We Live Together, We Die Together: the Magar Indigenous Community Advocates for Nepal’s First Land for Land Compensation
by Vaishnavi Varadarajan
This update follows the September 2022 article on the Magar Indigenous community in Nepal asserting their right to land compensation.
“Whatever benefit comes from the project, the company takes the cream from the milk and gives us the last remaining parts. We don’t want to settle for that, we want our equal share of the benefits and we won’t come to an agreement until our demands are respected,” shared Til Bahadur Thapa, president of the Directly Inundation Affected Peoples Collective Rights Protection Committee as he expresses his frustration on the dispute resolution process of the complaints against the Tanahu Hydropower Project at a meeting with The Office of the Special Project Facilitator (OSPF) of Asian Development Bank (ADB) in Paltyang village, Tanahu district.
The Magar Indigenous community whose lands will be inundated by the Tanahu Hydropower Project, co-funded by the ADB, European Investment Bank (EIB), Japanese Investment Corporation Agency (JICA), and the Government of Nepal, has been demanding for land for land compensation to be provided and their right to free, prior, and informed consent to be respected since 2018. It has been 6 years since the 31 Magar families organised themselves within the collective ‘Directly Inundation Affected Peoples Collective Rights Protection Committee (henceforth written as “Committee) and 4 years since they filed their complaints with the problem-solving (dispute resolution) function under the ADB’s Accountability Mechanism, the OSPF and the European Investment Bank’s Complaint Mechanism in 2020. Yet, they remain resolute and steadfast as they continue to advocate for their demands.
Til Bahadur Thapa and the Magar indigenous community in Tanahu are working hard towards setting a historical precedent for communities affected by “development” projects in Nepal to receive land for land compensation. According to Nepal’s Land Acquisition Act 2034 (1977), compensation for land is mainly paid in cash according to current market value. However, ADB’s Safeguard Policy Statement and EIB’s Social Safeguards both recognize that if the displaced persons’ livelihoods are land-based, then land-based resettlement will be given preference. The Magar indigenous community has applied these ADB and EIB safeguard policies to get resolution from the complaint mechanisms for their demands to be implemented by the proponent of the project, Tanahu Hydropower Limited (THL) — a wholly owned subsidiary of the State-owned sole utility provider Nepal Electricity Authority (NEA).
The Cultural and Spiritual Importance of Land for the Magar Community
The lands in question that the Tanahu Hydropower Project will inundate include titled and untitled land that belongs to the Magar indigenous community. These include their agricultural land where they grow their rice, maize, and other crops, and common lands used for grazing, fodder collection, minor forest produce, and for cultural and ceremonial purposes collectively by the community.
The Magar indigenous community is the largest officially recognised indigenous group in Nepal that traces its ancestral lineage to the hills of Western Nepal. As guardians of the Magar culture, they have been preserving their rituals, traditions, and socio-cultural practices for generations. Hence, they assert that the inundation caused by the project will not only deprive them of their source of food and livelihood but could also threaten the extinction of the Magar culture and identity. “We still don’t know what will happen to our land after inundation. Where will we go and what will happen to our religious and cultural practices?,” asked Til Bahadur.
The socio-economic and cultural impact study by an independent consultant, Dr. Shyamu Thapa highlights the critical need to consider the Magar community’s deep connection to the land that the project will inundate. This study, which is a part of the assessment by the Office of the Special Project Facilitator (OSPF) of the ADB, identifies 35 cultural sites within the affected area. These sites serve as collective spaces for the Magar community to practice their culture, traditional belief system, and rituals.
According to their traditional belief system, the Magar community worships different local deities and their ancestors in different places which are known as thans. The study by Dr. Shyamu shares how these thans are maintained by keeping two-three stones erected on the same line after cleaning the area and worshiping once a year. They worship in particular thans by offering raw rice, flowers, red and yellow colors, incense sticks, and the blood of sacrificial animals or birds. The spirits of the local deities are worshipped before starting the cultivation of their land and after harvesting the crops in the form of offerings.
