Nepal Indigenous communities vindicated in rare European human rights victory

Written on 04 May 2021. Posted in Nepal

Indigenous Peoples and local communities in Nepal are celebrating a hard-fought victory following a landmark investigation which found that the European Investment Bank (EIB) must take urgent steps to uphold their right to Free, Prior, and Informed Consent (FPIC) in its funding of the hydropower sector. FPIC is an international legal standard empowering Indigenous Peoples to give or withhold consent to projects affecting them and their territories.

Read the full statement on the investigation here:  https://www.lahurnip.org/press-release/54

In October 2018, the FPIC & Rights Forum^[1] filed a complaint to the EIB’s Complaints Mechanism on behalf of community members in Lamjung and Manang districts affected by the EIB funded 220 kV Marsyangdi Corridor transmission line project, including Indigenous Peoples who argue the line is being built on their ancestral lands and territories without seeking their Free Prior and Informed Consent (FPIC).

Around 1,500 community members in Lamjung district – 70% of whom are Indigenous – have reported their fear of displacement by the power project, thus losing their lands, livelihoods and sacred sites, or that living near the high voltage power line will have health consequences. The main concerns of the communities include the violation of their right to Free Prior and Informed Consent – which is in sharp violation of international obligations and requirements – as well as the lack of compensation for loss of land and insufficient environmental and social impact studies.

FPIC is mandatory, in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), where it is specifically mentioned five times (Articles 10, 11, 19, 28, and 29). The duty to consult is further reflected in Articles 19 and 32. It is also protected under the Indigenous and Tribal Peoples Convention, 1989 (ILO Convention no. 169).

Read the FPIC protocol manual developed by LAHURNIP with support from IWGIA here: https://www.iwgia.org/images/publications/new-publications/2020/FPIC_protocol_Nepal.pdf

While Indigenous Peoples, and the rest of the population in Nepal, need access to electricity to improve their quality of life, this cannot be done at the expense of their rights. Indigenous Peoples in Nepal have learned from bitter experience that the development of such projects often comes at a high cost for them despite the country being signatory to the ILO convention 169 and the UN Declaration on the Rights of Indigenous Peoples.

“For decades, Indigenous Peoples in Nepal have faced discrimination and opposition in the face of their fundamental rights and calls for self-determination, including in development projects,” said Shankar Limbu from the Lawyers’ Association for the Human Rights of Nepalese Indigenous Peoples (LAHURNIP) - a pioneer organisation of human rights lawyers working for the rights of Indigenous Peoples in Nepal – which is supporting the communities in their fight. “We are hopeful this landmark investigation will support the movement to implement ILO Convention 169 in Nepal and improve compensation practices.”

The recently published report found that the EIB overlooked the project’s impact on Indigenous Peoples, including that a mandatory FPIC process was not conducted. The EIB Complaints Mechanism has recommended that "major lenders and development partners in the energy sector coordinate efforts and -with the help of experts- work closely... to develop a tailor-made approach for meeting FPIC requirements in energy projects in Nepal."

Not only does this investigation present a strong condemnation of the EIB and Nepal Electricity Agency’s failures to abide by EIB rules and international legal commitments, but is also reflects a recurring issue in the area. The topography of and perennial rivers in Nepal offer abundant opportunities for hydro-power development and international finance institutions and investors have quickly recognised the country’s business potential. In 2019 alone, a total of 120 hydropower projects and 31 high voltage transmission line projects were under construction.

IWGIA is honoured to have been able to continuously partner with LAHURNIP for over a decade. Our partnership has directly contributed to Indigenous communities, such as the ones in Lamjung district, becoming aware of their rights and how to fight for them through mobilisation, acting collectively, and documenting the violations. Ultimately, their collective and strategic struggle has led to the achievement of having complaint mechanisms, such as the EIB, acknowledge their complaints and proposing steps towards redress. This investigation is the results of more than six years of cooperation and mobilisation, and more must be done.

Initiatives supported in our partnership with the Accountability Council, Asia Indigenous Peoples Pact and LAHURNIP include the development of an FPIC protocol, which comprehensively outlines the steps that project authorities must take, sharing all project information in languages Indigenous communities understand, ensuring an environment free of coercion, and fully abiding by whatever decision Indigenous Peoples reach, including the decision to refuse consent or to withhold their decision until a later date.

Thanks to this success, other communities are seeking LAHURNIP’s assistance in cases of rights violations – especially when companies or investors are involved.

This published investigation is a victory for Indigenous Peoples in Nepal, but in the words of Anirudha Nagar, the Communities Director at Accountability Counsel which is supporting communities throughout the complaint process, “As the momentum for corporate accountability and human rights due diligence builds in Europe, including with Germany’s recent ratification of ILO 169, all eyes are on how the EIB will respond to this investigation to ensure its commitments have meaning.”

^[1] The FPIC and Rights Forum is organized by the affected communities to address these critical concerns.