Drafting community bylaws for community-driven conservation and legal empowerment

In partnership with innovative local land rights organisations, Namati supports communities to protect, document, and defend their customary and indigenous land rights.

For billions of rural people, the land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, spirituality, and community. Yet population growth, climate change, and increasing global demand are putting pressure on increasingly scarce lands and natural resources. The resulting commoditisation of land tends to increase competition for natural resources and precipitate a breakdown of the customary and indigenous rules that govern their equitable and sustainable use — rules that in the past functioned to protect the land rights of vulnerable groups and support conservation and flourishing of local ecosystems.

Global attention has tended to focus on strengthening household property rights, but studies have shown that rural families disproportionally rely on common wetlands, forests, and grazing areas to survive. Rural families, both subsist from and earn their livelihood on these lands – gathering wild foods and medicines, hunting and fishing, grazing their animals, collecting wood for fuel, and sourcing building materials. As land has become more scarce, powerful elites are increasingly leveraging their power to claim communal lands in bad faith. Meanwhile, poorer families are finding it harder to subsist on increasingly scarce resources. Strong legal protections and local rules for shared community lands and natural resources are therefore critical.

A community-led approach to strengthen local rules
In Nepal, an estimated 5% of the population owns 37% of the arable land, while 53% of farmers are functionally landless, holding less than half a hectare of land, an area too small for subsistence requirements. Moreover, an estimated 480,000 rural families do not have access to any land at all. These landless families often live within community forests, which leads to conflicts with local Community Forest User Groups (CFUGs), elected groups of villagers who manage their community’s forest to ensure sustainable use and long-term conservation. To address these challenges, from 2013 to 2016, the Community Self Reliance Centre (CSRC) and Namati piloted a process to help communities strengthen local rules for land and natural resources management and support community-driven resettlement of authentically landless families in Bardiya and Kailali, neighbouring districts in the southwest of the country on the border of India.

The region, known as the ‘Terai’, is primarily agricultural, with fertile soil. The indigenous peoples of the region are Tharu, and primarily speak the Tharu language (54%), with only 35% speaking Nepali. Other ethnic groups living in the area include Brahmins/ Chhetris, Dalits, and Newars. A significant percentage of the non-indigenous population of the Terai have familial or ethnic links to India, as the border between India and Nepal is porous, with many Nepali men crossing the border to seek work for long periods of time. In the 1960s, a large influx of migrants from the mountain regions of Nepal and India marginalised the landowning indigenous Tharu people, who had no paper records of their land rights, by occupying their lands and registering the land in their names. As a result, many Tharu families lost the land to these immigrants and were forced into bonded labour.

Four ‘communities’—encompassing over 27,000 hectares of land that together had a combined population of more than 80,000 people — were led by local paralegals and Community Land Reform Committees elected by their communities to complete the following activities:

1. Community visioning
In one three-hour meeting, community members reflect upon and analyse the condition—and relative flourishing—of their lands, natural resources, and socio-cultural life many years in the past, today, and many years in the future (if circumstances continue along their current trajectory), then create a vision of how they want their community to be for their grandchildren’s children.

2. Valuation of community land and natural resources
In a second three-hour meeting, community members use simple math to calculate the monetary value that they are already receiving from natural resources gathered from their common lands, forests and waters. Community members make a list of all of the natural resources that they gather from community forests and common lands, then calculate how much they would have to pay to purchase these resources in the local market if they could not go into their common lands to freely gather them.

3. Drafting and adopting community bylaws
Over six to eight months, the community uses deliberatively democratic processes to create rules for the sustainable and equitable management of their lands and natural resources. The first draft is made by community members collectively “shouting out” all of their existing local rules and all the rules their ancestors followed in the past. Everything is written down onto big sheets of paper organised into three categories:
—Rules about leadership and land governance, including rules about who can be a leader, leaders’ responsibilities, how decisions about land and natural resources should be made, how to resolve conflicts, etc.;
—Rules about use and management of natural resources, including rules about water, forests, livestock, hunting and fishing, thatch and building materials, seasonal users’ rights, etc.; and
—Cultural and social rules including rules about women’s rights, children’s rights, rules for relationships with neighbours, etc.

