Submitted to:
Nepal-UK Community Forestry Project Kathmandu, Nepal
Current Policy and Legal Context of the Forestry Sector with Reference to the Community Forestry Programme in Nepal
A Working Overview
Submitted by: Devendra P. Chapagain (SEEPORT Consultancy) Keshav R. Kanel (SEEPORT Consultancy) Dhrubesh C. Regmi (Pro Public)
December 1999
CONTENTS
EXECUTIVE SUMMARY 1 INTRODUCTION 1.1 BACKGROUND 1.2 HISTORICAL CONTEXT 1.2.1 STATE POLICY IN THE PAST 1.2.2 INDIGENOUS MANAGEMENT PRACTICES 1.2.3 FOREST POLICY AND ADMINISTRATION 2 COMMUNITY FORESTRY AND ECONOMY 2.1 BASIC FRAMEWORK 2.2 COMMUNITY FOREST IN TOTAL FOREST SECTOR AND NATIONAL ECONOMY 2.3 ECONOMIC AND LIVELIHOOD IMPORTANCE OF CF 2.4 SOCIAL AND ENVIRONMENTAL BENEFITS OF COMMUNITY FORESTS 2.5 SYNTHESIS: FRAMEWORK VERSUS EXISTING SITUATION 3 PLANS AND POLICIES 3.1 PERIODIC PLANS 3.2 NATIONAL FOREST PLAN 1976 3.3 SECTOR STRATEGY STUDY 3.4 MASTER PLAN FOR THE FORESTRY SECTOR 3.5 NATIONAL CONSERVATION STRATEGY 3.6 NEPAL ENVIRONMENTAL POLICY AND ACTION PLAN 3.7 THE AGRICULTURE PERSPECTIVE PLAN 3.8 MACRO ECONOMICS POLICY 3.9 ROLE OF THE DONORS 4 LEGISLATION, REGULATIONS AND EXECUTIVE ORDERS 4.1 THE CONSTITUTION OF THE KINGDOM OF NEPAL, 1990 4.2 THE FOREST ACT, 1993 4.2.1 HANDING OVER PROCEDURE FOR COMMUNITY FOREST 4.2.2 ESTABLISHMENT AND REGISTRATION OF CFUG 4.2.3 CFUG FUND 4.2.4 OPERATIONAL PLAN OF A COMMUNITY FOREST 4.2.5 ACTIVITIES PROHIBITED IN THE COMMUNITY FOREST 4.2.6 COLLECTION, SALE AND DISTRIBUTION OF FOREST PRODUCTS 4.2.7 RECORDS OF FOREST PRODUCTS 4.2.8 HAMMER MARK TO BE REGISTERED 4.2.9 REVOCATION OF COMMUNITY FOREST 4.2.10 SUBMISSION OF REPORT 4.3 NATIONAL PARKS AND WILDLIFE CONSERVATION ACT, 1973 4.4 SOIL AND WATERSHED CONSERVATION ACT, 1982 4.5 WATER RESOURCES ACT, 1992 4.6 PUBLIC ROADS ACT, 1974 4.7 NEPAL MINES ACT, 1966 4.8 MINES AND MINERALS ACT, 1985 4.9 NEPAL PETROLEUM ACT, 1983 4.10 LOCAL SELF-GOVERNANCE ACT, 1998 i 1 1 2 2 2 4 9 9 10 10 11 12 14 14 15 17 18 20 21 23 25 27 29 29 30 30 33 33 33 34 34 35 35 35 36 37 38 39 40 41 41 41 42
4.10.1 VILLAGE DEVELOPMENT COMMITTEE 4.10.2 DISTRICT DEVELOPMENT COMMITTEE 4.11 ENVIRONMENT PROTECTION ACT, 1996 4.12 LAND REVENUE ACT, 1977 4.13 EXECUTIVE ORDERS RELATED TO TCN 4.14 TERAI OPERATIONAL FOREST MANAGEMENT PLAN 5 GAPS AND INCONSISTENCIES 5.1 INCONSISTENCIES WITHIN THE FORESTRY LEGISLATION 5.2 INCONSISTENCIES BETWEEN FOREST ACT AND OTHER LAWS 5.2.1 LOCAL SELF-GOVERNANCE ACT, 1998 5.2.2 LAND REVENUE ACT, 1977 5.2.3 PUBLIC ROADS ACT, 1974 5.2.4 NEPAL MINES ACT, 1966 5.2.5 W ATER RESOURCES ACT 1992 5.2.6 SOIL AND W ATERSHED CONSERVATION ACT, 1982 5.2.7 ENVIRONMENT PROTECTION ACT, 1996 5.3 INCONSISTENCIES BETWEEN THE FOREST ACT AND EXECUTIVE ORDERS AND CIRCULARS 6 IMPLICATIONS AT THE IMPLEMENTATION LEVEL 6.1 SUSTAINABILITY 6.2 INTER-SECTORAL CONSISTENCY AND COHERENCE 6.3 PARTICIPATION IN MONITORING 6.4 FOREST RULES 6.5 CFUG VS LOCAL GOVERNMENTS ANNEX 1 ANNEX 2 ANNEX 3 REFERENCES
42 43 44 45 46 47 50 50 53 53 54 54 55 55 56 56 57 59 59 59 60 60 62 65 68 69 71
ACRONYMS
APP BNP BZMR CBS CF CFUG CPFD CPR DDC DDCA DFO DLSG DNPWC DOF DOR DSCWCO DSCWM DWRC DWSO EIA EPA EPC FA FAFA FAO GDP Ha HLDC HLDCC HMG/HMGN IEE IUCN LRA LRO LRR LSGA MAP MLD MFSC MMA MOA MOPE MPFS NCCNCR NCCNR NCS NEPAP NGO NMA NPA NPC NPWCA NRCC NRs NTFP Agriculture Perspective Plan Basic Needs Programme Buffer Zone Management Regulations Central Bureau of Statistics Community Forest Community Forest User Group Community and Private Forest Division common-pool resources District Development Committee District Development Committee Act District Forest Officer Decentralisation and Local Self-Governance Department of National Parks and Wildlife Conservation Department of Forest Department of Resettlement District Soil Conservation and Watershed Conservation Officer Department of Soil Conservation and Watershed Management District Water Resources Committee District Water Supply Office Environmental Impact Assessment Environment Protection Act Environment Protection Council Forest Act Forest Act (First Amendment) Food and Agriculture Organisation of the United Nations Gross Domestic Product Hectare High Level Decentralisation Committee High Level Decentralisation Coordination Committee His Majesty's Government of Nepal Initial Environmental Examination World Conservation Union Land Revenue Act Land Revenue Office Land Revenue Regulations Local Self-Governance Act Medicinal and Aromatic Plants Ministry of Local Development Ministry of Forest and Soil Conservation Mines and Minerals Act Ministry of Agriculture Ministry of Population and Environment Master Plan for the Forestry Sector National Council for the Conservation of Natural and Cultural Resources National Commission for the Conservation of Natural Resources National Conservation Strategy Nepal Environmental Policy and Action Plan Non Governmental Organisation Nepal Mines Act Nepal Petroleum Act National Planning Commission National Parks and Wildlife Conservation Act National Resource Conservation Committee Nepali rupees Nontimber Forest Product
NUKCFP OFMP PF PPF PPP PRA SAF SAP SWCA TCN UA UC UG UNDP VDC VDCA WB WCO WECS WRA WRR WUA
Nepal-UK Community Forestry Project Operational Forest Management Plan Panchayat Forest Panchayat-Protected Forest Prioritised Productivity Package (of the APP) Public Roads Act Structural Adjustment Facility Structural Adjustment Programme Soil and Watershed Conservation Act Timber Corporation of Nepal Users Association Users Committee Users Group United Nations Development Programme Village Development Committee Village Development Committee Act World Bank Watershed Conservation Officer Water and Energy Commission Secretariat Water Resources Act Water Resources Regulations Water User's Association
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
EXECUTIVE SUMMARY
This report reviews the current policy and legal context of the forestry sector in Nepal with reference to the community forestry programme. It is a “working overview” meant to serve as a basis for a clearer understanding of the gaps and contradictions in the stated policy and actual practice. The report comprises the following main considerations: (i) anomalies in the existing legal and regulatory provisions where they occur; (ii) the origin of any observed anomaly and contradictions; (iii) analysis of the way the observed anomalies and contradictions are likely to influence performance at the implementation level; and (iv) initiation of a purposeful and healthy dialogue and debate. In no way is it intended to be prescriptive. The study is based on a desk review of all the available plans, master plans, policy documents, and legal and regulatory instruments, supplemented with a brief field visit to the NUKCFP project area in western Nepal (Baglung, Parbat and Myagdi). Sustainable management of locally occurring natural resources including forests is part of the age old tradition of the Nepalese people. Historically, two parallel systems of forest management have prevailed: one on a formal basis and associated with a centralised control by the state; and the other at the informal level where the local communities managed natural resources through a network of community structures and institutions. Growing population pressure, eradication of malaria in the Terai in the 1950‟s and the subsequent process of migrant hill population settlement in the Terai all contributed to rapid decline in forest areas both in the hills and Terai. Private forests were nationalised in 1957. Although implemented with a different objective of weakening the political and economic power of the landed gentry, this move is often regarded as a prime cause for the widespread breakdown of the traditionally practised system of community level management of the forests, mainly in the hill and mountain regions. The problem was exacerbated due to the weak capacity of the government to effectively implement the new act that resulted into transforming the forests from a common property resource into an open access resource. Community forestry thus is a common property resource with characteristic institutional innovations devised by the local people for the sustained production and supply of forest products. It is a means of social mobilization for the promotion of social capital at the village level, and a creative arrangement for the co-production of forest products between the Community Forest User Groups (CFUGs) and the District Forest Offices (DFOs). Contributing about 14 percent to the total gross domestic product of the country, forestry resources in general, and community forestry in particular, have a profound importance in the livelihood of the common people. Forestry, agriculture and livestock husbandry are intimately related in the farming system of Nepal. This relationship is more pronounced in the hills and mountains than in the Terai. Community forestry has been on high priority ever since the launching of the Sixth (five-year) Plan (1980-1985). Major milestones toward promoting community forestry, among other things, have been: the National Forest Plan 1976, Panchayat Forest Rules PanchayatProtected Forest Rules 1978, Nepal Agriculture Sector Strategy Study 1982, Master Plan for the Forestry Sector (MPFS) 1988, National Conservation Strategy for Nepal 1988, Nepal Environmental Policy and Action Plan (NEPAP) 1993, and Agriculture perspective Plan
Page i
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
(APP) 1995. So far, about 700 thousand hectares of the national forest has been handed over as community forests to more than 8,000 CFUGs. This constitutes little over twelve percent of the total forest and shrubland area of the country. The institutional arrangements designed for the promotion of community forestry is unique in Nepal. The users are organized into groups which are registered as corporate and autonomous bodies at the District Forest Office under their own charter. CFUGs themselves prepare the operational plans with technical assistance from the forestry officials. These plans are then jointly signed by the concerned CFUGs and the DFOs before their implementation. Decisions regarding operational rules on forest protection, harvesting, utilization and sanctioning of rule infractions are made by the CFUG members on the basis of consensus. Many CFUGs employ their own guards to patrol and monitor the forest. Group activities initiated in the protection, management and utilization of community forests and other collective actions have increased self-confidence among the rural people. Women are being increasingly involved in decision making, although much has yet to be achieved. The condition of forests in terms of growing stock, natural generation and density is reported to have improved due to the implementation of the community forest programme in Nepal. This has also reduced soil erosion and helped in stabilizing the flow of water from local streams. In fact, in many villages, the incentive for managing community forests is for the control of soil erosion. The externality of better forest management in terms of soil conservation and natural vegetation (biodiversity) has been appreciated by the users. Transfer of all the potential government forests into community forests is not always smooth and devoid of problems. The present review focuses on the overlaps, conflicts and contradictions in the intra- and inter-sectoral policies, laws, regulations and executive decisions, and how these anomalies have hampered community forestry at the operational level. The process of land registration and its record keeping system in Nepal are neither complete nor systematic, creating a situation for potential conflicts. Conflicts and contradictions also abound among the Forest Act, Lands Act, Mines and Minerals Act and the Water Resources Act regarding administrative powers over the utilization of land resources. Several gaps and uncertainties are inherent in the Forest Act, 1993 itself. These relate to demarcation of forest boundaries in the absence of proper records of forest areas; and the uncertainty and fear of eviction engendered by the traditional notion of forest ownership rights retained with the state and the users given only the usufruct right. Contradictions exist in the Act regarding what constitutes "forest products" and who may collect and carry such products. While Section 25(1) entitles the CFUGs to independently fix the price of forest products and sell them, instances of the Department of Forest and other agencies granting licenses to other individuals to collect certain products from the forest are common. The Act is ambiguous about he action to be taken against transgressors who are nonmembers of a CFUG. Similarly, some provisions of the Forest Regulations have explicitly gone against the spirit of the Forest Act. The Act itself, for instance, does not recognise the provision in Rule 27(g) of the Regulations requiring a bond to comply with the Act, the Regulations and "the conditions prescribed by the government”. Obviously, through this provision in the
Page ii
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Regulation, the government is trying to exercise extra-legal power. The government has issued from time to time circulars and executive orders that are influenced more by the traditional paternalistic notion of central control, rather than a genuine adherence to the provisions of the Forest Act and Regulations. The power given to the DFO to unilaterally withdraw a community forest is not only against the spirit of participatory process of decision making enshrined in the Forest Act, it also goes against the principle of natural justice. The same is true about the Regional Forest Director acting as the penultimate authority to settle any dispute arising between the DFO and the CFUGs. Provisions regarding auction sale of forest products are also controversial, curtailing the rights of the CFUGs. Similarly, the Operational Guidelines issued in 1995 by the Department of Forest, Community and Private Forest Division does not fully conform with the Forest Act and Regulations, and this limits the powers of the CFUGs. Several anomalies are also observed between the Forest Act and Regulations, on one hand, and other related acts, on the other. Contradictions and juridical overlaps exist between the former and a number of acts, such as Local Self-Governance Act, Land Revenue Act, Public Roads Act, Nepal Mines Act and Mines and Minerals Act, Water Resources Act, Soil and Watershed Conservation Act, and Environment Protection Act. Such inter- and cross-sectoral gaps and contradictions have implications for effectively carrying forward the community forestry programme in the country on a sustainable way, and have contributed to either undermining or countervailing the true spirit of participatory process of development as stipulated in the national policies and legal provisions related to the forestry sector, and community forestry in particular.
Page iii
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
1
1.1
INTRODUCTION
BACKGROUND
This is a review of the current policy and legal context of the forestry sector in Nepal with reference to the community forestry programme. The principal objective of this review, as mentioned in the Terms of Reference (Annex 1), is to prepare a “working overview” that could serve as a basis for a clearer understanding of the gaps and contradictions in the stated policy and actual practice. Such gaps and contradictions could exist at the policy level since different policies are often formulated with a sectoral or subsectoral orientation and without fully understanding the likely consequences they could have across other related sectors and subsectors. Further, there is also a lack of full coordination amongst the sectors. Similarly, these could originate as a result of legal and regulatory instruments put into effect at different times for the forestry sector itself, and those meant for various other interrelated sectors and subsectors. The underlying purpose of the present exercise comprises the following considerations: Bring forth anomalies in the existing legal and regulatory provisions where they occur; trace the origin of any observed anomaly and contradictions; analyse the way the observed anomalies and contradictions are likely to influence performance at the implementation level; and initiate a purposeful and healthy dialogue and debate.
It is hoped that this study will help in developing a common understanding amongst all the concerned stakeholders and contribute to the adoption of a more coherent approach to pursuing the intended goal in the forestry sector. In no way is it intended to be prescriptive. The study is based mostly on a desk review of all the available plans, master plans, policy documents, and legal and regulatory instruments. It was supplemented with a brief field visit to the NUKCFP project area in western Nepal (Baglung, Parbat and Myagdi) undertaken during 6-9 September 1999. The purpose of the visit was to obtain a first-hand experience of the way the existing policies and regulatory provisions are influencing implementation of the forestry development programme in general, and community forestry programme in particular, at the local level. The study team is thankful to NUKCFP, and particularly to Mr. Nick Roche, the Project Coordinator, for the opportunity given to undertake this task and for the valuable comments and suggestions provided during the course of the study. Thanks are also due to Dr. Bharat Pokharel and other staff of the NUKCFP West at Baglung and in field offices, DFO staff, CFUG officials and other members, and local government representatives of Baglung, Parbat and Myagdi, for their excellent cooperation during the team's field visit. The report is organised as follows. Following this background, this section provides a historical context to the present-day community forestry programme in the country. Section 2 is intended to provide an overview of the crucial role played by the forestry sector in the national economy and the value of the forests in the livelihood of the people. A framework of such relationships is also developed in this section. Section 3 is devoted to reviewing the various plans and policies addressed to the forestry sector. Regulatory provisions including the various acts, regulations and executive orders related to the forestry sector are reviewed in Section 4. Gaps and inconsistencies in the existing legal and
Page 1
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
regulatory provisions are covered in Section 5. The final section is a recapitulation of the major findings and associated issues, and their implications at the implementation level. 1.2 HISTORICAL CONTEXT
1.2.1 State Policy in the Past In order to understand Nepal's forestry sector from the standpoint of the policy environment, legal framework and regulatory provisions, a brief account of the historical context of forest policy and administration from the beginning of the twentieth century is necessary. Hobley (1996) categorises forestry in Nepal into three broad periods: Privatisation (1768-1951), nationalisation (1951-87) and populism (1987 onward). Forest lands in Nepal were more abundant relative to the size of the population up until the early 1950‟s (DOF 1976, p. 2). In fact, during those times, the government adopted the “frontier” policy of openly encouraging individuals to convert forest lands into agricultural lands with a view to raising revenue through taxation on the converted lands. As a result, property rights, and formal institutions to enforce those rights, existed only with regard to the agricultural lands, while near open-access prevailed over much of the public lands. The term “near open-access” signifies that there has always been a loose form of property rights on all lands including public lands, since all lands have traditionally been subsumed under the sole ownership of the state. The government collected revenue by issuing permits to individual contractors to harvest and sell timber from commercially more productive forests, most of which existed in the Terai. These contractors would remove only the preferred species from the forests, leaving the above-mentioned frontier policy and state landlordism intact. In this way, the frontier policy and state landlordism coexisted with regard to the public lands. The need for establishing property rights through the passage of legal statutes became felt in the 1950‟s when forest lands began to be threatened both by the excessive cutting and by their conversion to agricultural land. Three main factors seem to have contributed to the growing intensification of the process of declining forest quality and reduction in area all over the country: (i) increasing population pressure, mainly in the hills; (ii) widespread migration of the hill dwellers to the Terai region as this region became more habitable with the eradication of malaria; and (iii) government intervention. One could do little to reverse the trend triggered by the first two causes. Despite the effort to popularise family planning, population has continued to increase, primarily because of improved medical care and new health facilities. While planned resettlement has had some success, the problem of illegal settlement and encroachment has continued to be serious (DOR 1973). This review hence focuses on the third factor, namely, the effects of government intervention on forest management. 1.2.2 Indigenous Management Practices The history of community involvement in the management of forest resources is very old. Rural communities used to form a group and keep aside a patch of forest as raani ban (queen forest). The utilization of such forest was permitted for a few months every year and it was left undisturbed to regenerate for the rest of the period. A code of conduct was devised and applied in the way such forests were to be utilised. The present day community forestry system in Nepal can be attributed to have originated from this old indigenous practice. Any breach of the code of conduct set by the communities maintaining raani ban was punishable. Designation of a raani ban was honored by other
Page 2
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
villages in the locality and those who infringed upon these practices were made to pay penalty. The decision made by the management group was supported in many instances by the talukdars (local tax officials). However, two characteristics, population pressure and decision making structure, distinguish the present community forestry from the indigenous system of forest management. In Nepal, two parallel systems of natural resource management can be observed. At the formal level, there is the centralized, bureaucratic system of management by government agencies implementing laws and policies basically to regulate the society with certain perceptions of governance. At the informal level, local communities have been managing natural resources, by establishing a network of community structures and organizations, and following indigenous practices and customary rules and laws, enforced by the societ y or communities concerned. Indigenous management of Nepal's natural resource base is basically focused on four resource use types: cultivated soil, forest, irrigation and pastures. Indigenous here refers to systems that are generated by initiatives from within the local community itself. Communities or farmers play a predominant role in all these four areas of natural resource management while the role of the government is quite small. The term "community forestry" is a broad concept and it is used in Nepal to include mainly indigenous forest management systems and government managed programs in the spirit of participatory forestry (Chakraborty, et al. 1997; 6). Among the earliest records of indigenous systems of forest management is the account narrated by von FurerHaimendorf (1964) of the Sherpas of the Khumbu Region. Campbell, et al. (1987), Fisher (1991) and Karki, et al. (1993) have carried out extensive reviews of indigenous forest management systems in Nepal. Campbell, et al. (1987) note that one-third of the 135 randomly selected villages in 28 districts had a forest protected in some manner by the local community, and more than half of such forests had been established through local initiatives in the past 18 years. Fisher (1989) maintains that those local systems operate on lands that are legally owned by the government, but these are in effect treated as a common property. Use rights to such forests have no legal authority. They exist alongside the legislatively defined system of land tenure and can therefore be regarded as extra legal or supra-legal. Case studies show that forest committees were set up by farmers as early as 1953 (2010 B.S.). Outside the Kathmandu Valley, a local Forest Development Committee was formed over a forest patch of about 100 hectares in that year (Fisher, 1988). There are many places in the hills of Nepal where the local people have, without outside guidance, arrangements to protect and regulate access to forest resources for which there is no single owner. Indigenous codes of practice have existed throughout the hills for centuries but documentation is rare (Gautam, 1993). Ram Shah's Code (1606-36) contained some provisions relating to forest management which include: 12th code: Maintain gauchar. Without such a facility Brahmans will suffer hardship in maintaining cows and ultimately the king has to bear sin. So maintain gauchar in every village considering the convenience in their prevailing exit and entry routes. 13th code: Maintain trees along paths. This is because the poor people suffering hardship will get tired after work, porters will be tired with loads, and others too, who wish to relax in the shade of trees. So maintain trees along trails and fine five rupees whosoever cuts such trees.
