0.18 41 Gangai 15,808 15,510 31,318 0.14 42 Dhimal 9,646 9,891 19,537 0.09 43 Tajpuriya 6,532 6,718 13,250 0.06 44 Meche 1,830 1,933 3,763 0.02 45 Kisan 1,382 1,494 2,876 0.01 46 Koche 693 736 1,429 0.01 47 Munda 357 303 660 0.00

Unknown Sub-Total 2,558 2,701 5,259 0.02 48 Adibasi/ Janajati 2,558 2,701 5,259 0.02

DALIT Total 1,614,238 1,619,210 3,233,448 14.99 Hill Dalit Sub-Total 777,804 833,331 1,611,135 7.09 49 Kami 432,937 463,017 895,954 3.94 50 Damai/Dholi 188,329 201,976 390,305 1.72 51 Sarki 153,681 165,308 318,989 1.40 52 Gaine 2,857 3,030 5,887 0.03

Madhesi Dalit Sub-Total 836,434 785,879 1,622,313 6.74 53 Chamar/ Harijan/ Ram 138,878 130,783 269,661 1.19 54 Dhanuk 97,507 90,643 188,150 0.83 55 Musahar 88,041 84,393 172,434 0.76 Dusadh/Paswan/ 56 Pasi 82,173 76,352 158,525 0.70 57 Sonar 72,331 72,757 145,088 0.64 58 Kewat 70,815 66,138 136,953 0.60 59 Mallah 59,649 56,337 115,986 0.51 60 Kalwar 61,221 54,385 115,606 0.51 61 Hajam/thakur 51,617 46,552 98,169 0.43 62 Lohar 42,270 40,367 82,637 0.36 63 Dhobi 38,350 35,063 73,413 0.32 64 Bantar 18,139 17,700 35,839 0.16 65 Chidimar 6,516 5,780 12,296 0.05 66 Dom 4,631 4,300 8,931 0.04 67 Badi 2,152 2,290 4,442 0.02 27

68 Halkhor 1,848 1,773 3,621 0.02 69 Kuswadiya/ Patharkatta 286 266 552 0.00

Unknown Sub-Total 85,063 88,338 173,401 0.76 70 Unidentified Dalit 85,063 88,338 173,401 0.76

MADHESI "High Caste" 1,475,884 1,326,303 2,802,187 12.30 71 Yadav 473,421 422,002 895,423 3.94 72 Teli 158,647 145,889 304,536 1.34 73 Koiri 130,424 120,850 251,274 1.11 74 Kurmi 111,638 101,204 212,842 0.94 75 Brahman - Tarai 70,623 63,873 134,496 0.59 76 Baniya 67,308 59,663 126,971 0.56 77 Kanu 50,706 45,120 95,826 0.42 78 Sudhi 47,198 42,648 89,846 0.40 79 Tatma 39,606 36,906 76,512 0.34 80 Khatwe 38,643 36,329 74,972 0.33 81 Nuniya 35,224 31,649 66,873 0.29 82 Kumhar 28,289 26,124 54,413 0.24 83 Haluwai 26,387 24,196 50,583 0.22 84 Rajput 25,905 22,549 48,454 0.21 85 Kayastha 23,343 22,728 46,071 0.20 86 Badhae 24,160 21,815 45,975 0.20 87 Marwadi 23,205 20,766 43,971 0.19 88 Barae 18,479 16,955 35,434 0.16 89 Kahar 18,109 16,422 34,531 0.15 90 Lodha 13,018 11,720 24,738 0.11 91 Rajbhar 12,755 11,508 24,263 0.11 92 Bing/ Binda 9,641 9,079 18,720 0.08 93 Bhediyar/ Gaderi 9,342 8,387 17,729 0.08 94 Nurang 9,198 8,324 17,522 0.08 95 Dhunia 614 617 1,231 0.01

Muslim 504,325 471,624 975,949 4.29 96 Muslim 501,793 469,263 971,056 4.27 97 Churaute 2,532 2,361 4,893 0.02

OTHER 134,767 130,954 265,721 1.16 98 Mali 5,884 5,506 11,390 0.05 99 Bangali 5,680 4,180 9,860 0.04 100 Kamar 4,516 4,245 8,761 0.04 101 Punjabi/sikh 1,567 1,487 3,054 0.01 102 Jaine 551 464 1,015 0.00 Unidentified 103 Caste/Ethnic 116,569 115,072 231,641 1.02 Source: Census of 2001, Table 16: Population by caste/ethnic group and sex (HMG-N 2002:72-3).

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ANNEX 3: Table 4. Distribution of dominant caste (Bahun-Chhetri) and indigenous and minorities in key positions

Percentage of Percentage of Total Number Public Offices/Positions Dominant Castes Indigenous and of Positions Bahun-Chhetri Minorities N (30.89%) (69.11 %) Justices Supreme Court 88.8 11.2 18 Appellate Court 69.1 30.9 107 District Court 89.0 11.0 110 Ministers Minister 68.4 31.6 19 State Minister 62.5 37.5 8 Assistant Minister 40.0 60.0 32 Parliament House of Representative (Lower House) 60.4 39.6 205 National Assembly (Upper House) 58.3 41.7 60 Constitutional Bodies Public Service Commission 50.0 50.0 6 Election Commission 100.0 0.0 3 Commission for Investigation of Abuse of 60.0 40.0 5 Authority National Planning Commission 50.0 50.0 6 Auditor General 100.0 0.0 1 Government Administration Secretary and Joint secretary at the Royal 71.4 28 Palace Secretary or Equivalent in the 74.3 39 Government Secretary or Equivalent in the 73.4 94 Government Major and above ranks in Military 100.0 7 Inspector General of Police (IGP) and 75.0 4 AIGP in Police Chief District Administrator 75.0 75 Local Bodies President of District Development 66.6 75 Committee (DDC) Mayor and Deputy Mayor of 49.1 116 Municipalities Main Political Parties (Central Committee Members) Nepali Congress 70.9 31 Nepal Communist Party (Unified Marxist 87.5 32 Leninist) Nepal Communist Party (Marxist 50.0 36 Leninist) National Democratic Party (Thapa) 44.1 34 National Democratic Party (Chand) 43.7 32 Source: Adapted from data of the Year 1999 provided by Govinda Neupane (2000) in table numbers 1-9.

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