The euphoria over the 1997 truce was short-lived not only due to non-implementation, but also due to the continuance of other basic social, economic and developmental problems that had remained suppressed during the conflict, but had now begun to surface anew, with added complications.
These problems are closely interlinked with the broad processes of privatization, trade, and “development”, which may have benefited a small number of indigenous people, who may be regarded as the ‘elite’, but their number has never been large.
For example, a large section of inhabitants of the relatively “remote” areas, especially those with no formal titles to land, have continued to be largely ignored by development planners.
They therefore either remain as marginalized as before, or are being subjected to ever more complicated patterns of trade and politics over lands and resources (such as having to take up tobacco farming at the expense of food crops).
The major conflicts during the internal war (1973-1997) were largely oriented around competition for control over and access to lands and other natural resources, pitting indigenous communities against government-sponsored non-indigenous settlers, or against state agencies seeking energy or industrial timber.
In the post-Accord arena, competition over resources also started to involve a growing number of ‘stakeholders’ who had been largely invisible, if not exactly marginal before, and who have come out as open actors only after the signing of the accord.
The list includes external investors, multilateral development banks, bilateral development or “donor” agencies of OECD governments, and development-related institutions with local, national or international ties.
Therefore, indigenous communities have to now deal with a much more complex interplay of economic and developmental forces with little or no experience, knowledge or preparation.
The end of the organized conflict has also hastened the pace of integration of the region’s economy into the national economy, which is itself getting more and more integrated into the global market economy.
This is also leading, among other things, to the decline of traditional occupations, and traditional patterns of natural resource management (Roy, 2000a).
Partly due to the continued militarization of the region and partly due to right-wing lobbies within the succeeding governments until today, the human rights situation in the CHT has continued to decline so much that most political activists have spent a great deal of time, effort and energy in dealing with these matters, at the expense of attention to land and resource-related matters.
Therefore, local community-based organizations and social organizations have stepped in to work alongside the concerned communities to protect their traditional land and resource rights.
New relations between CHT ‘civil’ society and national and international human rights, environmentoriented (including Climate Change) and developmental organizations continue to be formed, and old ones strengthened.
On occasion, externally-conceived development paradigms and programmes of large corporate-style quasi-banking NGOs and micro-credit lending institutions – being largely oriented around programmes to disburse loans to the rural poor, and now to the urban poor as well – seemed to accelerate the process of monetization and marketization, rather than bringing in the sort of development or rights implementation that the CHT communities sought.
Common property and traditional resource rights never were, nor still are, matters of high interest for these institutions.
The CHT people’s experiences with ‘development’ had seldom been happy, on account of dislocation, disruption, and involuntary resettlement, caused by hydro-electric dams, collective farms and “ideal” villages formed under military auspices (Tripura, 2000).
In the post-Accord period, a growing number of national and international organizations and agencies have been vying with each other to do “reconstructionist” and “peace-building” work in the CHT.
Similarly, socially active CHT residents began to demand and carve out a larger-than-before slice of the pie of NGO-led “development”.
At a parallel level, the post-Accord period also saw many CHT activists strengthening their human rights links with NGOs and indigenous peoples’ organizations from different parts of the world.
In this complex interplay of multiple actors, “stakeholders” and processes, the people of this region are beginning to realize that the protection of their basic rights, including traditional resource rights of its indigenous peoples, will call for far more sophisticated strategies than are currently being employed by them or on their behalf.
The defense of traditional resource rights is all the more challenging in the CHT because of the plurality of the geophysical, cultural, social, legal, administrative and legal dimensions involved.
The CHT is a multi-ethnic, multi-religious/spiritual and multi-cultural society.
It is a major meeting point of South Asia and Southeast Asia.
Here part-subsistence-oriented communities co-exist with timber traders, and the writs of the national government, regional indigenous authorities and traditional chiefs and elders vie with one another.
It is a partially autonomous system with division of responsibilities between elected, traditional and bureaucratic authorities.
It is an example of a legally and juridically pluralistic system – albeit in a formally ‘unitary’, as opposed to a ‘federal’, system – in which national laws co-exist with formalized regional laws (based upon the colonial-time CHT Regulation of 1900 or the 1997 Accord) and customary laws regulated largely by traditional chiefs and headmen (Roy, 2000b, Roy, 2007, Roy, 2008).
Unlike most industrialized countries, most countries in South Asia – as in many other former British colonies – have been quite accommodative of legal pluralism when it concerns personal laws based upon religion or ethnicity, dealing with such matters as marriage, inheritance, family law matters, etc.