Page 3
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
14th code: Maintain trees around water springs. In the absence of trees, water will not last all through the year and the spring will run dry. If forests are cleared on a massive scale, there will be many landslides. Landslides will flood that could wash away clean khet. Household works cannot be sustained without forests. Fine rupees fine whosoever cuts trees around water sources. The above mentioned provisions do not specifically mention the rights of the villagers or farmers to forest resources or products. However, Ram Shah's Code was probably the earliest code, which dealt with protection of the forest and made provisions to impose fines on violators. Gautam (1991) maintains that this system itself is an evidence of local management for local benefits. The Civil Code of 1994 was the first codified law of Nepal. The chapter on "Cutting Trees" consists of four clauses with the following relating to indigenous forest management: Any person who cuts trees in areas where this has been prohibited through royal or other orders, or in guthi, birta, bekh, chhap or other lands belonging to others, shall be punished with a fine at the rate of Rs. 4, 3, 2 or 1 per tree depending on whether the tree is standing on abbal, doyam, sim or chahar land. The timber shall be restored to the owner. Gautam (1993) argues that this provision showed that various practices were established through orders and that ownership could either be individual or on a group basis. The civil code has been amended a few times. Section 7 of the 1948 amended version of the civil code stipulates: In case any person reports that he has raised a forest on a particular land under raikar or jafati tenure in consultation with the villagers, but that the forest has remained unprotected because of the absence of an official order (sanad), an official order granting him authority shall be issued to safeguard the forest raised on a specified area other than that owned or cultivated by another person; or if a gaunda goswara or forestry authority felt the necessity of protection of any forest; and in case the inhabitants of the adjoining area are found to have expressed their (majority) consent in writing, and the forest is found to be protected, a banpala-sanad-rukka in the name of chitaidar, instructing any local raiti-duniya to consult the chitaidar if the raiti-duniya need timber and vice versa, in other words, the chitaidar has to consult the raiti-duniya whenever they need timber. In 1951, the Rana System of governance was done away with and a multi-party system was instituted. One of the legacies of the pre-1951 period was ownership of huge land areas by a small number of people dominantly wielding political and economic power. The successive governments realised the need to somehow weaken that power concentrated in the hands of a few. It perhaps also served the interest of the regime to weaken any countervailing threats that could potentially be posed by the landed gentry. Forest nationalisation was one of the instruments adopted in this respect. 1.2.3 Forest Policy and Administration It was only in 1925 that 'formal' forestry policy and administration (then known as Ban Jaach Adda) started in Nepal. The Department of Forests was established in 1942. The forestry administration in Nepal soon came to resemble that of India, since the structure and nature
Page 4
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
of the forest policy and administration was modelled directly on the Indian Forest Service, established by the British colonial regime. This model in turn stemmed from the training and ethos of the Imperial Forestry School at Dehradun and Oxford. The forestry policy and administration then was merely about how to export more timber from the Terai to British India and to supply wood and wealth to the Rana families. The Rana regime (1846-1951) had distributed almost one-third of the forest to various Rana families and others in the form of birta and jagir tenure. In the case of the hills, however, no specific policy was adopted during the Rana period, although there was a de facto recognition of the kipat system1, the talukdari system2 and the 'indigenous forest management system' (Fisher, 1989) common in the hills of Nepal. During the Rana regime, the talukdars assumed the responsibility of properly maintaining local forests in the middle hills (Palit, 1996). The local population collected what it needed from the forest without paying any fees, although some sort of gift (theki) to the functionary in return had become customary (Mahat, et al. 1986). However, the state exercised little control over the forests prior to 1957. On the contrary, individuals were encouraged to convert forest land into agricultural land as a means of extending state control over the territory and increasing state revenue. In the virtual absence of any state regulation and enforcement, the local villagers themselves controlled forest use. Palit maintains that the population size was small and the forest resources were large; demands for fuelwood and fodder were lower than sustainable supply levels. Thus, there was no need to regulate forest use. However, the earlier policy gave no consideration to the future of the forests, and therefore no incentives provided to regulate forest consumption and invest in forest development. The post-World War era contributed further to reinforcing the centralised control through the promotion of forest service institutions that vested the responsibility of territorial forest management on the central forestry staff, and foresters were trained in a single-minded way to protect and exploit forests for commercial purposes (Westoby, 1989). Classical forestry education made the forest service technically oriented, and autocratic political regimes made forest service a highly authoritative and centralised institution. The first major intervention occurred with the passage of the Private Forest Nationalisation Act of 1957. Before that, the ownership of forest patches mainly in the hills was claimed by individuals whose agricultural lands were contiguous with such forests. These lands thus fell under the category of private forests. The case was quite different in the case of the Terai, since land owners were given title to large stretches of forest land, and such private forest lands were the principal target of the 1957 Act. Historically, the birta and jagir systems 3 practised by the state from the Unification Period (from mid-Eighteenth Century to signing of the Sugauli Treaty with the British in 1815) on to the end of the Rana Regime in 1951 had enabled those in power to amass huge territories of land under private ownership, including large tracts of forests, mainly in the Terai (Regmi 1971, 1978; Stiller 1993). The government intended to pursue three principal objectives through the implementation of this act: (i) to disempower the landed gentry by weakening their economic status that was largely
1
Ancient type of communal land tenure, applied to both cultivated and forested land. Under this system, a community was granted land by the king in recognition of the traditional communal tenure. On such lands, the headmen gave individuals the right to till certain areas and to collect forest products from other areas (Regmi, 1978). 2 A local functionary (usually a hereditary position) of the state to collect land tax which existed until the 1950‟s. 3 According to Regmi (1978), birta was a grant of land given to a noble as a reward for a service rendered to the state. This led to the emergence of birta land tenure. It was usually both tax free and inheritable, and had no set time limit. It was valid until it was recalled or confiscated. jagir was also a grant of land given to government employees (civil or military) in lieu of salary. This led to the emergence of the jagir land tenure. The jagir land grant was also tax free but remained valid only as long as the concerned person served the government. Page 5
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
attributable to the vast lands they controlled; (ii) to release vast areas of such privately owned forests for raising forest revenue; and (iii) and to open up the newly acquired forest lands to resettle the land hungry migrants from the hills. Although intended to serve a different purpose, the 1957 act has been largely attributed to massive deforestation soon after its enforcement, since the owners themselves entered into a spree of destroying the forests and converting them into agricultural land so that their ownership claims could be continued. Besides, due to the weak capacity of the government to effectively implement the act, forests soon came to be regarded as an open access resource for exploitation by anybody. The enactment of the Forest Act 1961 provided a mechanism for administrating the forests by the State. The Act categorised forests and designed a procedure for registration and demarcation of forests. It also defined the duties of the Department of Forest (DOF), listed forest offenses and prescribed penalties (Mahat, et al. 1986). The Forest Act sought to restore governmental control over what was now seen as the national forest patrimony. A new and more comprehensive statute was enacted in 1961, called the Forest Act, whose main purpose was to extend the area of government forests as far as possible and to clearly define restrictions on extractive activities on those forests. This move was again guided and influenced by the paternalistic notion that the government was the best authority to decide what is good for the people. This new law was also largely ineffective (DOR 1973, p. 20). A series of legal measures was taken following the passage of the Forest Act of 1961 all of which tried to further consolidate the power of the government over forests and other forms of public lands, regulate the sale and distribution of forest products, and ensure better management of the forests by the state‟s forest administration. In addition, efforts were made in the area of planned resettlement to regulate the migration into the Terai and to prevent illegal encroachment. However, many of these measures had limited success. One explanation given for this failure is that the various efforts of the past put more emphasis on the organisational restructuring of the forest-related state apparatus rather than on the methods as to how these organisations should work (DOF 1976, p. 7). Besides, the organisational set-up at the regional level was described as being in a “state of mess”, and the government decisions on forest use and management were said to be on an ad hoc basis, rather than in a consistent and coordinated manner (DOF 1976, pp. 9-10). Interestingly, there is no direct admission to the effect that the conventional and paternalistic approach of the past might have been the principal culprit. The amendments to the Forest Act 1961 in 1977 and 1978 categorised the forests of Nepal into six classes, namely: Panchayat Forest (PF), Panchayat Protected Forest (PPF), Religious Forest, Leasehold Forest, Private Forest and Government Forest. A village panchayat could have up to 125 ha of degraded forest designated as PF for plantation and protection. Similarly, up to 500 ha of the existing forested area could be designated as a PPF (HMGN, 1978). An arrangement had to be made between the DFO and the panchayat to plant and protect the area. It also made provisions for handing over forest protection to the panchayat in the form of Panchayat Forests and Panchayat Protected Forests (Kanel, 1993). By the mid 1970's, policy-makers realised that participation of the local people was essential in the management of those forests on which they were dependent. The involvement of non-governmental organisations (NGOs) was considered necessary in the wake of a 1975 government-sponsored forestry-management conference in Kathmandu. In that conference, forest officers from across the country met with senior officials of the DOF and related ministries in a forum that far exceeded the expectations. As a result, the
Page 6
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
three-day meeting stretched over 23 days. The Forest Act, 1961 was powerful enough to take action on any person suspected of violating the provisions of the act. Clearly, the landless peasants (sukumbasis) were the losers since earlier they could freely reclaim and settle in a forest or barren land. These law was exercised in a discriminatory fashion, such that the poor and the disadvantaged in particular were made the target of the Forest Department officials whilst the more influential ones were able to exploit the forest resources at will (Mahat, et al., 1986a). Despite the all powerful Forest Act, the forest service remained ineffective. It was neither able to protect the existing forests nor was it able to place the forest into active management. It was becoming clear that the legislation and expansion of the Forest Department was not achieving its intended goal of preserving forests. It was the concern of a group of communityoriented foresters within the forest service that something had to be done. A Forestry Conference in 1974 reviewed the previous policies, structure and legislation and recognised that the Forest Department had been ignoring the forests in the hills and this had led to the deterioration of the watersheds which were now in a poor condition (HMGN, 1976). This formed the basis for the formulation of the National Forestry Plan in 1976. This was the first time in its history that the forest service had voiced its opinion in favour of people's right. The major milestones in the evolution of forest policy and forestry administration are listed in Table 1. Table 1: A Brief History of Forest Policy and Administration in Nepal
Year 1925 1942 1957 1959 1961 1964 1967 1976 1978 1982 1988 1993 1995 1998 Ban Jach Adda Establishment of the Department of Forests Private Forests Nationalisation Act Birta Abolition Act Forest Act Land Reform Act Forest Protection (Special Arrangement) Act National Forestry Plan Panchayat and Panchayat Protected Forests Rules Decentralisation Act Master Plan for the Forestry Sector Forest Act Forest Rules Forest Act (First Amendment)
Source: Adapted from Pokharel (1998).
Main Action
Success was limited and the area of handed over forests represented only a small fraction of the total forest area, which was further degraded or disappeared. One major reason for the disappointing result was the impractical nature of the above mentioned Forestry Rules which failed to create an environment for the full participation of all users. Nor did those rules provide a clear procedure for the transfer of authority for protection, management and ultilisation of forests to the users. Forest 'handover certificates' were issued to the Panchayats but the status of custodial control remained as before. The forest remained as
Page 7
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
government forest, in another name (DOF, 1997). Only the local political body (village panchayat) was entitled to a panchayat or panchayat protected forest, and it was found to be too large a unit to develop a genuine interest in supervising and managing the local forest. This failure was amply demonstrated by the decrease in forest area from 6.5 million hectare in 1965 to 5.5 million hectare in 1990 (Shrestha, 1996). The failure to ensure the involvement of all the users of the forest irrespective of their status or wealth also meant that, under the Panchayat System, plantations were imposed without seeking any consensus from the community they were supposed to benefit. Following the political change in 1990, the community forestry regulations were revised. Consequently, it was possible to hand over a particular forest to a user group for management and use. The District Forest Officer (DFO) might assist in the formation of user groups, hand over the forest, and provide technical assistance. The cost of developing community forests was to be partly subsidised by the government, although all tangible benefits derived from such development was to go to the user groups. Most of the development costs, however, had to be borne by the community.
Page 8
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
2
2.1
COMMUNITY FORESTRY AND ECONOMY
BASIC FRAMEWORK
Community forestry is an institutional innovation in the production of sustained supply of forest products and environmental conservation. It is a means of social mobilization for the promotion of social capital at the village level, and a creative arrangement for the coproduction of forest products between Community Forest User Groups (CFUGs) and the District Forest Offices (DFOs). In fact, community forestry is oriented towards the development of natural capital (forest resources), physical capital (schools, roads), financial capital (CFUG fund), human capital (reoriented forestry staff, capable CFUG members), and social capital (CFUG as an institution). These capitals or assets are used not only to solve forestry related problems but also to bring about development to the benefit of the local people. Legally, forests are classified into private and national forests based on the ownership of land on which biomass stands. Private forest is defined as that forest land whose ownership lies with private entity. In the case of national forest, the ownership of forest land lies with the state but the management responsibility of the biomass can be assigned to different institutions. For example, if the responsibility of managing a national forest is assigned to a duly recognized CFUG by the concerned DFO under a management contract as laid out in an operational plan, such a forest is defined as a community forest. Therefore, "handing over" of a part of the national forest to a CFUG by the DFO is one of the important components of community forestry in Nepal. A simple framework of community forestry in presented in Table 2. Table 2: A Simple Framework of Community Forest INPUTS LAND AND FOREST OUTCOMES
Labour Private Forest Skill/Knowledge Technical and Professional assistance Monitoring/Sanctioning Community Forest
National Forest
Sustained supply of forest products, soil conservation, group mobilization, growing stock, group fund for collective action.
The simple model as outlined above shows that various inputs are used to produce outcomes. These outcomes are the outputs (material production) and processes (decision making process at the village level). Conceptually, community forests are common-pool or common property resources (CPR). These CPRs have two characteristics: (a) exclusion is non-trivial; and (b) forest product utilization is extractive, i.e., if a user extracts a particular forest product, that product can not be available to other users. These two characteristics have implications on costs related to exclusion and governance. Exclusion cost refers to that type of cost associated with such activities as demarcation of the forest area from other national forests or other
Page 9
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
community forests. The governance cost is associated with the cost of regulated use of forest products by the identified users. CFUGs have usufruct rights over the biomass of the community forest as laid down in the operational plans. The ownership of the forest land on which the forest biomass stands belongs to the government. By law, the DFO is the gate-keeper of a community forest. Therefore, in the context of Nepal, "handing over" cost is also an important factor in the management of community forests. CFUG members extract forest products or derive other services such as soil and water conservation services. These products and services are transferred into household benefits depending upon the relative costs of extraction and the perceived benefits from these goods and services. This transformation cost depends also upon the scarcity of forest products perceived by users. Users may substitute community forest products with those from private or other parts of national forests that have not yet been handed over. In essence, these four types of costs (handing over cost, exclusion cost, governance cost and transformation cost) would determine how effectively a community forest would be managed by a CFUG. 2.2 COMMUNITY FOREST IN TOTAL FOREST SECTOR AND NATIONAL ECONOMY
The Master Plan for the Forestry Sector (MPFS) has estimated that about 15 percent of the total agricultural gross domestic product (GDP) is contributed by the forestry sector. Since the proportion of the agricultural sector in the total GDP in 1985/86 was about 60 percent, it can be said that about 9 percent of the total GDP originated from the forestry sector. The Central Bureau of Statistics (CBS) compiles information and projects data on the national accounts of Nepal. In 1994, it estimated that the contribution of the forestry sector to the national economy was about NRs 7.5 billion. A study on "Forest Sector Potential and Constraints" which was coordinated by the World Bank shows that the forestry subsector contributed about NRs 14 billion to the national GDP in 1994. The estimated GDP of Nepal at current price in 1994 was about NRs 200 billion. This indicates that the actual contribution of the forestry sector to the national economy of Nepal is about 14 percent of the total GDP of Nepal. The disparity between the official version and the study estimates can be explained by the following two factors: CBS values the volume of harvested timber based on the official figures supplied by the DFOs plus an arbitrary 20 percent to roughly reflect the volume of timber harvested unofficially. This official figure is way below the actual harvest and utilization levels. Moreover, CBS estimate of timber value is based on the rate as fixed by the Timber Corporation of Nepal (TCN), which is way below the market price. The value of fodder obtained from the forest area is allocated to the livestock subsector's contribution to GDP. The estimated value of grass and tree fodder and leaf litter was about NRs 2.3 million in 1994. However, MPFS estimates that about 40 percent of livestock feed is derived from forest and tress on farms.
Presently, CBS has estimated that the agriculture sector (including forestry) generates about 50 percent of the total GDP in Nepal. The share of forestry in the agriculture sector is estimated to be about 11 percent. This also indicates that currently CBS estimates that forestry contributes about 5.5 percent in the total GDP of Nepal. However, CBS calculations are based on the same assumptions mentioned above. 2.3 ECONOMIC AND LIVELIHOOD IMPORTANCE OF CF
The dependency of the rural people on forests in general, and community forests in
Page 10
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
particular, is profound in Nepal. Forestry, agriculture and livestock husbandry are intimately related in the farming system of Nepal. This relationship is more pronounced in the hills and mountains than in the Terai. Rural households get their fuelwood, poles and timber from the forests and trees grown on farms. Leaf litter is also collected from the forest as bedding material which is subsequently used as organic manure to be applied in the field. Similarly, about 40 percent of the livestock feed is obtained from the forests and trees grown on the farms. The net nutrient return to agricultural fields from the forest is estimated to be about four tons per hectare per annum in the eastern hills. Forests also conserve soil on site, and reduce soil erosion. They also moderate the flow of water in different seasons. Many CFUGs are now attempting to manage non-wood forest products such as medicinal and aromatic plants (MAPs) and lokta, resin collection, etc., for income generation. As we move further up along an altitudinal gradient, the value of community forest increases in terms of MAPs and other non-wood forest products. Community forests provide an avenue for the generation of revenue to be deposited in CFUG fund which is used for undertaking various development activities. So far, about 600 thousand hectares of the national forest has been handed over as community forests to more than 7,000 CFUGs. 2.4 SOCIAL AND ENVIRONMENTAL BENEFITS OF COMMUNITY FORESTS
The institutional arrangements designed for the promotion of community forestry is unique in Nepal. The traditional users of a community forest are identified by the users themselves. The users are organized into a group. The community forest user group is registered as a corporate and autonomous body at the DFO under its own charter. An operational plan of a community forest is prepared by the CFUG with technical assistance from the local ranger and other forest officials. The operational plan is basically a contract between the DFO and CFUG. The terms and conditions of the contract are laid out in the operational plan. Although the Forest Act and Rules do not specify the duration of the plan, in most of the cases, it is for five years. The users have to form a committee which is equivalent to an executive committee. The committee makes day-to-day decisions based on the mandates given by the user's assembly. Each household is represented in the CFUG. Decisions regarding operational rules on forest protection, harvesting, utilization and sanctioning of rule infractions are made by the CFUG members on the basis of consensus. Many CFUGs employ their own guards to patrol and monitor the forest. The rules are enforced by the committee. The benefits of a CF are based on fiscal equivalence. The role of community forests in poverty alleviation has yet to be shown with facts and figures, although it has been shown that substantial volume and value of MAPs are collected and traded by the poor people in the mountains of Nepal for their livelihood. Implementation of CF in the hills and mountains has helped in reorienting the attitudes and behaviour of the forestry staff. They are now becoming more as facilitators and advisers to the CFUGs. The relationship between the forest staff and the local people is becoming more and more cordial and congenial.
Page 11
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Group activities initiated in the protection, management and utilization of community forests and other collective actions have increased self-confidence among the rural people. Women are being increasingly involved in decision making, although much has yet to be achieved. Group meetings and other interactions among CFUG members and between CFUGs and HMGN officials have helped them to articulate their views. Several CFUG members have now occupied leadership positions in VDCs and DDCs. Several reports have indicated that the condition of forests in terms of growing stock, natural generation and density has substantially improved due to the implementation of community forests in Nepal. This has also reduced soil erosion and helped in stabilizing the flow of water from local streams. In fact, in many villages, the incentive for managing community forest is for the control of soil erosion. The externality of better forest management in term of soil conservation and natural vegetation (biodiversity) has been appreciated by the users. 2.5 SYNTHESIS: FRAMEWORK VERSUS EXISTING SITUATION
The legislation and regulations on community forests treat these forest resources as common property managed and utilized by the concerned CFUG. However, the way these forests are managed and utilized is monitored by the concerned DFO. There is no limitation on the size of the forest to be handed over as community forest, and the group that is responsible for its management. Although the Forest Act and Rules stipulate that all the traditional users of the forest should be included in the CFUG, the dependency of CFUG members on the forest varies with the endowment of private resources owned by an individual user. On the other hand, each user is entitled to obtain equal amounts of forest products if (s)he exerts the same amount of input in the protection and management of the forest. There is no mechanism by which users could sell their private share of the produce in the market, nor can a user sell his/her share of rights to other users of the same CFUG. Of course, the group can sell its surplus forest products to outsiders, but the proceeds from the sale has to be used for the development of the community forest and other collective actions. Therefore, some people suggest that community forestry in Nepal is incentive-incompatible. Community forestry attaches high importance to the participation of users in the protection, management and utilization of community forests, and in the implementation of community development activities. This participation in community forestry occurs at two levels: collective choice level (designing rules for defining who is in and out of a CFUG) and operational level (designing rules for input and output distribution). CFUG members are not homogenous, in terms of either wealth endowment or income. This heterogeneous composition of a CFUG naturally leads to conflicts in many dimensions. This has implications on the participation of users in decision making, benefit sharing and the choice of collective actions to be implemented from the CFUG fund. The whole issue of equity and poverty alleviation through community forestry has to be seen in the context of this governance structure. The users of a community forest have to decide who is inclusive in a CFUG. In contrast to private property, a community forest is a shared or group resource. Property right arrangements have to be designed to take actions against those who infringe upon the rights of other property holders. One of the roles of a modern government is to enforce property rights. However, the process of land registration and its record keeping system in Nepal are neither complete nor systematic. Conflicts and contradictions also abound among the Forest Act, Land Act, Mines Act and the Water Resources Act regarding administrative powers over
Page 12
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
the utilization of land resources. Naturally, the role of these administrative units is important in the smooth implementation of community forests. Community forestry in Nepal includes building other capital goods or assets so that local villagers could rely on these multiple resources for their livelihood and development. It is being increasingly recognized that community forestry is more effective, efficient and equitable in areas where the density of social capital is high. The way these resources are developed and sustained over time would also depend upon the transformation cost. In other words, how efficiently and effectively these inputs are converted to outputs and outcomes that are used for direct consumption and for the development of other assets depends not only on the trust and reputation among the users, but also between the CFUGs and the DFOs. By law, DFOs are required to act like gate-keepers of community forests. However, they have other functions to perform. Since a DFO is a centrally recruited civil servant, his/her actions and inactions in community forestry also depend on the evaluation by his/her supervisors in Kathmandu, since supervisors in Kathmandu can provide appropriate incentives as signals to these staff. The interface between donors and MFSC/DOF at the central level, and the DFO staff and CFUGs at the field level has a high bearing on the successful implementation of community forestry in Nepal.
Page 13
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
3
3.1
PLANS AND POLICIES
PERIODIC PLANS
While afforestation remained the main activity in forestry, the need for soil conservation and conservation of wildlife was realised only during the First (five-year) Plan period (1956/5761/62). During that period, targets were also set for establishing fire lines, demarcation of forest boundaries, construction of forest roads and establishment of herbal centres, and some achievements were made4. Meanwhile, the government embarked on the task of nationalising the country's entire forests in 1957, when it had no manpower and administrative machinery to manage forests. Likewise, in 1963, the government appealed to farmers and the local bodies to conserve soil by planting trees. This move seems to have been motivated more by revenue consideration than to conserve soil. An explicit concern is expressed in the Sixth Plan (1980-1985) about the deteriorating state of the country‟s environment and it stipulated a number of policy measures for conservation and sustainable use of natural resources, improved productivity of land, population control, urban planning, and mitigation of the problems associated with industrial development. This concern was reiterated in the Eight Plan (1992-97) and is carried through in the current Ninth Plan (1997-2002). The Eighth Plan emphasised sustainable economic growth as one of the three main development objectives (the other two objectives being poverty alleviation and regional balance). The Ninth Plan is designed in such a way that all development programmes in the sectoral and cross-sectoral areas contribute to the principal national objective of poverty alleviation. While agriculture needs to contribute the largest share in meeting this objective since more than 80 percent of the population depend on it, the forestry sector‟s role would also be crucial due to the close linkages and interdependence between these two sectors. The Ninth Plan‟s policies and implementation strategies for the sector are guided by the following considerations: Participation-focused forest management in which the users will be further empowered and their role will be expanded to cover implementation of forest management plans, soil conservation and watershed protection, buffer zone management, conservation of biodiversity, and development of herbs and other nonforest products. Locally adapted and need based forest management that is problem-oriented and system-based. The framework of management to be adopted thus would also encompass activities on income generation and poverty alleviation. Increased production, sustainable development and poverty alleviation, including an enhanced role for community forests at the local level, and 50 percent representation of the deprived, poverty-stricken and women users in the programmes for community forests, leasehold forests and national park protection. Management oriented to income generation, self-reliance and user benefits, by encouraging the role of the private sector in forest management and recognising the users as the focal point of management. Establishment of a national Forest Fund, by setting aside a certain portion of the revenue realised from the forestry sector, to be utilised for promoting scientific
4
HMGN, Department of Publicity (1963): Trivarshiya Yojana Ke Ho?; op. cit.
Page 14
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
management of forest resources with private sector participation. Intra- and inter-sectoral coordination, by gradually streamlining the forest organisation along the lines of MPFS and the existing forest policy, clearly delineating the role of the regional directorates, and establishing a region-based information system. A Resource Conservation, Mobilisation and Management Committee will be constituted to enhance intra-sector coordination at the local level and inter-sectoral coordination at the national level. The existing National Resource Conservation Committee (NRCC) will be reactivated and strengthened. Besides, legal provisions will be made to enable NRCC to foster effective coordination amongst the industry, roads, irrigation and drinking water sectors. Enhanced role of the private sector, and national and international nongovernmental organisations. Management of renewable natural resources, by promoting the production of nontimber forest products (NTFPs) through its inclusion in the management plans of the Terai forests, and involvement of the government and nongovernment sectors, separately or jointly, in the hills and mountains. Sort duration species will be cultivated as cash crops. Enhanced role for women and deprived sections of rural areas, by according priority to their involvement in community forests and buffer zone management, with the provision of skill-oriented training and expanded income generating activities.
