STRONG LEGAL AND POLICY MEASURES CAN

SUBSTANTIALLY PROMOTE POOR AND VULNERABLE

PEOPLE’S ACCESS TO COMMON RESOURCES

BRIEFING PAPER

STRONG LEGAL AND POLICY MEASURES CAN

SUBSTANTIALLY PROMOTE POOR AND VULNERABLE

PEOPLE’S ACCESS TO COMMON RESOURCES

BRIEFING PAPER

STRONG LEGAL AND POLICY MEASURES CAN

SUBSTANTIALLY PROMOTE POOR AND VULNERABLE

PEOPLE’S ACCESS TO COMMON RESOURCES

BRIEFING PAPER

ABBREVIATIONS

BCCSAP Bangladesh Climate Change Strategy and Action Plan

CBO Community Based Organizations

CHT Chittagong Hill Tracts

DFO District Forest Officer

DoE Department of Environment

ECA Environmental Conservation Act

EIA Environment Impact Assessment

FAP Flood Action Plan

FSO Forest Settlement Officer

FD The Forest Department

FSMP Forestry Sector Master Plan

GOB Government of Bangladesh

MoEF Ministry of Environment and Forest

NAPA National Adaptation Plan of Action

NGO Non Governmental Organization

SFR Social Forestry Rules

PDB Power Development Board

REB Rural Electrification Board

REDD Reducing Emissions from Deforestation and Forest Degradation

SFMC Social Forestry Management Committees

SAT The State Acquisition and Tenancy Act, 1950

SPF Forestry Sector Master Plan Participatory/Social Forestry

UNCSD United Nations Conference on Sustainable Development

UNDP United Nations Development Programme

USF Unclassed State Forests

BCCRF Bangladesh Climate Change Resilience Fund

BRIEFING PAPERStrong Legal and Policy Measures Can Substantially PromotePoor and Vulnerable People’s Access to Common Resources

This paper was jointly written by M. Hafijjul Islam Khan, Remeen Firoz, Dr. Abdullah Faruque from Centre for Climate Justice-Bangladesh (CCJ-B),and Qumrunnessa Nazly, Policy Officer, Oxfam in Bangladesh.

Published onMarch 2014

Cover PhotoNazim Ahmed

Design & Printed byARKA

Oxfam in BangladeshHouse 4, Road 3, Block IBanani, Dhaka 1213, BangladeshPhone: +880 8813607-9, 8824440Fax: +880 8817402www.oxfam.org/bangladeshhttp://growbd.worldpress.comhttp://twitter.com/growbangladeshhttp://www.oxfam.org/en/grow

03

ABBREVIATIONS

BCCSAP Bangladesh Climate Change Strategy and Action Plan

CBO Community Based Organizations

CHT Chittagong Hill Tracts

DFO District Forest Officer

DoE Department of Environment

ECA Environmental Conservation Act

EIA Environment Impact Assessment

FAP Flood Action Plan

FSO Forest Settlement Officer

FD The Forest Department

FSMP Forestry Sector Master Plan

GOB Government of Bangladesh

MoEF Ministry of Environment and Forest

NAPA National Adaptation Plan of Action

NGO Non Governmental Organization

SFR Social Forestry Rules

PDB Power Development Board

REB Rural Electrification Board

REDD Reducing Emissions from Deforestation and Forest Degradation

SFMC Social Forestry Management Committees

SAT The State Acquisition and Tenancy Act, 1950

SPF Forestry Sector Master Plan Participatory/Social Forestry

UNCSD United Nations Conference on Sustainable Development

UNDP United Nations Development Programme

USF Unclassed State Forests

BCCRF Bangladesh Climate Change Resilience Fund

BRIEFING PAPERStrong Legal and Policy Measures Can Substantially PromotePoor and Vulnerable People’s Access to Common Resources

This paper was jointly written by M. Hafijjul Islam Khan, Remeen Firoz, Dr. Abdullah Faruque from Centre for Climate Justice-Bangladesh (CCJ-B),and Qumrunnessa Nazly, Policy Officer, Oxfam in Bangladesh.

Published onMarch 2014

Cover PhotoNazim Ahmed

Design & Printed byARKA

Oxfam in BangladeshHouse 4, Road 3, Block IBanani, Dhaka 1213, BangladeshPhone: +880 8813607-9, 8824440Fax: +880 8817402www.oxfam.org/bangladeshhttp://growbd.worldpress.comhttp://twitter.com/growbangladeshhttp://www.oxfam.org/en/grow

03

Existing governance mechanisms of common resources aim at harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor people within the context of conservation of natural resources;

• The policies, laws and regulations related to land management provide adhoc basis solutions facing sectoral conflict and contradictions in terms of legal and institutional structures on allotment process and possessions;

• A few laws already exist that recognize community based management. For instance, laws and policies regulating forest and fisheries provide some preliminary guidance for co-management and community based management. The legal and policy framework on forest management regime, particularly provisions on village forests and social forestry provides the scope of participatory management of common pool resources;

• The Wildlife (Protection and Safety) Act, 2012, also provides necessary guidance for co-management of protected area management in order to protect and conserve the biodiversity, forest, wildlife and traditional livelihoods of community people;

• Community-based management and co-management are by now widespread approaches worldwide to improving the management of common natural resources. Bangladesh also has adopted these approaches in different projects implemented by the Government;

• Legal recognition of the community based approach and co-management for natural resource management is important to ensure a participatory, inclusive, and transparent system;

• Apart from sector wise recognition, there should also be overall recognition of the community-based approach and the co-management for the natural resource management through a common legal framework. Moreover, the existing laws recognizing community based management should be amended taking into account the comprehensive aspects of common resource management followed by adopting necessary Procedural Rules to facilitate proper implementation ensuring the active participation of poor community members; and

• It is also necessary to remove the existing contradictions between and among the sectoral policies and legislations, improve the implementation mechanisms of policies and legislations and develop the capacity of implementing agencies.

