"Land For Land Compensation" of The Magar's Community At Nepal And Social Safeguard Law Violation by the ADB Bank.

The snow capped Himalayan Mountain at Damauli ( Nepal ) is the birth place of Veda-Vyas, who wrote the Mahabharat some 5200 years before. Exactly at this birth place of Veda Vyas, the "Magar's Community"  is settled, which is identified as the ancient Indigenous Peoples of Nepal, rooted to Veda Vyas. This community is in danger and receiving high threat of illegal evacuation.    

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Birendra K Jha  ( Practitioner Social Safeguard Law & Audit - Social Impact Assessment Auditor - Member Institute of Social Auditors of India- Contact email: birendrajha03@yahoo.com ) 

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Indians  know little about this village. The village is Paltyang, situated at the foothill of the snow capped Himalayan Mountain at Nepal. The village, what I am talking about is very ancient heritage site near Damauli, situated  in the Gandaki Province of the beautiful Himalayan Nepal. Being Indian, I had been often reading the  Sanskrit based "Skanda Puran" - "Himvat Khand" - "Gandaki Mahatmya",  "Parishisht Bhag", Chapter - 5 (Shloka 54, 55 & 56) from my childhood. This passage, is about this ancient heritage site, which is the birth place of Veda Vyas, who wrote the Mahabharata some 5200 years before. This ancient heritage village is soon going to submerge under deep water, created by the  Tanahu Hydropower Project.  The Great Son of Veda-Vyas, the ancient "Magar's Community", has risen against any forced illegal displacement. Being Social Safeguard Law Practitioner & Auditor in India, I look that the "Magar's Community" is suffering. This "Magar's Community" is very ancient and old. The lineage of this community is rooted to Veda-Vyas. Law should must be invoked against any forced illegal displacement of the "Magar's Community".    

This ancient "Magar's community" needs protection under the Social Safeguard Law. This community  is demanding "land for land compensation" for moving out of this village. But, the Tanahu Hydel Power Project, has turned down the basic legal demand of this "Magar's Community". This shall be demonstrated here, how the move of the Tanahu Hydel Power Project is illegal and bad in law. 

Some  38 families of the Indigenous Peoples, commonly known as "Magar's Community", has received threat of displacement from   the  Tanahu Hydropower Project, funded by the ADB Bank ( Loan No: 43281-013 ). The  "Magar's Community" has received striking call to vacate the land on the "cash compensation". The "Magar's Community" is disputing that this is illegal move of the Hydel Power Project and the Nepal Government. The demand of the "Magar's Community" is  falling within the legal bracket of the  Social Safeguard Law. The Nepal Government, the ADB Bank and the Secretary General, United Nation are all duty bound to protect the  "Magar's Community".     

In Nepal whenever Government acquires land, then following Acts, Laws & Policy governing land acquisition, are activated: Land Acquisition Act 2034;  The Lands Act 2021; Forest Act 2076; Environment Protection Act 2076; Electricity Act 2049; Electricity Regulations 2050; Land Acquisition, Rehabilitation and Resettlement Policy 2015; Right to Food and Food Sovereignty Act, 2018; International Law UN Declaration on the Rights of Indigenous People and Nepal Constitution.  

I shall discuss here only the  Land Acquisition Act 2034; Right to Food and Food Sovereignty Act, 2018;  International Law UN Declaration on the Rights of Indigenous People and the Nepal Constitution.  The exhaustive four laws, give Social Safeguard Law protection from any forceful displacement to the "Magar's Community". The "UN Declaration on the Rights of Indigenous People" Article 10, prevents the Nepal Government to displace the "Magar's Community",   without  "free, prior, and informed consent" of this community. The Article 10, reads "Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples". The plain meaning of the "informed consent" is  also known as the "consent process". Since, this is  high-risk interventions hence "written consent" is necessary here for meeting the  "informed consent". There is no such "written consent" given by  the "Magar's Community" in this land acquisition process. Legally this community has blocked any "consent" to the ADB Bank. There are numerous written complains to the Nepal Government and the ADB Bank given by this "Magar Community", where clearly "informed consent" is not there.  Without "informed consent" if any displacement takes place, then the Tanahu Hydel Power Project, the Nepal Government and the ADB Bank shall be responsible for the violation   of this Social Safeguard Law and sanction may await from the United Nation against Nepal for violation of the Social Safeguard Law.  