The key elements of the plan are summarised in Table 3. The Ninth Plan stipulates that efforts will continue to make the existing forest related policies relevant to the present needs and to modify the Forest Act and Regulation with a view to achieving the broader objectives of the Plan. 3.2 NATIONAL FOREST PLAN 1976
A comprehensive assessment of what went wrong in the past and what needs to be done in the future in order to preserve the natural environment through the adoption of a sound forest policy was made in the National Forest Plan of 1976 (DOF 1976). It recognised the need for a scientific forest management plan and what such a plan should encompass. It laid the foundation for a comprehensive plan of action whose objectives included: (i) protecting the natural environment; (ii) developing forests as an important economic resource by attaining self-sufficiency in forest products, promoting forest product industries, and increasing the revenue from forests; (iii) adopting a scientific and socially acceptable forest management policy; (iv) developing appropriate technologies to suit the stated goals of forest conservation and utilisation; and (v) soliciting a broader participation of the people in the forest conservation and utilisation activities (DoF 1976, pp. 18-19).
Page 15
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Table 3: Main Programmes of the Forestry Sector in the Ninth Plan
Programmes by Subsector A 1 2 3 4 5 6 B 1 2 3 C 1 2 3 D 1 2 3 E 1 2 F 1 G H 1 2 3 4 5 Community forest development Formation of users‟ groups (number) Community forest management (ha) Afforestation (number) Post-formation support for users groups Income generation activities Training, publicity and extension National parks and wildlife management Preparation of action plans for national parks and wildlife sanctuary management (number) Management of national parks (number) Buffer zone management (number of locations) Soil and watershed conservation Expansion of soil conservation services Integrated watershed management at the community level (number of subwatersheds) Productivity enhancement, land use development, and demonstration and extension Plant and herb species development Plant species conservation and research (number) Technology development and transfer (number) Botanical Garden and Herb Centre Development (number) Biodiversity conservation Coordination between natural biodiversity environmental protection (number of districts) Development of forest-based industries Support to forest-based industry development Support to the development of nonforest product based industries Supportive programmes Information system management for plan of formulation monitoring and and As per need 1 1 1 In all 75 districts
Source: NPC (1998). The Ninth Plan, pp. 300-301.
Target 7,510 30,000 16,000 In feasible areas and as per need As per need As per need 16 16 5 In all 75 districts 100 In subwatersheds of all 75 districts
12 5 10
and
In al 75 districts In al 75 districts As per need As per need
Implementation of the National Biodiversity Action Plan
Development and extension evaluation system (number)
Expansion of training, communication and extension services (number) Human resource development and organisational reform (number) Research and technology transfer
For the first time, the traditional belief within the government that forests will be preserved only if the government could exercise more authority over them was deemphasised by
Page 16
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
recognising the role of people‟s participation at the local level. Following the Forest Plan of 1976, the government promulgated the Panchayat Forest Rules Panchayat-Protected Forest Rules 1978. These rules, as amended in 1980, set limits on how much forest areas could be set aside under those two forest categories. For the panchayat forest, these limits were 136 ha (200 bigha) in the Terai and 130 ha (2,500 ropani) elsewhere. Similarly, for the panchayat-protected forest, the limits were 272 ha (400 bigha) and 520 ha (10,000 ropani) for the Terai and other areas, respectively. The communities qualifying for the establishment of the panchayat and panchayat-protected forests were to be responsible for planting, maintenance and protection of those forests. They would receive free seeds and saplings from the government. The panchayats were entitled to receive all the proceeds from the sale of products from panchayat forests and 75 percent of it from the panchayat-protected forests. The national Forest Plan of 1976 and the two rules of 1978 on panchayat and panchayat-protected forests dawned a new era of community forestry in Nepal in which the role of local communities in planting trees and managing forests was explicitly recognised and accommodated in the national forestry management plan. The earlier official policy of relying on the stringent control of the forests by the government had not only failed to improve forest management, but it might have contributed to the increasing decline in the forest area and in the quality of existing forests. The above measures reversed that policy and paved way for returning the management of forest resources to the local communities. This attracted a number of donors to expand their involvement in community forestry. We thus observe that the earlier years of planned development (starting with the launching of the First (five-year) Plan in 1956) heavily emphasised forest “conservation” principally through large-scale afforestation. Forest management and sustainable utilisation of forest products was seldom regarded as the key areas deserving attention. The traditional notion of command-andcontrol under a powerful forest administration predominated. This notion had its roots in the conventional approach followed in the forestry schools. As the pressure on the forest resources continued to rise with increasing population, and as the traditional command-and-control approach proved ineffective, massive denudation and destruction of forest species occurred. This led to the doom‟s day portrayal of the situation and it greatly influenced the government and the international donor community to initiate immediate remedial actions. In 1979, the World Bank asserted: “In Nepal, the growing demand for fuelwood, fodder and cultivable land is denuding the hillsides and causing severe erosion, which is reducing the fertility of the soil and its capacity to retain water during the dry season. If the present rate of deforestation continues, Nepal‟s hillsides will be completely bare in 15 years". 3.3 SECTOR STRATEGY STUDY
In 1980, the Asian Development Bank assisted HMGN to undertake the Nepal Agriculture Sector Strategy Study (ADB/HMGN 1982). This study emphasised, among other things, the close interrelationship among crops, forestry and livestock, and hence recommended for an integrated development of these subsectors. For the forestry sector, the study recommended the following “directives and guidelines”): Give highest priority to reforestation of areas in the hills for production of fuelwood and fodder, and to the protection of critical watershed areas; Undertake the plantation necessary for supply of industrial timber for domestic consumption; Develop and increase production of minor forest products including medicinal herbs to increase rural employment and export earnings;
Page 17
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Obtain maximum participation of local people in planning, development and management of forest resources; and Strengthen and streamline the government agencies concerned with the forestry sector in line with the new orientation of the sector, its enhanced environmental role, and the need to substantially increase reforestation and tree plantation in the country. MASTER PLAN FOR THE FORESTRY SECTOR
3.4
The Master Plan for the Forestry Sector (MPFS) 1988 has served as the principal framework for the succeeding Eighth and Ninth Plans. Its objectives are: mobilisation, conservation and management of forest resources in order to maintain a balance in their demand and supply, creation of income and employment opportunities within the sector for the poor and marginalised households, promotion of people‟s participation, productivity enhancement, and adoption of an appropriate land use plan. The Master Plan originated in response to the widespread realisation within the government and outside for an expanded and participatory role of the local user communities in the promotion and management of forests. The main recommendations of MPFS are: No ceiling on the area of forests to be handed over; Handing over of forests to the local users and not to the panchayats; Involvement of women and the poor in the management of community forests; All community forest products to accrue to the local user groups; All accessible forests in the country to be handed over to the user groups to the extent that they are willing and capable to manage them; A changed role for the forestry staff for advice and extension; Hastening the process of handing over the accessible forests to the user groups; and Community forestry to be regarded as the priority programme of the forestry sector of Nepal.
The MPFS has altogether proposed 12 programmes. Out of these, the Community and Private Forestry Programme is given the highest priority, which focuses on shifting the management responsibility of any part of an accessible national forest from the government to the local communities. This programme is designed to put the policy objectives into practice under the principle of decentralisation. The plan aims to invest about 46.6 percent of the total forestry sector budget in the implementation of the Community and Private Forestry Programme (see Table 4). Table 4: Forestry Programmes and Cost Allocations in MPFS
Forestry programmes Primary programmes (i) Community and private forestry (ii) National and leasehold forestry (iii) Wood-based industries development (iv) Medicinal plants and minor forest products development (v) Conservation of ecosystems and genetic resources (vi) Soil conservation and watershed management Supportive programmes (vii) Policy and legal reform (viii) Institutional reform (ix) Human resources development
Page 18
% of Total Cost 46.6 20.2 4.7 4.6 6.7 9.0
0.2 4.7
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
(x) Forestry research and extension (xi) Resources information and planning (xii) Monitoring and evaluation
2.1 0.9 0.3
Source: HMGN/FINNIDA/ADB (1988), Main Report, p. 32.
Tamrakar and Nelson (1991) estimate that about 3.56 million ha of national forest land (i. e., about 61 percent of the total national forest) is a potential area for community forest that can be handed over to the community. Despite the heavy assistance of donor organisations over a 10 year period, only 450,523 ha of national forest, which is only 8.1 percent of the total forest area, has been handed over to 6,730 Forest User Groups (see Table 5). Similarly, only 1,936 ha of national forest is placed under active management which is only 0.3 percent of the potential state managed forest. A negligible area (299 ha) is handed over as leasehold forest (CPFD 1996). With this pace of progress, it will take about 20-30 years to hand over all the potential CFs in the country. The MPFS is the most comprehensive exercise hitherto undertaken in forestry, one of the principal natural resources of the country bearing directly on the livelihood of the people. Despite the importance attached to community forestry by the MPFS, it remains silent on what strategy should be followed for the Terai. The master plan appears overly influenced by the gloomy forecast of the "Himalayan Dilemma" that preoccupied the thinking at the time it was formulated. As a consequence, it focused mainly on meeting on a sustainable basis the biomass requirements of the people residing in the hills and mountains, and it ignored the potentials of following similar participatory approach in managing the Terai forests. By the same token, the MPFS has restricted the scope of community forestry to meeting only the basic needs, and by implication, it discourages local communities to specialise and optimise on community forests through commercial operation. Table 5: Forests Handed Over to CFUGs up to May 1996
Year 1987/88 1988/89 1989/90 1990/91 1991/92 1992/93 1993/94 1994/95 1995/(May 1996) Not mentioned Total Number of Forests 3 34 29 54 354 634 950 1390 325 1583 5,356 Area (Ha) 79.80 518.84 1916.48 1949.99 1991.89 3592.14 63308.43 98530.91 26983.28 116446.99 362,551.50 Number of CF User Households 398 2732 5356 5189 37506 73303 99249 141159 39255 181531 585,658
Total Forest Area of Nepal Potential CF area Percent of Potential CF already handed over
5.5 million ha. 3.355 million ha (61% of total forest area). 11 (362,551.5 ha).
Source: MFSC (1997).
Page 19
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
3.5
NATIONAL CONSERVATION STRATEGY
The National Conservation Strategy for Nepal (NCS) (HMGN/IUCN 1988) was the first major attempt to comprehensibly review the main sectors and cross -sectoral areas of the economy and articulate a national agenda for “conservation” of the natural resources while at the same time promoting “sustainable development”. NCS attempted to view the natural environmental system in a holistic way and went beyond the conventional bio-physical approach, relating the value of the natural system with spiritual and cultural upliftment of human beings. It identified wise use, protection, preservation and restoration as the four key elements of the underlying strategy. NCS was prepared as a national follow up response to the global World Conservation Strategy adopted in 1980. The Minimum Basic Needs Programme (BNP) of the then government had its influence on the way the NCS was formulated. The short-lived BNP was initiated in 1986 and it was abandoned with the restoration of multi-party democracy in 1990. NCS had the following four objectives: Satisfy the basic material, spiritual and cultural needs of the people of Nepal, both present and future generations; Ensure the sustainable use of Nepal‟s land and renewable resources; Preserve the biological diversity of Nepal in order to maintain and improve the variety of yields and the quality of crops and livestock, and to maintain the variety of wild species, both plant and animal; and Maintain essential ecological and life-support systems, such as soil regeneration, nutrient recycling and the protection and cleansing of water and air.
NCS proposed a “conservation action agenda” constituting the following components: Reorganisation of the then existing National Commission for the Conservation of Natural Resources (NCCNR) constituted earlier under the Ministry of Forest and Soil Conservation and creation of a separate policy-making body named the National Council for the Conservation of Natural and Cultural Resources (NCCNCR) supported by a permanent secretariat; Enhanced international cooperation and implementation of international treaties and conventions related to resource conservation and wildlife protection; Improved coordination among various related agencies; Public awareness raising through incorporation of subjects on conserving natural and cultural resources in school curricula, teachers‟ training, in-service training, extension training, development of technical capacity, emphasis on women‟s participation, and involvement of nongovernmental organisations; Drinking water source protection; Strict protection of the fragile Churia Hills; Better management of the national parks and protected areas; Conservation, management and propagation of medicinal plants and minor forest products; Agricultural development, including land redistribution, improved land management, conservation extension, integrated farming, pesticide use and control, livestock development and pasture management; Inclusion of conservation activities in large scale projects, including the establishment of conservation fund, regulating trekking and mountaineering activities; Formulation of a conservation policy and appropriate legislation for pollution control and their implementation; and Protection of cultural heritage.
Page 20
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
The core of the Conservation Action Agenda was expressed in the form of four “Vanguard Programmes”, one each for the mountains, hills, Inner Terai and Terai. Activities covered under this programme are listed below in Table 6. The vanguard programmes were intended for implementation in one or two village development committees of the respective geographic regions in order to demonstrate the value of the Conservation Action Agenda. In all the action agenda recommended in the NCS, users‟ participation was emphasised. It was instrumental in paving way for the series of policy pronouncements and programme interventions that followed in the ensuing years. For instance, an NCS Implementation Project was initiated with donor assistance implemented jointly by the National Planning Commission and the World Conservation Union (IUCN). This project has contributed significantly in carrying out various studies on environmental protection and resource conservation and capacity building within the government and NGO sectors. Table 6: NCS Vanguard Programmes
Vanguard Programme I Geographic Division Mountain Activities Catchment conservation Agricultural development Integrated livestock and pasture management Water source protection Conservation education Forest management Water source protection Women‟s role in conservation Intensive horticulture development River bank stabilisation Agricultural development Conservation education Medicinal plant management and utilisation Fisheries and livestock farming Agroforestry Women‟s role in conservation Community biogas Agricultural development Leasehold forest management
II
Hills
III
Inner Terai
IV
Terai
Source: HMGN/IUCN (1988). Building on Success: the National Conservation Strategy for Nepal.
3.6
NEPAL ENVIRONMENTAL POLICY AND ACTION PLAN
The Nepal Environmental Policy and Action Plan (NEPAP) was formulated in 1993 as a further refinement of the National Conservation Strategy. NEPAP covered the major sectoral areas such as natural resources (land, forest and rangeland, water), health, education, natural and cultural heritage, urban and industrial development, and the cross-cutting issues of population, poverty, legislation, institutions, and public resource management (EPC 1993). NEPAP identified degradation of the country‟s natural resources in general, and declining soil fertility in particular, as the principal national environmental problem. Consequently, besides measures to improve soil fertility, the action plan recommended actions for improved forest management. It recognised the fragile ecosystem in the Siwaliks and proposed special conservation actions for this region. The action plan for forest and rangeland management is summarised in Table 7. Table 7: Action Plan for Forest and Rangeland Management
Page 21
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Policies Improve forest management by implementing the findings of the MPFS Encourage community participation in forest management Improve rangeland management
Recommended Actions Finalise the bylaws for the implementation of the Forest Act 1993, ensuring they are consistent with HMGN forest policies stated in the MPFS and Eighth Plan Continue to promote community forestry schemes in the hills Undertake strategic assessments of Nepal‟s rangelands to improve knowledge base Clarify institutional responsibilities for rangeland management Develop an appropriate system of incentives and regulations governing private sector management of forests Review the present system of openended subsidies provided for the purchase of wood by the District Forest Products Supply Boards, which prevents the proper valuation of forests and undermine private sector involvement Develop programmes to provide information (including utilisation of so far unused or lesser known forest species) for users‟ groups, forest industries and private individuals Develop forest extension agents‟ role based on promotion and persuasion rather than enforcement and coercion Adopt a national land use policy classifying areas by their suitability for alternative uses Finalise EIA guidelines for the forestry sector Finalise the energy sector strategy study and incorporate alternative energy development and promotion as an integral part of this strategy
Institutional Responsibility MFSC
Time Frame Immediate
MFSC
Immediate, continuous Immediate, continuous Immediate Immediate
MFSC, MOA
Encourage grater private sector involvement in managing national forests
Immediate, continuous MFSC
MFSC
Sort-term
Reorient forestry research
MFSC
Short-term
Raise awareness of the importance of forest conservation Improve the basis on which land use is decided Minimise adverse environmental impacts of forest-related projects Promote research and development of alternative energy sources to reduce dependence on biomass sources
MFSC
Short-term
NPC, MFSC, MOA NPC, MFSC
Long-term
Short-term
NPC, WECS
Short-term
Source: EPA (1993). Nepal Environmental Policy and Action Plan.
NEPAP recognised that, “although the causes of deforestation are complex and interrelated, there is a growing consensus that any solution to these problems needs to be based on improving systems of forest management. Efforts to implement the government's current policies emphasizing community and private sector management of forests must be stepped up. These policies need to be supported by a public sector concentrating its efforts on providing relevant technical information to forest managers, be they community groups, private individuals or public sector corporations. Programmes should also be developed to raise awareness concerning the importance of forest conservation through improved management”. Community forestry constituted the core component of NEPAP. Implementation of the broad actions identified in the NEPAP required formulation of sectoral action plans with a list of identified project profiles. This task was accomplished in a follow-on exercise (MOPE 1998) carried out in 1996. NEPAP-II has prepared detailed action plans and
Page 22
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
identified priority projects for implementation in three sectors (forestry, water resources and industry) and associated cross-sectoral areas 5. Thus NEPAP II prepared detailed action plans and costed, time-bound project profiles in the three selected sectors, including forestry. It identified 54 environmental projects relating directly or indirectly to the forestry sector. Among them, six were classified under the first category, and one under the second priority in accordance with the ranking system designed by the study itself. These are listed in Annex 2. The national EIA guidelines were approved in 1993 and a number of sectoral guidelines have either been already issued (viz., for forestry and industry), or are in the process of preparation and finalisation. Effective enforcement of these guidelines was hampered due to the absence of an enabling legislation. This gap has now been filled with the passage of the umbrella Environment Protection Act. 3.7 THE AGRICULTURE PERSPECTIVE PLAN
The 20-year Agriculture perspective Plan (APP) was prepared in 1995 on the basic premise that the key to resolving the poverty problem lies in raising agricultural production through improved factor productivity. Besides, a strategy to achieve higher economic growth through improved productivity in agriculture has the potential to significantly reduce the pressure on the limited natural resource basea pressure that arises from the growing population and stagnant agricultureby encouraging farmers to commercialise farming operations on environmentally more robust lands and by raising productivity on such lands, thus relieving pressure on the less productive and environmentally sensitive lands. As the process of agricultural transformation proceeds, it starts becoming less and less attractive economically to cultivate poor quality lands whose marginal productivity is low relative to the high intensity of input use which is characteristic of modernised agriculture. The APP is a prioritised plan of action in which a small number of key priorities are carefully packaged together into a prioritised productivity package (PPP). Accordingly, there are four priority inputs (irrigation, fertilizer, technology, roads and power), four priority outputs (livestock, high-value crops, agribusiness, forestry), three targeted areas of focus for impact (poverty reduction and food security, environment, regional balance), and a number of policy interventions, institutional arrangements, and investment decisions. The drive to commercialise the country's agriculture needs to move side by side with an effort to develop basic infrastructure in the countryside. Rural (agricultural) roads and telecommunication facilities enhance the process of agricultural commercialisation by linking production areas with potential markets. Rural electrification is essential not only for energising various kinds of agricultural equipment such as irrigation pumps, but also to promote small agro-based industries for processing local agricultural surpluses, thus providing markets and adding value to locally produced goods. Besides, presence of roads, electricity and communication facilities contribute to much complex and farreaching opportunities for small entrepreneurs to initiate new ventures locally, and acts as a main force to attract qualified manpower to work in the rural areas. Construction of physical infrastructures also has a direct positive impact on labour employment in their construction and maintenance. The APP again has duly recognised the importance of such basic infrastructures and has made recommendations for their development. It is however important to bear in mind that
5
MOPE (1998): Environmental Strategies and Policies for Industry, Forestry and Water Resource Sectors, Vol. I (Sector Strategies). Page 23
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
infrastructure development has to be carried out concurrent with the drive to develop agriculture. The following six points summarize the APP strategy: A technology-based green revolution in agriculture becomes the initial engine of accelerated growth. Accelerated agricultural growth creates a demand pull for the production of high-value commodities in agriculture, as well as for nonagricultural commodities, with consequent large multiplier effects on other sectors of the economy. Broadly based high employment growth then becomes the mechanism for achieving societal objectives. Public policy and investment focus on a small number of priorities, building on past investment in human capital and physical and institutional infrastructure. A package approach to development is introduced, which in Nepal's case would be differentiated for the Terai, hills, and mountains, and would recognize the powerful complementarity between public and private investment and priorities, and would ensure their coordination. To achieve broad participation, the strategy is regionally balanced and explicitly ensures the participation of women.
The APP differs from the past plans in that it focuses on a small number of priorities so as to produce tangible impact and to realise scale economies essential for commercialisation. These priorities are the following. Priority inputs: Four inputs are considered crucial for agriculture: well-controlled year-round irrigation, coming mainly from shallow tubewells in the Terai and small farmer-managed schemes in the hills; fertilizer, which accounts for nearly 44 percent to the total growth in agricultural GDP in the initial stages; agricultural research focusing on the issues directly related to the identified priority inputs, outputs and policy changes; and rural infrastructure (roads and power) to link the production areas with market outlets, facilitate increased rural mobility, and stimulate the expansion of agro-processing industries. Priority outputs: The priority outputs include livestock (with emphasis on dairy), highvalue crops (main and off-season vegetables, fruits and medicinal plants), agribusiness and forestry. Priority policy reform: In the policy arena, emphasis is put on land tenure; price policy; private sector promotion; poverty, women and environment; and resource allocation for priority programmes. Priority institutions: Actions from a number of key agencies will play a definitive role in successfully implementing the recommended APP package. These agencies are: the National Support Committee (proposed), Subcommittee for the Implementation of the District Agricultural Programme (proposed), Independent Analytical Unit (proposed), Department of Agricultural Roads (proposed), Agricultural Development Bank, Agricultural Inputs Corporation, Department of Agriculture, and Department of Livestock Services. Forestry is one of the four priority output areas, and within it four top forestry priorities: community forestry in the hills and mountains; commercial management in the Terai; private and leasehold forestry; and training, research and development. In addition, it supports the development and management of forage and pasture areas with a view to enhancing production from the livestock sector. It makes a case for handing over the bulk of accessible
Page 24
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
forests to the community forestry programme. This programme “will promote intercropping with medicinal herbs and other cash crops, which will increase the economic benefits and off-farm employment for the rural poor”. The APP underscores the dependence of the farming system on the forest, particularly in the hills, for fuel, organic matter for crops, and animal forage and bedding. It endorses the recommendation of NEPAP to manage the environmentally fragile and high-risk watershed areas of the Siwaliks as a protected forest area. It also points to the conflicts and inconsistencies in several bodies of law such as the General Administration and Land Survey, and recommends for resolving such conflicts through modification of these laws. 3.8 MACROECONOMIC POLICY
Nepal started the process of “liberalisation”6 towards the middle of fiscal 1985/86 after the approval of the budget for that year7. The process was initiated amidst a large and growing balance of payment and budgetary deficits. The Structural Adjustment Programme (SAP) and Structural Adjustment Facility (SAF) of the World Bank (WB) and the International Monetary Fund (IMF), respectively, introduced at that time provided windows to accessing some resources, provided that His Majesty‟s Government of Nepal (HMGN) accepted the lenders‟ preconditions and followed their policy prescriptions. HMGN accepted those conditions and prescriptions. By and large, those conditions were directed towards reducing deficits in the government budget and exchange rate manipulations. These conditions were followed by a variety of new policy prescriptions in the subsequent years although the pace of their implementation was spasmodic. The entire exercise, particularly after the general election of 1991, was dubbed "liberalisation" to suit the global fashion. Many of the policy instruments adopted by Nepal were originally created to meet exigencies of those economies which have well established physical and institutional infrastructures, and the prescriptions are used to address short and medium run macroeconomic imbalances. By the same token, one can also argue that these instruments do carry significant potentials to substantially impact on the rural sector, including its nonmonetised part, especially in the long run, regardless of Nepal‟s rudimentary physical and institutional infrastructures. Given that a large majority of Nepal‟s poor populace are rural and dependent on agriculture, any measure which affects this sector will directly impact on the poorer sections of the society, regardless of the fact that the sector is still overwhelmingly subsistence oriented. It took nearly a decade since the inception of the stabilization programme for HMGN to consider the provision of “the gains of economic liberalisation to the poor and deprived rural people”. This element appeared for the first time as an „objective‟ in formulating the government budget for the financial year 1995/96 although adoption of “economic liberalization as a major strategy for economic reform while maintaining macro-economic stability” still remained the government‟s major objective 8. Also, for the first time, the government‟s budgetary statement admitted that the economy is characterized by dualism
6
The term “liberalisation” is used here in a broad sense to include measures ranging from reduction of budgetary and other selected aspects of macro-economic imbalances to privatisation.
