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