Electronic copy available at: http://ssrn.com/abstract=2004106

Conflicting Issues and challenges related to Common Property Management and Customary Rights of the Indigenous People of Chittagong Hill Tracts in Bangladesh

S. M. Monjurul Ahsan∗ Abstract: The common properties in Chittagong Hill Tracts of Bangladesh have been degraded due to curtailment of right of the indigenous people by the Forest Department, government policy relating to modernization of the central economy, deployment of military and settlement programs in the land of indigenous people. Therefore, in the context of common property management, the research study aimed to identify state’s role on conversion of indigenous people’s common property and also discovered customary practice of the indigenous people in common lands. The findings of the study reveal that government policy regarding conservation of forest and non-recognition of the indigenous people’s customary rights over their land in the national legal frameworks have negative consequence over the natural environment of the Chittagong Hill Tracts. The study shows that indigenous peoples have their traditional knowledge which is effective for the conservation of nature and supporting livelihood which are not being recognized by the state legislation. The study found that detachment of the indigenous people from the nature brings destruction of nature as well as misery for the people. The study also found that international legal instruments and practical experiences as well as local knowledge could be applied for the required policy interventions in order to address the conflicting issues of Common property and livelihood of the indigenous people’s. Key words: Common property; Customary Rights; Indigenous people; Forest Management; livelihood; Politics of Recognition ………………………..... ∗University of Dhaka (Bangladesh) / International Institute for the Sociology of Law (Spain) monjurul.ahsan@yahoo.comThe paper has been presented as a Masters Thesis to the Oñati International Institute for the Sociology of Law in September 2011(Oñati International Institute for the Sociology of Law Antigua Universidad s/n - Apdo.28 20560 Oñati - Gipuzkoa – Spain Tel. (+34) 943 783064 / Fax.(+34) 943 783147 E: opo@iisj.es W: http://opo.iisj.net ).

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Electronic copy available at: http://ssrn.com/abstract=2004106

Acknowledgement: I would like to convey my gratitude to all of my teachers, classmates and officials of the International Institute for the Sociology of Law for developing my new insight. Again, I would like to convey my gratitude to Prof. Paul Thompson and Prof. Antonio Azuela whose comments and advice have inspired me for doing my research in the field and for developing this paper. Special thanks to Susana who brought me a wonderful opportunity to study in the beautiful Basque Country of Spain.

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Table of Contents: Page no. Abstract .................................................................................................................................... 1 Acknowledgement ...................................................................................................................... 2 List of abbreviation ................................................................................................................... 4 Introduction .............................................................................................................................. 5 Chapter One .............................................................................................................................. 8 1.1. Recognition of customary rights over the common properties Legal framework in national and International level .................................................................. 8 1.2. The views of Elinor Ostrom on Common property And the related contexts of CHT condition in Bangladesh ....................................................... 10 1.3. Legal framework: International and National Perspectives....................................................... 10 1.3.1. Definition of indigenous people and rights of the indigenous People according to different international conventions .......................................................... 10 1.3.2. Recognition of customary rights over the common properties Legal framework in national and International level................................................................ 11 1.3.3. Legal frameworks in Bangladesh ........................................................................................ 12 Chapter Two ........................................................................................................................... 15 2.1. Role of Forest department for eroding Customary rights ........................................................ 15 2.2. Hydro-power Dam caused disaster on the livelihood on CHT .................................................. 18 2.3. Emergence of Bangladesh and role of the government towards CHT people ......................................................................................................................... 19 2.4. CHT Peace Accord and follow-up ........................................................................................ 21 Chapter Three ......................................................................................................................... 23 3.1. Emergence and role of VCF and use of Jum land in Changing socio-legal context ............................................................................................... 23 3.2. How VCF’s are providing support to the Indigenous community ............................................ 24 3.3 Case study in Bilaicharimon .................................................................................................. 25 3.4 Case study in Pankho para ..................................................................................................... 27 3.5 Blaming Jum is not the answer as Jum land is The source of livelihood since there is no alternative .............................................................. 28 Chapter Four .......................................................................................................................... 31 4.1. Development of laws in different countries regarding Customary rights of the indigenous people ............................................................................ 31 Recommendations and concluding remarks.............................................................................. 33 Bibliography ............................................................................................................................ 37 Appendix: 1 (Research questions and methodology)...................................................................... 40

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List of abbreviation ACF Assistant Conservator of Forest ADB Asian Development Bank CHT Chittagong Hill Tracts CONAAIE Confederacion de Nationalidades Indigenas del

Nacionalidades Indigenas del Ecuador CONFENIAE Confederacion de Nacionalidades Indigenas de

la Amazonia Ecuadoriana CPR Common Property Resource CHTDB Chittagong Hill Tracts Development Board DC Deputy Commissioner DF District Forest DFO Divisional Forest officer FGD Focus Group Discussion FRA Forest Right Act ILO International Labour Organization IP Indigenous people IFI International Financial Institution JSS Jana Samhoti Samitee UN United Nations UNPFII United Nations Permanente Forum on

Indigenous Issues USAID United States Assistance for International

Development USF UnClassed State Forest VCF Village Common Forest

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Conflicting Issues and challenges related to Common Property Management and Customary Rights of the Indigenous People of Chittagong Hill Tracts in Bangladesh Introduction: The Chittagong Hill Tracts is situated on the south-eastern region of the country and shares its international borders with the Indian States of Tripura, Mizoram and the Rakhaine state of Myanmar. The total land area of Chittagong Hill Tracts (CHT) is 5,089 sq. miles (13,189 sq. km.) including rivers and forest areas. The Chittagong Hill Tracts comprises three districts namely Rangamati, Banderban and Khagrachari. The vegetation of the CHT is lush green with tropical and semi evergreen natural forest with deciduous trees, bamboo and sun grass.1 Indigenous people of the Chittagong Hill Tracts 2 are distinct from the rest of the population of Bangladesh. They are distinct from majority of Bangladeshi people in terms of ethnic identity, race, culture, life style, language, legal system and way of life.3 They are mostly forest dwelling community and their livelihood depends mostly on common properties of the forest and Jum cultivation4 where they have equal rights of access, use and extraction. Its population according to the last census held in 1991 was approximately 0.974 million.5 The Indigenous People of CHT with their distinct cultural heritage and language is adding enormous diversity to Bangladeshi society. They have invaluable knowledge regarding sustainable management of common lands which they have inherited from their ancestors. However, their livelihood has been disrupted and they have become the prime victims of deforestation, environmental degradation and development activities.6 State policy and action aimed at controlling the forest, land territories, establishing hydro-power dam, eviction of indigenous people from their own land and non- recognition of indigenous people has largely devastated their way of life. These conditions put them in tough struggle for protection of their cultures and livelihood means. Peoples of Chittagong Hill tracts of Bangladesh have experienced human rights abuses and state supported violence by the authoritarian rulers for many

1 Roy, Rajkumari Chandra 2000, Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh, IWGIA Document No. 99, IWGIA, Copenhagen, p.18 2 Eleven ethnic groups populate the CHT: Bawm, Chak, Chakma, Khumi, Kheyang, Lushai, Marma, Mrung, Pankho, Tanchangya and Tripura (Mohsin, Amena, 2005, p. 75). 3 Khaleque, Kibriaul n.d., Ethnic communities of Bangladesh, Bangladesh – Land, Forest and Forest People, Available from: http://xoomer.virgilio.it/bguizzi/bangladesh/adibasi/adivasi1.htm . [Accessed: 15 July 2011] 4 Jum cultivation is a traditional agricultural practice in the Chittagong Hill Tracts of Bangladesh. Jum cultivation is a kind of community agriculture. It is carried out predominantly on the steep slopes of the high hills. The headmen are responsible for the distribution of the Jum land among the village community (G, Philip, M, Shisir & R, Priscilla (eds.) 2001, p.81) 5 Bangladesh Bureau of Statistics (BBS), Statistical Pocket Book Bangladesh, Dhaka, Government of the people’s republic of Bangladesh, Ministry of Planning, Statistical division, 1993 6 G, Philip, M, Shisir & R, Priscilla (eds.) 2001, Bangladesh Environment facing 21 century, Society for Environment and Human Development, Dhaka, p. 322

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decades. In 1997, a peace accord7 had been signed between Bangladesh Government and JSS8 on behalf of the Indigenous people of CHT for establishment of Justice, Rule of law and settling issues relating to their ancestral common lands that have been encroached by the military-backed Bengali community.

Map: 1 (Bangladesh and Chittagong Hill Tracts) Source: Roy, Rajkumari Chandra 2000 After signing the peace accord in 1997, the indigenous community is now moving forward for establishment of justice and rule of law, although they are still struggling for land rights of the indigenous peoples of the Chittagong Hill tracts. Many issues are still pending and those regarding land-rights have not yet been resolved, and conflicts are still ongoing. These conflicts continue to inflict enormous miseries and hardships on the Indigenous people. Rights of the indigenous people relating to their land and territories and resources have been enshrined in the United Nations Declaration on the Rights of Indigenous Peoples due to concerns that indigenous peoples have suffered from historic injustices

7 On December 2, 1997, the Chittagong Hill Tracts Peace Accord was signed between Jana Samhati Samity (JSS) and the Government of Bangladesh after years of peace talks and ended two decades of civil war. For more details, see in p.22 of this paper. 8 Jono Samhoti Somitee (JSS) is the political party of the indigenous peoples of the Chittagong Hill Tracts formed in 1972 for the territorial sovereignty.

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through colonization and dispossession of their lands, territories and resources. The declaration recognized the urgent need to respect and promote the inherent rights of indigenous peoples which have been derived from their own political, economic and social structures as well as from their cultures, spiritual traditions, histories and philosophies, especially rights to their lands, territories and resources.9 Many people called them savages, occupied their territories as they regarded indigenously owned territory ‘Terra Nullius,’ and classified them as ‘nomads’. But today, when the globe is facing major threats due to man-made disasters like deforestation and climate change, indigenous people of CHT are showing traditional knowledge on how to conserve nature through the use customary and traditional practices of the indigenous local communities. In this research study, the researcher has responded to some of the questions related to common property management by the indigenous people of the Chittagong Hill Tracts and to their livelihood that has been affected by the national policy and actions. Researcher also looked at some of international and regional experiences and international instruments in order to make some recommendations for the policy makers. To achieve the above aims, this study has been divided into four chapters. The first chapter analyses the basic characteristics of the common properties, related policy issues and rights of the indigenous people that has been enshrined in the various international instruments and also from national legal frameworks related with land, territories and resources. Chapter two explores the processes of conversion of CPRs of CHT and role of the government in eroding the rights of the indigenous people over their CPRs as well as political response of the indigenous people before and after the peace accord. Chapter three explores and elaborates how indigenous people of CHT manage their common properties in accordance with their customary practice, indigenous institutional framework and governance system. Chapter four discusses the development of laws in different countries regarding the recognition of the customary rights over the CPRs. Finally, The researcher have drawn conclusions from the perspective of the rights of the indigenous people along with point of view of sustainable management in order to make policy recommendations for the better management of the CPRs of CHT.