7
Financial year 1985/86 has been taken as the beginning of the liberalisation process although the actual terminology used then was stabilisation.
8
HMGN, Ministry of Finance (1995b). Budget Speech of Fiscal Year 1995/96, Kathmandu, p. 6. Page 25
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
wherein “a „modern‟ economy based on organized industry, trade and service sectors is emerging” on one hand, while on the other, the “rural economy where the majority of the people are subsisting is characterized by under-development, poverty and lack of access to even minimum services and facilities”, and that “the same type of policies and programmes can not deal with the problems of the modern and rural economies” 9. To address this situation, the government thought it “essential to link up the economy of the country with the global economy on the basis of competitive strength by encouraging the private sector’s capital, resources, and skills for the development and expansion of the modern sectors. It is also urgent to allocate more public resources to social sectors and give the highest priority to such economic policies and programmes that can bring improvement in production, productivity and income distribution by providing productive employment to the surplus rural labour force. For this purpose, the state has to play a dominant role by increasing its investment for the revitalization of the undeveloped rural sectors” 10. Perhaps the most important achievement of the then government, in retrospect, was the realisation that “economic liberalization is a means and not an end. The end is to raise the living standard of the people. Economic liberalisation encourages the creativity and entrepreneurship of the private sector and helps to maximize utilisation of available resources. Unless majority of the rural poor are benefited, the liberalisation process will not receive people‟s support, and its continuity becomes uncertain and it can not be the mainstream of development”. It announced that it will implement the following working policy “to benefit the rural people from liberalisation.” The economic reform programme will be extended to cover agriculture, forestry and unorganized sectors; The government will increase the access of the rural poor to income and employment opportunities created by economic liberalisation; The government will gradually phase out its investment in the modern sector and invest the surplus resources thus generated in the creation of social and physical infrastructures and human resource development; and The government will provide social security to the helpless and backward citizens of the society as to the capacity of the national economy” 11.
In theory at least, this development could be considered a major policy departure from the orthodoxy of effectively sidelining agriculture and rural sector in the name of liberalisation. It should also be noted here that the commonly termed Maoist Movement had started surfacing at the time the Government made the above announcement. In the following years‟ budget speeches also, poverty continued to find a place although its prominence varied depending on the partisan composition of the government. The above statement reflecting a departure in the governments budgetary policy came nearly at the end of the Eighth Plan period (1992-97), although poverty alleviation was one of the explicit objectives of the plan. In the earlier plan documents, reference to this issue is either implicit or in the context of meeting the basic needs of the people. There is now evidence to suggest that the agriculture sector in general and the subsectors relating to trade could not benefit from liberalisation. On the contrary, these measures might have contributed to further hurting and strangulating the sector. The various
9
Ibid., p. 5. Ibid. Emphasis added. 11 Ibid., p.11.
10
Page 26
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
instruments that were introduced over the last one decade or so as part of the structural stabilisation process and later in the name of liberalisation were designed for those countries with well monetised economies with commensurately advanced physical, institutional and other infrastructural base. The difficulties of the Nepalese economy on the other hand are not just related to the macro-economic imbalances per se. They are also of structural nature. This is not to say that the traditionally recommended instruments should not be used. They should be, but with prudence. Even more important in the long run interest of the country in is the need to address the structural issues. In this context creation and improvement of rural infrastructure, and institutional mechanisms to efficiently generate and disseminate agricultural production and processing technologies appear as the prerequisites. Hence the relevance of the recommendation of the APP. The APP recommendations also serve as the blue print for poverty reduction. 3.9 ROLE OF THE DONORS
Indeed, the National Forest Plan 1976 and MPFS brought a sea change in the conceptual foundation and strategy that deviated sharply from the conventional approach. These initiatives firmly established, at least at the policy level, that the local users themselves are the best custodians of a locally occurring resource base. Thus a strong need was felt to speed up the process of participatory management and capacity building along the new concept and strategy. The donor community was hence encouraged to contribute in this regard. Following the enactment of the Master Plan for the Forestry Sector, the international donor community, including the main bilateral and multi-lateral agencies (see Table 8) have been investing substantial amounts of money in supporting the government to implement the forest policy and plan. Apart from the main funding agencies mentioned in Table 8, there are many other donor countries, international agencies, religious missions, and voluntary organisations which assist community forestry programmes. They are: UNDP; FAO; Netherlands Government; International Development Research Centre, Canada; United Mission to Nepal (funded by SIDA, Sweden); Action Aid-Nepal (UK and Spain); Ford Foundation; World Neighbours; CARE Nepal; OXFAM; Plan International, etc. Of the 68 different international agencies supporting the forestry programme, over half have a community forestry component (Tinker 1994). HMGN's commitment towards 'decentralisation' and 'participation' have become the key preconditions for donor support. Out of the total development budget allocated to the Ministry of Forest and Soil Conservation for the fiscal year 1997/98, about 45 percent is funded by donors. Table 8: Progress Achieved by Various Completed and Ongoing Forestry Projects
Donor Agencies Name of the Project Number of Districts 37 37 7 5 1,191 433 FUGs Number of Users 424,826 Started in 1998 110,561 53,950 72,351 35,768 Area (Ha) 281,620
World Bank (IDA) DANIDA UK (ODA) USA (USAID)
Hill Community Forestry Development Project Community and Private Forestry Component Nepal-UK Community Forestry Project Rapti Integrated Rural Development Project
4,031
Page 27
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
USA (USAID) Australia Australia (AIDAB) (AUSAID)
Environment and Forest Enterprises Activities Nepal Australia Community Forestry Project Nepal-Australia Community Resource Development Project Dolahka Ramechhap Community Forestry Project Nepal Swiss Community Forest Development Project Churia Forestry Project Karnali-Bheri Rural Development Project National and Leasehold Forestry Development Project Forest Management and Utilisation Project Community Forestry Training Project Tree Improvement Programme
8 2 2 2 3 3 1 NA 5 NA 125 NA NA NA NA 147 463
Started in 1996 51,534 Started in 1997 13,430 Started in 1987 10,486 NA NA NA NA 4,044 NA NA NA NA 17,571 21,552
Switzerland (SDC) Switzerland (SDC) Germany (GTZ) Canada (CIDA) Asian Development Bank (ADB) Finland (FINNIDA) Denmark (DANIDA)
HMGN
10 Terai districts
11
340
45,505
17,617
Source: DoF (1994); CPFD (1996); CPFD FUG Database (1998).
Page 28
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
4
4.1
LEGISLATION, REGULATIONS AND EXECUTIVE ORDERS
THE CONSTITUTION OF THE KINGDOM OF NEPAL, 1990
The Constitution of the Kingdom of Nepal 1990 has various provisions related to the Nepalese people (which include local users, farmers and traditional communities). The Constitution protects different sorts of human rights such as right to equality, freedom, access to information, freedom to register associations, protection of property and protection against exploitation. The Constitution under the chapter of Directive Principles and Policies of the State stipulates various principles and policies which are fundamental to the governance of the State. Article 26(3) of the Constitution requires the state to pursue the policy of mobilising the nation's natural resources and heritage in a useful and profitable manner suitable to the national welfare. Article 26(4) of the Constitution also proclaims: "The state shall give priority to the protection of the environment and also to the prevention of its further damage due to physical development activities by increasing the awareness of the general public about environmental cleanliness, and the state shall also make arrangements for the special protection of rare wildlife, the forests and the vegetation". Similarly, the Constitution has made it mandatory for the Government to seek the Parliament‟s ratification by a two-thirds majority of any treaty or agreement involving sharing of Nepal's natural resources which has significant, serious or long-term implication to the country. Although Article 26(4) does not specifically mention community forestry, the legal mandate for this programme stems from it. The community forestry programme revolves around local user groups for the protection, management and utilisation of the forests. The enactment of the Forest Act, 1993 and its enforcement is one of the measures taken by the government to fulfill this constitutional directive. Article 26(5) of the Constitution stipulates that "The State create conditions for economic progress of the majority of the people, who are dependent on agriculture, by introducing measures which will help in raising productivity in the agriculture sector and develop the agriculture sector on the principles of industrial growth by launching land reform programs". Although Article 26(5) talks about economic progress of people dependant on agriculture, the focus seems to be on increasingly the agriculture sector. However, Art 26(5) empowers the government to develop programmes, policies and legislation for protecting the rights of traditional farmers and local communities, who are mostly the members of local users groups. Similarly, Article 26(13) states that the State shall pursue a policy of creating conditions for the acceleration of the speed of rural development keeping in the view the welfare of the majority of the rural population. These provisions of the Directive Principles, trying to deal with local users and users group who are mostly farmers and reside in rural areas. But these are only guidelines for the State and are to be implemented in stages through various legislation within the limits of the resources and means available in the country. If the state does not enforce or implement these Directives Principles and Policies, they cannot be enforced by any court. The nation's fundamental economic objectives as envisaged in Article 25(2) of the Constitution of the Kingdom of Nepal is to transform the national economy into an independent and selfreliant system by preventing the available resources and means of the country that are
Page 29
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
concentrated in the hands of a limited section of the society. The constitution has thus made a plea for making arrangements for an equitable distribution of economic gains on the basis of social justice, prevent economic exploitation of any class or individual, and give preferential treatment and incentives to national enterprises, both private and public. Thus the constitution clearly emphasises the need to prevent the concentration of resources within a limited section of the society and prevent economic exploitation of any class or individual. It is almost impossible to develop a country like Nepal without involving the people at various stages of development as the people are the makers of the destiny of the country. It is only possible and successful when people and local authorities are empowered and involved. The Constitution of the Kingdom of Nepal 1990 has envisaged the people as the source of power through decentralisation. Article 26 (3) of the Constitution requires the State to pursue the policy of mobilising nation's natural resources and heritage in a useful and profitable manner suitable to the national welfare. 4.2 THE FOREST ACT, 1993
The Forest Act, 1993 (FA) is the latest forestry legislation enacted on 18 January 1993 to provide legal measures for protecting the forests and involving the local people in the conservation and development of forest resources, as envisaged in the Constitution. The Act builds upon the policy directives enunciated in both the MPFS and the Eighth Plan (Lynch and Talbott, 1995). In enacting the new FA and Forest Rules, 1995, HMGN has shown its commitment to institutionalisation of the CFUGs by recognising them as legal entities. It acknowledges five categories of national forests, viz., community forests, leasehold forests, government managed forests, religious forests, and protected forests. The objectives of the Forest Act are to meet the basic needs of the people in general; to attain social and economic development; to promote healthy environment; and to promote development, conservation of forests and forest products by managing national forests as government managed forests, protected forests, community forests, leasehold forests and religious forests; and to provide assistance to conservation and development of private forests. Section 3 of the Forest Act, 1993 empowers the District Forest Officer (DFO) to demarcate the boundaries of the national forests of the concerned district and install forest boundary marks in accordance with the Act. Section 16 of the Act prohibits registering of national forest lands in individuals‟ name. However, as the national forest areas have not been demarcated in different parts of Nepal, national forest areas are being encroached and registered under individual names by many unscrupulous individuals. It is the responsibility of the DFO to initiate action to have such registration declared void ab inition. In many instances, it is the Community Forest Users' Groups (CFUGs) which initiate the proceedings and are compelled to indulge in lengthy judicial proceedings. This creates an extra burden on CFUG timewise and financially. Further, when the case is filed in a court of law, a CFUG cannot take any additional action as the case is sub judice. Meanwhile, encroachers keep on encroaching the forest area and continue collecting various forest products. As a CFUG is a legal entity, it has to honour the legal norm by not taking any further action while the case is sub judice. But the offending culprit does not honour the legal norm and keeps on working against the national interest. 4.2.1 Handing Over Procedure for Community Forest The Forest Act, 1993 empowers the District Forest Officer (DFO) to hand over any part of a national forest to a CFUG in the form of a community forest, entitling it to develop,
Page 30
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
conserve, use and manage such forest, and sell and distribute the forest products by independently fixing their prices as per the operational plan (Section 25(1)). However, handing over of a part of a national forest as community forest does not change the land ownership of the forest land. Land ownership of the community forests remains under HMGN (Section 67). Nevertheless, it is one of the most progressive provisions of the Forest Act that empowers local communities for the management, development and partial sharing of the benefits arising from such forests. In case the local people, users or otherwise, have planted and protected trees on any public land outside a national forest area, or in case the local users desire to plant trees on such land after constituting a CFUG and obtaining the approval of the agency owning the land on the condition that the concerned agency itself retains the ownership of the land, the DFO may grant recognition to such forest area as a community forest (Rule 26(2)). However, Clause 2.2.4 of the Operational Guidelines stipulates that such users are not entitled to get the certificate of registration. The DFO must take into account the distance between the forest and the village, and the wishes as well as the management capacity of the local users who have to manage the forest, while handing over any part of a national forest to a CFUG as a community forest (Rule 26(1). While forming a CFUG and making a constitution, according to the Forest Regulations, a decision must be made on consensus so that the boundaries of wards, villages, towns and districts shall have no effect on them (Rule 27(4)). In case a CFUG desires to take over any part of a national forest as a community forest, it must submit an application to the DFO (Rule 29(1)). The DFO is required to conduct necessary investigations into the application submitted. The operational plan must be submitted by the CFUG for approval. In case, s/he deems necessary to make any alterations in the operational plan. s/he is obliged to do so with the consent of the CFUG and approve the operational plan accordingly. The DFO must then hand over the forest area coming under the approved operational plan to the CFUG as a community forest after making a bond to the effect that it will comply with the conditions prescribed by HMGN. While handing over a community forest, the concerned CFUG shall also be issued a certificate (Rule 29(2)). Promotion of indigenous and traditional use of forests even after their handing over is hardly considered while preparing and finalising the Operational Plan. This needs to be clearly stipulated in the Operational Plan, and the DFOs need to be sensitive and promote such practices to the extent possible by clearly stipulating these aspects in the Operational Plan. If such practices are not promoted, it is very likely that they will be lost over time, which will have an adverse impact on the management, development and conservation of forests. The boundaries of the villages, towns and districts shall have no effect on handing over a forest area as a community forest. In case any forest area which is to be handed over as a community forest lies within two or more districts, the DFO of the district where the application has been submitted may hand over the forest as a community forest with the consent of the DFO(s) of the other district(s) (Rule 29(4)). Although the Act gives discretion to the DFO, it does not provide any criteria for determining the area of a CF which is to be handed over to a CFUG. If a village with 60 households submits an application to a DFO for taking over about 500 hectares of a national forest as CF, what
Page 31
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
should the DFO do? It is very likely that 500 hectares of national forest is certainly a big area for a village of 60 or 70 or 80 households, but in practice DFOs have been found unable to say „no‟ to the households to hand over the forest. Ultimately, it has been found that the forest is not managed properly and in many cases it is likely to be misused. Therefore, the DFOs wish that such lacunae should be resolved by incorporating some scientific and practical criteria in the legislation. Another equally important issue is the maintenance of a right balance between subsistence needs and commercial value of forests. Undoubtedly, in a country like Nepal where 90 percent of the population live in rural areas (Population Census 1991), subsistence needs should get precedence over commercial utilisation. This is clearly reflected in Section 30 of the Forest Act which states that "notwithstanding anything contained elsewhere in this Act, any part of the national forest suitable for handing over as community forest to the users groups shall not be handed over as leasehold forest". However, no one should be permitted to use the community forest as a commercial forest. Community forestry should be utilised to fulfill subsistence needs while leasehold forestry should be used for commercial purposes. To prevent any misuse of a CF for commercial and/or industrial purposes, certain scientific and practical criteria need to be included in the legislation as to how much of forest can be handed over to certain households. The DFO of the concerned district is required to monitor and evaluate the condition of the handed over community forest (Rule 29(5)). After handing over a community forest to a CFUG, the DFO is required to maintain records and also forward one copy of each to the Department and the concerned Regional Forest Office (Rule 30). A CFUG is empowered to impose appropriate penalty on any member of the CFUG if a member is found working contrary to the operational plan. If there has been any loss or damage due to the breach of the operational plan, the CFUG is further empowered to recover such loss or damage from the member (Section 29). The first amendment to the Forest Act has included Sub-sections in Section 27 of the Forest Act. This amendment empowers the government to penalise the office bearers of a CFUG where they have been found working contrary to the Forest Act and the Regulations. Citing Section 29 of the Act, some experts maintain that such provisions make the users insecure and suggest that, unless some of the clauses are modified, the local people may not feel assured that the forests have been handed over to them for protection, use and management. Notwithstanding anything contained in the Forest Act, the government is empowered to permit the use of any part of a community forest or other forest in case there is no alternative but to use a forest area to implement a plan of national priority and in case the implementation of such a plan would not lead to adverse environmental impact (Section 68(1)). The government is required to make appropriate arrangements where any person or community is likely to suffer any loss or harm as a result of the permit granted to use a forest area to implement the project of national priority. Rule 65 of the Forest Regulations, 1995 stipulates that, in case the execution of any project of national priority in any forest area causes any loss or harm to any local individual or community, the developers or proponents of the concerned project must bear the cost of compensation. The entire expenses required for felling, cutting into pieces and transporting the forest products in a forest area to be used by the approved project must be borne by the proponent(s) of the project.
Page 32
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
4.2.2 Establishment and Registration of CFUG The concerned users of a forest desirous of developing and conserving it and using the forest products for collective benefit may form a CFUG by fulfilling various procedures prescribed in the Forest Regulations (Section 41). For the registration of a CFUG, an application must be submitted to the DFO along with its constitution. The DFO is required, on receipt of an application, to conduct necessary investigation, register the CFUG and issue a certificate of registration (Section 42(2)). A CFUG registered pursuant to Section 41 of the Act is an autonomous and corporate body with perpetual succession. Every CFUG must have its own separate seal. It is entitled to acquire, use, sell or transfer or otherwise dispose of movable or immovable property like an individual. It may sue or be sued in its own name like an individual (Section 43). 4.2.3 CFUG Fund A CFUG is entitled to have a separate fund of its own. The fund consists of the grants received from the government; grants, donation or assistance received from any individual or institution; amounts received from the sale and distribution of forest products; amount collected through fines; and amount received through any other sources (Section 45(2)). The expenses incurred on behalf of a CFUG must be met from the fund. The CFUG is empowered to spend the money for other public benefits after making disbursements for the development of the community forest (Section 45(3)). However, the first amendment of the Forest Act has included Section 30A in the Act. It requires CFUGs to spend at the minimum of 25 percent of the income of the CFUG for the development, conservation and management of the community forest and may spend the rest for other development activities. The fund and account of a CFUG must be operated by joint signatures of the two officials of the CFUG designated by the CFUG (Rule 36(1)). The annual accounts of income and expenditure of a CFUG must be audited by the person or institution designated by the CFUG (Rule 36(2)). A CFUG is obliged to submit a copy of the audit report to the relevant DFO. The authorized officer is empowered to inspect the accounts of income and expenditure maintained by a CFUG from time to time. 4.2.4 Operational Plan of a Community Forest A CFUG is required to prepare an operational plan of the community forest by including details of the forest: name, boundaries, areas, condition of the forest and types of forest; map of the forest; block division and their details: name, boundaries, areas, aspects, slope, soil type of the forest, main species, useful species, age and situation with respect to natural regeneration; objectives of forest management; methods of forest protection; forest promotion activities (thinning, pruning, cleaning and other forest promotion activities); nursery, tree plantation, income generating programmes and time schedule; details of areas suitable for cultivation of the herbs, types and species of such herbs, cultivation programs and time schedule; provisions relating to use of income accruing from the sale of forest products and other sources; provisions made for the penalties which may be inflicted on users pursuant to Section 29 of the Act; provisions relating to the protection of wildlife; and other matters prescribed by the Department (Rule 28(1)). If a CFUG wishes to plant any perennial crops in the community forest without adversely affecting the crown cover and production of the main forest product, the details thereof must be mentioned in the operational plan. Further, the DFO is required to provide technical and other cooperation required by the concerned CFUG to prepare an
Page 33
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
operational plan (Rule 28 (2)). Section 26(1) of the FA empowers a CFUG to make timely amendments in the operational plan as per the requirements of the CFUG and it is required to inform the DFO with respect to such amendments. If any amendment made in the operational plan by the CFUG is considered likely to have significant adverse effect on the environment, the DFO may direct the CFUG not to implement such an amendment within 30 days from the date of receipt of such information. It shall be the duty of a CFUG to comply with such directives issued by the DFO. It is very reasonable to give authority to a CFUG to make timely changes in the operational plan. However, DFOs argue that there should be some limitations on the power of a CFUG in amending the operational plan. They maintain that sometimes CFUGs amend the operational plan three or four times a year. As CFUGs are sometimes very far from the district headquarters and the number of staff at the District Forest Office is often very limited, the staff cannot go to each and every CFUG to verify whether the amendment made in the operational plan is likely to have significant adverse impacts on the environment within the prescribed time. Therefore, they recommend that there should be some limit as to how many times a year CFUGs can amend the operational plan and the 30 day time limit should be increased to at least 90 days. 4.2.5 Activities Prohibited in the Community Forest The CFUG must not undertake any of the following activities in the community forest, besides those prohibited in the operational plan:
To destroy the forest or mortgage or otherwise transfer the ownership of the land
covered by the community forest; To clear forest areas for agricultural purposes; To build huts and houses; To take any action which may cause soil erosion; To capture or kill wildlife in violation of the prevailing laws; and To extract or transport rocks, soil, boulders, pebbles, sand, etc. (Rule 31).
These prohibitions have been perceived as limiting the broad powers given to CFUGs by the Forest Act. Some experts think that this and similar other provisions have been deliberately included in the Regulations to limit the scope of power and functions of CFUGs entrusted by the Forest Act which are also against the principle of delegated legislation. However, loans may be obtained from financial institutions by pledging the forest products of the community forest as collateral for the purpose of developing the community forest. Houses or huts needed for security may be built in a community forest with the approval of the DFO (Rule 31(2)). 4.2.6 Collection, Sale and Distribution of Forest Products The CFUG can only collect, sell and distribute those forest products which are available pursuant to the operational plan. After collecting timber, firewood and other forest products, the CFUG shall have to make arrangements for reforestation or rehabilitation in the concerned forest area as soon as possible. The CFUG must inform the concerned DFO about the selling price of forest products. In case the CFUG is capable of running an industry based on forest products according to the operational plan, it may run such industry outside the area of the community forest after obtaining approval from the relevant agency on the recommendation of the DFO (Rule 32).