Another area that is of immense cultural significance to the Magars are the ghats which are the ceremonial cremation grounds where their ancestors are cremated next to the riverbank and their ashes are immersed in the river water. Members of the Magar community are concerned that they will not be able to perform their funeral rites after inundation occurs as they will lose access to these ghats. They worry that if this happens, it will also cut off their connection with their ancestors and the spiritual world.
Underlining the importance of preserving the cultural traditions of the Magar community, Ritu Thapa Magar, an advocate from the Indigenous Women Legal Awareness Group (INWOLAG) who is an advisor to the community shared, “Our ancestral lands and territory are related to our identity, culture, and our relationships. We get our land from our ancestors. It is our duty to hand it over to our new generation in a better way.”
Titled vs Untitled Land: Challenges with Land Registration
A significant portion of the land used collectively by the community that the project will impact is untitled. Due to legal complications and bureaucratic hassles, except for a few families who have titled land, most of the land that will be inundated has not been registered till now. Til Bahadur explained the challenges faced by the community because of which their land couldn’t be registered, “In 2030 (Nepali calendar equivalent to 1978 in the Gregorian calendar), we had a land survey to get land titles but at that time we thought if we register more land, we will have to pay more tax because of which many of us didn’t get our land registered to be titled. Then in 2038 (Gregorian calendar year 1981), the government attempted to capture our land in the name of land reform but we didn’t let the government classify these lands as these are our ancestral lands, which are important for our livelihoods and survival. Later we tried to get our lands registered through the unitary system but the government didn’t support us.”
Globally, the collective rights of indigenous communities are denied by non-recognition of land titles, complicated registration procedures, lack of legal implementation, and bureaucratic hurdles. The dispossession of their collective rights gets exacerbated when state or private actors undertake large infrastructure projects on their land without obtaining their Free, Prior, and Informed Consent (FPIC).
The Indigenous People’s Safeguards in ADB’s Safeguard Policy Statement (2009) specifically addresses customary land rights under Policy Principle №8. This principle requires the “preparation of an action plan for legal recognition of customary rights to lands and territories or ancestral domains in a project involving (i) activities that are contingent on establishing legally recognized rights to lands and territories that Indigenous Peoples have traditionally owned or customarily used or occupied, or (ii) involuntary acquisition of such lands.”
Using this provision, the complainants from the Magar community have continued to demand that land for land compensation should be provided for both titled and untitled lands that will be inundated by the project.
Overcoming Challenges in the Advocacy for Land for Land Compensation
Initially, the project proponent Tanahu Hydropower Limited (THL) only provided the affected communities with the option of cash-based compensation and inadequate rates of compensation. However, the complainants disagreed with their proposal and used provisions from the ADB and EIB safeguards and international human rights treaties that Nepal is a signatory to such as ILO Convention 169 and UN Declaration of the Rights of Indigenous People,, to assert their right to land-based compensation. Their claim rests as indigenous communities whose livelihoods and culture are inseparably linked to the land.
It has been a long and challenging journey as the THL continuously delayed the actions needed to be taken for implementing land-based compensation and in many instances put pressure on the community to accept cash payments instead. Tej Bahadur Thapa shared, “THL time and again visit us and what they say is, accept the money. They sometimes pressure us and threaten us, they come to us with newsletters which say a high percentage of work has been completed, but they don’t conduct FPIC or get into an agreement with us.”
The argument made by the THL to deny land for land compensation for the longest time was that it is not compliant with the “law of the land”. However, through the dispute resolution process, the complainants and NGO advisors were successful in reminding THL of their obligations to comply with the Safeguards of ADB and EIB along with national laws and regulations.