•

Khas

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

SUMMARY

Natural resources support the livelihoods of Bangladesh’s vast rural poor population. Around 80% of the total population depends directly or indirectly on the utilization of these resources that include land and water based production systems and subsystems including agriculture, horticulture, fisheries and forestry. Increasing access to natural resources for the rural poor is therefore essential for reducing poverty. Although access to common resource is vitally important for the realization of social justice of marginalized communities, one of the critical challenges to sustainable common resource management in Bangladesh is ensuring the access and participation of the poor and vulnerable communities in the decision-making process and management of the common resources.

The poor and marginalized are regularly disenfranchised of their rights to common resources due to lack of proper distribution policy of the government, land grabbing by politicians and local influential persons and lack of proper documentation regarding ownership of these resources. Conversely, with undue access, the rich and powerful elites of the society over exploit the resources without considering its future productivity and sustainability. Thus, in terms of subjective ranking of policy crisis, access and justice issues involved with sustainable natural resource management are identified as the primary concern in the several community-based and co-

1management resource management projects implemented previously in 2Bangladesh. In response to such governance challenge of common resources

management, it is also essential to reform the regulatory regime of common 3resources.

An initiative to transform the governance process related to common resources in the context of a particular country needs to start with the review and assessment of related existing legislations, policies and institutional arrangements in order to explore the scope, gaps and constraints. Consequently, suggestions for adaptiveness to existing governance process or enactment of new regulatory framework should be based on such an initial assessment.

This briefing paper thus aims to identify the current status of regulatory regime on sustainable common resources management and to examine the status of the access and participation of poor and marginalized people in the broader context of livelihood and food security.

A summary of the main observations and the recommendations put forward in this paper is presented below:

• Though the fundamental legal document of the country – The Constitution of the Peoples’ Republic of Bangladesh does not contain any specific provision on common resource management, a number of its provisions have implications on common resource management in Bangladesh;

• The Constitution of Bangladesh imposes responsibility on the Government of Bangladesh and its citizens to protect the country’s natural resources as common property resources;

04 05

Existing governance mechanisms of common resources aim at harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor people within the context of conservation of natural resources;

• The policies, laws and regulations related to land management provide adhoc basis solutions facing sectoral conflict and contradictions in terms of legal and institutional structures on allotment process and possessions;

• A few laws already exist that recognize community based management. For instance, laws and policies regulating forest and fisheries provide some preliminary guidance for co-management and community based management. The legal and policy framework on forest management regime, particularly provisions on village forests and social forestry provides the scope of participatory management of common pool resources;

• The Wildlife (Protection and Safety) Act, 2012, also provides necessary guidance for co-management of protected area management in order to protect and conserve the biodiversity, forest, wildlife and traditional livelihoods of community people;

• Community-based management and co-management are by now widespread approaches worldwide to improving the management of common natural resources. Bangladesh also has adopted these approaches in different projects implemented by the Government;

• Legal recognition of the community based approach and co-management for natural resource management is important to ensure a participatory, inclusive, and transparent system;

• Apart from sector wise recognition, there should also be overall recognition of the community-based approach and the co-management for the natural resource management through a common legal framework. Moreover, the existing laws recognizing community based management should be amended taking into account the comprehensive aspects of common resource management followed by adopting necessary Procedural Rules to facilitate proper implementation ensuring the active participation of poor community members; and

• It is also necessary to remove the existing contradictions between and among the sectoral policies and legislations, improve the implementation mechanisms of policies and legislations and develop the capacity of implementing agencies.

•

Khas

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

SUMMARY

Natural resources support the livelihoods of Bangladesh’s vast rural poor population. Around 80% of the total population depends directly or indirectly on the utilization of these resources that include land and water based production systems and subsystems including agriculture, horticulture, fisheries and forestry. Increasing access to natural resources for the rural poor is therefore essential for reducing poverty. Although access to common resource is vitally important for the realization of social justice of marginalized communities, one of the critical challenges to sustainable common resource management in Bangladesh is ensuring the access and participation of the poor and vulnerable communities in the decision-making process and management of the common resources.

The poor and marginalized are regularly disenfranchised of their rights to common resources due to lack of proper distribution policy of the government, land grabbing by politicians and local influential persons and lack of proper documentation regarding ownership of these resources. Conversely, with undue access, the rich and powerful elites of the society over exploit the resources without considering its future productivity and sustainability. Thus, in terms of subjective ranking of policy crisis, access and justice issues involved with sustainable natural resource management are identified as the primary concern in the several community-based and co-

1management resource management projects implemented previously in 2Bangladesh. In response to such governance challenge of common resources

management, it is also essential to reform the regulatory regime of common 3resources.