Page 34
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Rule 31(2) of Forest Regulations 1995 allows a CFUG to mortgage forest products of the CF on approval of the DFO, if it desires to obtain a loan from a financial institution to develop the forest. It also allows free marketing of the forest products obtained from a CF. Earlier, questions arose whether the objective of the Community Forestry Programme was only to fulfill the subsistence needs of forest products or whether it was also to encourage income generation or even commercialisation. This debate has been positively resolved by the incorporation of provisions that allow user groups to install wood-based industries with the permission of the DFO, and to farm nontimber forest products and other cash crops that do not affect the growth of the forest. It has to be mentioned clearly in the operational plan of a CFUG. 4.2.7 Records of Forest Products In case any forest products available in accordance with the operational plan is to be used by the CFUG itself, the CFUG may distribute the same by issuing permits after keeping a record of such forest products. While selling the forest products, the CFUG is required to prepare a receipt in triplicate and must give one copy to the buyer and the other copy to the concerned area Forest Office and must retain the third copy by itself. The CFUG is required to maintain accurate records of forest products sold from the community forest as well as their accounts of income and expenditure. 4.2.8 Hammer Mark to be Registered The CFUG must have a hammer mark registered, for the purpose of transporting the timber from the community forest, and submit an application to the DFO for its registration. On receipt of an application, the DFO must register the mark free of cost by ensuring that the name of the mark would not be duplicated. For the purpose of transporting the timber sold by the CFUG outside the area of the user group, a person or committee designated by the CFUG is required to mark the timber and issue a permit. Timber must only be transported after informing the relevant Forest Office in advance and by having the matter endorsed by checkposts located en route. Forest products other than timber may be transported only after informing the District Forest Office in advance and obtaining a permit from the person or committee designated by the CFUG (Rules 34 and 35). 4.2.9 Revocation of Community Forest Section 26(1) of the Forest Act, 1993 empowers a CFUG to make amendment in the operational plan, if need be, and must inform the DFO accordingly. If the DFO considers that any amendment made in the operational plan is likely to adversely affect the environment significantly or is unlikely to comply with the conditions required to comply with the Forest Act or Regulations, the DFO may cancel the registration of such a CFUG (Section 27(1)). The DFO is however required to give opportunity to the CFUG whose registration is in question. The CFUG does have the right to appeal against the decision of the DFO to the Regional Forest Director. The decision of the Regional Forest Director is final. Where the decisions of the DFO is endorsed by the Regional Forest Director, the DFO is required to form another CFUG and hand over the community forest to the newly formed CFUG in accordance with Section 25 of the Act. In case it is learnt that the CFUG has been unable to work according to the operational plan or has done anything that has caused substantial adverse effect on the environment
Page 35
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
or has not complied with the Act, the Regulations and the conditions prescribed by HMGN, the DFO is required to depute an employee as soon as possible for an on-the-spot inspection and take action as follows on the basis of a report thereof: (a) In case the report shows that the CFUG has been unable to work according to the operational plan or has done anything that has caused substantial adverse effect on the environment or has not complied with the Act, Regulations and the conditions prescribed by HMGN, an explanation must be demanded from the CFUG by providing it a time limit of fifteen days. (b) In case the explanation submitted by the CFUG is not satisfactory or in case the spot inspection reports the resumption of the Community Forest as appropriate, the DFO may resume such forest and cancel the registration of the concerned CFUG. (c) The concerned CFUG must be informed about the resumption of the Community Forest and cancellation of its registration within 15 days of such action. Any CFUG dissatisfied with the decision to resume the Community Forest and cancel its registration may file a complaint with the relevant Regional Forest Director within 35 days from the date of receipt of the notice of such decision. Decision on a complaint filed by a CFUG must be given within 90 days from the date when it is filed (Rule 37). The first amendment (1998) of the Forest Act has included Sub-section (1a) which stipulates that notwithstanding anything stipulated in Subsection (1) of Section 27, if a user files a complaint claiming that office bearers of the Users Group have undertaken activities contrary to the constitution and operational plan in the name of community interest, such office bearers shall be liable to be punished in accordance with the Act. Similarly, Subsection (3) has also been included by the first amendment of the Forest Act. Subsection (3) of Section 27 stipulates that notwithstanding anything mentioned in Subsections (1) and (2), where the office bearers of a CFUG are found to take any action contrary to the Act or Regulations promulgated under the Act, nothing shall be construed to have prohibited to take action against them in accordance with the Act. Some of the members of CFUGs argue that such penalty should not be given to any office bearers of CFUG, for they are working in public interest as social workers on a voluntary basis. It is not unusual to impose penalty for office bearers of any legal entity. There is a very old system of lifting the corporate veil with respect to public limited or private limited companies. However, it is hard to say that Sub-sections (1a) and (3) will only be enforced where there is a blatant breach of the constitution and operational plan of a CFUG and where its office bearers have contravened the provisions of the Act and Regulations. It is likely that these provisions will be misused by government officials to fulfill their vested interest and harass the CFUG office bearers. This is against the spirit of the Forest Act, 1993. 4.2.10 Submission of Report Section 44 of the FA requires a CFUG to submit an annual report of its activities to the District Forest Office specifying the financial details and the situation of the Community Forest (CF) as prescribed within one month from the date of completion of each financial year. The District Forest Office is empowered to provide the necessary suggestions to the concerned User Group on the basis of the annual report received from the User Group. However, the DFOs maintain that hardly any CFUG submits such annual report in practice. Although CFUGs do not submit such annual reports, DFOs are of the view that
Page 36
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
CFUGs maintain their accounts and records appropriately. For the purpose of discharging various functions entrusted to the CFUG and DFO, the Department and the CFUG may obtain necessary assistance from the national and international governmental and non-governmental agencies (Rule 38). Implementation of the community forestry policy, legislation, and programmes differs from area to area. This has already created various problems and these are likely to increase rather than decrease in future. Talbott and Khadka maintain that one of the greatest constraints to implementing the new community forestry laws effectively is bureaucratic resistance, especially from those government officials charged with implementing and overseeing forestry policies. As in many other developing countries, few government foresters in Nepal believe in the unqualified rights of the local people to own or manage forest resources. Traditional forestry training emphasises the role of the enforcer, a role reinforced by the body of forestry legislation in Nepal prior to democratisation. The relationship between the local users and forest staff has historically been dominated by distrust (Dahal, 1994). This distrust needs to be replaced by cooperation and faith. 4.3 NATIONAL PARKS AND WILDLIFE CONSERVATION ACT, 1973
Section 3A of the National Parks and Wildlife Conservation Act, 1974 (NPWCA) empowers the government to delineate Buffer Zone areas around the national parks and reserves. Section 16C empowers the Warden to constitute Users Committees for the management of fallen trees, dried timber, fuelwood and grass in the national parks, reserves, conservation areas or buffer zones in coordination with local bodies. Section 25A of NPWCA empowers the Department of National Parks and Wildlife Conservation to invest 30-50 percent of the money earned by the national parks, conservation areas or protected areas for community development activities around the national parks, reserves and conservation areas. The Buffer Zone Management Regulations 1996 (BZMR) promulgated under the NPWCA is another legal instrument which is likely to be instrumental in promoting CFUGs in the buffer zones surrounding the protected areas of Nepal. Under Rule 5 of the BZMR, the Warden is obliged to prepare a buffer zone management operational plan for community development, environmental conservation and balanced utilization of forest resources of the buffer zones and submit it to DNPWC. The Warden is empowered to constitute the requisite number of Users Committees (UCs) in coordination with the loc al authorities (local government) to be involved in various activities such as community development and balanced utilization of forest resources; conservation of forest, wildlife, natural environment and natural resources, biodiversity preservation; and other development works. A UC thus formed must have a President, Vice-President, Secretary, Treasurer and at least five members elected by the users from among themselves. After the formation of the UC, an application must be submitted to the Warden for registration of the UC. On receipt of an application, the Warden is obliged to register the UC after necessary inquiry and give certificate of registration. Once UCs are formally registered, they become a legal entity. Prior to promulgation of the BZMR, UCs did not have the legal status of an autonomous entity. Now UCs have their own general body which elects the Executive Committee accountable to the general body. The power and functions of UCs are clearly specified in the BZMR. These are, inter alia, to carry out the activities as prescribed in the approved operational plan of the area; to implement the project works in a proper way; to mobilise people's participation and labour
Page 37
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
for the completion of the project; to prescribe the type, quantity, area to be used, method, time and fees for forest resources necessary for the daily use of local people annually; to do reforestation in its area; to carryout programmes to control floods, landslides and soil erosion; to operate CFUG funds; and to carry out other necessary tasks (Rule 10). Rule 15 of the Regulations provides a mechanism for the establishment of a UC fund. Sources of this fund include: income received from selling of forest products as per the mechanism prescribed by the buffer zone community forest operational plan; amount received from the National Park Authority under Section 25A of the NPWCA which empowers the Department of National Parks and Wildlife Conservation to invest 30-50 percent of the money earned by the national parks, conservation areas or protected areas for community development activities around the national parks, conservation areas and protected areas; amount received from hunting licenses under Rule 35; donations received from donor agencies or individuals; and other lawful earnings. The BZMR empowers the Warden to hand over a buffer community forest and buffer religious forest to a UC and religious authority, respectively. Under Rule 37, UCs are required to maintain up-to-date records of immigrants and migrants in and from their respective areas and give notice of such records to the Warden. Local administration, police, NGOs, UCs and all relevant persons are obliged to assist the Warden in the management and conservation of buffer zones. BZMR has been in effect for only over a year. However, it can be inferred that it has been effective in reducing the hostility of the local people toward the national park and protected area authorities. Now, the local people care for the protected areas and a sense of ownership has slowly been developing. NPWCA and BZMR are silent about the status of CFUGs exiting around the protected areas prior to the promulgation of the Regulations. It is important to note that the legal status of these CFUGs is much stronger than that of the User Committees set up under BZMR. The status of a CFUG established around the protected areas under the Forest Act and Forest Regulations needs to be resolved. The promulgation and enforcement of BZMR has curtailed the opportunity for the establishment of a CFUG around protected areas and reserves. BZMR is a weak piece of regulation in comparison to the Forest Regulations 1995. The relevant question to be answered is: Is it legally acceptable to deprive the local people of different benefits by promulgating a weak piece of legislation? If this is brought to the notice of the Supreme Court, it is certainly going to be a serious issue on the basis of the fundamental right to equality. 4.4 SOIL AND WATERSHED CONSERVATION ACT, 1982
As is clear from its preamble, the SWCA is essentially aimed at protecting the agricultural economy from the impacts of various natural disasters: "[to] maintain thorough control of such natural disasters as floods, landslide and soil erosion and to maintain the convenience and economic interests of the people". The SWCA creates few mandatory obligations, but rather empowers the government to designate protected watershed areas and to entrust the Watershed Conservation Officer (WCO) with extensive powers to administer such areas. The designation of a watershed area gives extensive governmental control over the chosen locality, as the WCO has the authority, inter alia, to: Construct check-dams, torrent control, improvement of irrigation channels, protection of watercourses and other necessary activities of erosion and landslide control; protect vegetation in landslide-prone areas and undertake afforestation programmes; direct the cultivation of specified crops; and
Page 38
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
regulate any other agricultural practices pertinent to soil and watershed conservation (Section 4).
To achieve these ends, the WCO may, where necessary, confiscate privately owned property (Section 14, SWCA). Although the landowner is entitled to compensation assessed at the market value (Section 8), the impact of this action upon family and community life remains unaccounted for. Further, in any protected watershed area, the WCO may institute a land use system to support sustainable land use: to conserve land on a long-term basis by cultivating it or using it otherwise in such a manner that its fertility is maintained, and its physical and chemical properties are not weakened or destroyed, or are preserved (Section 2(c)). To encourage the farmers to use their lands in the manner prescribed by the WCO, the Department of Soil Conservation and Watershed Management (DSCWM) is to make the necessary technical or financial assistance available to the landowners and tenants (Section 6(3)-(7)). The WCO is to be supported by a District Soil and Watershed Conservation Committee which coordinates soil and watershed conservation operations in each district (Section 16, SWCA). Users' Groups are set up to fulfill the objectives of SWCA. In many areas where there are CFUGs, Users Groups are also established by the district level line agencies of DSCWM. However, SWCA is silent about the establishment, registration and powers and functions of the UGs established to undertake soil and watershed conservation activities. This legislation is highly bureaucratic and regulatory in form, providing the government with de facto nationalisation powers over the designated soil conservation or watershed management areas. No recognition is given in the legislation to the role of indigenous systems of land management nor to any other forms of public participation other than through government-controlled users groups. 4.5 WATER RESOURCES ACT, 1992
The objective of the Water Resources Act, 1992 (WRA) is to make arrangements for rational utilization, conservation, management and development of all types of water resources available in the country, and to make timely arrangements for determining beneficial uses of water resources, preventing environmental and other hazardous effects thereof and also for keeping water resources free from pollution. The provision of absolute state ownership in water resources mentioned in Section 3 of the Act rejects the existence of any individual or community right over any water resources and also negates the constitutionally awarded property right of the Nepalese citizen. However, Section 4(2)(e) of the WRA mentions that the water resources confined to a private land owner of such lands is entitled to utilize such water in the prescribed manner. Similarly, Section 5 of the WRA provides a legal framework for the registration of Water Users Association (WUA) to make use of water resources for collective benefits on an institutional basis. WRA provides a legal framework for the registration of a Water Users Association (WUA). Section 5 of the Act stipulates that persons willing to make use of water resources for collective benefit on an institutional basis may form a WUA as prescribed in the Water Resources Regulations 1994 (WRR). It requires the users who wish to use water
Page 39
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
resources on an institutionalized basis to form a consumers' association consisting of at least seven individuals as officials and members. A WUA must be registered with the District Water Resource Committee (DWRC). Section 6 of the WRA states that any WUA registered with the DWRC shall be an autonomous and corporate body having perpetual succession with a separate seal of its own. It is entitled to acquire, enjoy, sell, dispose or arrange by any means movable and immovable property and is empowered to sue as a person and can be sued against it. At least seven persons selected from among the concerned consumers desiring to register the Water Users' Association (WUA) are required to submit an application to the DWRC. Rule 5 requires, among others, that the following information must be provided by the WUA while submitting an application to the DWRC: full name and address; objectives and working area; claim of title, transfer of entitlement or nomination of successor; formation and conditions as to termination of directors; fund and auditing; and amendment procedure. The WRA empowers the people to establish an association to use water resources for collective benefit. This legal provision has facilitated water users to register their association and develop and manage water resources for beneficial use of its users on an institutional basis. This provides legality to the users committees and empowers them to work for a common cause. Water users associations, water users committees and locally operating organisations for customary practices of levying water fees from the beneficiaries are not legally valid unless and until they are registered as institutions and until they obtain a license or are registered under the WRA/WRR (Belbase and Regmi,1998). Section 2(c) of the Forest Act defines the "national forest" broadly to include all forests excluding private forests within the Kingdom of Nepal, whether marked or unmarked with forest boundary, and waste or uncultivated lands or unregistered land surrounded by the forest or situated near the adjoining forest as well as paths, ponds, lakes, rivers or streams or riverine lands within the forest. It is apparent that rivers flowing through national forests are part of that national forest and CF is the forest handed over to the user group from the area of a national forest. Further, Rule 28(1)(i) stipulates that the operational plan of a community forest must also specify the utilization of the income derived from the sale of forest products and other sources. Thus, it can be inferred that a user group can charge a certain amount of fee on the water which can be used for different purposes by the community in general and the private sector in particular. 4.6 PUBLIC ROADS ACT, 1974
Section 14(1) of the Public Roads Act 1974 (PRA) empowers the government to acquire any piece of land temporarily for construction, expansion and improvement of public roads. However, land being used for residence, house or building, shed and temple, school, hospital, dharmashala (inn) and orphanage cannot be acquired for construction, expansion and improvement of public roads (Section 14(2)). It is suggested that the CF area also needs to be included in Section 14(2) of PRA. Further, Section 14(1) requires the government to return the temporarily acquired land in the same condition as it was when it was acquired. It is highly unlikely that a CF area once temporarily acquired for pubic roads purposes will be returned in the same condition as it at the time of acquisition. Section 16 of PRA requires the Department of Roads to plant trees on both sides of the roads. It is the duty of the respective VDC or municipality to conserve the trees so planted by the
Page 40
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Department of Roads. However, under Section 16(4), the Department is empowered to entrust this responsibility to any individual or institution. Further, Section 17 of PRA empowers the Department of Roads to excavate and utilize soil, stone or sand lying nearby roads for construction or maintenance of roads. However, the Department is required to pay compensation to the relevant person for any losses to trees, plants or crops while excavating such soil, stone or sand. Again this right is contrary to the provisions of the Forest Act, 1993. 4.7 NEPAL MINES ACT, 1966
The Nepal Mines Act, 1966 (NMA) vests the ownership of minerals within Nepal on His Majesty's Government of Nepal. Section 3 explicitly mentions that whether or not such minerals lie in the land owned by an individual, they shall be the property of HMGN. As per the provisions of this Act, any minerals lying within the community forest areas also belong to HMGN. The provisions of Section 3 are inconsistent with the provisions of the Forest Act 1993. Section 6 of NMA empowers those experts who have obtained permission from HMGN to enter into land and premises of any individual at any time and undertake their research work accordingly. Section 6 further stipulates that no one can lodge any complaint against entering the premises and land and undertaking of any research. Section 9 of NMA empowers HMGN to issue directives to the owner of mines in accordance with NMA and the regulations promulgated under NMA. 4.8 MINES AND MINERALS ACT, 1985
The Mines and Minerals Act, 1985 (MMA) declares that all minerals remain the property of the government and that any person desiring to extract or market minerals must obtain a license from the prescribed authority. Section 12(1) of MMA empowers the Department of Mines and Geology to limit mining activities in any area of historical importance or where it is otherwise in public interest to do so. The terms and conditions of a mining lease may include provisions for environmental protection. Section 13 of the Act empowers the Department to issue directives to prevent, among others, soil erosion or pollution as a consequence of mining operations. This Act is probably the only piece of legislation which has been amended without being implemented. MMA was amended in 1992 and came into force only in 1999 after 14 years of enactment. Its provisions are inconsistent with the provisions of the Forest Act and Forest Regulations, 1995. 4.9 NEPAL PETROLEUM ACT, 1983
The Nepal Petroleum Act, 1983 (NPA) vests the ownership of all petroleum reserves within Nepal on the government irrespective of whether such a reserve is under public or private land. Section 9 of the NPA empowers the government to declare certain areas off-limits to petroleum development activities on the basis of national security, public interest, historical importance or tourism development. It is also empowered to grant permission for petroleum development in a certain area by imposing special conditions. It is clear that petroleum reserves lying within the community forest areas are also the property of the government. It is very unlikely that the government will use its power under Section 9 of NPA to prevent petroleum development activity in community forestry areas. However, Section 5 of NMA requires that all activities associated with the extraction, production and distribution of petroleum and its products must be undertaken without, inter alia, causing damage to forest and other natural resources and any pollution of the environment. Although this provision will be useful to prevent any damage of
Page 41
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
forests in general and community forest in particular, the threat on community forests remains as before. 4.10 LOCAL SELF-GOVERNANCE ACT, 1998
Article 25(4) the Constitution of the Kingdom of Nepal 1990 provides a basic framework for decentralisation, with the emphasis that "It shall be the chief responsibility of the State to maintain conditions suitable to the enjoyment of the fruits of democracy through wider participation of the people in the governance of the country and by way of decentralisation ...". However, the weakest part of the constitution lies in the omission of an effective infrastructure of local government and a clear cut scheme of decentralisation. The constitution does not spell out any specific provision relating to the form and shape of local government institutions and the involvement of the people in them, though the preamble of the constitution underscores the need for "the widest possible participation of the Nepalese people in the affairs of the State." The local government legislations, viz., the Village Development Committee Act 1992, the Municipality Act, 1992 and the District Development Committee Act, 1992 have been repealed by the recently enacted Local Self-Governance Act, 1998 (LSGA). Local government bodies have been set up throughout the country for strengthening the base of democracy at the grass-roots levels on the one hand, and handing over the power and responsibility to the people there, on the other, so that they should be allowed to manage their affairs in the best possible way through popular participation. Amongst many other things, the Preamble to the Act stipulates that for the arrangement to utilize the benefits of democracy and raise the maximum participation of the sovereign people in the ruling process of the country through decentralisation, the Act has been enacted by the Parliament. The preamble further realises that participation of the entire people, including various ethnic tribes, indigenous people, deprived sections (dalit) and those who are socially and economically backward, is necessary for the institutionalisation of development, allotment and mobilisation of the resources, social equality, and balanced and equitable distribution of the fruits of development. 4.10.1 Village Development Committee The Village Development Committee (VDC) is the lowest tier of local government. At present, there are 3,912 VDCs throughout Nepal. Each VDC is an autonomous body with perpetual succession and a seal of its own. It may, like an individual, acquire fixed or floating assets and use or sell them. It can, like an individual, be sued or may sue other bodies. The powers and functions of a VDC under the proposed LSGA 1998 are divided in eleven broad areas, viz., agriculture; rural drinking water; construction and transport; education and sports; irrigation, soil erosion and river control; physical development; health service; forest and environment; language and culture; tourism and cottage industry; and miscellaneous. The powers and functions mentioned under forest and environment require and empower the VDCs to launch afforestation programmes in fallow lands, hillslopes and public lands; prepare and implement programmes for the development and conservation of forests, vegetation, biodiversity, soil erosion in the village development committee area; and formulate and implement various programmes for environmental conservation. Further, the VDC and DDC are obliged to give priority to the projects that help protect the environment.