In Land Acquisition Act 2034, Section 14, there is provision of providing "land for land compensation". When this Act was made, at that time this was discretionary power of the Government to provide "land for land compensation". But in 2017, the Nepal Government set a precedent in case of landowners whose lands were acquired by the Nepal Government for the "Koshi Tapu Wildlife Reserve". At that time, Section 14 of the Land Acquisition Act 2034 for providing  "land-for-land compensation" to the landowners, who had lost their land on Government acquisition of Koshi Tapu, had been invoked. At that time in 2017, the Nepal Cabinet Secretary had raised serious objection against the move of the Nepal Government. The Cabinet Secretary is on record. He says: "If we start providing land-for-land compensation, it will set a bad precedent and we cannot complete any projects in the future". The Nepal Government, turned down the  objection of the Cabinet Secretary and purely on "social safeguard" and  "public interest" ground invoked Section 14 of the  Land Acquisition Act 2034 for  providing "land for land compensation" to the 24 landowners. This is a big move on the Social Safeguard Law in Nepal. This gives clear legal position and precedent of validity of Section 14 of the Land Acquisition Act 2034, when it can be invoked. The "Magar's Community" has legal  claim under this Section 14 of the Land Acquisition Act 2034 of Nepal. In Law, this community stands in equal level just like the land owners of the "Koshi Tapu".

The "discretionary power" of the Government mentioned in Section 14 of the Land Acquisition Act 2034, is required to be tested on the "social safeguard" and  "public interest" ground. This can't be malafide and against the "Right of Equality". The Nepal Government has Constitution, where it gives  guarantees of "Right to Equality" in Article 18 (1). There can't be two types of different laws on "equal protection of law". That is "Koshi Tapu" and the "Magar's Community" can't have two types of protection laws. If separate law, then the "Right of Equality", Article 18 (1), guaranteed under the Nepal Constitution,  is violated.        

The provisions of Sub-Articles 1 to 5 of Article 18 gives guarantee to the "Magar's Community" in general. The  Article 18(1) reads: "All citizens shall be equal before law. No person shall be denied the equal protection of law". This has strong meaning.  This "equality before law" is equivalent to the second corollary of the Dicean Rule of Law. It is the negative concept which ensures that there is no special privilege in favor of anyone, that all are equal. The provision of Article 18(1) corresponds to the equal protection clause of the 14th Amendment of the US Constitution and Article 14 of the Indian Constitution. There is an important case from the Indian Law, which clearly elaborates the understanding of the Nepal's "equal protection of law".  In State of Punjab And Others vs Khan Chand on 17 December, 1973, the Right to Equality has been elaborated very clearly in these words by the Hon'ble Supreme Court of India: "the administration of a particular law would be done not "with an evil eye and unequal hand." Based on Article 18 (1) of the Nepal Constitution, the "Magar's Community" has equal protection before law just like the people of "Koshi Tapu Wildlife Reserve" who claimed land for land compensation. 

The "Right to Food and Food Sovereignty Act, 2018" is again an important law of Nepal.  Under Sec 12 (2) (c) and Sec 12 (2) (f) of this Act, the farmers of Nepal can not be removed and they have "Legal Right" to get protection "to have access to means and resources required for agricultural business" and "to obtain protection against the deprivation of agricultural occupation arbitrarily". The Sec 12 (2) (c) and Sec 12 (2) (f) of this Act gives "fundamental protection" to Magar's Community on availability of food through the agriculture business.  Agriculture is the main profession of this community. The community is ignorant of modern "cash management" practice. There is threat that they shall loose "cash" very soon. This shall deprive this community from basic availability of "food". This "food protection" is only available if the "Magar's Community" is able to survive with "land compensation".  This is the crux of this law what is given to the "Magar's Community"  under the  "Right to Food and Food Sovereignty Act, 2018." 