9 United Nations Declaration on the Rights of Indigenous Peoples, 2007 Available from: http://www.un.org/esa/socdev/unpfii/en/drip.html, [Accessed: 17.6.2011 ]

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Chapter One This chapter discusses the characteristics of common property according to views of Elinor Ostrom and other scholars. Again, as the issue is very relevant with the rights of the indigenous people, it also discusses the definition and rights of indigenous people according to different international conventions, and finally it explores to what extent indigenous people’s rights, relating to common property, have been addressed in the national legislation of Bangladesh through reviewing available literatures. 1.1 Recognition of customary rights over the common properties legal framework in national and International level According to Andersen, common tenure refers to a situation where specific communities or groups composed of one ore more villages jointly exercise their exclusive rights over their resource base. In many rural areas community’s livelihood are largely dependent upon these resources. Generally, in common tenure resources there is a boundary defining the resources, and group memberships are clearly defined in order to exclude outsiders, allowing the community to retain exclusive access to those resources10. This is a situation where a group holds secure and exclusive collective rights over their own resources such as agricultural lands, grazing lands, forests, trees, fisheries, wetlands or irrigation waters. Common tenure is still currently practiced throughout Asian and African countries, supporting indigenous peoples’ livelihood.11 It refers to an enforceable bundle of rights. There are different kinds of tenure rights, such as the state-owned public lands, including forests, known as state tenure; and private individuals have private tenure on their private plots. Alongside these tenure rights there are customary communal tenure rights authorized by the local rules of the villages, generally known and abided by the villagers, and which may be enshrined in a national regulatory frame work.12

According to Garrett Hardin – as cited by Elinor Ostrom in her book “Governing the Commons” – a grazing ground will deteriorate and will provide zero profit if everybody looks for his own interest, if they do not have any mutual agreement and obligation, thus creating an environment where nobody will gain or profit out of this strategy. Prisoner’s Dilemma suggests that rational beings are not cooperative, that collective irrational outcome is a by-product of individual rational strategy, thereby challenging the fundamental belief in human rationality, and further suggesting that rational human beings do not necessarily achieve rational results.13

Elinor Ostrom further mentioned that the tragedy of the common and the prisoner’s dilemma are the models which suggest that when one person cannot be excluded from the benefits that others provide, then each person will not contribute toward a joint 10 Andersen, Kirsten Ewers 2011, Communal Tenure and the Governance of common Property Resources in Asia: Lessons of Experiences in selected Countries, p.3. Available from: http://www.fao.org/docrep/014/am658e/am658e00.pdf , [Accessed 10 July 2011] 11 Ibid., 12 Ibid., 13 Ostrom, Elinor 1990, Governing the Commons: The evolution of Institutions for collective Action, Cambridge University Press, New York.p.5

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effort or the common good, but will rather be motivated for free-riding, leading to bars on the collective benefit. Based on this premise, Ophulas suggested as cited by Ostrom that a government’s overwhelming coercive powers is necessary to resolve the environmental problem. Thus, a central government or an external leviathan is necessary for retaining control over most natural resources and to avoid the tragedies of the common.14 Heilbroner opined that as private interests are not expected to protect the public domain, external regulations by public agencies, governments, or international authorities are needed. However, Elinor Ostrom mentioned that those are the proponents of centralized control needed to decide specific management strategy that central authority considers best for the situation.15 According to Robert J. Smith, to avoid tragedy of the commons requires a system of private property rights over the common property. 16

Elinor Ostrom has examined a great variety of functionally and regionally distinct collective action system for resource management – grazing commons, fisheries, irrigation system etc. to understand why those organizations succeeded or failed. All have the important characteristics such as the utilization of local knowledge, articulation of rules that are subject to modification over time, even across centuries, involving experiments through trial and error. Functional results are achieved not from a top down approach, but rather are a result of the community’s ecological sensitivity over time.17

Elinor Ostrom has criticized those opinions that advocate for central regulation over the common properties. She cited, “Nationalizing the ownership of forests in the third world countries has been advocated on the grounds that local villagers can not manage forests so as to sustain their productivity and their values in reducing soil erosion. In countries where small villagers had owned and regulated their local communal forests for generations, nationalization meant expropriation.”18 Elinor Ostrom’s work has considered development of diversified institutional setup for the management of natural resources in order to avoid ecosystem collapse where external management has failed to prevent resource exhaustion. She did not give any single prescription but rather emphasized the multifaceted nature of human–ecosystem interaction and learning from trial and error from practical experience. Ostrom identifies "design principles" of stable local common pool resource management which have clearly defined boundaries, rules of use, local condition of CPR, collective choice arrangement, individual’s participation to modify the rules, monitoring, graduated sanction, conflict resolution mechanism and rights to organize. 14 Ibid., p.8 15 Ibid., p.9 16 Ibid., p.12 17 Smith, Vernon 2003, Rethinking Institutional Analysis: interviews with Vincent and Elinor Ostrom, Commemorating Life time achievement, p. 9. Available from: http://mercatus.org/uploadedFiles/Mercatus/Publications/Rethinking%20Institutional%20Analysis%20-%20Interviews%20with%20Vincent%20and%20Elinor%20Ostrom.pdf ,[Accessed: 18.07.2011] 18 Supra note 13, p.21

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1.2. The views of Elinor Ostrom on Common property and the related contexts of CHT condition in Bangladesh Ostrom is very much relevant to the discussion about the common properties of CHT. From The British period, through Pakistan and into the Bangladesh period, the process of expansion of reserve forest was initiated by successive governments for protecting the forest resource, as each government thought the protection of the forest resource could only be achieved through state control. However, over time, it has been proved that the forest department has largely failed to protect the forest resources. In this regard, Sekh Abdur Rashed, Assistant Conservator of Forest of Rangamati district has said, “in fact, forest department of Bangladesh does not have logistic and manpower to control the total forest region of the CHT”.19

Till today, the forest department in its operations and activities follows a quasi-policing system which excludes local people to use and participate in the management of the forest. They refer to the indigenous people as squatters, and indigenous people are denied their customary rights over the forest. However, beside the state control forest management activities, indigenous people of the CHT are managing forest within Unclassed State Forest area known as Village Common Forest (VCF) with their own institution, following rules that they have developed, utilizing local knowledge, articulated rules and adapting to changing material conditions. These enabling conditions for sustainable common property management system could be a reflection of the customary practice of the indigenous peoples of the CHT. 1.3. Legal framework: International and National Perspectives 1.3.1. Definition of indigenous people and rights of the indigenous people according to different international conventions There are many other terms which are equivalent to the term Indigenous which are given preference to in many countries such as tribes, first peoples/nations, aboriginals, ethnic groups, adivasi, janajate etc. Occupationally and geographically they are known as hunter-gatherers, nomads, peasants, hill people, etc. which could be used interchangeably with “indigenous peoples” for all practical working purpose. However, a working definition has been given by the United Nations Permanente Forum on Indigenous Issues which stated that, “Indigenous peoples are the holders of unique languages, knowledge systems and beliefs and possess invaluable knowledge of practices for the sustainable management of natural resources. They have a special relation to and use of their traditional land. Their ancestral land has a fundamental importance for their collective physical and cultural survival as peoples. Indigenous peoples hold their own diverse concepts of development, based on their traditional values, visions, needs and priorities.”20

19Interviewed with Sekh Abdur Rashed, Assistant Conservator of Forest, Rangamati District, dated on: 23.07.2011 20United Nations Permanente forum on Indigenous Issues, Fact sheet, Available from: www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf, [Accessed 15.07.11]

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ILO Convention 169, held in 1989 in Geneva, mentioned in its Article 1 the definition of tribal peoples where it stated that “This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”21

1.3.2. Recognition of customary rights over the common properties and legal framework in national and International level: International Legal Instruments In The Universal Declaration of Human Rights article 2 is a safeguard of all human beings from discrimination and violence irrespective of their race, colour, sex, language, religion, political or other opinion or country of origin and place of birth. Article 7, also describes that each and every person is entitled to equal protection from any kind of discrimination and violence.22 But rights have been designated towards an individual person rather than a collective entity. However, this is an individual safeguard of human being from any form of discrimination and violence and these rights also apply to the indigenous people in individual level. ILO Convention 169 According to Article 14, ownership and possession of the indigenous people’s land that they have traditionally occupied shall be recognized and measures shall be taken for inappropriate cases to safeguard the right of the peoples to use lands not exclusively occupied by them where they had traditional access. Also stated is that particular attention shall be paid to the nomadic peoples and shifting cultivators. In section 2 of the same article it is further stated that Government should identify the concerned land where indigenous people traditionally occupied and provide guarantee for effective protection regarding their rights of ownership and possession. Section 3 prescribed for taking adequate procedures in order to develop a national legal system to resolve the land claims of the indigenous people. Again in Article 15, section 1 it has been mentioned that indigenous people’s right over the natural resources pertaining to their land shall be especially safeguarded and includes participation in the use, management and conservation of these resources.23

21ILO Convention 169, adopted in 1989 in Geneva, Available from, http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169, [Accessed: 15.08.11]22 The Universal Declaration of Human Rights, 1948 23 Supra Note, 22

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United Nations Declaration on the Rights of Indigenous PeoplesArticle 20 states Indigenous people have the right to maintain and develop their political, economic and social system of institutions in order to secure their own means of subsistence and development and all their traditional and other economic activities. In Article 26, it has been mentioned that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied, used or acquired and they have the right to own, use, develop and control the lands, territory and resources. Article 29 states that Indigenous people have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources where states shall establish and implement assistance programmes for conservation and protection. Article 32 mentions Indigenous peoples have the right to determine and develop priorities and strategies for developing their lands or territories or other resource.24 1.3.3. Legal frameworks in Bangladesh State Acquisition and Tenancy Act, 1950 recognized especial tenurial status of lands falling within traditional domain of aborigines in section 97 which further explicitly mentioned that an aboriginal can only transfer his land in favour of another aboriginal ‘domiciled and permanently residing in the country’ projects the reality of nature of frequent movements of some to and from their ancestor’s land. The law, in this case recognized the individual land holding rights of aboriginal and not in the form of Common property rights. 25