An initiative to transform the governance process related to common resources in the context of a particular country needs to start with the review and assessment of related existing legislations, policies and institutional arrangements in order to explore the scope, gaps and constraints. Consequently, suggestions for adaptiveness to existing governance process or enactment of new regulatory framework should be based on such an initial assessment.

This briefing paper thus aims to identify the current status of regulatory regime on sustainable common resources management and to examine the status of the access and participation of poor and marginalized people in the broader context of livelihood and food security.

A summary of the main observations and the recommendations put forward in this paper is presented below:

• Though the fundamental legal document of the country – The Constitution of the Peoples’ Republic of Bangladesh does not contain any specific provision on common resource management, a number of its provisions have implications on common resource management in Bangladesh;

• The Constitution of Bangladesh imposes responsibility on the Government of Bangladesh and its citizens to protect the country’s natural resources as common property resources;

04 05

1 INTRODUCTION

The livelihoods of Bangladesh’s rural poor comprising an overwhelming majority of the population are sustained by the country’s natural resources, including land and water based production systems and sub-systems including agriculture, horticulture and fisheries and forestry. Access to common resources is a critically important step towards the realization of social justice for marginalized communities as envisaged in the Constitution of Bangladesh. However, ensuring the access and participation of poor and vulnerable communities in the decision-making process and management of common resources remains a major challenge in the achievement of sustainable common resource management in Bangladesh.

Due to lack of proper distribution policy of the Government, land grabbing by politicians and local influential persons and lack of proper documentation regarding the ownership of these resources, the poor and marginalized are regularly disenfranchised of their rights and entitlements to common resources. As a result, the rich and powerful elites of the society over exploit the resources without considering their future productivity and sustainability.

The issue of conservation and regeneration of natural resources has gained new dimensions through the implementation of the different community-based resource management projects. These projects have addressed conflicts over access to resources and entitlement, raised a definite sense of ownership amongst the resource users, promoted sustainable management, increased productivity and allowed tangible benefit sharing to address food security and poverty eradication. It has also empowered the communities to participate in the decision making process. This bottom-up approach of the governance process has also underscored the need and potential for a new regulatory regime of natural resources, particularly for common

4pool resources.

In terms of subjective ranking of policy crisis, access and justice issues involved with sustainable natural resource management have been identified as the prime concern by several community based and co-management resource management projects

5implemented previously in Bangladesh.

Taking into account the alarming loss of access to land, water bodies, forests and other natural resources which ultimately threaten traditional livelihoods and food security of poor and marginalized people, this briefing paper aims to identify the status of the poor people’s access rights to common resources through a critical analysis of legal and policy frameworks on common resources management.

For the purpose of the paper, relevant constitutional provisions and sectoral laws on common resources and distributive justice have been reviewed. This paper has specifically reviewed the sectoral laws and policies, namely, the State Acquisition and Tenancy Act 1950, Policy for Distributing Khas Land among the Landless 1987, Policy for Distribution and Administration of Non Agricultural Khas Land 1995, the Forest Act 1927, Forestry Policy 1994, Protection and Conservation of Fish Act, 1950, the

07

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Although access to natural resources is essential for

poverty reduction and to ensure the sustainability of

livelihoods, rural poor and marginalized people are

regularly disenfranchised of their rights to common

resources. This is mainly due to the fact that legal and

policy measures with regards to the management of

common resources focus on revenue earning instead of

facilitating the traditional lives and livelihoods of the poor.

Lack of proper implementation of the policy provisions,

undue access of the rich and local elites and lack of proper

documentation regarding ownership of these resources

also prevent poor community members from accessing

the common resources.

To ensure access and entitlements of the poor and

marginalized, it is vital to amend the existing laws and

policies on common resource management accompanied

by a strong and coherent implementation mechanism.

1 INTRODUCTION

The livelihoods of Bangladesh’s rural poor comprising an overwhelming majority of the population are sustained by the country’s natural resources, including land and water based production systems and sub-systems including agriculture, horticulture and fisheries and forestry. Access to common resources is a critically important step towards the realization of social justice for marginalized communities as envisaged in the Constitution of Bangladesh. However, ensuring the access and participation of poor and vulnerable communities in the decision-making process and management of common resources remains a major challenge in the achievement of sustainable common resource management in Bangladesh.

Due to lack of proper distribution policy of the Government, land grabbing by politicians and local influential persons and lack of proper documentation regarding the ownership of these resources, the poor and marginalized are regularly disenfranchised of their rights and entitlements to common resources. As a result, the rich and powerful elites of the society over exploit the resources without considering their future productivity and sustainability.

The issue of conservation and regeneration of natural resources has gained new dimensions through the implementation of the different community-based resource management projects. These projects have addressed conflicts over access to resources and entitlement, raised a definite sense of ownership amongst the resource users, promoted sustainable management, increased productivity and allowed tangible benefit sharing to address food security and poverty eradication. It has also empowered the communities to participate in the decision making process. This bottom-up approach of the governance process has also underscored the need and potential for a new regulatory regime of natural resources, particularly for common

4pool resources.

In terms of subjective ranking of policy crisis, access and justice issues involved with sustainable natural resource management have been identified as the prime concern by several community based and co-management resource management projects

5implemented previously in Bangladesh.