Page 42
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
VDCs are required to construct and implement village level projects through users committees. If the UC requires any training, such training must be provided to them. UCs are entitled to collect service charges from the users who use the services from the project. It is a truism that the new legislation has strengthened the position of UGs which are responsible for implementing and maintaining projects, and creating environmental awareness. It is stipulated that VDCs must encourage and help the formation of user groups which may be formed from the direct beneficiaries of a project. Nevertheless, the rights, duties and functions of such user groups, and their relation to the local government bodies have not been clearly specified. Section 58(d) and (e) of the LSGA 1998 provides the VDC the right to sell the dried timber, fuelwood, twigs, branches, bushes, grass and straw within the VDC area for income generation. However, Section 68 (1)(c) and (d) stipulates that the property of a VDC includes forests granted by the prevailing laws and HMGN, and natural heritage of the VDC, respectively. These two sections are inconsistent with each other, particularly Section 68(d) which includes natural heritage as being the property of a VDC. Natural heritage as defined or interpreted covers forests, rivers and wetlands. If forests are the property of a VDC, then what is the use of Section 68(1)(c) which explicitly stipulates that the VDC shall have the full right over the forest granted by the prevailing forest laws and HMGN? Sections 55 (j), 58 (d) and (e) and 68 (1) (c) and (d) are all inconsistent wit h the Forest Act, 1993. 4.10.2 District Development Committee The District Development Committee (DDC) is also an autonomous body with perpetual succession and a seal of its own. It is entitled to acquire movable or immovable property, use or sell them like an individual. It can be sued and may sue others. Under the LSGA, 1998, its powers and functions are divided under seven headings that include: agriculture; rural drinking water and settlement development; forest and environment; irrigation, soil erosion and river control; language and culture; health service; and tourism. With regard to forest and environment, the DDC is required to develop a plan for the conservation of forests, vegetation, biological diversity and soil and implement it or cause it to be implemented; and conservation and promotion of the environment. DDCs are required to formulate periodic and annual plans for the development of the district. While formulating the district development plan, a DDC is obliged to follow a participatory process. The DDC is required to constitute CFUGs from the beneficiaries of the project in the district in consultation with the relevant agencies while implementing the projects according to the district development plan. CFUGs and NGOs are required to implement the projects in coordination with the DDC. Section 190 of LSGA empowers the DDCs to constitute different subcommittees to assist the DDC in its functions. Such a subcommittee may have representation drawn from various sectors including women and underprivileged classes. Rule 84 of the DDC (Working Arrangement) Regulations 1994 requires the DDC to constitute four different committees, which include Committees for Agriculture and Industry, and Forest and Environment. In accordance with Section 202 of LSGA, DDCs must select those projects which can contribute to the protection of the environment and which may have maximum participation of the local people and labour. While fixing priority for the district development plan, first and second priority must be given to these programmes which
Page 43
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
contribute to raising agricultural production as well as to protecting the environment. Section 215 (2) of the Act empowers the DDC to levy taxes on wool, resin, herbs, slate and sand, and animal products such as bone, horn, wing, leather, etc., except those items prohibited pursuant to the prevailing law. It can similarly collect taxes from other goods at rates prescribed and approved by the District Council and not exceeding the rates specified in the district development area. Section 218 empowers the DDC to sell sand from the rivers and canals, boulders, stones, soil and driftwood (dahatar bahatar) lying within its boundary. The report of the High Level Decentralisation Coordination Committee (HLDCC) entitled "Decentralisation and Local Self-Governance" (DLSG) also recognised that, due to the contradictory provisions of the Forest Act and the Nepal Mines Act relating to the income of the local governments accruing from natural resources, disputes have arisen from time to time. The report, therefore, recommends repealing those provisions of the Forest Act and the Nepal Mines Act which are inconsistent with respect to resource mobilisation within the area of a local government from dahatar bahatar, mines, stone, and sand (HMGN, HLDCC 1996). As the LSGA has recently come into force, it is too early to say anything about its exact impact on community forest. However, it seems certain that the LSGA will create further tensions among the CFUGs, VDCs and DDCs. 4.11 ENVIRONMENT PROTECTION ACT, 1996
The objective of the Environment Protection Act (EPA) is to promote conservation and sustainable development in the Kingdom of Nepal and to maintain a clean and healthy environment by minimising the adverse effects of environmental degradation on human beings, animals, plants, nature and material things. The EPA, 1996 is the only piece of legislation which defines biodiversity. It has been defined in line with the definition of the Convention on Biological Diversity. The Act defines biodiversity as ecosystem diversity, species diversity and genetic diversity. However, the Act does not provide other measures for conservation of biodiversity and sharing of the benefits arising from genetic resources. Section 10 of the Environment Protection Act, 1996 empowers the government to designate as an environment conservation area any area which contains biologic al diversity, rare wildlife and plants, and places of cultural and historical importance which are considered extremely important from the point of view of environmental protection. It also empowers the government to prohibit any kind of activities in such designated conservation areas. It is very likely that some of the community forest areas will also be designated as environment conservation areas. Once the community forestry area or part of a community forest is designated as environment conservation area, a CFUG has to stop most of its activities in accordance with the Environment Protection Act and the Environment Protection Regulations, 1997. However, Rule 31 of the Environment Protection Regulations, 1997 stipulates that foreign organisations, or any individuals or organisations affiliated with them shall not collect samples of any microorganisms and vegetation, and shall not undertake any research work with respect to biological diversity within the Kingdom of Nepal without prior approval of the relevant government agency. Rule 32 of the Environment Protection Regulations, 1997 requires foreign organisations,
Page 44
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
or any individuals or institutions affiliated with them, that are interested to collect samples of any microorganism and vegetation and undertake research work relating to biological diversity are required to apply in writing to the Ministry of Forest and Soil Conservation stating the objective of the work. The ministry is required to conduct the necessary inquiry before granting approval, with necessary conditions, to collect samples or undertake research in relation to biological diversity. However, the EPA is silent whether the Ministry of Forest and Soil Conversation is required to consult with the CFUGs during its inquiry. Under Rule 33, the individual or institution that has been granted approval to collect samples of microorganism and vegetation and undertake research work relating to biological diversity must not do any activity contravening the conditions stipulated by the relevant government agency. Where any activity is found to be in breach of the conditions stipulated by the government agency, it must immediately stop such activity. These provisions try to regulate access, but they are silent about sharing of benefits among the CFUG, farmers and local communities who are the custodians of Nepal's genetic resources. It is certain that the person who has obtained approval from the government will also collect such material from community forests. Therefore, it is important to ensure that the benefits also go to the CFUGs. 4.12 LAND REVENUE ACT, 1977
The Land Revenue Act, 1977 (LRA) requires the government to establish a Land Revenue Office (LRO) in every district as required (Section 4). The LRO is required to maintain records and register all lands in every district (Section 6). Sub-section 2, Section 7 of LRA empowers the LRO to register those lands that have been measured and surveyed in accordance with the Land (Survey and Measurement) Act, 1961 but remain unregistered. However, LRO is required to register such lands only on the recommendation of the Committee established under LRA, by following the procedures as stipulated in the Land Revenue Regulations, 1979 (LRR), and after undertaking necessary investigation of original registration, receipt of payment of land revenue and possession of such land. The LRO is required to complete the registration of such land within two years of receipt of application from the concerned individual. Rule 4(A) of the LRR stipulates that a four-member committee shall be established for the purpose of Sub-sections (1) and (2) of Section 7 of the LRA. The Chief of Land Revenue Office, President or Vice-President of the relevant VDC, representative of District Office and Representative of Central or District Sukumbasi Samasya Smadhan Aayog (Commission for the Settlement of the Problem of the Landless People) are the permanent members of the committee. As mentioned earlier, one of the criteria for registration of the remaining land is the recommendation of the committee. A representative of the District Forest Office is entitled to be on the committee only when the committee is going to recommend registration of forestland or shrubland (butyan). In many districts, the committee has been found providing recommendation for registration of forestland or shrubland. Thus, it has been assisting encroachment of forests in general and often community forests contrary to the provisions of FA. This is unlikely to be controlled unless the DFO is placed permanently on the committee as the Chairperson. As mentioned above, there are many pieces of legislation which are related with forest and forest products. There are instances of overlapping ownership over forest areas and forest products. It is mainly due to the failure to thoroughly review related legislation already under implementation within the same sector as well as across different sectors when a law is in the process of formulation. The primary responsibility to maintain
Page 45
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
coherence and consistency amongst various laws and avoid overlapping and contradictory provisions in them lies with the Ministry of Law and Justice, but this important task has hardly ever been taken seriously. Also, specialised line agencies such as MFSC should have been more alert to prevent such anomalies before a piece of legislation is drafted and processed for approval. This hardly comes under priority for a line ministry. The problem is further exacerbated by the tendency in a given line ministry to expand its jurisdiction and area of authority as wide as possible while developing any law to be administered by that sector. This ultimately leads to further overlapping provisions and inconsistencies. Furthermore, public involvement in the law making process is almost nonexistent. The public at large is seldom consulted and public hearings hardly held. Unfortunately, the most recently enacted Local Self-Governance Act, 1998 was also not discussed with the local people. Consequently, there are inconsistencies between the LSGA and the Forest Act, as mentioned earlier in this report. Similarly, some of the circulars issued by the government are also inconsistent with the Forest Act and other laws. A glaring example is the government's circulars relating to the Timber Corporation of Nepal (see the following section). 4.13 EXECUTIVE ORDERS RELATED TO TCN
The Timber Corporation of Nepal (TCN) is a parastatal agency under the Ministry of Supply until recently. Its mandate is to supply wood products to households and commercial entities. It obtains fuelwood and timber from the national (governmentmanaged) forests of Nepal. The present forest regulation has a specific provision of selling forest products from the government-managed forests of Nepal. Rule (9) of the Forest Regulations describes the procedure of selling wood products obtained from the government-managed forests of Nepal. There are three ways through which wood can be sold from the governmentmanaged forests: Wood required for agricultural implements, local development activities, and house construction in the rural areas and for people affected by natural calamities can be sold through the District Forest Product Supply Committees. The wood for such purpose would be sold at a subsidized rate; The remaining wood should be sold through open auction; and The purchaser should pay the value of wood before it is sold to the above entities.
However, the cabinet of ministers made a decision asking MFSC to sell the wood obtained from the government-managed forests to TCN at a subsidized rate from the last one-anda-half years. The District Forest Products Supply Committee was also dissolved by that decision. This way, TCN got a monopoly right over the wood extracted from the government-managed forest. Within the last one-and-a-half years, the cabinet has made seven decisions which contradict one another. Sometimes, the TCN is given right not only to sell wood within Nepal but also export timber outside Nepal as well. In another case, the cabinet has made a decision to sell wood to TCN even without paying royalty to the government. One of the decisions (2055/11/24) of the cabinet allows TCN to sell the existing timber by paying 25 to 50 percent of the royalty rate to the government. However, these cabinet decisions or executive orders are contradictory to the prevailing Forest Act 1993 and Forest Regulations 1995.
Page 46
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
The latest cabinet decision has transferred TCN from the Ministry of Supply to the Ministry of Forest and Soil Conservation. Moreover, this decision asks the MFSC to allocate 50 percent of the logs obtained from government-managed forests in the Terai and Inner Terai to TCN. There is however no mention of the rate at which the wood would be made available. In a separate cabinet decision, the government has revived the functioning of the District Forest Products Supply Committees (DFPSCs). These committees would henceforth sell timber and fuelwood to the rural households and local level development institutions at subsidised rates. TCN has now about 1.1 million cubic feet of timber in its jurisdiction. Since it sold the selected logs to timber purchasers, this timber is the residual and is of lower quality. TCN is operational in 33 Terai and inner Terai districts. 4.14 TERAI OPERATIONAL FOREST MANAGEMENT PLAN
The Department of Forests (DOF) has prepared forest management plans of 18 districts. Except Ilam, all the other 17 districts are situated in the Terai. These plans cover all the national forests of the concerned districts. Each plan has divided the forests of the district into three categories: Production forest, protection forest and potential community forest. The basis for delineating the forests into these categories is not quite clear, although production forests in most of the cases are located in f lat areas. Similarly, protected forests are those that lie in the hills or adjoining to rivers or other fragile and sensitive areas. A national level DFO seminar held recently in Kathmandu has recommended that these plans need to be reviewed. Some of the production forests have already been handed over as community forests, while some of the potential community forests have been classified as production forests. Potential community forest areas appear to have been allocated based on two criteria: Scattered patches of national forests, and degraded national forests adjoining to settlements. Out of about 1.19 million hectares of national forests in these 18 districts, 184,200 hectares have been allocated as potential community forests. The area allocated for production forest is about 298,300 hectares. The objective of these plans is to manage these production forests as government-managed forests for commercial purpose. Table 9 provides detailed information on the allocation of national forests and the expected costs/revenues with respect to such forests in 18 districts. There is no legal definition of production forests in Nepal. Moreover, community forests could themselves be production forests as well.
Page 47
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Table 9: Main Features of Operational Forest Management Plans in 18 Districts (Summary of Five Years*)
S. N. District Forest Area (Ha) Total Area of Harvest Total 80926 19557 55500 24865 119831 23328 20978 32429 16993 140522 30900 110758 32006 70865 113295 33746 209724 57700 (Ha) 52.0 620.0 588.4 1081.2 297.9 173.0 786.7 2125.1 520.0 303.3 243.6 798.9 353.0 1216.0 1453.0 659.0 2898.0 541.4 Production Revenue Rs. 000 Cost Rs. 000 Employment Generation (Person Net Days) Revenue Rs. 000 Total Harvesting Silvicultural Operations Operations 12588 57153 82424 76907 29863 17132 54803 112545 15545 6360 15990 18047 14305 2665 2955 18794 6300 15272 208103 51997 11688 39463 60454 36840 38405 15331 64159 99032 72767 10423 149616 232288 339025 70304 31277 143399 435347 154863 40432 89746 175405 85817 155899 108925 175878 396557 196669 12959 178768 122704 94614 42232 30757 102386 235724 99316 13736 52908 127323 24899 93579 35603 141014 286973 112785 Total 23382 328384 354992 433639 112536 62034 245785 671071 254179 54168 142654 302728 110716 249478 144528 316892 14926 448368 524563 330500 139140 68499 115039 929927 123685 45410 225443 321586 107019 467616 222778 517584
Protection Production Potential for CF 1 Ilam 2 Jhapa 3 4 5 6 7 8 9 Morang Sunsari Udayapur Sarlahi Rautahat Bara Parsa 1496 10513 15264 11866 4145 6849 15869 25959 10110 1876 5614 20846 7014 32616 25784 14792 64196 23536 298345 39280 1167 37569 11504 98719 14206 2170 3273 3387 87652 20416 80950 18533 29933 83631 14681 133128 31165 711364 40150 7877 2667 1495 16967 2273 2939 3197 3496 50994 4870 8962 6459 8316 3880 4273 12400 2999 184214
Saw Logs Fuelwood M3 M3 3191 45441 72073 109623 20115 8258 45664 137794 46008 11478 25153 53627 26889 45707 28425 54096 115110 60169 908821 3473 51478 81024 115172 25590 11675 54984 173365 56018 189177 28512 60382 28932 54767 40425 60434
Saw Logs 24041 454043 525963 378614 143413 73956 156096 869104 161677 53977 234016 366945 136626 437937 197683 521309
Fuelwood 3473 51478 81024 28793 25590 11675 13746
Total 27514 505521 606987 407407 169003 85631 169842
Harvesting Silvicultural Supporting Operations Operations Services 1898 27455 48424 63080 12216 5724 27034 94300 27173 4154 18546 30541 14909 28722 9706 32374 71210 40952 558418 1207 16088 12455 8427 3837 2228 8927 18242 9279 1174 4927 11866 7626 7018 2670 12991 21522 16543 167027 9483 13610 21545 5400 13810 9180 18842
173365 1042469 14005 3121 30890 15095 7233 68084 40426 60434 175682 57098 264906 382040 143859 506021 238109 581743
10 Makwanpur 11 Chitwan 12 Nawalparasi 13 Rupandehi 14 Kapilvastu 15 Banke 16 Bardia 17 Kailali 18 Kanchanpur Total
137749 1030383 137749 1168132 69222 460423 55377 515800
683530 1069100 309454 443033
1193923 14710.5
1242379 6226206 821558 7047764
933548 2991870
1808280 4800150 6114216
Note: *
Each Operational Forest Management Plan is prepared for five years and the plan period varies from district to district.
Source: Compiled from the eighteen Operational Forest Management Plans of the respective districts prepared by DoF, Ministry of Forest and Soil Consrvation.
Page 49
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
5
5.1
GAPS AND INCONSISTENCIES
INCONSISTENCIES WITHIN THE FORESTRY LEGISLATION
Current forestry laws clearly stipulate that CFUGs do not have direct ownership rights to the land, and they exercise only usufruct rights of management over the trees and forest products derived from the land. Lynch and Talbott (1995) maintain that: “[g]overnment sponsored community forestry programs based on public grants that can be cancelled don't provide adequate incentives for sustainable community based forest resource management. Wherever local people are striving to protect and sustainably manage forests, the best way to establish and secure these incentives is to get appropriate government agencies and officials to recognise existing community-based rights and to consider them as being private. This way, holders of such rights would have the same protection as owners of other private property rights. Governments can express this commitment through national laws and policies prior to any on-the-ground activities, although the spatial perimeters of community-based management systems should be delineated as soon as possible (Lynch and Talbott, 1995).” Under Section 26(2), the DFO is empowered to veto any operational plan if it is likely to have adverse effect on the environment, and Section 27 (1) and Rule 37 allow the DFO to “take back” the community forest, if any activities other than specified in the operational plan or any activities that affect the environment are undertaken. However, what constitutes “adverse impact on the environment” is not specified, leaving it open to the discretion of the DFO. Section 72 of the Forest Act empowers the government to frame necessary rules for fulfilling the objectives of the Act. The Forest Regulations promulgated by the government exercising the power vested under Section 72 seems to be impeding the objectives of the Act itself. For example, under Rule 27(g), the DFO is obliged to issue a certificate of registration to CFUG only after having a bond to comply with the Act, the Regulations and "the conditions prescribed by the government”. The Act does not give authority to the government to impose or prescribe any additional condition except those mentioned in the Act, Regulations, and operational plan. It is apparent that every person whether natural or artificial needs to comply with the prevailing legislation. Therefore, there is no logic in having a bond to comply with the Act and Regulations. The latter part of Rule 27(g) is deliberately included simply to impose unnecessary conditions and to unreasonably control CFUGs. A similar provision is found in Rule 29(2) where it is stated that the DFO shall hand over the community forest area only after having a bond to the effect that the CFUG will comply with the conditions prescribed by the government. The Forest Act does not give power to the government to impose conditions on a CFUG. Rule 29(2) is against the parent Act. How fair is it to have such a bond signed by CFUGs which do not have an idea about what those future conditions might be? Further, Clause 2.2.6 of the Operational Guidelines states that the operational plan approved along with the conditions added by the District Forest Office as per Rule 29(2) of the Forest Regulations will be considered as a contract between a CFUG and the DFO. The Forest Act, 1993 prohibits removal of forest products from the forest area and transportation, sale and distribution of those forest products (Section 49(d)) from national forests. Similarly, Section 49(g) prohibits extraction of boulders, pebbles, sand or soil,
Page 50
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
burning of charcoal or lime or manufacturing of finished products from these materials or collection of such materials in national forests. However, Section 25(1) of the Act entitles the CFUGs to independently fix the price of forest products and sell them. In practice, this has not caused much conflict. However, the Act needs to be amended to do away with this inconsistency. Likewise, Section 49(e) prohibits cutting of trees and plants, trimming branches, extraction of bark or resin, or otherwise damaging national forests. The broad provisions of Section 25(1) have given all the power to the CFUG subject to the terms and conditions of an operational plan. However, in practice, it is the Department of Forest which issues licenses for extracting resin in community forests as well. Rule 31 (1) (f) of the Forest Regulations, 1995 is in contradiction with the definition of the forest product under Section 3 and the power entrusted to a community forest under Section 25 (1) of the Forest Act, 1993. The definition of forest products under Section 25 (1) of the Forest Act, 1993 includes soil, boulders, pebbles and sand. A CFUG is entitled to sell and distribute the forest products independently by fixing the prices according to the operational plan. The only condition imposed by the Act on the sale of forest products is that it has to be in accordance with the operational plan. However, Rule 31 (f) prohibits extraction or transportation of rocks, soil, boulders, pebbles and sand from a community forest. Rule 31(f) of the Forest Regulations, 1995 curtails the right of a CFUG by prohibiting extraction or transportation of rocks, soil, boulders, pebbles, sand, etc., from a community forest. This clause is apparently inconsistent with the definition of forest products under Section 2(c) and Section 25(1), which give absolute right to the CFUG over forest products. It is thus necessary to make Rule 31 (f) consistent with the definition of forest products and powers of a CF as stipulated in Section 25 (1) of the Act. The notice issued by HMGN following Rules 12 and 13 of the Forest Regulations 1995 prohibits the cutting, transportation and export of champ (Michaelia champaca), khair (Acacia catechu) and sal (Shorea robusta). This notice applies to all forests including community and private forests. However, this notice of the government has been applied to restrict the harvesting of these three species of trees grown on private forests. As the cutting of these three species is prohibited by government notification, many CFUGs appear to be in confusion in harvesting these trees. Similarly, two species of herbs have been banned even for collection from any type of forests. Furthermore, eight species of herbs have to be processed within the country and the processed products can only be exported outside Nepal. The rationale for restricting the collection and trade of these herbs is not explained in the notification. The government's power under Rules 12 and 13 is too broad and is not subject to any condition. Once a notice prohibiting collection, cutting, selling distribution or transportation is issued, CFUGs will have no option except to comply with the notice. Rules 12 and 13 need to be amended to make them consistent with Section 25 of the Forest Act. The Act provides a penalty provision for CFUG members who violate the terms and conditions of an operational plan (Section 29). The CFUG is entitled to penalise its members. However, where encroachment or illegal work is done by non-members, the Act seems ambiguous and there is plenty of room for debate as to the legal implication. Some legal experts argue that offences and penalty related to the national forest provided for in Section 50 will apply. If a DFO withdraws a community forest from CFUG, CFUG members can appeal to the Regional Forest Director and his decision will be final. No provision has been made for
Page 51
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
access to the Court of Law. As the DFO and the Regional Forest Director are both employees of MFSC, it is very unlikely that their decision would be unbiased. This is perhaps against the principle of natural justice as well. There needs to be a provision for appeal at the Court of Law. This issue needs to be considered seriously because the DFO takes the decision to withdraw the community forest based on a report prepared by his/her junior staff member. Thus, the investigation is done by a junior, usually a non-gazetted, staff member whose technical expertise could easily be questioned. Finally, the Regional Forest Director, who again is an employee of MFSC, hears the appeal. This is a very good example where sectoral biases will easily get priority over CFUG's concern. The DFO's authority to withdraw community forestry needs to be made fair, impartial, and above all, consistent with the principle of natural justice. Section 27 of the Act empowers the DFO to withdraw a community forest from the CFUG if, among others, the CFUG takes any action, which affects the environment significantly. The Act and Regulations do not define what constitutes a significant effect on the environment. It is important to have verifiable indicators in the Act of such actions which affect the environment significantly. Otherwise, confusion and mistrust between the DFO and CFUG would proliferate. To sell any forest product through an auction, under Rule 66 of the Regulations, the Director General has the authority to auction them if the value of the forest product does not exceed 2.5 million rupees, and the DFO has the authority if the value of the forest product does not exceed five hundred thousand rupees. There is a room for debate whether this provision is in conformity with the objectives of the Act. However, this provision certainly limits the power of a CFUG to sell surplus forest products through auction. According to Section 25 of the Forest Act, CFUG is a legal entity, and it is entitled to freely fix the price and sell the forest products coming out of the community forest. These two provisions are contradictory and would possibly create conflicts between the DFO and CFUG. Although Rule 67 of the Forest Regulations empowers the Ministry of Forest and Soil Conservation to develop and issue necessary manuals for the purpose of fulfilling the objectives of the Regulations, the Operational Guidelines issued in 1995 by the Department of Forest, Community and Private Forest Division do not quote the Forest Act. The Operational Guidelines issued in 1995 has not been issued under the Regulations. However, as already mentioned, it limits various powers of a CFUG. The Ministry of Forest and Soil Conservation needs to make sure that it does not limit the powers of a CFUG provided by the Act and Regulations and it is consistent with the Act and Regulations. HMGN has issued the Community Forestry Directives in 1995 by exercising the power conferred by Rule 67 of the Forest Regulations 1995. Section 12 of the Directives stipulates that the DFO must depute a technical employee, at least of the level of non gazetted first class, to the area where it has been claimed that the CFUG has been unable to work according to the operational plan or has done anything that has a significant adverse effect on the environment or has not complied with the Act, the Regulations and the conditions prescribed by HMGN, for an on-the-spot inspection and take action on the basis of the report prepared by that employee. The Forest Regulations needs to be amended to provide this inspection authority to an independent expert and/or a group of experts which should comprise one representative from the District Forest Office, relevant VDC and an independent expert. The Forest Act provides absolute discretion to the CFUGs in relation to the sale of forest
Page 52
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
products of community forests, but the Minister for Forest and Soil Conservation issued a circular in April 1996 (2053/1/23 B.S.) mentioning that, without fulfilling the demand of the local community and then of adjacent districts, a CFUG can not sell forest products in other places. If the forest product is not consumed by the community, they are permitted to sell the product within the district. Only if the product is not consumed or purchased in the district it can be permitted to take outside the district with the permission of the DFO. Some experts view this as contravening the Forest Act and maintain that the powers and functions entrusted to the CFUG by MPFS has been limited by the Forest Act and the powers and functions entrusted by the Act have been limited by the Forest Regulations and government notices and the Department of Forest's circulars. 5.2 INCONSISTENCIES BETWEEN FOREST ACT AND OTHER LAWS
5.2.1 Local Self-Governance Act, 1998 The Local Self-Governance Act, 1998 (LSGA) has created a misconception among the members of local governments that forests within the area of a VDC or DDC are the property of that VDC or DDC. Section 17 of the Forest Act provides that, except when any right or facility has been obtained through a permit or a license, or in any other way, from His Majesty's Government or the authority empowered by HMGN, no person shall be entitled to any right or facility of any type in national forests. Similarly, Section 68(1)(c) of LSGA stipulates that the forests granted by the prevailing forest laws and HMGN are the property of the concerned VDC. Section 38(1)(d) of the VDCA contains exactly the same provision. Furthermore, a VDC can only dispose or sale its property with the permission of HMGN. The LSGA stipulates that natural heritage is the property of a VDC. Natural heritage usually includes forests, lakes, ponds, and rivers. Section 218 of LSGA stipulates that proceeds accrued to the sale of river sand, stone, concrete, soil, driftwood, and bone, horn, feather, skin of any dead wildlife, which is not prohibited by the prevailing Nepal laws, are the sources of revenue fund of a DDC. These provisions are against the definition of forest products under Section 2(c) of the Forest Act which includes rock, soil, stone, concrete sand, birds, wildlife and derivatives. Section 25(1) of the Act empowers the CFUG to sell, distribute or use such forest products by independently fixing their prices. Because the forestry legislation bypasses the political tiers of the VDC and the DDC, these local institutions could be unhappy because they do not have funds, but the CFUG may have plenty for development works. Although VDC members may also be CFUG members and may cooperate with the CF programme, if the Decentralisation Act is fully and strictly followed, the CF programme may be in trouble politically (Joshi, 1997). It would certainly give rise to various kinds of conflicts. Awareness and training to bring about attitudinal change among the VDC and DDC representatives would be very useful, for, in reality, CFUGs, VDCs and DDCs are dependent on each other and are meant to achieve a common goal. Confusion also arises from dissimilarities in the language used by the Forest Act 1993 and the LSGA. The LSGA gives DDCs and VDCs essentially unchallenged authority over UGs, their decision-making procedures, and project implementation. Rule 87 of the DDC (Working Arrangement) Regulations states that, as regards the projects which will be executed with the participation of the people, the concerned offices will have to, under the direction of the DDC, implement them through user groups. Similarly, Rule 91(2) stipulates