The constitution of Bangladesh 1972, guarantees measures to remove inequality between ‘man and man’. It aims at ensuring ‘equitable distribution of wealth among citizens’ and providing opportunity to attain a uniform level of economic development. It is fundamental principle of state policy to adopt measures to conserve the cultural traditions and heritage of the people [Article 19(2)]. 26 This Article recognizes the importance of conserving cultural tradition and heritage of the people which is very much significant while discussing customary rights of the indigenous people. According to Article 28(1) of the constitution the state shall not discriminate against any citizen based on religion, race, caste, sex or place of birth. Again, Article 28(4) of the Constitution has provided safeguard for each and every citizen of the country against any kind of discrimination. 27 But Indigenous peoples were not recognized in the constitution. Rather they were broadly categorized as a backward section of the citizenry. This is a humiliating approach of the State towards indigenous community. The article-13 of the constitution mentioned that there will be three types of ownership of property which are state ownership on behalf of the people, cooperative ownership by cooperatives on behalf of their members and private ownership by 24 Supra note, 9 25 Farooque, Mohiuddin 2004, Land and land law: Forest legislation needs to reflect Human values and culture, Selected Writings on Mohiuddin Farooque, Bangladesh Environmental Lawyers Association, Dhaka, p.185 26Constitution of Peoples Republic of Bangladesh 1972, Available from http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf [Accessed: 25.07.2011] 27 Ibid., arts. 28(1), 28(4)

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individual within such limits as may prescribed by law.28 It is a matter of regret that although there exist many traditional forms of ownership of common property in Bangladesh which include many fisheries, Village Common Forest and other forms of community resource and property, but according to the national constitution common property does not exist in Bangladesh and thus it has no legal entity. 15th amendment of the Bangladesh constitution has passed on 30th June 2011 where Article'23A' now says: “The state shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities.” Before this amendment indigenous peoples have been demanded for recognition as indigenous people rather than mentioning as tribe’s or backward section of the country in the constitution. In this connection, a concern letter has been sent to Prime Minister of Bangladesh by the Chittagong Hill Tracts Commission demanding for be rightfully recognized as ‘indigenous peoples’ in line with the United Nation’s modern understanding of the term. 29 According to National Forest policy of 1979, Government forest shall not be used for any purpose other than forestry; However, Chittagong Hill Tracts is supplying major raw materials for the State enterprises which include railways, paper mill and other industrial sector.30 In Bangladesh National Forest policy of 1994, it has been mentioned that massive afforestation programs will be implemented in the denuded hilly areas of unclassed state forests31 of Rangamati, Khagrachari and Banderban, and that these forests will be taken under government and private initiatives where participation and rehabilitation of Jum cultivators will be ensured, with support from Ministry of Land for keeping the land ownership intact.32 This policy clearly shows the intention of the government to control lands in order to keep intact the ownership of the state where indigenous peoples have customary practice. In Bangladesh on 13 January 2010, social forestry (amendment) rules 2010 have been passed which again ensures control of forest department over natural forest and reserve forest area, through developing a benefit-sharing mechanism for implementing social forestry program. Within the natural forest (except Shal Forest) benefit will be shared as follows:

28 Ibid., arts. 30 29See more information in the Official website of the CHT commission. Available from: http://www.chtcommission.org/wpcontent/uploads/2011/07/CHTCommission_LetterToPM_Constitution.pdf (Accessed: 28.07.2011) 30Supra note1, p.90 31Unclassed state forest are those state forests which have not notified by the government as reserved, protected, controlled or vested forest. Hence management of these forests has not been entrusted with FD. 32See details on official website of Forest department of Bangladesh, Available from http://www.bforest.gov.bd/act.php [Accessed on: 28.07.2011]

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Forest Department 50% Beneficiary group 40% Plantation fund 10% However, with in the area of reserve forest benefit will be shared as follows: Forest Department 25% Beneficiary group 75% In the section 10 of the same rules, it has been mentioned that for the development of national forum for guiding social forestation program, small ethnic groups will be incorporated. 33

In CHT, land is administered by separate legal rules, distinct from that of the rest of the country. It is inherent, inalienable, and is conceptualized within the framework of customary rights.34 Agriculture is the core economic activity of indigenous people. They were used to leading their life depending on natural resources with their traditional knowledge and customs. Land and forest is the centre of their economic activities. These activities are completely need-oriented and hence can be called a subsistence economy.35 Concept of land right in CHT is linked with collective right. In the land system of the Hill Tracts, hill people can only subsist as a part of a community, bound in ties with mutual reciprocity. For shifting cultivators of Hill Tracts, land is a common property belonging to the community, kinship groups and members of the spirit world, with individual families exercising their usufruct right.36 Beside Jum cultivation practice, other significant customary resource rights of the indigenous peoples of CHT include grazing lands for cattle, water bodies and forest. However, access to hunting which is considered by the indigenous people as a customary right has not been recognized by the State legislation. But some of the customary rights to some extent have been recognized by the formal legislation. For example, Rule 50 of CHT Regulation states that indigenous people have the right to occupy homestead lands in the rural area. Rule 41a of CHT Regulation and Forest Act 1927 recognizes that Indigenous people have the right to use timber, bamboo and other minor forest products for the use of domestic purposes.37

33 Gazette notification, Ministry of Forest and Environment, dated on 11 January 2010. Available from http://www.bforest.gov.bd/doc/SF%20Rules_January2010.PDF [Accessed on: 28.07.2011] 34 Anik, Asif Reza 2005, ‘Land Rights of Indigenous Peoples: A Review with Special Reference to CHT Accord’, in M. Kamal (ed.), Reflection on Diversity and Citizen, Shrabon Prokashani, Dhaka, p.140 35 Ibid, p.140 36 Supra note1, p,54 37 Roy, Raja Devasish 2004, ‘Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The case of Chittagong Hill Tracts, Bangladesh’, Arizona Journal of International and Comparative Law, Volume 21, Number 1, spring 2004, p.149

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Chapter Two In this chapter the researcher has explored how state policy and development projects in Bangladesh have devastated common properties and customary rights of the indigenous communities in CHT through acquisition, conversion and destruction processes over time, resulting in acute degradation of forests, creating hardships and suffering to the indigenous community. In this regard, the response of the indigenous people regarding their political struggle and peace accord signed between the government and indigenous people and finally challenges of the Land Dispute Commission is also discussed. 2.1. Role of Forest department for eroding Customary rights over the Common lands: If we look at legislation we can see that some of the customary rights have been recognized by the legislation from the British period, although their major customary rights were largely condemned in the areas of reserve forest which occupied major portion of the CHT. The first attack on customary rights over the forest and their resources came during the British period. In 1865 the Indian Forest Reserve Act was passed, barring the local people from entering it, thereby usurping the resources for meeting the demands of the imperial railway companies. They realized that forest needs to be protected to ensure the steady supply of railway sleepers.38 After the formal annexation of the CHT into British Bengal, the government took over the direct management of almost a quarter of the CHT consisting of dense forest lands, re-categorizing them as “reserved forests” and thus effectively outlawing rights of access and use of the resources to anyone other than the Forest Department. Very limited access was allowed to the concerned forest-dwelling and forest-adjacent communities, and that was allowed as mere privileges or concessions.39

When the British government started reserving the forests in the hills, they actually began the process of altering the commons into state property and systematic exploitation of forests in the hills led to poverty of the hill people. Today very little of the natural forests is left as a consequences of the creation of the reserve forest which proved to be far reaching for the hill indigenous peoples. The local communities enjoy no prescriptive rights in the reserve forests. Before reservation this land and forest belonged to them.40

In 1875 The British government introduced two types of forests, the reserve forests (RF) and the district forest (DF). The reserve forests were put entirely under the management of the forest department. Jum cultivation and any kind of use of forest resources were totally prohibited. The DFs were put under the direct control of a Deputy Commissioner. In the DF, Jum cultivation and the use of forest produce for

38 Supra note 2, p.82 39 Supra note 1, p.151 40 Supra note 6, p.92

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domestic purpose was allowed with certain restriction the Deputy Commissioner (DC) might impose from time to time. The state also gave away high quality land to the European entrepreneurs for plantation. The state forest policy was thus informed by its profit motive. The Hill people however, were marginalized, as the state did not provide them any alternative livelihood opportunities.41 This exclusion of local population from the forest resources continued in the postcolonial state of Pakistan as well. The forest resources were used for the production of Karnaphuli paper mill at Rangamati which was established in 1953.

Map: 2 (Chittagong Hill Tracts) Source: Gain, Philip (2000)

41 Supra note2, p.83

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During the period of Bangladesh, replacement of natural forests with commercial or industrial plantation has caused extensive damage to the environment. The objective of these plantations is not natural forests cover but short rotation crops that would yield revenue. The plantation of teak, rubber, and pulp wood is a particular concern. Exotic species such as acasia, eucalyptus and pine have now grown as major cash crops. Tobacco cultivation is another concern in CHT. The curing of the raw tobacco consumes an enormous amount of fuel wood and results in the destruction of forests in and around the tobacco growing areas. The above mentioned causes have led to a complete extinction of a variety of indigenous plants and animal species and severe erosion of soil.42

The forestry policy implemented in Chittagong Hill tracts could be considered highly controversial and a violation of traditional land and resource rights. Impact of the forest policy can be seen in different ways. Indigenous people have lost their lands and resource base, curtailment of subsistence economic activities, restriction on resource harvesting, displacement of indigenous people due to Governments order and finally criminalization of indigenous people who harvest sun grass for a thatched roof, trapping or hunting and Juming within the reserve forest and stringent control in the protected forest. 43

When interviewed, Joysen Tonchonga suggested how the forest could be well managed with people’s participation. He said “forest department is not giving any access of forest product inside the reserve forest. So, people do not feel that those resource need to be preserved. People should have the rights to select species for plantation. People should be given access over the resources. The matured trees which are now old and dying may be harvested and at the same time immature trees should be preserved”.44 Since the British period, CHT region has been considered as a colony in a sense that major policy benefits have acquired not by the local population but to the state. A few major amendments to the CHT land laws in 1970 facilitated almost exclusively non-indigenous people to get long term lease for industrial estates and for rubber plantation. Hardly any indigenous people could afford the rent or fee charged for the lease. The leasing policy supported non indigenous people to acquire large areas of customarily and collectively held lands almost overnight and converted large areas of common properties in to privately held land.45

For understanding the views of the forest officials regarding how forest could be well managed the researcher conducted an interview with Mr. Abdul Awal Sarker. He said “human settlements including indigenous and Bengali community have developed within the Reserve Forest of Farua without any legal entity as the land is under the