Taking into account the alarming loss of access to land, water bodies, forests and other natural resources which ultimately threaten traditional livelihoods and food security of poor and marginalized people, this briefing paper aims to identify the status of the poor people’s access rights to common resources through a critical analysis of legal and policy frameworks on common resources management.

For the purpose of the paper, relevant constitutional provisions and sectoral laws on common resources and distributive justice have been reviewed. This paper has specifically reviewed the sectoral laws and policies, namely, the State Acquisition and Tenancy Act 1950, Policy for Distributing Khas Land among the Landless 1987, Policy for Distribution and Administration of Non Agricultural Khas Land 1995, the Forest Act 1927, Forestry Policy 1994, Protection and Conservation of Fish Act, 1950, the

07

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Although access to natural resources is essential for

poverty reduction and to ensure the sustainability of

livelihoods, rural poor and marginalized people are

regularly disenfranchised of their rights to common

resources. This is mainly due to the fact that legal and

policy measures with regards to the management of

common resources focus on revenue earning instead of

facilitating the traditional lives and livelihoods of the poor.

Lack of proper implementation of the policy provisions,

undue access of the rich and local elites and lack of proper

documentation regarding ownership of these resources

also prevent poor community members from accessing

the common resources.

To ensure access and entitlements of the poor and

marginalized, it is vital to amend the existing laws and

policies on common resource management accompanied

by a strong and coherent implementation mechanism.

Fisheries Policy 1998, the Land Management Manual 1990, Water body Management Policy 2009, etc.

Focusing on the access and justice issues of poor and marginalized people to ensure traditional livelihoods and food security, this paper has reviewed a few community-based co-management projects on sustainable participatory management of common resources, such as the Community Based Fisheries Management (CBFM) Project, Nishorgo Support Project, The Asrayon Project-2, etc.

This paper has also included some of the case stories including court cases related to the status of poor people’s access to common resources.

08

Briefing Paper

09

7Box 1: Kochpara Encroachment

West Bakakura is a village of Bakakura Union situated in Jinaigati Upazila of Sherpur District. The village is popularly known as Kochpara, as the Koch community (indigenous community) have been living in this village for generations. At present about 40 Koch families are residing in West Bakakura. Due to land grabbing and other forms of abuse, many Koch families have left the area and, consequently, the number of Koch population has substantially decreased.

Traditionally, the indigenous communities don’t have any formal title documents for their landed property; they carry customary rights on the adjoining area for their habitat and livelihood purposes. Likewise, many members of the Koch community don’t have any legal document of their land ownership. They remain largely ignorant about the land recording system and even when they get their land registered, they remain indifferent to preserving the documents.

The conflict started when the then Pakistani government started promoting Bengali (Muslim) settlers to settle in the forest area overwhelmed by indigenous settlements, and when the Forest Department of the Government started to provide formal ownership documents to the Bengali (Muslim) settlers.

2 LEGAL AND POLICY FRAMEWORKS OF COMMON RESOURCES: ACCESS AND JUSTICE ISSUES

Access rights of the poor people to common resources: Issues and ChallengesThe Public Commons (Common Resources) includes natural resources such as land, open water resources in wetlands, forests, grasslands, grazing land, reed land, khas land, peat land, rivers, estuaries and the open seas with the characteristic that

6people in general have customary rights and access to them . These are sources of livelihoods for the poor including the hardcore poor who use these resources to collect firewood, fodder and construction material; fruits and vegetables for daily consumption; graze animals and catch fish.

The linkage between poverty and conservation of natural resources is a mutually reenforcing process. Communities living in urban slums; people living in areas prone to severe floods, drought, salinity and bank erosion, and river/estuarine islands; tribal communities living on hills and in the forests; and communities of landless and migrant workers all depend on natural resources for their livelihoods.

Increasing access to natural resources for the rural poor is an essential element of the process of reducing poverty in the rural areas. Rents from public commons, if shared by the poor, can help them initiate a process of capital accumulation which, in turn, can pull them out of poverty and integrate them into the mainstream economy. However, in most cases, the poor have been excluded from access to the common property resources and at most, have access to low quality public commons. Thus the resource base for poverty eradication is either depleting or degrading.

STRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTEPOOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

9Box 2: Occupying “Borodoi beel”

10Haor is one of the main sources of fisheries in Bangladesh, and Sunamgonj district hosts many of the Haors. Dekhar Haor is one such large haor of the district which

11consists of 25 beels and other kinds of water bodies of different sizes. For more than 200-250 years, the local people surrounding these water bodies have depended on them for their livelihoods. However, introduction of the leasing system of public water bodies gave influential locals control over the haors, thus depriving poor fisher folks.

Borodoi beel is the largest water body in the Dekhar Haor covering 399.33 acres of land area. Following the provisions of the Water body Management Policy 2009, the

With around 80% of the total population directly or indirectly dependant on the utilization of these resources, increasing access to natural resources for the rural poor

12is essential for reducing poverty . One of the major issues in this context is ‘deforestation and changes in the land use’ (habitat change), as well as conversion of forested areas to agricultural fields or construction of homesteads. With growing pressures on the finite amount of land available for conflicting uses (agriculture versus settlements), the access of marginalized communities is likely to be further limited.

Even within the landless, there are the poorest of the poor, especially women, who fall in the bottom layers of the society in rural Bangladesh and do not get ready access to common resources such as ponds and khas lands.