Page 53
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
that the district development office heads will have to follow the directions of the DDC in their activities relating to planning, implementation, monitoring and evaluation of the district development plan. There is a big difference between CFUGs registered under the Forest Act and user groups in the DDC or VDC set up under the LSGA. However, as long as the District Forest Office is under the DDC, it will be very difficult to maintain autonomy for CFUGs and avoid conflicts. This issue needs to be tackled by the national level decision-makers in the near future. Similarly, Section 33(g) of LSGA entrusts on a VDC the right to initiate and decide cases relating, inter alia, to pasture, grass and fuelwood in the village development area from the date of notification published in the Nepal Gazette. However, the Forest Act does not provide such a right to the VDC. If the pasture and grasslands are outside the community forests, it may not create conflicts, but if these are within the community forests, it will create various problems. Hearing and disposing of cases under the Forest Act on cases regarding fuelwood, which is a forest product, is under the authority of DFO as long as the value of the forest product is less than Rs 10,000 and offenders are punishable with imprisonment for one year. 5.2.2 Land Revenue Act, 1977 As mentioned in Chapter 4 of this study, the provisions relating to registration of the land which has not yet been registered is contributing to the encroachment of national forests and private forests. To prevent further encroachment of the national forest and make the provisions of LRA compatible with the provisions of FA, Subsection 2 of Section 7 of the LRA needs to be either repealed, or the provisions relating to the establishment of a committee in Rule 4A of the Land Revenue Regulations, 1979 need to be amended by providing permanent chairpersonship to the District Forest Officer. Another fundamental question is related to the basis of registration of Chhut Jagga (land unable to be registered or left over) in perpetuity. The fundamental question is: How long will this uncertainty linger on? The nominal land revenue rates that prevail in Nepal should not be used as a legal excuse to privatise forest areas. It is contrary to the letter and spirit of the FA. The government should bring the current process of registration of chhut jagga to an end by giving two or three final years of time for registration of such lands. Of late, this provision is being misused by political parties in the government to provide degraded forestlands to the so called landless people. In the past eight years, almost all the political parties which were in power have misused the above mentioned provisions of the LRA and LRR to fulfill their political interest. This needs to be changed forthwith to prevent further degradation of national forests and make the LRA and LRR consistent with the FA. 5.2.3 Public Roads Act, 1974
Section 4 of the Public Roads Act 1974 empowers the government to acquire any land for construction, development and improvement of public roads in accordance with the prevailing Nepalese laws relating to land acquisition. Similar provisions are also provided in the Water Resources Act 1992, Electricity Act 1992, and many other developmentrelated legislations. Section 3 of the Land Acquisition Act 1977 empowers the government to acquire any amount of land for the sake of public interest by providing compensation to the owner. Further, the Department of Roads may dig out necessary quantities of soil, stone, or sand from any land adjacent to the road for construction, repair and maintenance of roads. If the taking of stone, sand, or soil destroys crops, trees, plants, or any other
Page 54
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
thing, the owner is to be compensated. It is very unlikely that a CFUG with very little negotiating skill and comparative strength will get appropriate compensation. 5.2.4 Nepal Mines Act, 1966 The Nepal Mines Act, 1966 has vested on HMGN the ownership of any minerals, whether located or discovered in any private land. A mineral is defined as any kind of natural material except petroleum, which can be taken out from the land. This definition is so broad that it includes rock, sand, soil, stone and everything else. At present, the Department of Geology and Mines and the DDCs are strong enough to put pressure on the CFUGs to allow their forest to dig out the minerals and mines. The CFUGs are forced to give such areas on lease. In most cases, CFUGs are forced to give up these forest products either to the DDC or to the Department of Mines. Unfortunately, the Mines and Minerals Act, 1985 also vests the ownership of minerals within Nepal on His Majesty's Government and requires any person a license from the prescribed authority. Stones, pebbles, boulders, sand and soil are also forest products as per the definition of the Forest Act and these are the property of a CFUG if such products are within the area of a CF. How can the same item or product belong to two institutions? This needs to be resolved as early as possible, for it has already curtailed the source of income for many CFUGs. Further, the issue of payment of compensation to the CFUGs for the damage of other forest products caused during the extraction of minerals from a CF needs to be revolved. Apparently, it must be borne by the developer, but it needs to be mentioned in the mining related legislation. 5.2.5 Water Resources Act 1992 As discussed in Chapter 4 of this report, the Water Resources Act 1992 and the Water Resources Regulations, 1993 recognise Water Users Association (WUAs) as legal entities with prescribed functions and enable them to be duly registered. However, both pieces of legislation are silent on whether a CFUG can levy certain fees on the WUAs for the water flowing from a CF area which is utilized by a WUA. Similarly, it is mandatory under Rule 17(e) of the regulation that any person or corporate body who desires to obtain a license for utilisation of water resources must state in his application the appropriate measures to be taken to minimise the adverse effects due to the project on the overall environment. Measures to be taken for the conservation of aquatic life and water environment, and for mitigating adverse social and economic impacts of the project in the concerned area must be specified in the environmental impact analysis. It must also stipulate clearly how local labour will be utilised and the benefits go to the local people after the completion of the project. Rule 17(e) also emphasises training to the local people in relation to construction, maintenance and operation of the project. The mitigation plan must give details about the people to be evacuated and a plan for their rehabilitation. Rule 19 requires the Water Resources Committee to publish a notice giving detailed information about the project to the people. If any person finds that the construction and operation of a project is likely to cause adverse effect, s/he may furnish his/her reaction stating the reasons within the 35 days from the date of publication of the notice. If the committee is satisfied with the reason given by the people, the proponent will be asked to revise the plan. However, both WRA and WRR do not provide for compensation to be provided for the loss or harm caused to any local individual or community while executing any
Page 55
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
projects having national priority in accordance with Rule 65 of the Forest Regulations. It would be very appropriate to include a similar provision in the WRA and WRR as most of the water resources development projects of national priority are implemented in forest areas. 5.2.6 Soil and Watershed Conservation Act, 1982 The Soil and Watershed Conservation Act, 1982 (SWCA) has provisions for declaring an area as a protected watershed that conflicts with the Forest Act. The SWCA empowers the government to designate protected watershed areas and to entrust the Watershed Conservation Officer (WCO) with extensive powers to administer such sites (Section 3, SWCA). The designation of a protected watershed area gives extensive governmental control over the chosen locality, as the WCO has the authority, inter alia, to construct checkdams, torrent control, improvement of irrigation channels, protection of watercourse and other necessary activities of erosion and landslide control, protect vegetation in landslide-prone areas and to undertake afforestation programmes, direct the cultivation of specified crops, and regulate any other agricultural practices pertinent to soil and watershed conservation (SWCA, Section 4). To achieve these ends where necessary, the WCO may confiscate privately owned property (Section 14, SWCA). Although the landowner is entitled to compensation, as assessed at market value rates (Section 8, SWCA), the impact of this action upon the affected family and community life remains unaccounted for. The SWCA needs to be reviewed in light of the legal provisions related to community forestry and amended to make it consistent with the Forest Act. Further, the status of the UG established to fulfill the objectives of the SWCA is also unequal. It is very likely that CFUGs and UGs established by the respective district level line agencies may run parallel in the same areas. The MFSC has not taken any initiative to synchronise the jurisdictions of these two types of UGs being established by two of its own departments and their district level line agencies. This inconsistency can be simply resolved by providing some power and functions with respect to soil and watershed conservation to CFUGs. If this inconsistency is not resolved in the near future, it is likely to create conflicts between these two UGs in different parts of Nepal. 5.2.7 Environment Protection Act, 1996 Section 10 of the Environment Protection Act 1996 empowers the government to designate as an environment conservation area any area which contains biological diversity, rare wildlife and plants, places of cultural and historical importance, and areas which are considered extremely important from the point of view of environmental protection. The government is also empowered to prohibit any kind of activities in such conservation areas. There are many community forest areas which contain rich biological diversity and rare plants, and a few contain rare wildlife as well. It is very likely that the provision, which is not subject to community forest, will come into conflict with the Forest Act once the Ministry of Population and Environment starts delineating environmental conservation areas. Further, Rules 31, 32 and 33 of the Environment Protection Regulations 1997 empower the Ministry of Forest and Soil Conservation to issue license to foreign organisations or any individuals or institutions affiliated with them to collect samples of microorganisms or vegetation and undertake research work related to biodiversity. As the CFUG is the main authority in CF areas, this power needs to be given to the CFUG. Similarly, any benefit accruing from the utilization of biological resources collected from community forest areas must also go to the respective CFUG. As the Environment Protection Regulation is inconsistent with the provisions of the Act, the Act should have precedence over the Environment Protection Regulations, 1997.
Page 56
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
The Forest Act explicitly mentions that the regulations shall take care of all matters provided for in the Forest Act, and for other matters, the provisions of the prevailing law shall be applicable. No such provisions exist in the LSGA, 1997. It is apparent that whenever the Forest Act and Regulations are inconsistent with the local government legislation, the forestry legislation would prevail. It is also clear that lawmakers do not want the local self-governance legislation to preempt the forestry legislation. However, in relation to the Nepal Mines Act, it is not clear whether the Forest Act would prevail because this Act also includes similar provisions as the Forest Act. However, the Supreme Court has held that the Forest Act 1961 is a special Act and it has provided special provisions for the management of forests. Therefore, the Forest Act shall prevail in respect of the management of the forests. The Supreme Court specifically has decreed that there is an explicit provision to the effect that all the materials within the government forest are under forest jurisdiction. Thus driftwood timber is under the jurisdiction of the forest. Only such driftwood that lies outside a forest area comes under the jurisdiction of a DDC (Bir Bahadur Lama v. Ministry of Forest and Soil Conservation, 1997). However, Section 48A of the FAFA has made a provision that the DFO must deposit 50 percent of the amount received from the sale of unclaimed timber and drift wood (dahatar bahatar) in the fund of the DDC and the rest must be deposited in a Consolidated Fund. This section of the Act also requires that 20 percent out of the 50 percent deposited in the DDC fund must be spent for the conservation of forests. 5.3 INCONSISTENCIES BETWEEN THE FOREST ACT AND EXECUTIVE ORDERS AND CIRCULARS
The circular issued in April 1996 (2053/1/23 B.S.) by the Ministry of Forest and Soil Conservation requires the CFUGs not to sell forest products in other places without fulfilling the demands of the local community and then of the adjacent districts. This is against the right provided by Section 25 (1) of the Forest Act. CFUGs are empowered by the Forest Act to sell forest products as and where they decide by fulfilling the various requirements of the Act and Regulations. Any restrictions on this legal authority of the CFUGs besides those prescribed by the legislation is simply illegal. A circular was issued by the Ministry of Forest and Soil Conservation on 2049/9/11 B.S. which required the DFOs not to allow any industry to be established and operated within a radius of three kilometres (in the hills) and five kilometres (in the Terai) of a forest. This circular is against the Forest Act and the Forest Regulations, since Rule 32(4) of the Forest Regulations explicitly stipulates that "in case a CFUG is capable of running an industry based on forest products in accordance with the operation plan, it may establish and operate such an industry outside the community forest area after obtaining the approval from the concerned agencies on the recommendation of the DFO". Thus if the DFO is satisfied that a CFUG should establish and operate an industry, necessary approval should be extended to the CFUG. The circulars from the Ministry of Industry and MFSC cannot curtail this legal power. If there is an eminent threat that a forest or forest products may be misused by industries established around a forest area, MFSC should immediately amend Rule 32(4). Without amending Rule 32(4), it does not have a legal authority to issue directives which are in contravention of the forest legislation. Similarly, the decisions and circulars of the government with respect to the Timber Corporation of Nepal (TCN) are also inconsistent with the forest legislation. The government has taken five different decisions in relation to TCN on different dates within a period of one year (2054/10/27, 2055/3/15, 2055/5/8, 2055/10/19, and 2055/11/24 B.S.) regarding the collection, sale and export of fuelwood and timber. One of the decisions
Page 57
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
gives monopoly power on the sale of fuelwood and timber to TCN. This dir ectly limits the power vested on the CFUGs by the Forest Act 1993 and Forest Regulations 1995. Rule 7 of the Forest Regulations 1995 prohibits collection, taking out, selling and distribution, and exporting or transporting of any forest products or entering into a forest area with any of these intentions without obtaining a license from the authorised officer (District Forest Officer). Rule 8(3) of the Forest Regulations further states that the DFO shall issue a license only after collecting the price, fee or charge payable for the respective forest product pursuant to the Forest Regulations from the applicant in advance. However, in relation to TCN, the government has decided that it may collect, sell and export forest products without fulfilling these requirements. Even TCN has been permitted to pay royalty every 15 days after it has collected the revenue from the sale of fuelwood and timber. This decision is apparently inconsistent with Rules 7 and 8 of the Forest Regulations, as stated above. Further, this decision perpetuates discrimination against the CFUGs, and in favour of individual companies and TCN, while all these including the CFUGs are legal entities. This decision is perhaps against the principle of equality enshrined in the Constitution of the Kingdom of Nepal 1990. Yet another example of an ad hoc decision at the centre having a direct adverse effect at the implementation level is the recent circular of 2056/7/16 B. S. issued by the Department of Forest to all the 74 District Forest Offices in the country. This circular instructs the DFOs and area range posts under them to disallow with immediate effect CFUGs to use hammer marks that are used for commercial purposes in cutting, assorting, selling and transporting green trees. The only reason behind this circular seems to be the overwhelming concern to preserve forests by preventing cutting of green trees, in accordance with a recent public announcement by a high level government official to ban cutting of all green trees in the country. The implications seem hardly been considered before taking such decisions. Obviously, besides being contrary to the prevailing Forest Act and Regulations, there are several legal conflicts and backlashes that could potentially arise from this decision. Contradictions across the various legislative instruments observed in the present review are listed in Annex 3. These contradictions have given rise to a number of conflicts and overlaps in the claims and assignment of rights among the competing claimants (Box Table 5.1). Box Table 5.1: Overlapping Rights over Forest Products
Forest Products Forest Act 1993 Entitled to the Right by Local SelfNepal Mines Governance Act Act 1966 1998 VDC Water Resources Act 1993 Other Acts*
Fuelwood, dry timber, twigs, branches, bushes
Users Group
The government has the right to designate or acquire any land for various purposes.
Herbs Mines (stone, sand, soil) Skin, bone and other materials of dead animal Prohibited herbs Resin Dahatar-Bahatar Straw, grass Water resources
Users Group Users Group Users Group HMGN HMGN and Users Group Users Group Users Group Users Group
DDC VDC and DDC DDC DDC DDC VDC VDC/DDC
HMGN HMGN
Kingdom of Nepal
Page 58
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Natural heritage
Users Group
VDC
-
-
Notes: - Not mentioned in the concerned act. * Environment Protection Act 1996, Soil and Watershed Conservation Act 1982, Land Acquisition Act 1966, and Public Roads Act 1974. Source: Belbase and Regmi (1998).
6
IMPLICATIONS AT THE IMPLEMENTATION LEVEL
The foregoing review has demonstrated that there are a number of outstanding issues that must be sorted out and resolved in order to ensure a smooth and more effective implementation of the community forestry programme in Nepal. Resolving these issues would have a direct bearing on how the process and procedures regarding CF result into a more productive, sustainable and participatory development of CF. The main issues, which have already been discussed earlier, are recapitulated below by major thematic areas. 6.1 SUSTAINABILITY
Many donors are involved in the forestry sector. While they all are pursuing a common goal of improving the forest resource base in the country, each of them has its own priority and operational modality. NUKCFP, for instance, is not involved in direct implementation; it only provides support to the participating District Forest Offices. It is impressive to note that the project has adopted a very transparent system of operation in which the involved projec t staff and their counterparts play a role in the way activities are planned, implemented and monitored. Despite all this, the fact remains that the project is providing substantial resources not only to carry out the main programs, but also to provide support facilities. The project has a policy of working in the field through team approach. A project, by definition, is time-bound and has to stop at some point. What will happen after the withdrawal of the project? It is not a common practice in Nepal to start addressing this question right from the beginning of a project. It naturally raises the question of future sustainability, particularly in view of the sad experience of the past wherein the visible "glamour" and progress have quickly vanished soon after the termination of a donor funded project. The positive aspect in NUKCFP in this respect is its intention to gradually withdraw support for specific activities, in order to smoothen the process of gradual take-over by the national system. This has already happened with the training component. 6.2 INTER-SECTORAL CONSISTENCY AND COHERENCE
DFOs are following a system of decentralized planning process that evolves from the CFUGs to a cluster of CFUGs, range post level, and then on to the district level. The district level plan for the forestry sector is then assorted with the district development plan that is approved by the district council. DDCs are adopting a similar bottom-up planning process, starting at the settlement and VDC level, progressing successively to the ilaka and district levels. While the process followed by sector agencies is expected to be consistent and coincide with the DDC process, this has not been entirely possible. For one thing, each sector has its own organizational network and follows own time schedule. This is as expected since the sectoral programmes are guided by their own central level parent organisations (ministries and departments) that operate under different statutory and administrative provisions. DFOs have
Page 59
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
to follow the Forest Act and Regulations; the District Irrigation Offices the Irrigation Act, and so forth. Gaps and overlaps in these legal and administrative provisions are bound to be reflected in the district level programmes. The matter is now further complicated by the passage of the Local Self-Governance Act that puts the local governments (DDCs, VDCs and municipalities) in the forefront. One typical example is that the ilaka boundary of the DDC/MLD may not necessarily conform to that of the sectoral ministry such as agriculture, and the range posts in a district often do not tally either in number or in the boundary with the ilaka. In Baglung, for instance, there are eight range posts covering the entire district, while there a total of 11 service centres of the DDC. This leaves ample room for possible conflicts in planning for the forestry sector and DDC's own planning process. Another issue related to intersectoral consistency is the fact that different line agencies are guided and operated by their own respective system and procedure. The Forest Act vests all power on the DFO as a person, and not as an institution. It does not rec ognise the person in charge of the range post in matters exercising the vested authority. This puts tremendous burden on the individual DFO, who is not authorised to delegate his/her authority to the range post head and other supporting staff. On the other hand, in the case of other line agencies, the responsibility is given to the institution, and within the institution, it is exercised in a hierarchical manner. 6.3 PARTICIPATION IN MONITORING
The Forestry Guidelines assumes that the DFO is responsible to monitor the actions of CFUGs. It is still based on a paternalistic notion, and it does not recognise that the CFUGs can monitor themselves, or that CFUGs should also monitor the actions of the DFOs. MFSC does not seem to have developed a clear view as to the roles and responsibilities of various stakeholders in monitoring. 6.4 FOREST RULES
The regulation is not clear about the disposal of surplus wood. However, a ministerial executive order has been circulated stipulating that surplus wood can be taken outside only after meeting the local requirements. In the absence of a clear basis and criteria to determine what the actual local requirements are, it leaves room for the exercise of discretionary power. Similarly, the 3 kilometer limitation imposed on the establishment of a forest-based industry in the hills is impractical. The requirement that at least 25 percent of the income should be used on forest-related activities is often regarded by CFUGs as being too restrictive. Besides, what exactly do such activities include is not specified, leaving again room for manipulation and discretion. Moreover, the legal implications of not following this provision is also not clear. The regulation is not clear about the forest area to be handed over to CFUGs. Three criteria have been mentioned as the determining factors in the handing over of a community forest to a CFUG. It says that forest areas adjoining to the settlement of CFUG members, and CFUGs willing and capable to manage a particular forest can be handed over as a CF. Here again, judgment and discretion is likely to play a major role since no objectively verifiable indicators have so far been developed. At present, the area of a CF varies from less than a hectare to more than 4,000 ha. Similarly, the regulation is not specific about the number of members allowable within a
Page 60
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
CFUG. In this regard, a recent seminar had recommended that the maximum allowable area should be 0.3 ha in the Terai and 1 ha in the hills. The regulation does not allow for possible exchange of wood of different species among adjoining CFUGs to allow location-specific comparative advantage that CFUGs might want to take. There is no coherence in the Forest Act and Land Revenue Act, and no coordination in their implementation. The issue of chhut jagga is an example. Such land is considered under the custody of DOF. However, the land tax office registers such land under private ownership, and the forest administration can do nothing. There is also no clarity about which authority shall take up such cases. The problem is particularly acute in areas adjoining to cultivated lands. The Forest Rules mentions that, when a CFUG submits a revision of an operation plan, the DFO must act within 30 days, failing which it will be deemed approved after the lapse of that period. The DFOs regard this as an impractical restriction, since many of them lack adequate institutional capacity to respond to the request and verify the proposals within the stipulated time. More over, they are of the opinion that since two parties (DFO and CFUG) jointly sign a new operational plan to be effective, same parties should be jointly sign the revision of the operational plan. Another issue brought up by the DFO staff was the uncertainty associated with additional area brought under an existing CF. Should it be treated as an addition block and then revise the operational plan accordingly, or should it be treated as a separate community forest and then write a separate operational plan? The forest regulation forbids the collection of sand, earth, stone, gravel, etc. from community forest by the users. These are allowed from national forests upon payment of royalty. Similarly, three species: khair, chhamp, and sal are restricted for cutting in private forests. However, these species are allowed for cutting in CFs. Audited accounts are required to be submitted by CFUGs to the concerned DFO within a certain period after the end of each fiscal year. The regulation is silent as to what will happen if a CFUG does not comply? Many CFUGs do regularly submit annual progress reports, but they face real difficulty in timely submission of audited accounts. For one thing, most of them lack financial resources to pay a hired certified auditor, as required by the regulation. Similarly, in case of litigation, CFUGs lack resources to pay for legal advice and pleading on their behalf. Projects like NUKCFP could provide the necessary support in training local people on auditing skills. Aerial photographs are being used in the preparation of operational plan. The regulation is silent on whether the use of such photographs are officially acceptable. Forest lands distributed by the resettlement commissions are liable for transfer to individual ownership. But the ownership of trees on these lands still lies with the government. Acts and regulations related to forestry are gender blind. While the policy encourages women's participation, absence of provisions to ensure fair sharing of benefits could further add workload and drudgery to women. Most CFUGs allow membership only to the residents of the community, and it does not
Page 61
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
include married women who for various reasons have come to reside permanently in their parental house. The present provisions exclude such people. One of the stated objectives of CF is to contribute to poverty alleviation. In any given community, the real poor consist of landless labourers and migrant wage earners who, according to the present regulation, do not qualify to become members. Some CFUGs want flexibility in the regulation to allow such really needy people to participate in the CF programme. Even the operation plan of a CF should be developed by giving due consideration to the most deprived and needy sections of the community. The regulation mentions that the CFUG account should be operated with joint signature of two persons. In practice, usually three persons operate the account. Hence it may not be necessary to specify just two persons, and flexibility based on local situation should be allowed. The regulation mentions that, if a CFUG does not comply with the constitution and operation plan, the CF could be taken back. The DFO has to ask the CFUG for clarification and the CFUG has to submits its explanation with 15 days before the forest is taken back. However, the regulation is silent on how early the DFO can take the forest back from the CFUG. On the other hand, the users are allowed fifteen days for appeal. Article 27(4) of the regulation talks about consensus in making decisions and resolving conflicts. It is not always possible to achieve unanimity and consensus in a democratic and pluralistic culture. Hence it may be more desirable to require majority rule. Special project areas such as ACAP and Dhor Patan Reserve operate under their own principles and procedures. Cases are often brought to the concerned DFO to intervene, but the latter are not directly involved in those projects. This is another example of weak inter-agency coordination. The regulation stipulates that the general body of the users should decide on matters like recruitment of people for the protection and management of CF. This is restrictive and this authority should be given to the executive committee. Certain degree of flexibility is desirable, depending on geographic region (hills vs. Terai) and the costs of resources and participation. The approved constitution includes the names of the office bearers at the time of submission of the document. However, when changes are made at a later stage, CFUGs face the problem of getting approval of the new office bearers by the DFO. There is no mention in the Forest Act and Regulation about how action will be taken against the nonmembers if they encroach on a CF. Such transgression is currently handled one way if it happens in a national forest, and another way when it occurs in a community forest. There are several cases of nonmembers collecting grass, roofing materials and timber from CFs, and the concerned CFs have tried to take action against those as per their own rules. However, when the rule violators refuses to comply, the CFUG has no basis to compel them to comply. 6.5 CFUG VS LOCAL GOVERNMENTS
At present, there is a little coordination between the local governments (VDCs and DDCs) and CFUGs. Whatever cooperation that is occurring is due to personal initiatives, rather than on the basis of a formalised, regulatory and mandatory process. On the other hand,
Page 62
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
local governments hold a strong view that their role must be clearly spelled out in managing CFs, since they are the elected representatives of the people. They believe that involvement of the local governments would further enhance the effectiveness of community forestry. They believe that, at present, power is concentrated at the centre while the problems occur at the local level. Authority needs to be devolved to the local governments. Conflicts have often arisen due to the present arrangement that does not directly involve the local governments (see Box 6.1). Since a CF is generally a subset of the larger local government territory, direct involvement of the local governments holds the promise of facilitating resolution of any conflict. These bodies could also effectively arbitrate between the various parties. After all, recognition of the due role of the local bodies is very much in keeping with the spirit of the Local Governance Act and associated Regulation.
