According to the Rising Nepal, Minister for Energy, Water Resources and Irrigation Shakti Bahadur Basnet, while setting the foundations stone of the 132/32 kv substation at Janaki Rural Municipality in Banke district, said Nepal will be fully electrified in two years. This is one of the good news related to the development of the hydro power sector in the country. There are more.
Nepal is set to become a major producer and exporter of hydro power generated electricity. This is a process that involves attracting gigantic amounts of foreign investments, some in the forms of loans, some grants. There is almost no day that goes without an announcement about a new hydropower project.
As inconvenient as it is, it is paramount that while attracting new investments, the government of Nepal also is able to ensure the rights of local populations affected by these major developments. Because behind any new announcement, there will be lives that will be affected, families that will be dislocated, local ecosystems completely disrupted. This should not be taken as an afterthought, something that, somehow, can be brushed away.
At stake is not only the reputation of the Nepal government but also the emerging developing electricity market that the country is trying to establish. The name and image of the major bilateral and multilateral organizations investing in the sector is also under watch.
Yet even more importantly there is something else at stake: the protection and safeguard of the rights of thousands of citizens that have been and will be affected by the construction of dams, substations and transmissions lines. Specifically, I am talking about the rights of indigenous peoples that are, often, at the receiving hands of this hydro power frenzy. Often, locals, deprived of key vital information, are pressured, in many cases even coerced and intimidated, to agree to give up their lands so that dams, substations, and power towers can be built. A particular case in point is construction of a substation of Lapsifedi, a key infrastructure that is part of the 220/400 kv Upper Tamakoshi Hydro Power Project. The infrastructure is, without any doubt, vital for the whole nation and is going to be instrumental to achieve the goal of Nepal becoming a major electricity exporter. Also the substation will be the central node that will provide power, southbound to the ADB funded transmission line towards Changu Narayan while, westbound, it will run electricity to the towers’ line that the Millennium Challenge Corporation Nepal is planning to finance.
To better understand the current status of the play, I met with RK Tamang, a representative of the Struggle Against Marginalization of Nationalities-Nepal [Saman–Nepal] that is working with local people to assert and defend their rights. “Indigenous peoples have deep relationships with land, territories, and resources, so it’s not about compensation or corporate social responsibility (CSR) but rather about the respect of Indigenous People’s rights that the state has ratified internationally and judicially. It’s about making the state responsible and doing ethical business,” he told me.
As strategic as this project is, what really counts is that the construction of the substation and the related transmission lines are carried out by following the highest standards, including fully following and implementing the mandatory human rights due diligence or MHRDD. MHRDD is also at the core of the UN Principles of Business and Human Rights, that, though voluntary, are universally accepted as the highest standards in terms of businesses’ conduct and behaviors.
Every major operator and donor, including those involved in the infrastructure sector, has the moral mandate to strictly implement the Principles. The principles are based on a rather simple “Protect, Respect and Remedy” Framework. It means that the States must protect, respect and offer remedy in any alleged grievances, abuses and disrespect of human rights by economic, commercial and state owned business operators.
Did the government of Nepal, Nepal Electricity Authority (NEA), the bilateral and multilateral donors and their contractor follow and respect this framework? A way that could help start answering this question is from the perspective of local people affected by the projects.
Let’s remind ourselves that Nepal is a party to the ILO Convention No.169 that, among other things, recognizes Indigenous Peoples’ right to self-determination within a nation-state. In addition, Nepal is also a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). What does it mean in practice? In simple terms, infrastructure like the Lapsifedi requires the full respect of the “Free, Prior and Informed Consent” or FPIC.
“How do Indigenous and locals feel ownership over a project that is going to be implemented in their own native places, where threat and intimidation are used? Tamang wondered. He further said: “NEA has never consulted, obtained FPIC, or involved Indigenous Peoples and locals in decision-making; instead, it seized the land forcefully”
Let’s try to break down the whole issue.
First locals were not informed that their whole land got frozen in order to pave way to the substation. They only came to know about it when, in the aftermath of the big earthquakes that hit Nepal in 2015, they wanted to relocate and build their homes. They had decided to rebuild in the exact place that, unknown to them, the substation station was planned to be built.
Fast forward, in 2019 the MCA Nepal organized a public hearing where locals vehemently protested. Then on 12 March 2021, over 300 security personnel were deployed to conduct the land survey by the authority. “The public demonstrated against such forceful acts by the state,” shared Tamang. With locals setting up barricades, local authorities, including the Chief District Officer, representatives of NEA stepped in and tried to persuade the locals.
“Even the NEA Managing Director and the local member of the parliament tried to convince them that the project would begin forcefully even if the people continued rejecting the development,” Tamang informed me. Then, after a long gap, also due to the pandemic, on January 1 2023, NEA deployed more than 150 armed police in order to start the work. Again, people vigorously protested.