42 Supra note2, p.86 43 Supra note1, p.95 44 Interviewed with Joysen Tonchonga, Elected Upazilla (Sub-district) Chairman, Bilaichari, Rangamati District, dated on :20.07.2011 45 Supra note1, p.151

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jurisdiction of Department of Forest. In the upper Kaptai region, Plantation scheme has been taken by Forest Department by clear felling of natural forest during the period of 1972 -73. For implementing the project, many Bengali and indigenous people came and developed communities. Over here, we cannot make any participatory forest management project like Modhupur or Lawachara due to insufficient logistic support of the Forest Department and due to political unrest in the Chittagong Hill Tracts. Demarcation of the lands between reserve forest and unclassed state forest has not been settled yet, which is necessary for resolving the conflict between Forest department and Indigenous community. For this, the role of CHT Land Dispute Commission is very important but unfortunately the commission is not working properly.”46

Sekh Abdor Rashed, Assistant Conservator of Forest (ACF), shared the role of the Forest Department in the unclassed state. He said, “unclassed state forest is not controlled by the Department of Forest. Nobody is owner of this land but only State. Neither Forest Department, nor Indigenous people own this land. The land is under jurisdiction of the Ministry of Land (MoL). It is the responsibility of the Land Ministry for allotting lands privately or providing Forest Department for conservation of forest. Generally, we provide support in the unclassed state forest area by supplying saplings for plantation and for the horticulture. For new plantation, we are now focusing on selected felling rather than clear felling. For implementing new plantation schemes, selection of species depends upon Govt. decision and demands of the public. However, a major problem regarding the management of the forest is associated with wood logging. With wood logging business, people ranging from high and low class are all involved. Forest department is managing forest with inadequate man power and logistics support. For controlling wood logging the government is now focusing on Public- Private Partnership and participatory method of social forestry.47 Although previously forest department conservation approach was confined with in the forest officials, however this new approach could be considered as a major shift of the governments approach towards forest management which is now recognizing that people’s participation is necessary. 2.2. Hydro-power Dam caused disaster on the livelihood on CHT: Another disaster suffered by the indigenous people of CHT is related to a hydro-power dam project. During the period of 1963, a hydro-power power plant was established in Chittagong Hill Tracts by creating a dam in the river Karnaphuli, eventually occupying 256 square miles of land area and submerging 54,000 acre of agricultural land. Along with the material damage caused by the dam, it also displaced more than 100,000 indigenous people who were forced to evacuate the waterlogged area. The project was completed at a cost of Rs. 4.9 crores with funding from USAID for generation of power supply to the port city of Chittagong, but there were no arrangements for supplying power to the homes of indigenous people. This

46 Interviewed with Mr. Abdul Awal Sarker, Divisional Forest Officer, Jum Control Department, Rangamati District, dated on: 23.07.2011 47 Interviewed with Sekh Abdor Rashed, Assistant Conservator of Forest, Rangamati District, dated on: 23.07.2011

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project brought misfortune to the indigenous people who lost their ancestral land with tangible and intangible resources. About 40,000 Chakmas migrated to the neighbouring Arunachal Pradesh of India and have as a consequence remained stateless to this day.48 While researcher visited in Bilacharimon for field investigation, Niru Chakma (75), an elderly woman shared her experience on how hydro-power dam affected livelihood of the indigenous people. She said “we had all the fertile lands where it is now Kaptai Lake. We had houses and many villages along both sides of the Rainkhong River. There was Buddhist temple named “Solamoni Buddha Bihar”. It was very beautiful and biggest temple within the Bilaichari. There was a bridge before the Kaptai bazar over the river. We have seen how they have established the dam with their machinery. We have noticed how level of water increased and inundated our villages and crop lands. People left their ancestral land losing everything and moved to unknown places. Here in Bilaichari, About 1600 households lost all their belongings. Most of the people did not have any land record and the people who did not have any documents were not compensated. Indigenous people lost their fertile plain lands and took shelter in the hills.”49

2.3. Emergence of Bangladesh and role of the government towards CHT people remained same: Bangladesh emerged as an independent state in 1971 from what was then East Pakistan after the turmoil of a bloody civil war. The denial of the constitutional recognition of the indigenous people of their separate national entities by the first government of independent Bangladesh brought political and economic chaos to the CHT, frequently stained by bloodshed. An indigenous movement demanding self-determination was established in 1972 under the leadership of M.N. Larma and operated their movement for achieving rights of the indigenous people to their traditional lands. An armed conflict continued in the area between the government’s armed forces and the Parbatya Chattgram Jana Samhati Samiti – Chittagong Hill Tracts United Peoples Party – until 1997, before the peace accord. The application of counter-insurgency strategy of the government in the CHT is a major factor behind the dispossession of common property of the indigenous people. Military driven counter-insurgency strategy has focused on relocation and resettlement of the indigenous people and thus many indigenous people were forced to leave their lands and their homes and move to designated areas where they remained under military control and surveillance.50 The Bangladesh Army occupied lands of many indigenous people to set up army camps. The lands were simply taken over, and the indigenous people did not receive any compensation, financial or otherwise. 51

48 Supra note1, p.96 49 Interviewed with Niru Chakma (75), an elderly woman, Bilaichari Mon, Bilaichari, Rangamati District, dated on: 19.07.2011 50 See case study on Pankhua community, in this paper. p.28 51 Ali, M. Emran and Toshiyuki Tsuchiya 2002, ‘Land Rights of the Indigenous People of the

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During the period of 1979 to 1984 Indigenous people of the Chittagong Hill tracts had to face a governmental plan to resettle hundreds of thousands of landless peoples which eventually resulted in turning indigenous people into landless labourers without a land or resource base for sustaining their livelihood.52 A Bengali settler named Md. Siddique Sekh (58) shared his experience while the researcher was travelling from Kaptai to Bilaichari. He said “we came here in 1981. My ancestral home is in Alfadanga under Faridpur district. At that time, we were notified by the government that if anybody wants to settle in CHT, he will receive 5 acres of land, will get home and cattle and taka 500 as a package program. We received all the supports from the government except the cattle. But the land I got cannot be cultivated as it is far from the military camp and where indigenous people are using that land for Jum cultivation. Our condition is not so good here and most of the people are very poor.”53 The settlement program actually did not help most poor landless Bengalis realize their dreams but instead threw them into the middle of a conflict, where they were often used as a human shield by the military. The resettlement policy of the Bengali settlers created a long term conflict between the Hills people and Bengali settlers which is still ongoing. In 1980 an estimated 30,000 regular and paramilitary troops were stationed in the hill tracts and the number of police stations doubled in the four years between 1976 and 1980. Since 1975 numerous killings, beatings and attacks on property have taken place. On 25 March 1980 about 300 unarmed tribal people as well as Bengali settlers were killed by troops in the small village of Kuakhali Bazaar. In June 1981 riots by Bengali immigrants, supported by governmental soldiers, caused the death of approximately 500 tribal men, women and children in the area around Matiranga.54 Komol Chakma (50), Field manager, Taungya shared his experiences during the period of the insurgency. He said “from 1978, Army came and captured all the big villages and carried all the Bengali settlers by truck. They burned the villages with petrol and later vacant place was captured by the Bengali settlers. Army also came into our village and entirely burnt it. My wife was pregnant at that time. We walked 10 days to reach a refugee camp in India. After that my wife delivered two dead babies. We lived two years of refugee life than came back again.55

Chittagong Hill Tracts in Bangladesh’, Center for World Indigenous Studies, Volume 5, Number 1, pp.63 thru 79, Available from http://chtaffairs.weebly.com/uploads/5/0/7/2/5072074/land_rights_of_indegenous_in_cht.pdf [Accessed: 2.08.2011] 52 Supra note1, p.108 53 Interviewed with Md. Siddique Sekh (58), a Bengali settler, Gachkatachara, Bilaichari, Rangamati District, dated on: 16.07.2011 54Supra note1, p.123 55 Interviewed with Komol Chakma ( 50), Field manager, Taungya - an indigenous non government organization, works for rights of the indigenous peoples of CHT) Rangamati District, dated on: 19.07.2011

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The researcher conducted a meeting with the Villagers of Bilaicharimon including Karbari56, elderly people and members of the VCF, they said “between the periods of 1982 to 1986, military came several times to this village and burnt it. Around 40 houses were burnt during that period by military. The military accused them for giving shelter to the Shanti Bahini (Peace Corps) although they could not find them in the villages. In 2002, villagers of 2 Kangrachari had experienced communal riots with settlers. Bengali settlers came with arms and took control of the lands of indigenous peoples by force.” 57 2.4. CHT Peace Accord and Follow-up After several rounds of negotiation between the government and the JSS the CHT peace accord took place in December 2, 1997 between Government of Bangladesh and JSS. It is recognized by the Government of Bangladesh that CHT is a semi-autonomous self-governing region and a Tribal inhabitant area. CHT regional Council was formed and Government of Bangladesh recognized its legislative power over the three hill districts of Rangamati, Khagrachari and Banderban alongside the central government’s legal system. CHT regional Council has been provided a legal basis to exercise supervisory authority over the Headman instead of tribal chief or central government authority. The peace accord recognizes customary laws with reiteration of the administrative roles of the chiefs and the headmen of the indigenous people. Through this accord, existing role of traditional institutions in land, revenue, and judicial administration remain unchanged.58 The CHT Accord of 1997 provides two important safe guards for the indigenous community and other residents of the CHT. One of these is devolution of land administration to the hill councils, without whose comments no land are to be settled, leased out, transferred or compulsorily acquired (section 64, Hill District Council Act, 2000) and other is the resolution of land related disputes by a Commission on land. 59 Clause 2 of part D of the peace accord reads: After the signing and implementation of an agreement between the government and JSS, and after rehabilitation of the tribal refugee and tribal (internally) displaced people, the government will, in consultation with the regional council and in accordance with this agreement, and as soon as possible thereafter, a land survey to be conducted in the Chittagong Hill Tracts and after resolving land related disputes through proper consideration of the matters concerned, the government will have the concerned lands recorded in the name of the tribal people and ensure the protection of their land rights.60 The Accord clearly stipulates that the survey would be conducted only after the land disputes are resolved, the refugees and displaced people are rehabilitated and the land 56 Traditional Village leader of the indigenous people in CHT. 57 Interviewed with the villagers of Bilaicharmon, Rangamati District, dated on:: 19.07.2011 58 Supra note 37, p.122 59 Halim, Sadeka and Roy, Raja Devasish 2000, ‘Valuing Village Commons on Forestry, Indigenous Perspective: Bequeathing Indigenous knowledge’, A journal of the Tebtebba Foundation, Volume V, number 2, Banguio City, Philipines, p.24 60 Clause 2 of part D, Peace Accord 1997.