Bangladesh is no exception to this trend.
Therefore, the customary personal laws of the indigenous peoples of the country are generally recognized, and respected (e.g., Aung Shwe Prue Chowdhury vs. Kyaw Sain Prue Chowdhury & Others).
In contrast, the Bangladeshi juridical system has not been so accommodative of the traditional resource rights of its indigenous peoples (Roy, 2004b: 124).
The tradition-oriented resource rights of the indigenous peoples of the Hill Tracts are largely based upon customs, practices and usages, usually of ancient origin, but also including those of relatively recent times.
These include rights over forests, communal lands used for swidden (shifting) cultivation, and rights over grazing lands, grasslands, wild game, and water bodies, amongst others (Roy, 2004b, pp. 126, 127).
Some of these rights have been formally acknowledged by statutes, and, by administrative rules, guidelines and orders that have the force of law.
Among the clearest formal recognition of such custom-based traditional resource rights is to be found in the post-Accord CHT Land Disputes Resolution Commission Act of 2001 that provides for the establishment of a commission to adjudicate on land-related disputes in the region.
The commission includes among its members the chairpersons of the three district councils, the chairperson of the CHT Regional Council, and the three hill chiefs, and is obliged, as provided by law, to take into account the “customs, practices and usages” of the region.
Another statute that directly acknowledges customary law is the Chittagong Hill Tracts Regulation (Amendment) Act of 2003, which has reformed the judicial system in the CHT and transferred authority over the administration of civil and criminal justice, hitherto vested upon civil administration 126 Between Ashes and Hope bureaucrats, to judicial officers of the Ministry of Justice.
This law obliges the judicial officers of the new court system (‘District Judge’ and ‘Joint District Judge’, for example) to decide cases “in accordance with the laws, customs and usages of the district concerned”, but to exclude “the cases arising out of the family laws and customary laws of the tribes of the districts, which shall be triable by the Mauza Headmen and Circle Chiefs”.
Thus we see that, in a general way, law unequivocally recognizes some traditional rights, while others remain partially recognized, while yet others remain totally unacknowledged.
One trend, however, is quite clear: traditional resource rights are nowhere near as well protected as customary personal laws.
In the case of personal laws, the state or private interests have no direct stake.
In the case of traditional resource rights, on the other hand, the state and private interests do have a stake: the more they can deny legitimacy to the traditional rights of indigenous peoples or other rural communities concerned, the stronger is their likelihood to use or appropriate it.
The infamous, doctrine of Terra Nullius (“nobody’s lands”) – legal fiction that the land in Australia was “nobody’s land” prior to the arrival of the colonists – represents the nadir of such “legal gymnastics” (Roy, 1994:13).
Similar arbitrarily invented legal fictions were also invoked by colonial and post-colonial states in many other parts of South and Southeast Asia (Lynch & Talbott, 1995:34-49).
Indigenous peoples’ efforts in protecting their traditional resource rights over their lands, especially those that they regard as their commons, are analysed here in the context of three distinct categories of lands.
Two of these are forested lands, and are regarded as common property by indigenous communities, irrespective of their formal legal classification.
The other category includes both common property held under customary law, and other lands held by individuals.
The first category involves the small ‘mauza reserves’ or village forest commons that are managed by indigenous village communities.
These lands are still largely unregulated and may be considered to suffer somewhat from policy neglect of the government.
The second category concerns the state reserved forest lands, which are administered solely by the national Department of Forest, which is still largely a quasi-police type body that is oriented around administrative, rather than, extension services, drawing upon a system dating back to colonial period in the 19th century.
The third category concerns areas from various legal and geo-physical categories that the government regards as “new reserved forests”, ownership and possession of which is contested between village communities (especially of indigenous peoples) and the aforesaid Forest Department.
In some cases there are formally registered hillside plots with orchards or plantations raised by local farmers, in others there are homesteads under quasi-formal customary title, and in yet others, there are no formal titles but long periods of uninterrupted use and occupation instead.
If the formal gazettal process is completed, the formal ownership of and control over most of these lands would vest in the Forest Department, which would then include them within “social forestry” or “participatory forestry” schemes to create new tree plantations.
About a quarter of the CHT is regarded as “reserved forest” and is directly administered by the Forest Department.
The rest of the region, generally known as the mauza-circle areas, also contains some forest and grazing lands.
The natural resources of these areas are primarily managed by mauza headmen, who may be regarded as the real pivots of the CHT rural administration.