The independent studies commissioned by OSPF, which include the socio-economic and cultural study by Dr. Shyamu Thapa and the land evaluation study conducted by Mr. Sandip Kumar Deb, both verified the demands of the community for land-based compensation and recognised the loss of cultural rights due to the environmental damage that the project will cause. While the complainants actively participated in the process of land evaluation, they expressed that the OSPF did not respect their FPIC with the visits being organised at short notice and with little consultation with the community. Also, the results of the findings were provided to THL first who denied the findings of the land evaluation, and then the annotated version of the document along with THL’s comments was shared with the community. Actions like these indicate how OSPF has often given priority to the company over the community
In October 2022, THL then shared a proposal for exploring the option for land-for-land compensation for titled lands of the Committee members. They suggested that to determine if land-for-land compensation can be implemented is conditional upon approval from Nepal’s Cabinet of Ministers and to explore land-for-land options, they proposed a timeline of 3.5 years. The Committee members felt this was too long a time to just explore if land for land was possible when they had been addressing their grievances for more than 6 years by then and they were worried about the impacts they would face this time if the construction of the project continues.
THL informed them that if the Cabinet does not agree to land-for-land compensation, then they will be provided monetary compensation at the rates determined earlier, which were extremely low. At the same time, they offered to increase rates of cash compensation if the community did not proceed with the option of land-for-land compensation but the rates they offered were also not equal to the replacement values of land that will be inundated. Moreover, they provided no guarantee for land-based compensation for untitled lands and only agreed to provide compensation for agricultural productivity for five years for these lands. The Committee felt this proposal was weak and left them in a worse position.
Thereafter, the Committee wrote a letter to the board of directors of ADB along with the other financiers EIB, JICA, and the KfW Development Bank in December 2022 with the request to suspend financing of the project until THL makes concrete progress to resolve their grievances. Through the letter sent to ADB, they asked the board of directors to ensure that the OSPF is more respectful of FPIC of indigenous communities in its processes and is equal in its treatment of the complainants and the promoter/borrower in dispute resolution processes.
After a long period of deadlock with resolution on the concerns raised by the communities, the OSPF made a progressive move by asking the ADB’s Office of Safeguards (OFSG) to analyze the compensation package proposed by THL and if it was compliant with ADB Safeguards. In December 2023, the committee and NGO advisors also wrote to the OFSG sharing how they deemed that the proposal by THL on land for land compensation and their actions in this regard have violated the ADB SPS 2009, especially the safeguards on Involuntary Resettlement and Indigenous Peoples.
The analysis by the OFSG highlighted that the company had to comply with the ADB Safeguard Policy Statement 2009 by providing land-for-land compensation for titled lands and implementing an action plan for registration and compensation of untitled lands under Policy Principle No 8. This analysis reaffirmed what the communities had been demanding since the beginning of the campaign and proved that the communities were better aware of the ADB safeguards than the company.
“It took great persistence from the community to get the THL to agree to the ADB and EIB Safeguards that apply to the project, including in relation to land-based compensation,” said Prabindra Shakya of the Community Empowerment and Social Justice Network (CEMSOJ). “The community leaders and their advisors had to reason very hard with the THL and the ADB to apply those Safeguards, particularly in relation to customary lands of Indigenous Peoples — that even raises questions about full awareness and genuine willingness among them to implement those Safeguards.”
Next Steps: Clear Demands for Land for Land and Halting of Construction
The demands by the Committee are clear: land-for-land compensation should be provided for all the titled and untitled lands that will be inundated by the project, which includes agricultural lands, ceremonial lands, forests, and grazing lands. Also, the process to do so should include participation and meaningful consultations with the communities and respect for their free, prior, and informed consent at each stage of the process.
“We don’t want individual land plots in different places,” shared Bibha Devi Thapa Magar, a community elder. “We want collective land plots next to each other. If we live together, we die together.”
Meanwhile, the project’s construction is increasing at a quick pace, putting the community at further risk. In response, the Committee also demands that the project’s construction be halted until the pending issues are addressed and they are provided with alternative land. The members of the Committee do not feel very confident with the outcomes of the dispute resolution process till now but they resolve to continue their movement till their voices are heard and their demands are fulfilled.
This article was first published in the June edition of BANKWATCH.
Vaishnavi Varadarajan is a feminist activist and researcher who has worked on the intersection of environmental justice and gender equality. She serves as IAP’s Community Organizer for the South Asia.