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rights of the indigenous people are secured. It is crystal clear that peace in CHT is largely dependent on the resolution of the land issue. The accord stipulates that land would be returned to the owners once their ownership rights can be ascertained. But in the CHT in areas where the hill people practice Jum cultivation, there is no conception of private property. Land is communally held and individuals have rights to usufruct only. Under such circumstances it is difficult to envisage as to how the hill people would produce documents of land ownership. On the other hand, the government had provided land documents to the Bengali settlers and also many Bengalis have been settled in lands left behind by the hill people who had taken refugee in India.61 To follow up process of the CHT Accord, run in to difficulties and there have been complaints that implementation process is too slow. Another major concern is ineffectual functionalities and lack of cooperation between Hill district council and line ministries in Dhaka.62

CHT Land Commission was setup in 1999 but facing complication for resolving land disputes and land survey issue. The long waited survey supposed to be carried out in according with 1997 peace accord to verify the claim of the indigenous people. However, other members of CHT land commission and indigenous people have alleged that the Chief of the Land dispute Commission is taking unilateral decisions for carrying out cadastral survey in CHT and circulated public notice for submitting application by affected people. They further alleged that chief of the land commission has received application from the land grabbers and working in favor of a vested quarter. 63 In Land Commission Act-2001, section 6 (1) it has been mentioned that to settle the land related dispute of the rehabilitated refugee in accordance with the existing laws and customs in the Chittagong Hill Tracts. Again, in section 7(5) of the Land Commission Act-2001, it has been mentioned that Chairman shall take decision on the basis of discussion with other members present on the areas of activities and if the decision is not unanimous in that case his decision shall be treated as the decision of the commission. 64 Indigenous peoples of the CHT protested against the decision of the Chairman of land Commission and demanded for settling the land related disputes before conducting the survey and amendment of Land Commission Act-2001 which empowered Chief Commission for taking unilateral decision.65 61 Mohsin, Amena 2000, ‘State Hegemony’, in G. Philip ( ed.), Life and Nature at Risk, SEHD, Dhaka, p,73 62 Ibid., p.25 63 The Daily Star, 27 December, 2010. Available from: http://www.thedailystar.net/newDesign/news-details.php?nid=167578, Accessed [ 4.08.2011] 64 Chittagong Hill Tracts Land Dispute Settlement Act 2001, Bangladesh Gazette, July 17, 2001. 65 The Daily New age, Available from: http://newagebd.com/newspaper1/frontpage/30615.htmlAccessed [15.08.2011]

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However, conflict is till existing and very often becoming form of communal riot. In 2008, a concern letter has been sent to the Prime minister of Bangladesh from the Chittagong Hill Tracts Commission (A civil society watch group) for investigating arson attack and alleged killings in Sajek and demanded for declaring a roadmap for full and comprehensive implementation of the 1997 CHT Accord.66

Lars Andres Baer, UN Special Rapporteur on Indigenous issues reported in May 2011, at the UN Permanent Forum on Indigenous Issues (UNPFII) where he mentioned “Land of a good number of refugees was yet to the returned while internally displaced Jumma families were not rehabilitated.” 67

Villagers of Bilaicharimon said, “Even now, there is no trust between the government and the indigenous community. If peace accord could be implemented as agreed by the government, then indigenous people will be more secured and forest could be preserved in much better ways than the present status.”68

In this section the researcher tried to find out the underlying causes of conflicts between indigenous people and the government. All the conflicts of the CHT are rooted within the common lands of the indigenous people which have been converted, leased or illegally encroached on over a period of time, creating negative consequences for the environment along with indigenous people and their livelihood in CHT. In this regard, implementation of peace accord is only possible through effective role of the Land Dispute Settlement Commission and this Commission could be more functional if necessary amendment of laws takes place and take account of customary common property system of the CHT in order to provide legal recognition of the common lands of the indigenous people. Chapter Three In this section the researcher has explored how indigenous people have adapted their customary practice over the common properties while socio-legal condition has largely changed. The researcher has addressed questions regarding how resource allocation and distribution takes place among them and analyzed their traditional institutional framework and governance system. 3.1. Emergence and role of VCF and use of Jum land in changing socio-legal context: Village Common Forest is a traditional practice of tribal communities which is available in the area of USF. Tribal communities are mostly depending on these

66 In 2008, some Bengali settlers began to illegally construct houses in Gangaram area on land used by indigenous community. On April 20, 2008, a group of settlers attacked several indigenous villages, injuring people and burned down more than 70 houses. However, there was no effective intervention by the authorities, despite the close presence of the army and the other security forces. Available from: http://www.chtcommission.org/wpcontent/uploads/2010/03/MemoToPM_Feb2010SajekAttack-_4.pdf [Accessed 27.07.2011 ] 67 Ibid., 68 Supra note 59

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common forests for fulfilment of their basic subsistence. These VCF’s are usually managed by the community headed by the Village Karbari or Mouza Headman. Most of the reported VCF’s are small in area ranging from 20 acres to 100 acres. However, some of the larger VCF’s are also available consisting of more than 300 acres of land. Some of the VCF’s consist predominantly bamboo brakes, while others contain more flora and consequently fauna, which represents diversified natural forest character.69

With the beginning of British rule in the CHT in 1860, the Indigenous people not only lost their right of access to a quarter of the entire area of the region, they also lost large forested tracts due to their conversion into plough lands and homesteads. The indigenous villagers who lost access to their former commons now found themselves with little choice but to devise new methods of sustainable use of their scarce common lands, including forests. The result was an innovation based upon their traditional resource management patterns to retain forest cover for long-term use. This gave birth to the mauza reserves or VCF’s of today. 70

3.2. How VCF’s are providing support to the Indigenous community Despite indigenous people’s exclusion process from the government owned reserve forest, indigenous communities of Chittagong Hill Tracts are managing their VCF in more effective ways. Village Common Forest of Chittagong Hill Tracts represents a potential model of forest management by serving different types of needs of the indigenous community. They are managing the VCF’s in a sustainable manner that serve their daily need and at the same time their management practice ensures conservation of nature through sustainable harvesting of the forest resources.71

VCF’s are playing a significant role for conserving the forest and fulfilling the other demands of the forest dependent communities. Indigenous peoples are conserving and managing those VCFs for different purposes. For instance, for the maintenance of tree covers and for the protection of environment while facing rapid deforestation, for the maintenance of diversified plants and animals, medicinal herbs, sustainable supply of wood and bamboo for their daily life, reducing dependency on reserve forest and for the preservation of drinking water sources, as many VCFs have headwaters of streams, natural springs and other aquifers.72

69 Chakma, Amara Sadhu 2010, Village Common Forest in the Chittagong Hill Tracts: Indigenous innovation in Natural Resource Management, Taungya, Rangamati, Bangladesh, p.13 70 Halim, Sadeka and Roy, Raja Devasish n.d., Lessons learned from the Application of Human Rights-Based Approaches in the Indigenous Forestry Sector in the Chittagong Hill Tracts, Bangladesh: A Case Study of the Village Common Forest, p. 10 Available from: http://hrbaportal.org/wp-content/files/1233223431_8_1_1_resfile.pdf [Accessed: 1.08.2011] 71 Baten, M, Khan, N, Ahammad, R and Missbahuzzaman, K 2009, Village Common Forest of Chittagong Hill Tracts, Bangladesh: Balance between Conservation and exploitation. Unnayan Onneshan, Dhaka, p.7 Available from http://www.forestrynepal.org/images/publications/Community_Forestry_Intl_Workshop_2009.pdf [Accessed: 16.07.2011] 72 Ibid, p.10

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Indigenous livelihood is closely related with VCFs as they also provide support for religious beliefs, rituals and ceremonies of many indigenous people. Many Buddhist monasteries within the CHT are situated within the middle of the forest or small woods. Thus, the maintenance of VCFs is also crucial to safeguard the cultural integrity of these peoples.73 VCFs are generally managed by a VCF committee where representatives of every household are included. Usually each household provides one member to the VCF committee. The general body then selects an executive body consisting of a President, a Secretary, a Treasurer and other executive members needed to maintain the VCF and its official tasks. In General, the village Headman is the head of the group. Governance system of the organization is more or less democratic and after three years election is held in each of the VCF’s to form a new committee. However, the organization is run by its customary rules which are not a written law. The user community collectively set the rules of VCF management and punishes whosoever breaks them. Normally, each of the house hold members pays monthly subscription to run the committee’s activities. Generally, rules are followed traditionally and they are not same in all the VCF’s. Rules differ within different ethnic communities as local circumstances differ.74 It is important to note that Taungya, a local NGO working for indigenous peoples rights, supported those VCF’s to continue their good practices in the CHT region especially strengthening existing governance system of the VCF’s through providing leadership and management training. How indigenous people are managing the VCF’s: To understand how indigenous peoples are managing their Village Common Forest the researcher has visited two indigenous community villages, namely Bilacharimon and Pankhopara. 3.3. Case study on Bilaicharimon: About 76 families live in Bilaicharimon. Borun Kumar Chakma is the Karbari of both the villages. It is about 1000 meter high above sea level, in close affinity to where the Village forest is situated. Below the forest, the village is located next to hilly stream name ‘Bilaichari’. Their ethnical identity is Chakma. The researcher has conducted an interview with an indigenous Chkama family. The Couple named Bimal Kanti Chakma (husband) and Jhorna Chakma (wife) have been living in Bilaicharimon since 1982. Both of them are member of VCF and they collect all of their household needs from the VCF. 20-22 years ago villagers of the Bilaichaimon decided that they will develop a forest and then identified an area for growing their forest. They let their chosen area lie fallow for a few years and naturally a forest took root. Gorjon and Chapalish are the major species in the forest. Two years ago, all the bamboo had died and VCF management sold those bamboos.

