Power vs rights of indigenous people

Respecting the rights of indigenous people in the hydro power sector in Nepal is not just about compliance but power relations.

File photo

Simone Galimberti

  • Read Time 7 min.

Can a developing country so desperate to earn foreign currency and reduce its balance of payments with more exports do so by protecting the rights of indigenous peoples? Can money, generated from one of the cleanest sources of energies, help a nation progress towards a lower middle-income status while also enriching local communities, preserving their ancient traditions and heritage and generating prosperity for them?

This is the conundrum faced by Nepal, a nation that, despite being marred by a decade of Maoist insurrection followed by a difficult but successful peace process, made considerable strides in its economic development. At the center of this debate is the potential of hydropower energy from which Nepal can generate millions and millions of dollars and its disruptive impacts on the lives of millions of indigenous communities that accounts for at least 36 percent of the total population according to the Census 2011.

According to projections from the Asian Development Bank, the electric power sector could raise the national GDB by 87 percent by 2030.

Unsurprisingly, since the end of civil conflict, a considerable number of hydropower projects have been approved, many of which have already started operating while others are under construction and many more are under the pipeline.

Political stability since the end of war has been elusive but developing hydro powers has been one thing that received the utmost priority by those in power. Despite the shifting coalition, there is a determination across the political spectrum in the corridors of powers of Kathmandu to strike as many hydro power deals as possible.

How it affects indigenous people

The problem with all major hydropower projects is that they require major alterations to nature, forcing changes in local landscape that are adversely affecting local populations, many of which are indigenous.

On September 3, The Rising Nepal reported that locals had blocked the main road to the construction of the Arun III Hydropower Project, a 900 MW project being constructed in Sankhuwasabha district. The main reason was that locals did not receive due compensation as promised by the developer of the project. Take another example, the Upper Trishuli 1 hydro project, one of the many projects attracting financing from the international community or the construction of the transmission line carrying the electricity generated by the hydropower project Lamjung district. Such undertakings, while considered a priority for the development of the country, are proving to be highly problematic.

In both cases, local communities, mostly from indigenous communities, have been complaining about lack of implementations in key provisions supposedly aimed at safeguarding their rights.

The leading financiers behind them, the International Finance Corporation, part of the World Bank Group in Upper Trishuli 1 and the European Investment Bank, the international financing arm of the European Union for the Lamjung transmission power, are coming short of ensuring that borrowers fulfill their duties in protecting and respecting the rights of local population.

Both projects, for instance, started without adhering to the foundational human rights principle of free, prior and informed consent or FPIC, according to Tahal Thami, an indigenous rights lawyer and Director of the Lawyers’ Association for Human Rights of Nepal Indigenous Peoples, LAHURNIP.

“Starting a multi million dollar hydro project without FPIC leads to conflicts and negatively affects the sustainability of the whole endeavor,” Tahal said. “It is in the best interest of the investors to ensure that FPIC is wholly followed.”

LAHURNIP is a pioneering association that has been assisting not only local indigenous but also other members of local communities affected by hydro power projects. Its work has been instrumental in many cases where redress to locals was ultimately provided. Yet, the challenges related to hydropower can only be partially explained by a lack of enforcement of the rights of indigenous peoples. And it is here where the issue becomes thornier and highly sensitive and where even the mighty funding agencies cannot do much about.

It is not just about complying with complex procedures before the start of the constructions, including key environmental assessments that are often neglected as it’s not uncommon to see the machines breaking ground before such fundamental steps are even completed as I learned from Thami.

It is not even the almost total disregard of the principle of free, prior and informed consent, a cornerstone of the Declaration on the Rights of Indigenous Peoples, of which Nepal is a party.  It is the fact that power in Nepal is still mostly concentrated in the hands of Khas Aryas, a term that describes the groups traditionally at the helm of the Hindu hierarchy. This despite the fact that giant steps have been made in terms of safeguarding and protecting the rights of the many ethnically indigenous groups since the end of the civil war.

The country endorsed a new constitution of 2015, regarded by the same elite as a very progressive charter that guarantees the rights of minorities and the creation of a federal system. The federalization, still very much a work in progress, was at least on paper designed to empower local communities by decentralizing power from the elite in Kathmandu. Yet, the power remains still largely distributed unequally and the reality on the ground provides a different contrasting reading on what’s going on in the wider society.

As a consequence, the unbalanced power relations surrounding hydropower projects simply reflect that stark gap between words and deeds when we talk about social inclusion in Nepal. “The lack of protection of the rights of indigenous populations dealing with contractors and their international financiers is not just an issue of compliance in the field of business and human rights,” said Thami referring to an area of human rights practice aimed at keeping the corporates accountable.