The Government of Nepal has introduced one another policy. The  "Land Acquisition, Rehabilitation and Resettlement Policy 2015."  Under this policy, before any land acquisition, the project is duty bound to conduct  Social Impact Assessment Audit. Based on this audit assessment, the Hydel Power Project had decided  the course of action on the Social Impact Assessment Audit and subsequent social safeguard audit. So far, these  social safeguard audits  have failed to detect the grievances' of the "Magar's Community" and secure the "Legal Right". This is major lapse of such social safeguard audits.  

In India, the Institute of Chartered Accountants of India is superior accounting and auditing body. This has world level respect and recognition. This body has created another statutory body The Institute of Social Auditors of India. Only Member of The Institute of Social Auditors of India can now carry such Social Impact Assessment Audit in entity listed under the Stock Exchange of India. The Members are bound to comply the Social Audit Standard developed by  The Institute of Social Auditors of India & the Institute of Chartered Accountants of India. The SOP is so much tough that any "Qualified Auditor" shall not do such silly mistakes, what is apparent in the above SIA Audit or subsequent social safeguard audit of the Nepal Hydro Power Project.  This is mistake of Nepal Hydro Power Project that it inducted "unqualified people" on the job of Social Auditing. Further, the auditors do not know the basic of the Social Protection Law, which is mandatory for the Social Auditors. Because the Social Protection Laws and their  clear impact are completely missing from the social safeguard audit reports.   

The ADB Bank has also no control over the Social Safeguard Monitoring Audit business. It  completely delegates this work to the executing agencies. This is poor practice in the ADB Bank. This  has damaged completely the importance of  Third Party External Monitoring Audit on the Social Safeguard. Now this Third Party Audit is conducted by the executive agency.  The External Social Safeguard Audit, should only be conducted by the ADB Bank and the executing agencies should not have any involvement in managing this audit business. If there is any involvement of the executive agencies, then the  audit report can be manipulated or facts can be suppressed.  

This is a big learning lesson for the ADB Bank. The Bank  has funded blindly to the Tanhau Hydel Power Project. The ADB Bank is duty bound to  protect the "Magar's Community" and speak with the Tanahu Hydel Power Project as well as the Nepal Government, to go with the legal demand for "land for land compensation". The 24 landowners who received the "land for land compensation" at the acquisition of the "Koshi Tappu Wildlife Reserve" had seen formation of  11-member committee, by the Government of Nepal to identity land in Morang and Sunsari districts. The same "Equal Treatment" is needed here for the "Magar's Community". The Napal's Law can't have two different types of protection treatment. It can't have "an evil eye and unequal hand", whenever the Law of "Right of Equality" is tested.

View of Paltyang Village, based in the  snow capped Himalayan Mountain.  The only source of income for this  "Magar's Community"  is agriculture. Driving out of agriculture shall make this community  difficult to survive. Cash compensation is not the solution. This community may end the cash soon. This community needs "agricultural land" , what the people  inherited from their ancestors  for safe transmission to the next generation.    

View of  "Kosi Tapu"  in Nepal. In 2017 , the Government of Nepal through setting a precedent, for "Kosi Tapu" land acquisition,  defined Section 14 of the Land Acquisition Act, where if condition is "social safeguard" and  "public interest" involvement then under Section 14 "land for land compensation" is mandatory to be given, if demanded. The discretionary power converts to mandatory if , land is demanded as compensation and situation is exactly matching like the Koshi-Tapu. The discretionary nature in Section 14 of the Land Acquisition Act, extends under the Nepal's Constitution Article 18 (1)  giving guarantee of "Right of Equality on protection of Law" to the "Magar's Community".  The "Magar's Community" and the farmers of the "Koshi Tapu" are in same footing. For them the Social Protection Law can't be separate. 