In the Chittagong Hill Tracts, there exists an ongoing conflict regarding the ownership of land. Indigenous people’s rights (customary rights) are not considered by the people from the floodplains, leading to social unrest and a sense of animosity between the groups. Thus, the differences in the governance systems (indigenous versus the rest of the country), customs and practices of the ethnic communities pose as an additional problem.

10 11

Local sources report that a total of 10 acres 15 katha and 9 decimal (shatangsha) land of Kochpara have been encroached. Influential locals engage in land encroachment of Kochpara using force as well as false documents created in their own names. There are also allegations against officials of the forest department who act in favor of the land grabbers. In collaboration with corrupt government officials, many influential local people have forced Koch and other small indigenous communities to leave the village by even threatening to file lawsuits against them.

The traditional livelihoods of the Koch communities are often interrupted due to the aggressive land encroachment described above, to the extent that even a solvent Koch farmer has been converted to a day labourer, as is the case with Roghunath Koch. Roghunath Koch is such a victim of Kochpara encroachment whose small piece of land fell into the trap of usurpers. He alleged that a local influential forcibly occupied his two acre and nine decimal (Shatangsha) land and stated that recovery of his encroached land would end his livelihood anxieties.

The Koch community, along with other indigenous people of the area have also lost their traditional rights over the adjoining shal forest, as the local forests are being leased out to third parties for social forestaion purposes.

district commissioner leased out the Borodoi beel to the Banipur Motshojeebi Somobay Samitee (Banipur Fishermen’s Cooperative Association) for a period of six years starting from Bangla year 1411 to 1417. Though the said association was registered as an association of real fisher groups, the real control of the association lay with the few local influentials who provided the lease money.

Even after the lease period for Banipur Fishermen’s Cooperative Association had come to an end, the influential group backing the association didn’t revert back the authority of the Borodoi beel. Since the leasing of the Borodoi beel, poor households have lost their access to this water body which they used to fish and earn a livelihood.

Moreover, since the area expands in size during the rainy season the group extended their control over the extended areas as well, thus preventing the local fishers from catching fish even from the extended areas. There were also instances when the poor fisher groups suffered physical assaults and their fishing nets were taken away.

Box 3: Khas land- landless people face difficulties with possession even after receiving agreements

Kaler Kontho, a national daily newspaper on 11 November, 2012 reported on a person named Eusuf Ali who had received an agreement in 1999 for the allocation of some khas lands in Vogdabori Union under Domar Upazila. In spite of possessing this agreement for the last 12 years, Eusuf Ali has been trying in vain to get possession through communicating with the responsible land administrators at Union, Upazila and District levels. The report also included similar cases of others like Giuas Uddin and Manik Sheikh who had received allotments in 2000 and 1999 respectively, but are still struggling for ownership.

The prevailing situation has thus made access to common resources more and more difficult for the poor and marginalized to follow their traditional livelihoods. Policies of the Government sometimes create space for community people to access resources such as water, but administrative and financial requirements hinder the attainment of the policy objectives. Therefore, the end results, by and large, remain the same control of resources by the rich and the influential. For investors who access resources in exchange of money, such as a leaseholders, the priority is maximum exploitation and short term profits. On the other hand, the management principles of resource dependent communities are generally traditional rulebound and proconservation as depletion of resources will mean loss of livelihood. Although community based management is a universally accepted model of resource management, its adoption is complex as revenue generation for the Government has taken priority over other considerations. Here the elite and the powerful, for obvious reasons, have more chances to win and retain control over what could be otherwise managed by the

8resource dependant mass in a sustainable manner.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

9Box 2: Occupying “Borodoi beel”

10Haor is one of the main sources of fisheries in Bangladesh, and Sunamgonj district hosts many of the Haors. Dekhar Haor is one such large haor of the district which

11consists of 25 beels and other kinds of water bodies of different sizes. For more than 200-250 years, the local people surrounding these water bodies have depended on them for their livelihoods. However, introduction of the leasing system of public water bodies gave influential locals control over the haors, thus depriving poor fisher folks.

Borodoi beel is the largest water body in the Dekhar Haor covering 399.33 acres of land area. Following the provisions of the Water body Management Policy 2009, the

With around 80% of the total population directly or indirectly dependant on the utilization of these resources, increasing access to natural resources for the rural poor

12is essential for reducing poverty . One of the major issues in this context is ‘deforestation and changes in the land use’ (habitat change), as well as conversion of forested areas to agricultural fields or construction of homesteads. With growing pressures on the finite amount of land available for conflicting uses (agriculture versus settlements), the access of marginalized communities is likely to be further limited.

Even within the landless, there are the poorest of the poor, especially women, who fall in the bottom layers of the society in rural Bangladesh and do not get ready access to common resources such as ponds and khas lands.

In the Chittagong Hill Tracts, there exists an ongoing conflict regarding the ownership of land. Indigenous people’s rights (customary rights) are not considered by the people from the floodplains, leading to social unrest and a sense of animosity between the groups. Thus, the differences in the governance systems (indigenous versus the rest of the country), customs and practices of the ethnic communities pose as an additional problem.

10 11

Local sources report that a total of 10 acres 15 katha and 9 decimal (shatangsha) land of Kochpara have been encroached. Influential locals engage in land encroachment of Kochpara using force as well as false documents created in their own names. There are also allegations against officials of the forest department who act in favor of the land grabbers. In collaboration with corrupt government officials, many influential local people have forced Koch and other small indigenous communities to leave the village by even threatening to file lawsuits against them.