Facilitators then provide legal education on national laws and support community members to review their existing rules, adding new rules, deleting old rules that no longer serve the community’s best interests, and changing existing rules to reflect emerging community needs until a complete second draft is agreed upon. Lawyers then review the draft to ensure alignment with national laws, and then, after changing any rules that contradict national law, the community convenes a large ‘bylaws adoption ceremony’ at which the rules are read out, then voted on and adopted by consensus or supermajority vote. Local leaders, government officials, neighbours, and stakeholders attend, and local government officials sign and stamp the bylaws as evidence of their endorsement. Some communities also elect a “Land Governance Council,” composed of trusted community leaders and members of all local stakeholder groups, including women, youth, and marginalised groups, to manage community lands and natural resources according to the adopted bylaws, and work with local leaders/ governments to ensure that the bylaws are enforced.

4. Community mapping and land use planning
Communities document their lands using sketch maps and satellite imagery, then use those maps to make basic land use plans to connect their bylaws to the physical landscape and to ensure that the community develops according to its future vision. In Nepal, communities used their maps to identify unused or barren lands that might be used to plant forests or offered to landless families for resettlement.

Recognising conservation as an outcome
In Nepal, the visioning and valuation activities created an acute sense of urgent need to protect and conserve the local ecosystem. Reflecting on the impacts of these activities, a community member in Bardiya District explained how, even though the original goal of the project was to address landlessness, once they completed the visioning activity, the goal changed:
“The project taught us about remembering how the situation was 30 years ago, how the situation is now, and how it will be 30 years in the future. 30 years ago there was plenty of forest, and now that is decreasing, and so for the future we are trying to get our forest back, to restore our ecosystem to what it was like in the past, so we focused on conservation as the goal of the project.”

He explained that after completing the visioning exercise, the community bought saplings from local Community Forest User Groups and planted the forest on what used to be a very degraded sandy area. He recounted how, soon after they protected the area with basic fencing, all the saplings grew, along with a variety of indigenous species they had not planted. Community members also attested to the fact that in the three years since they had planted the saplings, the earth in the area had become richer and less sandy, and the air under the trees had become cooler. In other communities as well, the visioning and valuation activities spurred analysis of the various causes of their lands’ declining fertility and relatively reduced ecological abundance. As described by CSRC’s project manager:
“Through the process, became very excited about saving community land. In the communities some people started to make compost fertiliser – because in the visioning exercise, they saw that the land’s power/capacity has been decreasing, and asked, ‘What is the cause?’ They figured out that the chemical fertilisers were depleting the soil. And so they put rules about only using organic fertiliser in their bylaws.”

As with the visioning exercise, project field staff and community members alike expressed astonishment at what they learned from the valuation exercise. As explained by one of the paralegals in Bardiya:
“When I did the practice at the community level, people gave a very long list of the things they get from the forest; I never thought that community people were using these things in every day life! And they too had never realised how much they were getting from the forest – 52 types of plants they use in daily life! This was surprising to all of us, even the villagers.”

Box 1

One woman in Jabdahawa community, the female secretary of the Community Land Reform Committee, explained that the valuation activity opened her eyes and helped her understand local natural resources more deeply:
“My birthplace is a little bit far from here, and there is no forest in my home place, it is like a city. I had heard about the forest, but I didn’t feel what was a forest. When I came here after getting married, and I saw the jungle, I started to go to the jungle every day. I used to carry firewood and other things from the forest. But it was not until I was involved in the valuation exercise that I understood properly what is a forest. A forest is nature, a forest is our life, the forest gives many things to us, so we have to give something to the forest as well. Without our support the forest cannot exist anymore.”