73 Supra note71, p.14 74 Supra note 71, p.14

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After selling the bamboos, management committee of the VCF has placed the amount in a bank for creating a common fund for social service. Bilaicharimon VCF’s Executive committee has been formed comprising 21 members and among them 10 women are executive members since 2009. The total number of general members is 76 and they represent each household from the village. During the FGD villagers shared how they are benefiting from the VCF, and their practice of harvesting and their monitoring system. They said “we use the bamboos and woods from the VCF for our household needs. Commercial harvesting is not allowed. Committee has to be informed before harvesting any forest goods. Committee members monitor how much resource has been harvested. Members can collect branches of trees for their fuel wood. Generally males go to the VCF for harvesting goods but if necessary females also take part while harvesting.” 75 While conducting FGD with the villagers of Bilacharimon, they discussed some of the rules that they have developed for their forest management: Members are allowed to harvest wood or bamboo for their household need. Without permission nobody can harvest any bamboo or wood. If anybody cuts a bamboo without permission, he has to pay Tk.50. On the other hand, if anybody cuts any trees he has to pay a fine equivalent to market price for that tree. Each member has to pay Tk. 100 for membership fee and Tk. 20 for savings for each month. VCF funds can be used for any social welfare purpose such as support for education, medical needs, building house for poor households, social and religious ceremony etc.76 These simple rules developed by the community are not written and formal, yet they play a very effective role in supporting the livelihood of the indigenous people and conservation of the forest. The researcher conducted an interview with a traditional leader of the Indigenous community named Santibijoy Chakma (40), Headman, 124. Naraichari Mouza, Bilaichari for understanding how they manage their Jum land and VCF. He said “we are managing the Mouza area following the manual of 1900. According to the manual headmen are entitled to mitigate disputes among the villagers following customary laws. The manual also allows us to give 30 decimal of land to each indigenous family for their homestead. We have a common forest containing 300 acres of land. Here different types of tree, vegetation and bamboo are growing naturally. Two years ago all the bamboo had died. Villagers are using that common forest to meet their daily needs but commercial harvest of the forest resource has been strictly controlled by the village committee. If anybody violates rules of the forest committee, he is punished by the village committee and socially humiliated. There is no written law but everybody abides by the rules. Last year after harvesting of the bamboo, villagers raised a common fund for meeting their social events and some of the money has been distributed among the villagers. Beside the Rainkhong River, tree covers in 75 Supra note, 59 76 Ibid

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reserve forest of Farua were much denser eight to ten years ago. Illegal wood logging is continuing there. Now, trees can be seen in the Mouza forest but in the reserve forest where forest department is working you will see trees only next to the river bank but inside the forest you will not find any trees.” 77

3.4. Case study on Pankho para: The researcher have conducted another field visit program to the Panakho para dated on 24.07.2011 where indigenous Pankhuas are managing their VCF and are involved with Jum cultivation. Pankhuas believe that they migrated from a village called ‘Pang Khua’ located in the Lushai hills of Mizoram in India. In the early part of 18th century two Lushai leaders, Thangluah and Rivung along with their respective groups moved southward from their homeland. Rivung penetrated further down into CHT and settled there.78 Total number of the villagers in Pankhua para is 520. Their language is similar to the language of Bom and Mizo. About 2000 Pankhus people live in the Chittagong Hill Tracts and most of them have converted to Christianity. Inhabitants of the Pankhua para established the village in 1979 during the period of political turmoil in the Chittagong Hill Tracts. Previously they had lived in Damdamia under Juraichari upazilla of Rangamati district more than 100 years. During the political turmoil the Pankhus people left their ancestral homes as they faced pressure from both the military and the Peace Corps (JSS). Many people had left CHT and took shelter in India. Pankhuas usually lived in the high mountain and their livelihood largely depended upon Jum cultivation. However, a settlement program was initiated by the government in exchange for leaving their ancestral place, where Bengali settlers established their village. Governments provided them supports for the establishment of new village which consist food for work, 2 acres of land for each household and settled them in USF area of 3000 acres of land. Out of 3000 acres of land each of the family received 2 acres of land which was previously occupied by the Tanchanga and Marma people. Rest of the land was used as Jum land.79 The land distribution process generally takes place after analyzing the needs of the family after their village meeting. Headman plays key role while allotting the Jum land among the villagers. This is not a permanent allotment. The same land could be redistributed to the other household if an allotted land is left unused. Villagers have converted 70 acres of Jum land to natural forest after getting the consent of the Headman. They did not plant any trees in this forest. They left the forest area to natural processes. Now the VCF is populated with various indigenous species such as Gorjon, Jam, Guda, Surush, Ghotghoitta, Sewri, Gamari and Koroi. Two years ago they had collected bamboo rhizomes and planted them in their forest through participation of all the villagers. Total number of VCF member is 92 and executive

77 Interviewed with named Santibijoy Chakma (40), head man, 124. Naraichari Mouza, Bilaichari, Rangamati District, dated on: 17.07.2011 78 Rafi, M, Mustaque, A and Chowdhury, R 2001, Counting the Hills- assessing development in Chittagong Hill Tracts, The Universal Press Limited, Dhaka, p.53 79 Focus group discussion with villagers and VCF members of the Pankho para dated on: 21.07.2011

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body is comprised of 5 members. Out of 5 executive members 3 are women and they have a very important role in decision-making. Members of the VCF have developed their own rules for the maintenance of the forest. Without permission bamboo and wood harvesting is prohibited and if anybody violates the rule he will receive a punishment for his misdeed by the villagers. Alongside the punishment, violators have to pay a compensation for the goods. But if a need arises for household purposes, resources can be harvested to meet those household needs. The process involves prior permission from the committee. 80

Usually villagers resolve their dispute through their own initiatives and mutual understanding. If necessary they involve Karbari or Headman. Since they have settled in this village they have never gone to police for resolving internal conflict. Some of the conflicts they have faced are with Tanchanga and Marma and the Forest Department during Jum cultivation. In the meeting some of the Pankhua people claimed that as they do not have any land records for the Jum land. Very often those lands have been encroached on by the other ethnic group like Marma and Tanchanga who are larger number and more powerful. The land where the VCF had been established did not get any formal approval from the district commissioner of Rangamati district and did not have any government legal entitlement for securing it from the encroachers. 81

The indigenous people of the CHT proved them efficient manager and custodian of forest. It is therefore; natural that concept of village common forest needs to be recognized by the government and could be applied where it is appropriate. 3.5. Blaming Jum is not the answer as Jum land is the source of livelihood since there is no alternative: Jum cultivation: Jum cultivation is a traditional agricultural practice in the Chittagong Hill Tracts of Bangladesh. Jum cultivation is a kind of community agriculture. Its cultivation involves the whole family or community as it requires hard labour and continuous care. The young plants have to be constantly weeded and as they reach maturity they have to be guarded against wild pigs, deer, monkeys, parrots and rats. Generally the women and children are responsible weeding, tending and harvesting. Jum land is usually owned by the village rather than individual cultivators: From VCF indigenous people harvest materials generally used for building houses, firewood and herbs for medicine. Their dependence on food crops is supported from the Jum land. For using Jum land, whoever digs the soil first has the right of possession. If any dispute arises for obtaining possession then Karbari and elderly

80 Ibid 81 Ibid

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people resolve the dispute. If it is not accepted by either party, then it is forbidden to use that land. The headmen are responsible for the distribution of the Jum land among the village community. The Jummia families pay a tax to the headman. Part of the jumia tax is received by the Headman and the rest goes to the chiefs and the government. Jum land belongs to him who occupies it first and acknowledged by the Headman. But the state is the ultimate owner of all lands of the Chittagong Hill Tracts according to CHT manual in the CHT district Gazetteer. The deputy commissioner is empowered to control and regulate jumming. “He may with sufficient reason declare any area to be closed to jumming”82

Villagers of the Bilaicharmon said “we have some private lands among the Mouza and nobody interferes with the private property. Beside the forest patch, we have some lands for Jum cultivation. If anybody wants to cultivate Jum, he has to take permission from the Headman. Generally we cultivate Banana, garlic, ginger, rice, master oil, cotton, different types of vegetables and Maze. After 1965, when low lands were inundated with water due to Kaptai dam, pressures on Jum land has raised significantly. Now peoples are cultivating Jum land followed by three year fallow period. Pressure is now much higher than before. After three years, possession could be changed if he is no more interested in that land. Prior to permission of the Head man, the same land could be redistributed to another person.”83

Previously, there was no shortage of land. Indigenous people followed longer fallow period for Jum cultivation which was sufficient for the re-growth of natural vegetation. However, in recent times (50-60 years), the fallow period has been drastically reduced to 2-3 years from the traditional 10 years. According to experiments in many countries across the globe, even a ten year period is not enough for shifting cultivation to be sustainable.84

When Interviewed with Joysen Tonchonga, he stated “forest department is not recognizing Jum cultivation as a way of life of the indigenous people. Many people have suffered as police arrested them and put them in jail because of their Jum cultivation practice. We do not burn all the trees while we cultivate Jum. The trees which are big are generally saved and rescued.85 Different government and the international agencies such as ADB, Forstral Forest, International limited etc. have consistently regarded shifting cultivation as a harmful agricultural practice. Government and international organizations have blamed Jum cultivation for deforestation and degradation of the environment and have tried to control and discourage it. But they have little pragmatic consideration about the

82 Rule 41 under Chittagong Hill Tracts Regulation orders, in Chittagong Hill Tracts district gazetteer, p.247 83 Supra note, 59 84 Supra note 6, p.82 85 Supra note , 46

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factors that have hastened competition for land and shortened fallow period for the Jum cultivation.86

Through different rules and law the government has tried to control Jum cultivation. Forest conservancy rules of 1876 encouraged bringing plough cultivators into hills from the plains. Amendment of land use policy in 1970 and in the 1980s allowed leasing of the CHT land to non-residents and corporate bodies, especially for establishing industries and raising commercial plantations. In most cases these lands remained unused and many of these were cultivated by the indigenous people. Jum Control Division of the Forest Department and the Chittagong Hill Tracts Development Board (CHTDB) undertook programs for rehabilitation of indigenous people. Those programs targeted the indigenous people by providing them support for horticulture and agro-forestry projects instead of Jum cultivation. Such attempts largely failed because of insufficient facilities for the preservation of raw materials and marketing mechanisms largely controlled by the Bengali peoples. 87

It is hard to deny that Jum cultivation has negative impacts particularly when the fallow period has been drastically shortened. Many want such cultivation restricted and horticulture to take place on Jum land. But what should not be forgotten is that the jumias are not responsible for shortening the fallow period and Jum is not the major cause of deforestation as generally perceived.88

Chittagong Hill Tracts is a place where indigenous people’s agricultural practice is largely dependent upon Jum cultivation. As most of the flat cultivable land has been inundated due to hydropower dam, or leased, and settled by Bengalis, indigenous people doesn’t have any other alternative for growing food for their survival. Although it is true that cultivating Jum requires the burning of small trees and weeds for clearing the land it is also true that this agricultural practice is not the sole cause for the destruction of natural forest of CHT. It is possible that instead of destructive method of Jum cultivation sustainable methods could be applied, such as following the taungya method. It is important to note that taungya is a system of forest management in which land is cleared and planted initially to food crops, seedlings desirable trees species are then planted on the same plot, leading in time to a harvestable stand of timber. Taungya is believed to have been developed by the British in Burma during the Nineteenth Century but actually ethnic minorities were the inventors of this agro forestry technology in South China. 89