“If we need to keep contractors and their financial backers accountable, we also need to ensure that the state and its agencies do what they are due to do to respect the rights of indigenous peoples.”

So tackling abuses against indigenous populations by the biggest players from the hydropower industry is part of a much bigger challenge for Nepal. Practical, short-term solutions together with longer and more difficult ones that go in the depth of the power relations existing in the society are urgently needed.

On the one hand, we need to ensure that contractors and operators of hydropower projects get serious about the most basic rights of local populations. Equally important is that their international backers, the multilateral and bilateral finance institutions also do a much more serious job at overseeing the whole process, from impact evaluation to tender to preparation and implementation of any compensatory agreement or local development plan agreed with locals. Most importantly they must ensure the fulfillment of the principle of free, prior and informed consent.

This is not just a vague concept but it is a right backed up by international law and enforceable in Nepal since the country not only ratified the Declaration on the Rights of Indigenous Peoples but also it is a party to ILO convention 169 known as the Indigenous and Tribal Peoples Convention.

“Both are disregarded in practice and no action plans so far have been implemented to put in practice the principles and duties enshrined in these two internationally legally binding instruments,” said Thami.

On the other hand, the state agencies must step up as well. This will happen only after the country’s elite will undertake a journey of self-introspection. They must come to terms with the reality that the way power is shared is itself the major impediment to the fulfillment of the rights of the most marginalized communities living in the country.

Tackling power inequalities

Tackling power inequalities is the only way to ensure long term solutions not only in the field of business and human rights but also towards the comprehensive implementation of the rights of indigenous peoples and other marginalized groups, including those of other economically weak sections of the society. The rights of these citizens must be safeguarded and the duties and responsibilities by the state and of those holding positions of influence towards them have to be fully enforced.

Therefore, it is imperative for the elite in power to seriously commit in the formulation and implementation of action plans to enforce on the ground the legally binding obligations that Nepal is party of.

However, these alone, even if paramount, won’t be enough. It is equally important  to amend numerous legislations like the Environment Protection Act and its Regulations that ignore the rights of Indigenous Peoples.

Also essential is to ensure that any policies being formulated to enforce the Convention on Biodiversity and its latest implementing framework, the Kunming Montreal Global Biodiversity Framework  are also fully adhered to and in compliance with the international human rights standards protecting and preserving indigenous knowledge and traditions. The same can be said for the execution of the 2nd Nationally Determined Contributions that Nepal presented in 2020.

This is an indispensable but also highly ambitious tool to fight climate change whose implementation would require massive investments from the international community. Such investments must carry special guarantees upholding the rights of indigenous communities. 

An opportunity might arise with the preparations of the 16th National Development Plan, the development master plan that will set the development trajectory of the country up to 2030. It is a very strategic plan that will be instrumental in enabling the conditions through which Nepal can come as close as possible to achieve the Agenda 2030 and its Sustainable Development Goals.

A positive note comes from the drafting process of the first ever Business and Human Rights Action Plan. Such a tool that would help ensure that peoples’ rights are protected by abiding to the UN Guiding Principles of Business and Human Rights, voluntary standards compelling governments to protect, respect and offer remedy against corporates’ abuses.

Positively, Indigenous Civil Society organizations were actively involved in its preparation process, an important step that should not be taken for granted, Thani said. So far the latest draft recognizes the importance of taking into account the perspective and the inalienable rights of indigenous population. Even if approved in its current form, something that should be considered as a very positive development for indigenous communities of Nepal, there is also the high risk that it would become one more, among many, meaningless official documents. That’s why only changing the mindsets and attitudes of the ruling elite can unfold a new era for the country. An era truly focused on social inclusion and redress of power imbalances affecting not only indigenous peoples but also members of the Dalits community, against whom the system has been discriminating for centuries.

Enforcing rules to protect and safeguard the rights of indigenous communities in the hydro power sector must be seen within the broader aim to radically change the way power is distributed in Nepal.

Enforcing rules to protect and safeguard the rights of indigenous communities in the hydro power sector must be seen within the broader aim to radically change the way power is distributed in Nepal.

Respecting and implementing the rights of indigenous peoples and other marginalized communities throughout the society will require an honest and difficult conversation in the country. Otherwise, what’s going on these days in Sankhuwasabha, with locals angered about unfulfilled promises, could become a normalized reaction that would imperil the prospects of the country to become a middle income country in the next ten years.

Stakeholders have to do whatever it takes to redress the grievances of local indigenous communities.

Simone Galimberti writes on democracy, social inclusion, youth development, regional integration, SDGs and human rights in the context of Asia Pacific.