Page 63
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Box 6.1: When a Conflict Could Not Be Resolved by the CFUG Alone
The Barah Pakha Forest stretching just above Beni Bazaar, the headquarters of Myagdi District, was registered as a community forest in June 1998, although it was being managed by the local users since the 1978. There are more than 1,000 user households benefiting from this forest of 13.83 hectare. All of the users are from the bazaar area. The bazaar area due to the clustered settlement pattern typical of an expanding town always faced acute shortage of drinking water. Meanwhile, an untapped water source was spotted in the uphill community forest and the executive committee of the Barah Pakha Community Forest Users Group decided to carry that water to a section of the bazaar area through polythene pipe. Contributions were obtained from the would be beneficiaries of this water source whose number is 27. Initially, Rs 100 was collected annually from each beneficiary household for the maintenance of the water distribution system. This arrangement went on smoothly with all the households willingly contributing their share. Recently, the Executive Committee revised the annual contribution amount to Rs 600. Although the proposal to raise the contribution was agreed unanimously by the executive committee, all of the 27 users were not consulted before making the decision. Four of the users flatly refused to pay the increased rate since they thought that it was unfair to raise the amount six fold, while maintaining that drinking water was supposed to be provided free of cost and the revised rate was unjustified. Moreover, they were not even asked about their willingness to contribute an increased amount, and the amount itself. It should also be noted that these unwilling households are not poor since the bazaar area is settled mostly by relatively better off business community, and there is no question of affordability. The FUG is now caught in a dilemma since it can not let go these unwilling users from their obligation to pay the amount while the majority of the users are willingly obliging. The FUG acted on its own and it did not seek the involvement of the local village development committee. Had the VDC been consulted and its cooperation sought from the very beginning, the conflict could perhaps been avoided. Thus this is a typical case of conflict that has arisen partly due to the failure of the CFUG where the local VDC was not involved. While no conflict is witnessed in the case of managing the CF and in utilising its products, conflict has now arisen with respect to the drinking water supply. The root of the conflict seems to revolve around three interrelated issues: (i) the drinking water scheme concerns only a section of the forest users, and other members of the CFUG who do not use the water supplied from the particular source are not equally concerned to resolve the conflict; (ii) the FUG executive committee appeared to have imposed its decision on the four beneficiary households without their prior consent; and (iii) the local VDC was neither consulted nor involved in the entire process. This case underscores the need to involve all the stakeholders at al levels of decision-making and implementation, including policy formulation and planning. Besides, a mechanism is essential to ensure the necessary coordination with the local government and obtain its cooperation when required, including conflict resolution.
Page 64
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
ANNEX 1
Short Term Consultancy:
Terms of Reference to Develop a Working Overview of the Current Policy and Legal Context of the Forestry Sector in Nepal with Reference to the Community Forestry Programme
Background Various projects have been working within Nepal‟s forestry sector over a number of years, their objectives often different, but all seeking to support programmes identified as important with the clearly stated policy and legal framework. A turning point in the sector was the formulation of the 1993 Forest Act, and 1995 Regulations which in effect regularised many of the working practices already in existence at implementation level. Over the past four years, a number of documents and directives have been issued in an attempt to refine or strengthen the 1993 Act. However, not all that which has been issued has had the effect of clarifying the situation. The Ministry and Department have issued a number of directives which require changes in working practices and policy documents have been written which make statements that appear to be at variance with the intention, National Forestry Sector Master Plan, or 1993 legislation. Within the last six months there has been an amendment to the Forest Act which was all but passed prior to the election and is now pending. All these changes have meant that the policy and legal environment has, as a consequence, lost a certain amount of the clarity of intent and indeed begins to demonstrate some contradiction. In order that implementation is not adversely affected, an overview of the current situation is considered useful to clearly demonstrate any emerging gaps and contradictions. It is to this end consultants are being sought to help generate an overview of the current situation. In no sense is the overview seeking to promote change in any particular direction, merely to develop some clarity of understanding of current gaps and contradictions in statement and practice. Objectives of the Study To review the existing policy and legal environment in the forestry sector to generate a clearer understanding of gaps and contradictions in order that programme implementers do not unnecessarily hamper implementation of forestry sector programmes through a lack of understanding of intention. Expected Outputs A brief overview of the policy and legal environment that will provide the basis for deeper analysis and review by concerned national institutions. A document will be produced within a two month period that will be offered to the forestry sector as a statement of the current situation.
Page 65
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Specific Tasks of Consultant Qualified consultants will be sought to carry out a review of the forestry sector policy and legal environment. The consultants will be expected to work in the following stages:
– – – – – – – – – – – – – – – – – – – –
Work together in an integrated team of legal and policy experts and practitioners with experience in issues at different levels in the forestry sector. Carry out a review of the following documents: The Constitution of the Kingdom of Nepal The Local Self-Governance Act The Lands Act The Forest Act, 1993 The Forest Regulations, 1995 The Environment Protection Act The Mines Act The Water Resources Act The Master Plan for the Forestry Sector Ministerial and Departmental Directives, post the 1993 Act Relevant district level implementation directives The proposed 1999 First Amendment to the Forest Act Directives and Decrees on TCN status A selection of Terai Operational Forest Management Plans The Nepal Environmental Policy and Action Plan The Ninth Five-Year Plan The Agriculture Perspective Plan The National Conservation Strategy World Bank forestry project review documents Other project documents relevant to the review
Visit relevant people in the forestry sector to discuss the policy environment to seek some
clarity on differences between stated policy and working practice. Draw up a draft document that states the current situation according to the analysis. Discuss the draft review document with interested institutions and people. Redraft the review in the light of feedback from relevant professionals. Methodology The ideal situation will be that the consultants will work in their designated specialist areas, but will meet at least once a week to coordinate activities, discuss emerging gaps and contradictions. In the final stages of writing, the consultants will be expected to work together most of the time to ensure a full linked review. The exercise will largely be a literature review, drawing on sectoral professionals only for verification and clarification once gaps and issues begin to emerge from the literature review. At least one field visit will ensure that the perspective of those involved in programme implementation is included in the review.
Responsibilities
Page 66
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
The Consultant will be responsible to the NUKCFP coordinator and the Natural Resources Adviser in DFID Nepal in the absence of the Project Coordinator. Reporting The Consultant will ultimately submit a working document to NUKCFP for distribution to interested people and organisations and only after discussion will the document be finalised. Timing It is anticipated that the consultancy will run for a period of about 9 weeks, starting on 16 August 1999, with a working draft submission to the Project by 4 October 1999 and a final submission by 15 October 1999.
Page 67
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
ANNEX 2
List of Priority Projects Identified by NEPAP II 1. Year Round Fodder Production for Dairy Farmers This is a project designed to reduce environmental degradation caused by livestock, and to conserve degraded forest grazing areas by introducing stall feeding. 2. Forest Multiple Value and Income Generating Project The development objective is to increase income of local people by sustainable management and utilisation of multiple value forests. The project will identify the potential for the development of multiple value forests; assess local information on income generation; and implement project‟s activities in the selected demonstration areas. 3. Forest Based Industries Promotion and Development Project The project seeks to establish viable small-scale forest based industries to promote the establishment of forest on marginal agricultural lands, so halting the further degradation of land and improving the natural environment. Employment opportunities would be created in the rural areas and so help in checking rural-urban migration. To improve development of expertise, the project would establish a Forest Industries Promotion Centre and Forest Products Laboratory in a second phase. 4. Rhododendron Conservation Programme Rhododendron species are the country‟s national flower, and are environmentally valuable. The concern is to conserve these species from being cut for fuelwood. The remaining forest in the Milke Danda area (and elsewhere) should be protected and managed through local community groups. 5. Community Forestry in Nepal: A Challenge for Its Sustainability The project objective is to develop a sustainable and people centred system for the management of community forests. This would be achieved by developing the capability of Community Forest Users Groups (CFUGs) in managing, utilising and conserving the community forests. The project would promote the development of networking among CFUGs and other local institutions for the sustainable management and utilisation of community forests. 6. Strengthening of Anti-Poaching Activities and CITES Implementation in Nepal The project will maintain the reputation of Nepal in successful conservation and compliance with International Treaties by developing effective conservation measures. It will develop a monitoring system for the protection of threatened and endangered species of wildlife; and will control illegal trafficking and smuggling of endangered wildlife and their products from and through Nepal. 7. Timber Harvesting, Processing and Preservation Project This is a sector development project that seeks to help in the optimum utilisation of forest resources, by developing skilled manpower in timber harvesting and in processing methods which are locally adaptable, and thus minimising the waste in such processes. Community forestry users groups and private forest owners will benefit in the operation, management and utilisation of timber resources.
Page 68
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
ANNEX 3
List of Contradictions and Overlaps Across the Various Acts and Regulations
Section 17 of the Forest Act stipulates that no person shall be entitled to any right or facility
of any type in national forests. The language used in Sec 25(1) that 'the DFO may hand over the forest…." provides discretionary power to the DFO for handing over the forest to the FUGs. Such discretionary power given to the DFO is unreasonable and it can be misused. The DFO may direct the Users Group not to implement the work plan (Sec 26(2)). The April 1996 Circular from the Minister for Forest and Soil Conservation is against the spirit of the Act (25(1)). No definition is given with regard to what constitutes "significant effect on the environment" (Sec 27(1)). There is no provision of appeal on the decision of the Regional Forest Director, and it is against the principle of Natural Justice (Sec 27(2)). There is no provision of penalty in the case of encroachment of a community forest by a person who is not a member of CFUG (Sec 29(5)). The provision of Sec 49 (d)(e) and Rule 31 are against the spirit of Sec 25(1) and the broad definition of forest product under Sec 2(c). Rules 27(g), 29(2) of the Forest Regulations and Paragraph 2.2.6 of the Operational Guidelines relating to Bond are unnecessary and against the sprit of the Act. Rules 12 and 13 of the Forest Regulations as well as the different notices issued by HMGN have apparently created confusion and these are also ultra virus to Section 25 of the Forest Act. It is not clear whether these notices are applicable only to private forest, or community forest, or for both. CFUGs are not given auction rights (Rule 66). CFUGs are given only possession right, and no ownership right (Sec 67). In case there is no alternative, HMGN has the right to use any part of the forest for the implementation of the plan having national priority (Sec 68(1)). Forest Regulations 1995 seems to be impeding the objectives of the Act itself. To prevent any misuse of CF for commercial and/or industrial purposes, certain scientific and practical criteria need to be included in the legislation as to how much of a forest can be handed over to certain number of households. There is no provision related to the size of the forest. Section 68(1)(c) of LSGA stipulates that the forest granted by the prevailing forest laws and HMGN are the property of the VDC. LSGA stipulates that natural heritage is the property of the VDC which includes forests, lakes, ponds and rivers. Section 218 of LSGA stipulates that the amount accrued from the sale of sand, stone, concrete, soil, etc., belong to the DDC. This is against the definition of forest product under Sec 2(c) of the Forest Act. The following legislations empower the government to acquire any land to fulfill the objectives of the respective Acts: (i) Sec. 4 of Public Roads Act 1974; (ii) Sec. 16 of Water Resources Act 1993; (iii) Sec. 21 of Electricity Act 1992; and (iv) Sec. 3, 4 and 25 of Land Acquisition Act 1977. The Water Resources Act has vested the ownership of all water resources in the Kingdom of Nepal, and thus this Act does not recognise the right of CFUGs on water
Page 69
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
resources within the CF area. The Nepal Mines Act 1966 has vested the ownership of any minerals on HMGN. The provisions relating to the declaration of a watershed area under the Soil and Watershed Conservation Act 1982 is contradictory to the Forest Act. The National Parks and Wildlife Conservation Act 1972 is silent about the wildlife within the community forest. Sec. 10 of the Environment Protection Act 1996 empowers the government to designate any area as an environment conservation area. This provision will come into conflict with the Forest Act once the Ministry of Population and Environment starts delineating conservation areas. Various decisions of HMGN related to TCN are apparently inconsistent with Rules 7 and 8 of the Forest Regulations.
Page 70
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
REFERENCES
ADB/HMGN. 1982. Nepal Agriculture Sector Strategy Study, Kathmandu: Asian Development Bank/His Majesty‟s Government of Nepal (2 vols.). APROSC/JMA. 1995. Nepal Agriculture Perspective Plan, Kathmandu: Agricultural Projects Services Centre/John Mellor Associates, prepared for His Majesty‟s Government, National Planning Commission and Asian Development Bank. Arnold, J.E.M. and J.G. Campbell. 1986. "Collective Management of Hill Forests in Nepal: The Community Forestry Development Project", in Proceedings of a Conference on Common Property Resource Management, April 21-26, 1985, Washington DC: National Academy Press. Bajracharya, D. 1983. "Deforestation in the Food/Fuel Context: Historical and Political Perspectives from Nepal", Mountain Research and Development 3(3):227-40. Belbase, Narayan and Dhrubesh C. Regmi. 1998. 'Comparative Analysis of Decentralization and Forestry Legislation, Paper Presented at "Widening Horizons: Regional Workshop on Role of Local Elected Institutions in Community Forestry Management in the Hindu Kush Himalayas, ICIMOD. Bhatia A. (ed.). 1996. Proceedings of the Seminar on Conflict Resolution in Natural Resources, organised by International Center for Integrated Mountain Development (ICIMOD), April 24-25, 1995, Kathmandu, Kathmandu: ICIMOD. Bir Bahadur Lama V. Ministry of Forest and Soil Conservation. 1997. Supreme Court Bulletin 5(4), Supreme Court, Nepal. Campbell, J.G., R. P. Shrestha and F. Euphnat. 1987. Socio-Economic Facts in Traditional Forest Use and Management: Preliminary Results from a Study of Community Forest Management in Nepal, Banko Jankari (1 (4)). Chakraborty, R.N., Ines Freier, Friederike Kegel and Martine Mascher. 1997. Community Forestry in the Terai Region of Nepal: Policy Issues, Experience, and Potential, Berlin: German Development Institute. Chapagain, D. P. 1984. Managing Public Lands as a Common Property Resource: A Village Case Study in Nepal, Ph. D. dissertation, University of Wisconsin-Madison, USA. Chhetri, R. 1994. Rural Communities and their forests, Habitate Himalayan, 1(1). CPFD., 1996. Forest Users' Group Database. Kathmandu: CPFD. CPFD., 1998. Forest Users' Group Database. Kathmandu: CPFD. Department of Publicity. 1964a. Trivarshiya Yojana Ke Ho? [What Is the Three-Year Plan?] (in Nepali), Kathmandu: His Majesty‟s Government, Ministry of Panchayat, Department of Publicity. Department of Publicity. 1964b. Trivarshiya Yojana Shikshya [Education in the Three-Year Plan] (in Nepali), Kathmandu: His Majesty‟s Government, Ministry of Panchayat, Department of Publicity. DOF. 1976. Rastriya Ban Yojana [National Forest Plan], Kathmandu: Department of Forest, His Majesty‟s Government of Nepal. DOF. 1994. Van Bibhag: Barsik Pratibedan 2050/51 (Annual Progress Report of the DOF 1994/95). Kathmandu: DOF. DOF. 1997. The Community and Private Forestry Programme in Nepal, Kathmandu:
Page 71
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Department of Forest, His Majesty's Government of Nepal. DOR. 1973. Punarvas ra Abyabasthit Basobas Niynatran Sambandhi Yojana ra Karyakram [Plans and Programmes Regarding Resettlement and Control of Irregular Settlement], Kathmandu: Department of Resettlement, His Majesty‟s Government of Nepal. EPC. 1993. Nepal Environmental Policy and Action Plan: Integrating Environment and Development, Kathmandu: His Majesty‟s Government, Environment Protection Council. Fisher, R. J. 1988. "Local Organisations in Forest Management", in Seminal Series at Institute of Forestry Directions for Community Forest Management in Nepal, Pokhara. Fisher, R. J. 1989. Indigenous System of Common Property Forest Management in Nepal, Working Paper No 18, Honolulu, Hawaii: Environment and Policy Institute, East-West Centre. Gautam, K. H. 1991. Indigenous Forest Management Systems in the Hills of Nepal, M.Sc. Thesis, Australian National University, Canberra, Available at ICIMOD Library, Jawalakhel. Gautam, K. H. 1993. "Evolving Forest Legislation: Strengthening or Weakening Indigenous Forest Management", in Devika Tamang, Gerard J. Gill and Ganesh B. Thapa (eds.), Indigenous Management of Natural Resources in Nepal, Kathmandu: Winrock International. Gilmour, D. A. and R. J. Fisher. 1991. Villagers, Forests and Foresters: The Philosophy, Process and Practice of Community Forestry in Nepal, Kathmandu: Sahayogi Press. HMG High Level Decentralisation Coordination Committee. 1996. Decentralisation and Local Self-Governance Report, 2053, Lalitpur: Decentralisation Working Group. HMG/FINNIDA/ADB. 1988. Master Plan for the Forestry Sector, Nepal, Main Report, Kathmandu: His Majesty's Government/FINNIDA/Asian Development Bank. HMG/IUCN. 1988. Building on Success: The National Conservation Strategy for Nepal, Kathmandu: His Majesty‟s Government/IUCN-the World Conservation Union Nepal. HMGN. 1976. Rastriya Van Yojana, 2033 (National Forestry Plan, 1976), Kathmandu: MFSC. HMGN. 1995. "The Forest Act 1993 and the Forest Regulations 1995: An Official Translation by the Law Books Management Board". Kathmandu: FDP/USAID/HMGN. Hobley, Mary. 1996. Participatory Forestry: The Process of Change in India and Nepal, Rural Development Forestry, Study Guide 3, Rural Development Forestry Network, London: Overseas Development Institute. Joshi, A. L. 1997. "Empowering Local Users in the Forest Management of Nepal, Sahabhagita 1(2). Kanel, K. 1993. "Community Forestry and the 1993 Forestry Legislation, Implications for Policy and Implementation", Banko Jankari 4(1), March, 1993. Kanel. 1997. Lessons from Community Forestry in Nepal: Implications for Himalayan Watershed Management, in Sharma (1997). Khadka S. S. and S. K. Gurung. 1990. Popular Management of Forest Resources in Selected Districts of Selected Zone: Review of Laws and Regulations on Forestry user group, Kathmandu: Centre for Economic Development and Administration (CEDA). King, G. C., M. Hobley and D. A. Gilmour.1990. "Management of Forests for Local Use in the Hills of Nepal. Part II. Towards the Development of Participatory Management", Journal of World Forest Resource Management 5:1-13.
Page 72
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
KMTNC. nd. A New Approach in Protected Area Management: A Decade of Conservation for Development (1986-1996), Kathmandu: King Mahendra Trust for Nature Consrvation. Lynch O. J. and K. Talbott. 1995. Balancing Acts: Community-Based Forest Management and National Law in Asia and The Pacific, Washington, D. C.: World Resources Institute. Mahat, T.B.S., D.M. Griffin and K.R. Shepherd. 1986a. "Human Impact on Some Forests of the Middle Hills of Nepal. Part I: Forestry in the Context of the Traditional Resources of the State, Mountain Research and Development 6(3):223-32. Manandhar, P. K. 1982. Introduction to Policy, Legislation and Programmes of Community Forestry Development in Nepal, Kathmandu: HMG/UNDP/FAO Community Forestry Development Project (updated, mimeo.) Messerschmidt, D.A. 1995. "Local Traditions and Community Forest Management: A View from Nepal" In: D.M. Warren, L.J. Slikkerveer and D. Brokensha (eds.) The Cultural Dimension of Development: Indigenous Knowledge Systems. London: Intermediate Technology Publications. Metz, J. J. 1991. "An Outline of the Patterns of Natural Vegetation Use in Upland Nepal". Banko Jankari 3 (1). MLJPA. 1990. Constitution of the Kingdom of Nepal, Kathmandu: His Majesty‟s Government, Ministry of Law, Justice and Parliamentary Affairs, Legal Books Management Board. MOF. Budget Speech (for various years), Kathmandu: Ministry of Finance, His Majesty‟s Government of Nepal. MOF. Economic Survey (for various years), Kathmandu: Ministry of Finance, His Majesty‟s Government of Nepal. MOPE. 1998. Environmental Strategies and Policies for Industry, Forestry and Water Resource Sectors, Kathmandu: Ministry of Population and Environment, His Majesty‟s Government of Nepal (2 vols.). NPC. 1985. The Seventh Plan 1985-90, Kathmandu: National Planning Commission, His Majesty's Government. NPC. 1992. The Eighth Plan 1992-97, Kathmandu: National Planning Commission, His Majesty's Government. NPC. 1998. The Ninth Plan 1997-2002, Kathmandu: National Planning Commission, His Majesty's Government. Palit S. 1996. Comparative Analysis of Policy and Institutional Dimensions of Community Forestry in India and Nepal, Discussion Paper Series No. MHR 96.4, Kathmandu: ICIMOD. Pokharel, B.K. 1998. Foresters and Villagers in Contention and Compact: The Case of Community Forestry in Nepal. Unpublished Ph.D Thesis. School of Development Studies, University of East Anglia, Norwich, UK. Regmi, Mahesh C. 1971. A Study in Nepali Economic History 1769-1846, New Delhi: Manjusri Publishing House. Regmi, Mahesh C. 1978. Land Tenure and Taxation in Nepal, Kathmandu: Ratna Pustak Bhandar. Sharma, P. N. 1997. Recent Development, Status and Gaps in Participatory Watershed Management Education and Training in Asia, Kathmandu: PWMTA andFARM Programmes (Netherlands/UNDP/FAO).
Page 73
Current policy and legal context of the forestry sector with reference to the community forestry programme in Nepal
Shrestha K.B. 1996. Community Forestry in Nepal. An Overview of Conflicts, Discussion Paper Series No. MNR 96/2, Kathmandu: ICIMOD. Soussan, J., B. Upreti and L. Shrestha. 1995. The Social Dynamics of Deforestation: A Case Study from Nepal. London: The Parthenon Publishing Group Limited. Stiller, Ludwig F., S. J., 1993. Nepal: Growth of a Nation, Kathmandu: Human Resources Development Research Centre. Talbott, K. and S. Khadka. 1994. Handing It Over: An Analysis of the Legal and Policy Framework of Community Forestry in Nepal. Washington D.C.: World Resource Institute. Tamang, Devika, Gerard J. Gill and Ganesh B. Thapa (eds.). 1993. Indigenous Management of Natural Resources in Nepal, Proceedings of the Workshop on Indigenous Management of Agriculture and Natural Resources, Dhulikhel. June 8-9, 1992, Kathmandu: Winrock International. Tamrakar, S.M. and Nelson, D.V., 1991. Potential Community Forestry Land in Nepal. Part 2. Field Document No 16. Kathmandu: CFDP, DOF. Tinker, I., 1994. "Women and Community Forestry in Nepal: Expectations and Realities". In Society and Natural Resources, Vol. 7(4), 367-81. Westoby, J.C. 1989. Introduction to World Forestry. Oxford: Basil Blackwell. World Bank. 1979. World Development Report, Washington, D.C.
Page 74