The 380 odd headmen of the region are directly responsible to one of the three traditional hill chiefs, and concurrently, to the national government’s district and sub-district officers.
Post-Accord legislation also vests supervisory authority over the headmen upon the three hill district councils, and indirectly, the CHT Regional Council.
However, this new supervisory role of the regional and district councils is yet to be seen to be substantively exercised in practice.
A literal and narrow construction of the concerned statutes would suggest that the government’s district officer (known as the deputy commissioner) wields more formal authority over the headmen than any other local official or institution, having powers to both appoint and dismiss the headmen.
However, the same law also obliges the district officer to act “in consultation with the chief concerned”.
All of the three hill chiefs and the vast majority of the headmen are of indigenous origin, and their offices are more or less hereditary, passing on to male heirs of the previous incumbents (with some notable exceptions).
In contrast, almost all of the sub-district and district functionaries are of nonindigenous origin, seconded from the national civil service.
The three hill district councils and the CHT Regional Council each have a two-thirds indigenous majority, and indigenous chairpersons to head them, a requirement provided by law.
At the moment, the aforesaid four councils are membered and chaired by government appointees, but ultimately, elections for the same are to be held, with the local indigenous people and “non-tribal” permanent residents comprising the electorate.
The most important densely forested parts of the mauza-circle areas (which exclude the Forest Department-run reserved forests) are the forest commons that are generally known as “mauza reserves”, a phrase coined during British rule.
These small naturally grown or regenerated forests are traditionally managed, protected and utilised by village communities under the traditional leadership of the mauza headmen and village karbaries (traditional elders).
This tradition of forest management has been partially acknowledged in the CHT Regulation of 1900 – the main legal instrument for the administration of the region – and ancillary executive orders of the district administrations dating from the 1930s to the 1960s (Roy and Halim, 2001b).
However, the law stops short of either unequivocally acknowledging the concerned communities’ tenurial rights over these commons, or of providing effective safeguards against their alienation and privatization, with some notable exceptions (such as section 64 of the Hill District Councils Acts of 1989, which recognize the authority of the councils’ over land administration in the region).
The National Forest Policy of 1979 and the Asian Development Bank-supported Forestry Master Plan of 1994 substantively favour industry-oriented plantations over naturally grown or regenerated forests, although some lip service is provided to cosmetic humanitarian and environmental concerns.
Accordingly, projects have concentrated on raising rubber and timber plantations on the one hand, and on strengthening the policing functions of the Forest Department on the other.
In the latter case, forest-dwelling or forest-adjacent communities were not involved at all.
In the case of the plantations, local communities were usually involved, but only because they provided the crucial and cheap physical labour without which the land clearing, planting and tending could not be done.
The projects were variably styled as “social forestry”, “participatory forestry”, “community forestry”, “collective farms” or otherwise.
The wage labourers were usually granted minor facilities and styled as “beneficiaries”, but were never allowed major decision-making powers (Roy & Gain, 1999, Roy & Halim, 2001a, Roy, 2000b).
Among the major challenges and difficulties faced by the mauza communities is the continuous threat of privatization posed by their absence of formal title over their forest commons.
Efforts of these communities to organize and mobilize themselves and to strengthen their forest commons rights have been severely weakened because of their social, political and economic marginality, and the time and effort necessary to struggle on a daily basis to meet their basic livelihood needs.
Therefore, external offers of organizational support are generally welcomed, provided the communities trust the people or organization concerned.
However, while such support may be of crucial benefit to the villagers, long-term measures to strengthen their tenurial rights might yet prove be extremely difficult in the absence of legislative and policy changes at high levels, something that might require sustained lobbying.
It may be wise for the community concerned to diversify its networking alliances to also include political groups, in addition to social organizations and NGOs.
This is especially important since discriminatory surveillance activities of the government in recent years have sometimes made it extremely trying for local development and social organizations, such as the organization Taungya, to work freely in sectors that overlapped with some activities related to basic human rights.
All such organizations that receive funds from foreign sources are answerable to the Office of the Prime Minister and the Ministry of Home Affairs, and are obliged to take great care regarding human rightsrelated work in the CHT that is liable to be regarded as objectionably “political”, “sensitive”, or even “seditious”, unto the period of the current Awami league-led government.
Another major challenge faced by these communities is with regard to their day-to-day social and economic problems.
At the moment, Taungya (funded by DANIDA) is helping facilitate problemsolving exercises of a few select mauza reserve communities through formal and informal meetings, awareness raising and training programmes.