86 Gain, Philip 2005, Critiques of Policies and Practices: The Case of the Forests, Ethnic Communities and Tea Workers of Bangladesh, Society for Environment and Human Development, Dhaka. p.9 87 Ibid, p.10 88 Supra note 6, p.84 89 Menzies, Nicholas 1988, ‘Three Hundread years of Taungya: A sustainable system of Forestry in South China’, Human Ecology, Vol. 16, No.4, 1988. Available from: www.jstor.org [Accessed on: 15.08.2011]

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Chapter 4: In this chapter the researcher has explored how indigenous people’s Common property of the CHT could be better managed and has attempted to gather the ideas and knowledge-base generated from regional and international experiences for a viable solution to CHT’s common property issues. 4.1. Development of laws in different countries regarding customary rights of the indigenous people over their common properties: Customary land right issue is an eloquent topic for both national and international stage. Land rights of the native Indians in America and the aborigines in Australia and New Zealand in the face of European conquest have resulted in long-term legal and political battles. In Indonesia, Philippines and Thailand human rights campaign and juristic writings prove the legal entity of the indigenous people and their rights over their traditional domain. For management of the common land, in Indonesia Adat laws have been recognized by the government. Adat law does not recognize private ownership of land where usufruct rights system allowed the individuals to use the land but the community – as a group – exercised the legal rights. 90

In Ecuador Indigenous peoples’ claims have been based on four main topics: the constitutional recognition of a plurinational, multicultural and multilingual State; rights to self-determination; self-reliance and self-development and strengthening of indigenous culture.91 In post-colonial Ecuador, ethnic politics have been strongly regulated by the promulgation of ethnic assimilation strategy for developing a unitary homogenous state through implementation of national development project. However, for establishing collective territorial rights, indigenous people of Ecuador formed different federation such as CONFENIAE (Confederacion de Nacionalidades Indigenas de la Amazonia Ecuadoriana) and CONAAIE (Confederacion de Nationalidades Indigenas del Nacionalidades Indigenas del Ecuador). Constitution of Ecuador has reformed and recognized multiethnic and multicultural character of the state but their struggle is still ongoing to establish other rights.92 In recent years, India has witnessed legal reform relating to forest tenure after the decade long movement for the forest right of the indigenous people. After the enactment of new law known as Recognition of Forest Right Act 2006 (FRA), the government of India acknowledged historic injustices and policy neglect towards forest dwellers. The government of India recognized and legalized third generation rights inside the forest where traditional and customary rights are allowed to exercise relating to cultivation of forest land up to 4 ha, right to collect, use, and dispose of minor forest produce, grazing of the cattle and maintaining homestead. However, the most significant part the of Act is section 3(i) which allows forest dwelling

90 Supra note 10, p.1 91 Espinosa, Maria Fernanada 2000, ‘Ethnic Politics and State reform in Ecuador, in the challenge of diversity: Indigenous Peoples and Reform of the State in Latin America’, Williem Assies, Gemma Van der Haar and Andre S. Hoekema (eds.). Amsterdam: THELA- THESIS, p. 49 92 Ibid, p.50

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communities to protect, regenerate, conserve or manage any community forest resource. 93

Community forestry was initially started in Nepal in 1978, and has gradually evolved over time. Learning from practice, refining them over time, and legitimizing these practices have been the hall mark of Community Forestry Policy Development in Nepal. Instead of formulating a policy and implementing it in the field, community forestry policy development has first facilitated good practices in the field and then legitimized them through consultations with different stakeholders. This program is an institutional innovation for empowering local communities when it comes managing the resources as ‘Commons’ for this benefit in coordination with the government. The Forest Act of 1993 and Forest rules 1995 described the process of handing over part of the national forests to local villagers as community forests, And the advisory roles to be played by Forest officials.94 Joint Forest management in India and community forestry in Nepal has transformed the relationship between the forestry department and rural house hold. In India, 45,000 groups were managing nearly 12 million hectares of government forests. In Nepal, about 13,000 forestry user groups are managing 25% of the Nepal’s forests.95 Decentralization and devolution of forest to lower levels of government is also seen in parts of Latin America, especially Guatemala and Bolivia, where forest laws passed in the mid-1990s’s delegate authority to municipal governments. In Africa, traditional leaders have established themselves as important stakeholders and there is evidence of parallel local authority systems consisting of traditional leaders on the one hand and government established structures on the other.96 Till today the indigenous people of CHT have not received any recognition of customary rights over their common lands and nor have they gotten any recognition as an indigenous people who are distinct from the majority of the population. Charles Taylor cited from his writing on the Politics of Recognition that “our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible pictures of themselves. Non-recognition or misrecognition can inflict

93 Mitra, Kinsuk and Gupta, Radhika 2009, ‘Indigenous Peoples’ Forest Tenure in India’, in J. Perera (ed.), Land and Cultural Survival: The Communal Land Rights of Indigenous Peoples in Asia, p.203. Available from: http://www.adb.org/documents/Books/Land-Cultural-Survival/land-cultural-survival.pdf, [Accessed: 17.7.2011] 94 Kanel, Keshav Raj 2008, ‘So Far So Good: Next Steps in Community Forestry’, in G, Rucha, J, Narpat S & M, Pranab (eds.), Promise, Trust and Evolution: Managing the Commons in South Asia, Oxford University Press, New York, p. 370 95 Syamsunder, Priya 2008, ‘Decentralization, Devolution, and Collective Action – A Review of International Experience’, in G, Rucha, J, Narpat S & M, Pranab (eds.), Promise, Trust and Evolution: Managing the Commons in South Asia, Oxford University Press, New York, p.74 96 Supra note 99, p.74

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harm; can be a form of oppression, imprisoning someone in a false distorted and reduced mode of being.”97 The whole indigenous community of the Chittagong Hill tracts is now demanding for a constitutional identity.98 This constitutional identity refers to recognition of the indigenous people of the Chittagong Hill Tracts as indigenous people not as tribes, minor races or ethnic sect. of the country. As indigenous people of CHT considered, UN declaration on the Rights of the indigenous peoples is a legal safe guard for all of the indigenous people from any kind of discrimination and injustice. This constitutional identity also refers to the demands for the recognition of the indigenous people’s common property regime which governs indigenous people’s livelihood as well as working as a source of biodiversity and natural resources of the country. Recommendations and Concluding Remarks The first chapter discussed Elinor Ostrom’s outlook regarding Common property management, suggesting that nationalization is not necessary for a stable and functional common property management. Based on design principle, a diversified institutional setup could be appropriate where people can learn from trial and error from their practical experiences. From the researcher’s point of view, discussion of Elinor Ostrom is relevant in the context of CHT where VCFs have been developed by the indigenous community with their own institutional framework and rules. Again, in chapter 1, researcher has defined indigenous people and their designated rights according to the ILO convention 169 and United Nations Declaration on the Rights of indigenous people. Both declarations ensure indigenous peoples’ rights over their land, territories and resources and obligate the state parties to provide legal recognition and rights to indigenous people of their respective countries. Discussion on the legal frame work of Bangladesh shows some of the rights of the indigenous people which have been enshrined in the laws since the British colonial rule and exposed the limitations of the national constitution and relevant laws in this regard. The constitution was developed during the period of 1972. Now in present time it is required to adopt more provisions following the prescription of the United Nations and from the International labour Organization. Chronologically chapter two provided the required analysis as to how common property of CHT has been converted into state property since the British period and continued through Pakistan and Bangladesh period and resulting in long-term conflicts between indigenous people and successive governments. Additionally, militarization and the Bengali settlement program of the government have extended the dimension of the conflicts between indigenous people and government of Bangladesh. Conflicts are still continuing as the issues of military withdrawal, rehabilitation of Bengali settlers and constitutional recognition have yet not been resolved as promised in the peace accord of 1997. The researcher found that all these

97 Taylor, Charles 1994, Multiculturalism: Examining the Politics of Recognition, Princeton University press, New Jarsey, p. 25 98 Supra note 46

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conflicts are rooted in the indigenous peoples’ customary land rights over the land, territories and resources. Furthermore, chapter three has discussed VCF and Jum lands which reflects the indigenous management system regarding common lands and serve as a major sources of their livelihoods. Village common forest has developed in CHT as a consequence of the dispossession of forest resources by the Department of Forest. VCF’s of CHT could be identified as a functional forest model as VCFs are not only supporting indigenous peoples’ livelihoods but are also playing a positive role at effective forest conservation. Indigenous people’s own institutional frameworks, their governance system, rules and peoples’ participation could avail sustainable resource harvesting and distribution mechanism which could support a community to achieve social and economic capital. Apart from the VCF, Jum lands are supporting indigenous people for their food security. Today pressures on Jum lands are much higher than previously, as a consequence of conversion and dispossession of common lands of the CHT. It is true that the methods of Jum cultivation have negative effect over the forest when the fallow period is shorter, but indigenous peoples are not solely responsible for the shorter fallow period and it has a direct relationship to state policy and action. However, sustainable cultivation on Jum land is possible and Jum cultivation at the same time could regenerate forests following the taungya method of cultivation. Chapter four elaborated the development of legal norms in different countries that are regulating indigenous people’s common property. Those regional and international experiences certainly could guide policy makers of Bangladesh to reform existing policy frameworks and also if needed could adopt new policy and legal frameworks. Thus, indigenous people with their designation and rights regarding their territory, land and resources will be secure and would support progress of the mankind. Based on the above findings, this research study will provide the following specific recommendations for further policy interventions in Bangladesh: For sustainable management of natural resources, it is quite important to recognize the local institutions, norms, values and customs which have been practiced by the indigenous community. Therefore, policy intervention is needed to incorporate the customary rights. VCF’s of the CHT represent an alternative approach to forest management where management is not profit oriented, but rather it is more service oriented, supporting indigenous peoples’ need for their livelihood, developing social cohesion amongst them, taking responsibility for the social service of the community and finally contributing toward an effective conservation of forest land and its biodiversity. Thus, policymakers should take into account this alternative model for resource management during policy development.