“The protest continued for 13 days, and the electric authority surveyed with the protection of heavy forces. They did survey even the individual’s land for the tower pad without their prior consent”, Tamang explained to me. At the end, more than two dozen indigenous human rights defenders were injured including Mr RK Tamang whose finger bones fractured, and 11 were arrested during this time.
After the resistance, the electricity authority has stopped the work but protest against the oppression is continuing. The National Human Rights Commission and Nepal Indigenous Commission have visited the area and expressed their concerns but no report has been issued so far. Indigenous peoples, mainly Tamang and other locals, not only felt insulted by the deployment of the police but also threatened. That’s why they have decided to organize themselves in a struggle committee against the substation.
“Instead of deploying forces, the state has to consult with indigenous people and obtain a fair FPIC before executing their businesses respecting human rights,” he said.
Perhaps something is changing.
Since then, the Ministry of Energy, Water Resources and Irrigation, stepped in at the highest levels with both the Minister Shakti Bahadur Basnet and Secretary Dinesh Kumar Ghimire taking the lead in the consultation. This is commendable as throughout this year, three meetings were held.Yet what should change is the approach that drives these discussions. The people of Lapsifedi should not be convinced or persuaded to accept the compensation that has been proposed to them because otherwise the whole process becomes an imposition. It must be admitted that the entire process has been remarkably flawed and was completely in disregard of the rights of the persons living there. One wonders how the right of way and the tenders process were initiated without having on board the locals.
The past omissions must be fully acknowledged by all the parties involved, including the ADB who have its own indigenous safeguard policy and MCC. So far, the ADB Nepal Office has officially stated that it is against the use of any force, a policy that, without any doubt also MCC Nepal Office shares.
But violence did happen.
According to. RK Tamang, the Initial Environmental Examination prepared by NEA does not match with the ground reality. First written in April 2016, the document was updated in 2019. The problem is that it does not meet any legal threshold nor follows the international standards and therefore it should be considered null. “Our concern is that it should have to be done on the field/ location and has to be published with the public hearing but nothing as such has been done by NEA,” he told me. NEA Managing Director, in public, recognized that they need to do an environmental impact assessment (EIA) and conduct cumulative impact assessment (CIA) at Lapsephedi, he added.
The Cumulative Impact Assessment (CIA) must be done when there is more than one project at the same location as it is the case of Lapsifedi’s substation. In addition, among the most staggering mistakes is that the exact location of the substation is wrong. The electric transmission license issued by the Electric Development Department of the Ministry of Energy, Water Resources and Irrigation has clearly mentioned the location at Lapsifedi of Shankarapur Deupur village development committee in Kavrepalanchok District. Instead, the Lapsifedi is located in Kathmandu District. Interestingly the Initial Environmental Examination, in section 4.8, recognizes that Nepal is a party to ILO no.169. The ongoing visit to Nepal of Alice Albright, the Chief Executive of the MCC could offer the opportunity to reset the whole process of engagement and involvement of local people. Albright should not only assure politicians that the MCC is not part of any American-led geopolitical game or focus her visit to try to fix the issue of high price bidding. Probably tackling the latter problem will require an extraordinary effort in terms of higher transparency and accountability in the whole bidding process and following procurement phases. But accountability, real accountability also goes much beyond high administrative standards.
At its core, accountability is centered on human rights. Both the ADB and MCC profess to operate according to the highest standards and they have an obligation to ensure that the voice of Indigenous Peoples and locals whose lands are grabbed and are at risk of being grabbed, must be fully expressed and heard. At the same time the government of Nepal and NEA are unquestionably under pressure. An article published in The Kathmandu Post mentioned the frustration of the NEA CEO in dealing with donors and creditors involved in financing hydropower projects.
The piece, written by Prithvi Man Shrestha, shared that on June 18 during a press meeting, Kul Man Ghising, the Managing Director of NEA, shared, referring to the donors “they threaten us to stop funding for another project if we do not settle a dispute regarding land acquisition with locals in the under-construction projects”.
RK Tamang is clear on the way forward. “What is needed is to start from scratch”. This is the big reset I am referring to. “Let’s begin the free, prior, informed consent process whether to build in the same place or in different places”, he shared. “If Indigenous people and locals agree, why not have the substation built there?” “Locals,” he said, “want to feel respected.” “They do not want to be seen as an inconvenience or hindrance to the development of the nation. But, at the same time, they also do not want to be victims of development aggression.” According to him, if locals give their consent, the project can move ahead.
I find this pretty pragmatic. This can be a “win-win situation” for all but first things first. This means the following: A formal apology, the start of a new formal process of engagement with locals that must be transparent, unbiased and neutral. Spending some time on getting the foundations right will save money and further inconveniences that might otherwise happen if locals are not listened to. Donors behind hydropower and other major projects do complain about the red tapes, the slow execution of these undertakings by the government of Nepal. But such projects do negatively affect people and the government cannot bulldoze the constitutional and international rights of indigenous peoples and other locals.
At the end of the day, first things first mean starting with the respect and protection of human rights. I would like to believe Albright and the representatives of ADB in Nepal know this better than me.
Views are personal.