However, it is well to realize that Taungya cannot continue its VCF project work indefinitely.
What would happen, for example, if at some time in the near future Taungya discontinued its work due to funding constraints or other difficulties?
What would then happen to the communities?
Would they by then have developed a relationship of “dependence” upon Taungya that ultimately affected their self-dependent practices?
Therefore, a major strategy priority for these communities could be to form an alliance or front composed of representatives from different mauza forest communities from all parts of the Hill Tracts.
In some reserved forest areas, the indigenous people were able to exercise their voting rights and participate in local council elections for the first time only as late as 2003, almost half a century after their relatives in the mauza-circle (non-reserved Forest) areas of the CHT had acquired franchise rights!
And this seemed to please neither the local Forest Department officials nor the local army officials posted near the new councilor’s village.
The question of their land rights and oppressive situations have been raised in various fora by Taungya and its networking allies, including the Forest and Land Rights Movement (Roy & Halim, 2001a).
It has been argued that the traditional communal and custom-based land rights of the indigenous peoples cannot be extinguished by the 1927 Forest law, since custom is recognized both in the national constitution and in the CHT Regulation of 1900 (that screens and regulates the application of all laws to the CHT region, including the Forest Act of 1972 itself) (Roy, 2004b).
However, in ultimately securing the adequate formal recognition of such customary rights, there are probably few practical alternatives to strengthening the organizational capacities and networking and lobbying alliances of these communities.
In the long run, however, it is unlikely that substantial progress can be achieved by reserved forest communities regarding the strengthening of their land and resource rights merely through such efforts as awareness-raising and organizational strengthening.
This is because most of these communities are socially and economically extremely marginalized and disadvantaged, due, among other reasons, to their settlements’ “remote” locations.
Therefore, unless and until concrete measures are taken to help them
access public health services,
market their produce,
have improved road communications (in a guarded manner),
raise elusive capital through easy-term farm and business loans (rather than extortively high micro credit interest rates),
and prevent oppressive money-lending practices,
even if these communities were to become quite aware about governance,
development and basic human rights,
they would still not go very far in achieving their land and political rights if they still had to spend a great deal of time and attention to securing their basic livelihood needs.
Therefore, accessing the aforesaid welfare services may be as important as to help make the communities aware about their basic legal rights (Sutter, 2000).
Attention to such welfare needs is also important due to the long periods of state-neglect and discriminatory development policies of successive governments since the colonial period.
It is a matter of conjecture whether the present journey of Bangladeshi state to its 1972 moorings, as directed by the Supreme Courts through 5th Amendment case, including socialism as a pillar of state policy, will have any impact on past trends.
Until recently, the Forest Department appointed “headmen” within the reserved forests (not to be confused with the more influential mauza headmen in the mauza-circle areas) appeared to hold the most influential leadership positions in the concerned areas, apart from the elected chairpersons and members of the small union council areas (where the union council system has been extended).
There is little doubt that the elected community leaders have been able to voice the concerns about their people with much more force than the Forest Department-appointed “headmen”.
This is largely because these Forest headmen have to depend upon the Department to retain their offices, and moreover, even they cannot call their own homesteads their own land.
Despite expert advice to de-reserve numerous very small reserves that were difficult to manage (Webb & Roberts, 1976), the Forest Department has instead chosen to increase its area of reserved forests.
Thus, ever since the colonial period, a sense of territoriality and expansionism guided the Department, whose legacies are yet to be discarded.
Even though we now live in a democratic society where ownership of the state’s properties if ostensibly vested upon the people.
It is important, in particular, for the indigenous people and their allies to minutely study the national Forest Policy and the Forestry Master Plan, and the colonialist Forest Act of 1927, and to continue to lobby for amendments as necessary.
Despite their difficulties, the strengthened CHT selfgovernment system no doubt has a larger say than before in helping steer relevant government policy, at least by acting as a watchdog in vetting nationally proposed schemes, projects and programmes.
Thus it is extremely important to bring about a close and positive working relationship between organizations working with the Forest communities and regional political groups.
Moreover, as a matter of tactic, it is well to remember that the situation varies between the reserved forest areas and other areas.
The former still continue to remain as colonial enclaves, since the 1997 CHT Accord did not directly address the issue of the indigenous peoples’ rights over these stolen commons.
Therefore, the writ of the customary resource rights system will no doubt continue to be rejected by Forest Department officials in the case of the old reserved forests (and the new reserves), and will therefore require greater attention for concerned activists.