The traditional livelihoods of the Koch communities are often interrupted due to the aggressive land encroachment described above, to the extent that even a solvent Koch farmer has been converted to a day labourer, as is the case with Roghunath Koch. Roghunath Koch is such a victim of Kochpara encroachment whose small piece of land fell into the trap of usurpers. He alleged that a local influential forcibly occupied his two acre and nine decimal (Shatangsha) land and stated that recovery of his encroached land would end his livelihood anxieties.

The Koch community, along with other indigenous people of the area have also lost their traditional rights over the adjoining shal forest, as the local forests are being leased out to third parties for social forestaion purposes.

district commissioner leased out the Borodoi beel to the Banipur Motshojeebi Somobay Samitee (Banipur Fishermen’s Cooperative Association) for a period of six years starting from Bangla year 1411 to 1417. Though the said association was registered as an association of real fisher groups, the real control of the association lay with the few local influentials who provided the lease money.

Even after the lease period for Banipur Fishermen’s Cooperative Association had come to an end, the influential group backing the association didn’t revert back the authority of the Borodoi beel. Since the leasing of the Borodoi beel, poor households have lost their access to this water body which they used to fish and earn a livelihood.

Moreover, since the area expands in size during the rainy season the group extended their control over the extended areas as well, thus preventing the local fishers from catching fish even from the extended areas. There were also instances when the poor fisher groups suffered physical assaults and their fishing nets were taken away.

Box 3: Khas land- landless people face difficulties with possession even after receiving agreements

Kaler Kontho, a national daily newspaper on 11 November, 2012 reported on a person named Eusuf Ali who had received an agreement in 1999 for the allocation of some khas lands in Vogdabori Union under Domar Upazila. In spite of possessing this agreement for the last 12 years, Eusuf Ali has been trying in vain to get possession through communicating with the responsible land administrators at Union, Upazila and District levels. The report also included similar cases of others like Giuas Uddin and Manik Sheikh who had received allotments in 2000 and 1999 respectively, but are still struggling for ownership.

The prevailing situation has thus made access to common resources more and more difficult for the poor and marginalized to follow their traditional livelihoods. Policies of the Government sometimes create space for community people to access resources such as water, but administrative and financial requirements hinder the attainment of the policy objectives. Therefore, the end results, by and large, remain the same control of resources by the rich and the influential. For investors who access resources in exchange of money, such as a leaseholders, the priority is maximum exploitation and short term profits. On the other hand, the management principles of resource dependent communities are generally traditional rulebound and proconservation as depletion of resources will mean loss of livelihood. Although community based management is a universally accepted model of resource management, its adoption is complex as revenue generation for the Government has taken priority over other considerations. Here the elite and the powerful, for obvious reasons, have more chances to win and retain control over what could be otherwise managed by the

8resource dependant mass in a sustainable manner.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

A recent amendment incorporated an article [Article 18A], which stated that:‘The state shall endeavour to protect and improve the environment and preserve and safeguard the natural resources, biodiversity, wetlands, forest and wild life for the

15present and future citizens .’

Moreover, Article 143(1) declares some essential natural resources like minerals as lawfully vested in the state automatically. The Constitutional provisions discussed above imply responsibility on the Government of Bangladesh and its citizens to protect natural resources as common property resources. It is worth mentioning the directions of the supreme court of India in the case of M.C Mehta vs. Kamal Nath 1997, that –“the state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large are the beneficiary of the sea-shore, airs, forests etc. The state as trustee is under a legal duty to protect the natural

16resources” .

According to the core sections (Sections 3,20 and 44) of the State Acquisition and 17Tenancy Act 1950, Government acquires from the rent receiver, all interests in sub

soil, minerals, land or buildings in haat, bazaar, land consisting of forests, land of fisheries and all such related lands (most containing natural resources). In other words, ownership of the above lands is vested to the Government and such Government ownership can be interpreted as a common trust held by the Government for the benefit of the people.

18In accordance with the Forest Act 1927, public forests are owned by the State on behalf of the people. The agencies administering or managing such forests have to ensure that they serve national needs, environment, ecology, as well as the special interest of the forest dwellers. Under the Forest Act 1927, the Government can declare any forest area as public forest and in accordance with Section 69 of the Act, there is presumption that any produce from the forest (peat, surface soil, minerals, minerals oil etc.) belong to the Government. However, the right of the ownership by the State is not absolute, since the Act restrains certain activities of the Government in such forests. This restriction can facilitate the establishment of a public trust doctrine suggesting that the Government as public trustee cannot abuse its power.

The recently adopted Water Act, 2013 provides the ownership of water within the 19territory of Bangladesh to the State on behalf of the people.

Article 13 of the Constitution, endowed with the State ownership on behalf of the people as discussed earlier, and Article 143 of the Constitution assigns the responsibility to the Government of Bangladesh for all lands, minerals and other materials of value underlying the ocean within the territorial waters, or the ocean over the continental shelf. The constitutional framework of the country thus endows the ownership of all the land including khas lands of Bangladesh with the State, on behalf of the people.

