Tashi (and I use his first name to distinguish him from the place) calls the police action unwarranted and draws parallels to the violence his people have been subjected to throughout history. Viewed from the vantage point of a highly marginalised group whose access to the Nepali state is circumscribed as much by geography as by religion, language and ethnicity, he is perhaps rightly justified in his anger. More so, when the police go around yelling that they will fix the ‘bhotes’, as Tashi asserts they did. It is a matter of great shame that a national institution like the police should still resort to such derogatory language in today’s Nepal, and not be called to task for it, but we shall let that pass for now.

Convention wielding

Going back to Do-Tarap, at the heart of the problem seems to have been the collection of royalty from yarsagumba pickers by locals, a right the latter believe has been granted to them by the International Labour Organisation (ILO) Convention 169 on Indigenous and Tribal Peoples, which Nepal has signed. This is not the first time ILO 169 has been wielded by Janajati groups. For instance, although systemic problems have caused much of the delay in the Melamchi drinking water project, the perceived failure of the government to engage the locals as per the provisions of ILO 169 has also been contributory factor. A 2009 Carter Center report states that the Tharuhat Autonomous State Council, an offshoot from the Maoists, was known to be collecting taxes on timber and other resources in the Western Tarai, citing the Convention. Similarly, pro-Limbuwan groups had levied taxes on cardamom in the Eastern Hills on the same basis.

This is not the place to get into a discussion on who is or is not indigenous to Nepal since the government has a roster of groups recognised as such. It is a different matter that the debate has also been muddied considerably since that list does not yet include others granted similar recognition, such as Khas Arya, whom the government decided to recognise as Janajatis in May 2012. That is a matter of dispute that will come to haunt us not too long into the future. But, I digress again.

At first glance, it seems odd that a UN body dedicated to the welfare of workers should be involved in the rights of indigenous peoples. In actual fact, ILO engagement with the issue had originally been driven by the realisation that indigenous peoples were facing severe labour exploitation in countries with a colonial history and, hence, required special protection measures, especially when they had been expelled from their ancestral lands and become seasonal, migrant, bonded or home-based labourers.

ILO adopted the Indigenous and Tribal Populations Convention (No 107) in 1957. That Convention was, however, criticised for assuming indigenous and tribal peoples would be better off integrated into the ‘mainstream’ and also that the state was most competent to make decisions on their behalf. But it was a document of the times when assimilation was the norm widely, including in Nepal.

Challenged over its integrationist approach, the ILO adopted Convention No 169 in 1989. The main objective of 169 was protection. But it was now based on respect for indigenous and tribal peoples’ cultures, their distinct ways of life and their traditions and customs as well as the belief that indigenous and tribal peoples have the right to continue to exist with their own identities and the right to determine their own way and pace of development, which fit well with the aspirations of Janajati groups in the post-1990 period.

Signing up

The demand that Nepal ratify ILO 169 had been a long-standing one from Janajatis and, finally, in August 2007, as part of the agreement with the agitating Nepal Federation of Indigenous Nationalities (Nefin) and the then-existent Indigenous Nationalities Joint Struggle Committee, the government agreed. Accordingly, in September 2007, Nepal joined the Convention, the only Asian country so far. This came just a day after Nepal, along with 142 other countries, adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

UNDRIP is a non-binding instrument, which, as a Native American blogger put it, is ‘not unlike a Christmas card’, nothing more than a goodwill gesture. On the other hand, ILO Convention 169 is, in the words of Will Kymlicka, the pre-eminent scholar on multiculturalism, the first real example of a multiculturalist international norm. The Convention also enjoins ratifying states to honour its provisions, and indeed, the Nepali government had drafted a National Action Plan on ILO Convention 169 back in 2009, but which has since been languishing, pending approval by the Cabinet.

It is precisely this failure to come up with any guidelines on how ILO 169 is to be implemented in Nepal that lies at the root of confrontations such as the one in Dolpo. For, regardless of the government inertia, ILO 169 has been used as a mantra by Janajati groups across Nepal, leading to varying readings of its provisions by them (as well as by those opposed to it). For instance, it is erroneously believed that ILO 169 grants indigenous groups exclusive rights over natural resources or that they can veto any development activity. This is far from the truth and a particular grouse of indigenous rights activists against ILO 169 is precisely that. Further, as a UN document notes, it also contains rather vague language and is peppered with phrases such as ‘to the extent possible’, ‘as appropriate’, ‘as necessary’ and ‘wherever practicable’. These nuances seem to have been lost in translation and/or interpretation.

Breaking the monopoly

Max Weber had defined the state as the entity with ‘the monopoly of the legitimate use of physical force within a given territory’. Expanding on that, Jonathan DiJohn of London’s School for Oriental and African Studies has contended that a state can also be characterised as one with the monopoly over taxes since ‘it reduces the prospects of non-state actors...challenging state authority’. DiJohn’s argument would ring true for us in Nepal while remembering the decade-long conflict during which the Maoists were able to successfully undermine the state’s monopoly over both violence and taxation. In fact, the impact on the population at large was not the actual fighting but Maoist taxes in the form of ‘levies’ and ‘donations’ from which not even Kathmandu was spared.

Tashi is certainly correct in interpreting the Dolpo incident as yet one more example of an uncaring state and he makes the very poignant point that the “locals will take time but will settle issues among themselves as they have to face each other daily.” But, it can also be viewed as a reassertion of a state that could not brook the idea of a non-state group in the highly sensitive business of collecting taxes. And all because the government has not been able to get its act together on the meaning of ILO 169 for Nepal and for socio-economic relations at all levels of society. The sooner this situation is rectified the better because there are many more Dolpos waiting to happen and we should not countenance any more deaths on account of a lazy state.