Among other factors that traditional resource rights defenders in the CHT need to account for are supra-national influences upon the trade and aid-dependent political economy of Bangladesh, including the phenomena of privatization and marketization.
Multilateral development institutions such as the World Bank, the IMF, and the Asian Development Bank – who continue to play a vital role in fiscal and developmental policy-making in Bangladesh – will no doubt also have a strong influence upon the state of traditional resource rights (Roy, 2007).
Unfortunately, the Forestry and Indigenous Peoples policies of the World Bank and those of the Asian Development Bank do not favour the strengthening of indigenous peoples’ customary rights.
The World Bank’s stand on these rights of indigenous peoples was apparent in its support to the controversial Tropical Forestry Action Plan (Minority Rights Group, 1999) and in its revision of its Indigenous Peoples policy (OD 4.20) and its replacement by a new policy (OP/BP.4.10).
As for the Asian Development Bank, its proactive role in helping formulate the Forestry Master Plan of Bangladesh and in amending the 1927 Forest law, in addition to providing loans for controversial Forestry Sector projects, have clearly demonstrated its real and potential negative impacts on environmentally sound forestry and indigenous peoples’ rights (Roy, 2002a; Roy & Halim, 2001a, Roy, 2005, Roy, 2007).
Its new safeguard provisions in its policy on Indigenous Peoples and Involuntary Resettlement are arguably more progressive than before but still far from being respectful of indigenous rights in accordance with the UN Declaration on the Rights of Indigenous Peoples as adopted by the UN General Assembly in 2007.
The situation of traditional resource rights of indigenous peoples in the Chittagong Hill Tracts will also depend, to a great extent, on other existing and emerging international standards and processes including those on trade (WTO), and on intellectual property rights (WIPO), apart from the Indigenous Peoples and how other safeguard policies of the World Bank and its regional partners (Asian Development Bank, African Development Bank, Inter-American Development Bank) are implemented. Other crucial factors that will influence the situation of traditional resource rights of the indigenous peoples of the CHT are the nature of the implementation or nonimplementation of relevant international treaties.
These include the ILO Convention on Indigenous and Tribal Populations (No 107 of 1957), the International Convention on the Elimination of Racial Discrimination (CERD), the Convention on Biological Diversity, and the “human rights” treaties (the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), all of which have been ratified by Bangladesh.
Among these, the ILO Convention No. 107 and the Biodiversity Convention are the most directly related to traditional resource rights (Roy, 2009).
The ILO Convention No. 107 stands out, along with its less integrationist and more progressive successor, the Convention No. 169, not only as the only multi-partite international treaties on the subject of indigenous peoples, but also on account of their strong measures on collective land rights, and safeguard measures against land-alienation.
Among the provisions of the Biodiversity Convention that have a direct bearing upon traditional resource rights of indigenous peoples, are article 8(j), that deals with the protection of relevant traditional knowledge systems of indigenous peoples (and that of “local communities”) and the equitable sharing of their benefits, and article 10(c), which attempts to protect and encourage the appropriate traditional use of biological resources.
Another crucial tool for indigenous peoples worldwide, including those in Bangladesh, is the UN Declaration on the Rights of Indigenous Peoples that was adopted by the UN General Assembly in 2007.
The Declaration contains many crucial provisions on indigenous peoples’s collective and individual rights, including traditional rights over forests and other commons, and other crucial rights, including self-determination andautonomy, right to the observance of treaties and agreements, right to fair and quick disposal of disputes, restitution of alienated lands, juridical systems and customary law, language and culture, development, freedom from militarization, and most importantly, the peremptory norm of nondiscrimination.
Several governments that voted against the Declaration or abstained from voting – during its adoption within the UN system – have since changed their position (such as New Zealand and Australia) or are considering doing so (such as Canada and USA).
The Prime Minister of Bangladesh, Sheikh Hasina, in her message on International Indigenous Peoples Day expressed her support towards the implementation of the Declaration, as did the Law Minister of Bangladesh (while participating in the International Indigenous Peoples Day celebrations in Dhaka on 9 August, 2010).
Similarly, the Government of Bangladesh is known to be considering acceding to ILO Convention No. 169 (Roy, 2009).
The overall atmosphere is changing, towards the better.
But that is merely to do with legal provisions.
Implementation is another matter. And in countries like Bangladesh, implementation is as big a challenge as legal reforms.
Abbreviated from paper presented at 10th Biennial Conference of International Association for the Study of Common Property (IASCP), held in Oaxaca, Mexico, August, 2004.
Writer: Devasish Roy