  WHY ADB BANK FAILED TO ADDRESS THIS SOCIAL RISK:

 

Environment Risk is carried by the Environmental Engineers but the Social Risk is the subject & expertise of the Social Auditors and Economists. If HR mixes both the profile, then trust me HR is poor and exactly you are putting a surgeon to do the job of construction of bridge. This is HR, which sits in the belly of job profile and find out correctly the specialist. This is the reason, when document "Environment and Social Management Framework (ESMF)" is made, two separate specialist joins this mission. One handles the "Environment Risk Part" and the other handles the Social Risk part. This is the exact reason, the ADB Bank fails to manage and account correctly the risk related with the social assets of cultural heritage or the risk related with the Indigenous People at the Tanahu Hydro Power Projects at Nepal. If Environment Engineer is involved, they will address only the "Engineering Issues", but fail to address the issues with the cultural heritage or the risk related with the Indigenous People. Exactly this happened at Nepal. In World Bank Policy, the ESS8 applies, if the project is in the vicinity of a recognized cultural heritage site. The ESS8, mandates compulsory "Social Impact Assessment Audit". Similar mandatory requirement is also here in the ADB Bank Policy, mentioned in the SPS, 2009 Appendix 1, Under Environment Section. But, yet, this separate Social Impact Assessment Audit, on the risk related  with the cultural sites, has not yet been conducted. This is clear violation of the ADB SPS Policy 2009.

This is failure of the ADB Bank. It fails to classify correctly, whether  the social assets risk of cultural heritage is "Environment Risk" or "Social Risk"? Because, this risk is found mentioned in the SPS 2009 Appendix 1, under the Environment Section. This is Technical Mistake. Amendment is required to change it from the Environment Risk to the Social Risk. 15 years before, when this policy was made, no body identified this technical mistake. This loose and poor understanding has impacted Nepal and has placed social assets of cultural heritage under the threat of the Tanahu Hydro Power Projects reservoir area. 

The Tanahu reservoir area, is 18 kilometers long and covers important archaeological and cultural sites including the sites falling under the  Vyas and the Bhimad Municipality.  The ancient cave of Veda-Vyas is located in the Vyas Municipality. This is cultural heritage site of National Importance. There are two famous Veda-Vyas Caves. One is the birth site,  which is in  Nepal. And the other one,  is the meditation site  located  in India at Mana village. The Mana in India is a completely protected site. But, threat is at the Nepal site. This risk is not calculated either in the Social Safeguard Monitoring Audit or in the "Environment and Social Management Framework (ESMF). The ESMF, is missing or still not prepared.  The ADB Bank has funded The Tanahu Hydro Power Projects, without  the ESMF. This allowed the ADB Bank to commit two major Social Safeguard Violation. The first safeguard violation is against the Indigenous Peoples ( "Magar's Community" ) and the other safeguard violation is against the cultural heritage sites. 

The ancient site of Nepal, are within the threat area of Tanahu Hydro Power Projects reservoir area.  Apart from the Veda-Vyas site, the Nepal Archaelogy Department has protected monuments, very near to the reservoir area like Mahalakshmi Temple; Bindyabasini Temple;  Khadga Devi Temple; Luti Barahi; Manimukundeshwor Temple; Rising Kot Darbar; Tanahunsur Parisar & Khadgadevi Temple. All temples are more than 100 years old. The cultural site of Nepal  is protected under the "Ancient Monument Preservation Act, 2013 (1956). This Nepal Cave of Veda-Vyas falls under the Ancient Monument site under Section 2 (a) of the Act, "as the age is more than one hundred year". This is "National Importance" site apart from other mentioned temples.  

The ADB Bank needs serious home work. The inhouse Social Safeguard Monitoring Evaluation work  is poor. Let this document be taken with positive attitude. This shall help to address the weakness of the ADB Bank correctly.

View of the River and the important social assets related with cultural heritage  of Nepal. These are protected monuments. The ADB Bank has no plan or idea - How to manage this Social Asset risk. Because, the "Environment and Social Management Framework (ESMF)" is not made yet for the Tanahu Hydro Power Projects. The mandatory requirement to conduct "Social Impact Assessment Audit" on the cultural heritage sites, as found under   the ADB Bank Policy, mentioned in the SPS, 2009 Appendix 1, under the Environment Section has also not yet been conducted. This is clear violation of the ADB Bank SPS Policy 2009.