However, there are number of other laws and policies related to khas land management and distribution and, from time to time, new rules and regulations are introduced by the

Statutory and Policy instruments

Khas Land Management and Distribution

12 13

Box 4: Indigenous families displaced

In accordance with Sections 4 and 6 of the Forest Act 1927, the Forest Department declared 3689.33 acres of forest area as Protected Forest without resolving the claims brought forth by the forest dwellers through Section 20 of the Act. This resulted in forced displacement of 220 indigenous families of Rajstali Upazila of Rangamati district. Although the forest dwellers raised a movement against this Government process and communicated with relevant government agencies, they failed to establish their rights on the forest. Later, with the help of Bangladesh Environmental Lawyers’ Association (BELA), the disenfranchised residents filed a case before the Supreme Court of Bangladesh where the Court ordered an explanation on why these processes for declaring protected area without taking into account the forest rights of the forest dwellers should not be illegal. The case is

13pending final hearing.

Climate change and natural disasters coupled with social disasters are additional hurdles that restrict poor people’s access to common resources. Over extraction and over exploitation of nature by commercial operators degrade resources which, in turn, reduce the availability of resources for people to harvest from.

There is limited access to environmental information and data and often the data fails to reach the end user in a form that is easily understood by laypersons. Rural communities in Bangladesh, in particular, lag behind because they often do not receive appropriate information or the technologies that can facilitate their livelihoods.

Constitutional Framework: The Constitution of the Peoples’ Republic of Bangladesh, fundamental legal document of the country, does not contain any specific provision on common resource management. However, a number of its provisions have implications on common resource management in Bangladesh. Part II of the Constitution lays down Fundamental Principles of State Policy and some of the Articles in this part provide guidance for common resource management.

Article 13 of the Constitution recognizes the validity of different ownership as follows:

State Ownership: State on behalf of the people through the creation of an efficient and dynamic nationalized public sector embracing the key sectors of the economy; Cooperative ownership: Cooperatives on behalf of their members within such limits as may be prescribed by law.

Article 21(1) of the Constitution imposes duty on every citizen to protect public property.

Article 15 declares that the State has a responsibility to promote economic growth and to ensure food, clothing, shelter, work and recreation for citizens.

14Article 16 places special emphasis on the development of rural communities .

Regulatory Regime of Natural Resources: Context of Access to Common Resource

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

A recent amendment incorporated an article [Article 18A], which stated that:‘The state shall endeavour to protect and improve the environment and preserve and safeguard the natural resources, biodiversity, wetlands, forest and wild life for the

15present and future citizens .’

Moreover, Article 143(1) declares some essential natural resources like minerals as lawfully vested in the state automatically. The Constitutional provisions discussed above imply responsibility on the Government of Bangladesh and its citizens to protect natural resources as common property resources. It is worth mentioning the directions of the supreme court of India in the case of M.C Mehta vs. Kamal Nath 1997, that –“the state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large are the beneficiary of the sea-shore, airs, forests etc. The state as trustee is under a legal duty to protect the natural

16resources” .

According to the core sections (Sections 3,20 and 44) of the State Acquisition and 17Tenancy Act 1950, Government acquires from the rent receiver, all interests in sub

soil, minerals, land or buildings in haat, bazaar, land consisting of forests, land of fisheries and all such related lands (most containing natural resources). In other words, ownership of the above lands is vested to the Government and such Government ownership can be interpreted as a common trust held by the Government for the benefit of the people.

18In accordance with the Forest Act 1927, public forests are owned by the State on behalf of the people. The agencies administering or managing such forests have to ensure that they serve national needs, environment, ecology, as well as the special interest of the forest dwellers. Under the Forest Act 1927, the Government can declare any forest area as public forest and in accordance with Section 69 of the Act, there is presumption that any produce from the forest (peat, surface soil, minerals, minerals oil etc.) belong to the Government. However, the right of the ownership by the State is not absolute, since the Act restrains certain activities of the Government in such forests. This restriction can facilitate the establishment of a public trust doctrine suggesting that the Government as public trustee cannot abuse its power.

The recently adopted Water Act, 2013 provides the ownership of water within the 19territory of Bangladesh to the State on behalf of the people.

Article 13 of the Constitution, endowed with the State ownership on behalf of the people as discussed earlier, and Article 143 of the Constitution assigns the responsibility to the Government of Bangladesh for all lands, minerals and other materials of value underlying the ocean within the territorial waters, or the ocean over the continental shelf. The constitutional framework of the country thus endows the ownership of all the land including khas lands of Bangladesh with the State, on behalf of the people.

However, there are number of other laws and policies related to khas land management and distribution and, from time to time, new rules and regulations are introduced by the

Statutory and Policy instruments

Khas Land Management and Distribution

12 13

Box 4: Indigenous families displaced

In accordance with Sections 4 and 6 of the Forest Act 1927, the Forest Department declared 3689.33 acres of forest area as Protected Forest without resolving the claims brought forth by the forest dwellers through Section 20 of the Act. This resulted in forced displacement of 220 indigenous families of Rajstali Upazila of Rangamati district. Although the forest dwellers raised a movement against this Government process and communicated with relevant government agencies, they failed to establish their rights on the forest. Later, with the help of Bangladesh Environmental Lawyers’ Association (BELA), the disenfranchised residents filed a case before the Supreme Court of Bangladesh where the Court ordered an explanation on why these processes for declaring protected area without taking into account the forest rights of the forest dwellers should not be illegal. The case is

13pending final hearing.