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Jum cultivation is a traditional practice and it is the only way to grow food crops in the hilly region of the Chittagong Hill Tracts. Dispossession of customary lands as well as settlement programs initiated by the government increased pressure on the Jum lands and on the surrounding forest resources. In this context, implementation of the peace accord and rehabilitation of the Bengali settlers and withdrawal of military will mitigate the problem. At the same time, it actually requires demarcation of the lands of the indigenous people through cadastral survey. But before cadastral survey it demands to resolve the disputes about the ownership of the lands. In this regard, it requires more democratic process and demands majorities consent while dealing the disputes by the Land Dispute Resolution Commission of CHT. Through the land commission, in the demarcated areas, indigenous people can exercise their customary practices relating to forest management and Jum cultivation following the taungya method. Demarcation of the land will resolve the conflict between the Forest Department and indigenous people as well as ensure protection against further encroachment of their lands. CHT Commission regarding land disputes needs to be activated followed by amendment of land dispute settlement Commission Act 2001, allowing for the peaceful resolution of disputes and conflicts between indigenous people and Bengali settlers, which in turn will create an amicable environment between the groups and ease tensions in the region. Management of the forest should not be treated from a state ownership point of view which alienates indigenous people from their ancestral land. Legal entity of the common property ownership of the VCFs and Jum lands of the indigenous people needs to be recognized. Additionally, the CHT indigenous peoples’ demands for constitutional recognition must be met, which in itself is a vital question as they are the victims of the politics of non-recognition. Chittagong Hill Tracts of Bangladesh represents a case that is part of broader global scenario how of how oligarchic states have exercised their leviathan powers for the dispossessing of lands, territories and resources of the indigenous people throughout Asia, Africa, America and Oceania. Indigenous peoples lead a highly symbiotic relationship with their environment. Both indigenous people and nature has a reciprocal relationship. When Indigenous people are separated and detached from their natural environment, it creates the opportunity for oligarchic powers to overexploit the resource base for immediate economic interest. However, the consequence of this exploitation brings long-term misery for both people and nature. When the harmony between indigenous people and nature unhampered and unobstructed by an external leviathan power, both nature and a way of life can survive and thrive on each other. This is the simple message of the indigenous people of the Chittagong Hill Tracts for the rest of humankind.

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Bibliography: Agrawal, A. 2001, ‘Common property Institutions and Sustainable Governance of Resources’, World Development Report 29(10): 1649-1672 Ali, M. Emran and Toshiyuki Tsuchiya 2002, ‘Land Rights of the Indigenous People of the Chittagong Hill Tracts in Bangladesh’, Center for World Indigenous Studies, Volume 5, Number 1, pp.63 thru 79, Available from http://chtaffairs.weebly.com/uploads/5/0/7/2/5072074/land_rights_of_indegenous_in_cht.pdf Andersen, Kirsten Ewers 2011, Communal Tenure and the Governance of common Property Resources in Asia: Lessons of Experiences in selected Countries. Available from: http://www.fao.org/docrep/014/am658e/am658e00.pdf Anik, Asif Reza 2005, ‘Land Rights of Indigenous Peoples: A Review with Special Reference to CHT Accord’, in M. Kamal (ed.), Reflection on Diversity and Citizen, Shrabon Prokashani, Dhaka. Baten, M, Khan, N, Ahammad, R and Missbahuzzaman, K 2009, Village Common Forest of Chittagong Hill Tracts, Bangladesh: Balance between Conservation and exploitation. Unnayan Onneshan, Dhaka. Available from: http://www.forestrynepal.org/images/publications/Community_Forestry_Intl_Workshop_2009.pdf Bell, F. W. 1986, ‘Mitigating the tragedy of the commons’, Southern Economic Journal 52: 653-664 Chakma, Amara Sadhu 2010, Village Common Forest in the Chittagong Hill Tracts: Indigenous innovation in Natural Resource Management, Taungya, Rangamati, Bangladesh. Constitution of the Peoples Republic of Bangladesh, adopted 1972, Available from: http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf Chopra, K., G. K. Kadekodi and M. N. Murty 1990, Participatory Development: People and Common Property Resource, Newbury Park, Sage publications, CA. Farooque, Mohiuddin 2004, Land and land law: Forest legislation needs to reflect Human values and culture, Selected Writings on Mohiuddin Farooque, Bangladesh Environmental Lawyers Association, Dhaka. Gazette notification, Ministry of Forest and Environment, dated on 11 January 2010. Available from: http://www.bforest.gov.bd/doc/SF%20Rules_January2010.PDF

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Gain, Philip 2005, Critiques of Policies and practices: The case of the Forests, Ethnic communities and Tea Workers of Bangladesh, Society for Environment and Human Development, Dhaka. G, Philip, M, Shisir & R, Priscilla (eds.) 2001, Bangladesh Environment facing 21 century, Society for Environment and Human Development, Dhaka. Halim, Sadeka and Roy, Raja Devasish n.d., Lessons learned from the Application of Human Rights-Based Approaches in the Indigenous Forestry Sector in the Chittagong Hill Tracts, Bangladesh: A Case Study of the Village Common Forest, Available from: http://hrbaportal.org/wp-content/files/1233223431_8_1_1_resfile.pdf Halim, Sadeka and Roy, Raja Devasish 2000, ‘Valuing Village Commons on Forestry, Indigenous Perspective: Bequeathing Indigenous knowledge’, A journal of the Tebtebba Foundation, Volume V, number 2, Banguio City, Philipines. ILO Convention 169, adopted in 1989 in Geneva, Available from, http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 Kanel, Keshav Raj 2008, ‘So Far So Good: Next Steps in Community Forestry’, in G, Rucha, J, Narpat S & M, Pranab (eds.), Promise, Trust and Evolution: Managing the Commons in South Asia, Oxford University Press, New York. Khaleque, Kibriaul n.d., Ethnic communities of Bangladesh, Bangladesh – Land, Forest and Forest People, Available from: http://xoomer.virgilio.it/bguizzi/bangladesh/adibasi/adivasi1.htm . Espinosa, Maria Fernanada 2000, ‘Ethnic Politics and State reform in Ecuador, in the challenge of diversity: Indigenous Peoples and Reform of the State in Latin America’, Williem Assies, Gemma Van der Haar and Andre S. Hoekema (eds.), Amsterdam: THELA- THESIS. Menzies, Nicholas 1988, ‘Three Hundread years of Taungya: A sustainable system of Forestry in South China’, Human Ecology, Vol. 16, No.4, 1988. Available from: www.jstor.org Mishra, R. (1997), ‘Conserving the Kumaun Forests Through People's Participation: A Case Study’, in P. B. Gangopadhyay (eds.), Participatory Forest Management, 123(6) of The Indian Forester, Dehra Dun, India. Mitra, Kinsuk and Gupta, Radhika 2009, ‘Indigenous Peoples’ Forest Tenure in India’, in J. Perera (ed.), Land and Cultural Survival: The Communal Land Rights of Indigenous Peoples in Asia, p.203. Available from: http://www.adb.org/documents/Books/Land-Cultural-Survival/land-cultural-survival.pdf,

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Mohsin, Amena 2005, ‘Development Plans, environment and the Hill Peoples: Chittagong Hill Tracts, Bangladesh’, in M. Kamal (ed.), Reflection on Diversity and Citizen, Shrabon Prokashani, Dhaka. Ostrom, Elinor 1990, Governing the Commons: The evolution of Institutions for collective Action, Cambridge University Press, New York. Rafi, Mohamad, Mustaque, A and Chowdhury, R 2001, Counting the Hills- assessing development in Chittagong Hill Tracts, The Universal Press Limited, Dhaka. Roy, Raja Devasish 2004, ‘Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The case of Chittagong Hill Tracts, Bangladesh’, Arizona Journal of International and Comparative Law, Volume 21, Number 1, spring 2004 Roy, Rajkumari Chandra 2000, Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh, IWGIA Document No. 99, IWGIA, Copenhagen. Smith, Vernon 2003, Rethinking Institutional Analysis: interviews with Vincent and Elinor Ostrom, Commemorating Life time achievement, Available from: http://mercatus.org/uploadedFiles/Mercatus/Publications/Rethinking%20Institutional%20Analysis%20-%20Interviews%20with%20Vincent%20and%20Elinor%20Ostrom.pdf, [Accessed: 18.07.2011] Syamsunder, Priya 2008, ‘Decentralization, Devolution, and Collective Action – A Review of International Experience’ in G, Rucha, J, Narpat S & M, Pranab (eds.), Promise, Trust and Evolution: Managing the Commons in South Asia, Oxford University Press, New York . Taylor, Charles 1994, Multiculturalism: Examining the Politics of Recognition, Princeton University press, New Jarsay. The Universal Declaration of Human Rights, 1948, adopted 10 December 1948 at Paris. Available from: http://www.un.org/rights/HRToday/declar.htm

United Nations Declaration on the Rights of Indigenous Peoples, 2007, Adopted by General Assembly Resolution 61/295 on 13 September 2007, Available from: http://www.un.org/esa/socdev/unpfii/en/drip.html,

United Nations Permanente forum on Indigenous Issues, Fact sheet, Available from: www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf,

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Appendix: 1 (Research question and methodology) The study has been carried out by the researcher after developing some of the questionnaire that would help the researcher to look at the things considering specific issues. But while conducting the study it is found more complex and issues are very much interconnected with regional politics and dynamic in nature. Understanding issues of common property is closely rooted with the political discourse of the CHT which is largely shaping the present Common property management scenario of the Chittagong Hill Tract. However, pre set research questions has given below for information which supported to work on the thesis. Research Question:

1. To what extent livelihood of the indigenous peoples of Chittagong Hill Tracts depending upon their common property?

2. What are the conflicting issues that have been faced indigenous people for managing their Common property?

3. How indigenous people of CHT are managing their common property? How resource allocation and distribution takes place among them? Understanding indigenous institutions and governance system in this regard.

4. Finding whether any positive correlation exists between dispossession common properties with environmental and livelihood disaster.

5. How indigenous people’s Common property of the CHT could be better managed? Getting the idea and knowledge from regional and international experiences and from international conventions for a viable solution.

Methodology: The researcher has reviewed literature related with indigenous people’s right and their practice on common properties, reviewed literatures of Chittagong Hill Tracts issues, attended national conventions of the indigenous people of Bangladesh to get the impressions and present situation of the CHT. Researcher has visited in Bilaichari upazilla (sub district) under Rangamati district of Chittagong Hill Tracts between 16.07.11 to 24.07.2011. In this period, the researcher has interviewed with Head man, Karbari, Upazilla Chairaman, development workers, and Govt. Officials of Forest Department and conducted Focus group discussion with the members of the VCF of two separate indigenous groups namely Chakma and Pankhua. For conducting the field investigation, the researcher tried to be impersonal and tried to work on with out any pre set idea but just developed some semi structured questionnaire so that those questionnaires could be applied if necessary. The researcher wanted to do the field work with spontaneous response of the participants for receiving more lively response from the participants.

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