In response to future visions of environmental degradation, the Nepali communities passed bylaws outlawing the use of chemical fertilisers and mandating the use of natural, traditional fertilisers; prohibiting fishing using poisonous chemicals and electric-shock tactics; prohibiting water contamination; and requiring all community members to actively plant trees, among many other conservation-focused rules (see Box 1, which includes some of Bhajani municipality’s bylaws).

An informal 2018 assessment found that most community members interviewed could recite many of their bylaws from memory. For example, community members in Bhajani Municipality were collectively able to “shout out” a significant number of their bylaws. One man offered that:
“We made rules for ending poisoning in the river and no more fires in the forest. Until today, these rules are being followed and enforced!”
while others in his community explained how the community’s new rules outlawing child marriage and child labour, requiring joint land certificates for husbands and wives, mandating equal wages for women and men doing the same work, prohibiting forced unpaid labour, and calling for women’s participation in local land governance, were also being strictly enforced. In Bardiya district, community members similarly reported how, in the two years since the 2016 passage of their bylaws:
“No one is now using pesticides in ponds and rivers —this has totally stopped —we made a very strong rule and have been enforcing it. Before this project, this was happening massively, but now no one uses pesticides to fish in the river and the pond. Now, as a result, we had no idea if the water quality is enhancing or not because we have not tested it, but we can say is that now we are getting more fish. The water is more clean, there are more plants.

Although not every community member was equally knowledgeable about the bylaws drafting process, overall the communities interviewed reported a profound sense of ownership over the bylaws, citing that being directly involved in their community’s rule-making process impacted both their knowledge of the rules and their commitment to follow them. For example, a man in Bhajani Municipality explained:
“I thought that the rules came from the top…but through the project, I learned and realised that we should develop our rules at the community level; that it is very important to properly address our own issues. Also, we realised that we had very good laws at our community level traditionally, but these rules were not documented. Now we have documented our traditional rules, and this gives us a greater base—if we had not documented this, it could have disappeared, but now we have it written and printed.”

Community members across both districts explained how the process of sitting together as a community and critically reflecting on the state of their lands and natural resources helped to create a sense of responsibility. One man, when asked about the personal impacts of the project on this own life, explained:
“I learned that we have to look at long-term benefits rather than short-term benefits— and if we take actions towards our own short-term benefits without thinking of the long-term repercussions of our actions, it may create problems, especially in regard to the use of the natural resources. For example, if we cut trees today, it will quickly give us firewood but will be very harmful in the long term.”

Another community member explained how:
“We are working not only for our generation; we are becoming older. We are concerned about our future generations, so we are conserving our natural resources and using our bylaws to keep our future well for our children.”

Supporting communities to reflect on the past, present, and future conditions of their lands, natural resources, and culture, and then write down their customary/ indigenous rules for local land and natural resources management which are updated to align with national law and evolving conditions, is key to community land and natural resource protection. Rules should not come from above but be grounded in a community’s culture, history, and specific ecological context. When community members are supported to critically reflect on the future they would like their grandchildren to inherit—and then to create rules to ensure that future vision of a thriving local ecosystem and a flourishing society—it is possible to change even seemingly entrenched unjust or unsustainable practices. Local rulemaking can empower communities to protect their lands, drive the course of their own development, create more equitable societies, and preserve ecological and cultural diversity for future generations.

Further reading
Gray, M. & J. Altman. 2006. The economic value of harvesting wild resources to the Indigenous community of the Wallis Lake Catchment, NSW. Family Matters 75: 24.

Qureshi, M.H. & S. Kumar. 1998. Contributions of common lands to household economies in Haryana, India. Environmental Conservation 25: 342-353.

Shackleton, C.M., S.E. Shackleton & B. Cousins. 2001. The role of land-based strategies in rural livelihoods: The contribution of arable production, animal husbandry and natural resource harvesting in communal areas in South Africa. Development Southern Africa 18: 581-604.

This article is from issue


2018 Sep