Climate change and natural disasters coupled with social disasters are additional hurdles that restrict poor people’s access to common resources. Over extraction and over exploitation of nature by commercial operators degrade resources which, in turn, reduce the availability of resources for people to harvest from.

There is limited access to environmental information and data and often the data fails to reach the end user in a form that is easily understood by laypersons. Rural communities in Bangladesh, in particular, lag behind because they often do not receive appropriate information or the technologies that can facilitate their livelihoods.

Constitutional Framework: The Constitution of the Peoples’ Republic of Bangladesh, fundamental legal document of the country, does not contain any specific provision on common resource management. However, a number of its provisions have implications on common resource management in Bangladesh. Part II of the Constitution lays down Fundamental Principles of State Policy and some of the Articles in this part provide guidance for common resource management.

Article 13 of the Constitution recognizes the validity of different ownership as follows:

State Ownership: State on behalf of the people through the creation of an efficient and dynamic nationalized public sector embracing the key sectors of the economy; Cooperative ownership: Cooperatives on behalf of their members within such limits as may be prescribed by law.

Article 21(1) of the Constitution imposes duty on every citizen to protect public property.

Article 15 declares that the State has a responsibility to promote economic growth and to ensure food, clothing, shelter, work and recreation for citizens.

14Article 16 places special emphasis on the development of rural communities .

Regulatory Regime of Natural Resources: Context of Access to Common Resource

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Government through Gazette notification. The major laws on khas land management are the Bangladesh State Acquisition and Tenancy Act 1950 and Land Reforms Ordinance 1984.These Acts contain substantive provisions, and the procedural provisions are guided by the three policies - Policy for Distributing Khas Land among the Landless 1987, Policy for Distribution and Administration of Non Agricultural Khas Land 1995 and Agriculture Khas Land Management and Settlement Policy 1997.

The State Acquisition and Tenancy (SAT) Act 1950 is a framework legal document which was adopted to abolish the Zamindari system (Permanent Settlement of 1793). This law is the basis for all subsequent laws on khas land which declared that "So far agricultural lands.... are concerned, they shall be held by one class of people to be known as maliks or raiyats which means that those shall be no intermediary between the State at the top and malik or raiyats, and the malik or raiyats to be regarded as the tillers of the soil at the bottom". It defines khas land as “in relation to any person, includes any land let out together with any building standing thereon and necessary

20adjuncts thereto, otherwise than in perpetuity” . The Act defines khas land which is in khas possession of any person including the Government.

The Land Reform Ordinance 1984 in Section 7 is concerned with the settlement of khas land for homestead purpose. As per the provisions of the Ordinance, in rural areas if any khas land fit for being used as homestead is available, the Government shall, in setting such land, give preference to landless farmers and labourers. The maximum limit of such allotment will be five katha for each family and the family can inherit the land but cannot transfer it. However, the law is silent about the procedure to distribute such land.

Policy for Distributing Khas Land among the Landless: In 1987 the Ministry of Land launched the Land Reforms Action Programme, an initiative to distribute Khas and unoccupied State owned land to landless families. On 1 July 1987, the Government adopted the “Policy for Distributing Khas Land among the Landless” with the objective of equal distribution of land and income with maximum output from the land. The policy also projected the provision of work for the landless to strengthen the rural economy.

Khas land has been defined by the policy as all land which are recorded in Khatian (record of rights) No 1. Besides this, any land which is: 1) abandoned; 2) vested to Government of Bangladesh(GoB) or public easement; 3) alluvial; 4) land purchased by the Government through open bidding; 5) acquired land under Section 92 of SAT Act; 6) Land without ownership; and/or 7) Unused land acquired by the Government dept or

21institution is also khas land .

To identify such khas land and to recover the land from illegal possession, a number of committees have been formed at national, district and Upzila levels under the policy.

22The committee consists of GoB officials without any representation of the civil society . 23The policy provides directions to evict illegal possessors from the khas land .

24 The policy places priority on the following categories of landless people during the allocation of khas land:

i. Any family that has become landless due to river erosion and a male or female

member of that family has leased another person’s land for work;ii. Family of martyr or wounded freedom fighter which has an able male member

involved in agricultural work on leased land;25iii.Widow or single woman who has an adult boy.

Procedural provisions for the allocation of khas land involve the following steps: • Application by the landless family by submitting prescribed form for khas land;• Review of applications by Upazila Land Reform Committee and preparation of a

priority list; • Interview of applicants in a public meeting held in the presence of elected MP and

Upazila chairman; • Publishing the names of selected applicants in all local Government offices.

However, any person within 15 days of such publication can raise objection to the District Commissioner (DC) and DC is to take necessary inquiry against the

26objection .

The policy provides necessary direction in conducting the selection process so as to 27avoid corruption and misrepresentation and to distribute the land to the selected

landless person/s. It provides a wide range of power to the DC who can cancel the distribution at any time by mentioning the reason, though the aggrieved person can file an appeal against the decision of the DC to the Divisional commissioner whose decision is deemed to be final. Policy for Distribution and Administration of Non Agricultural Khas Land 1995: As there was no policy for non-agricultural Khas land, the Government adopted the Policy for Distribution and Administration of Non Agricultural Khas Land in 1995.

14 15

Box 5: Non Agricultural Khas land as defined in the Policy for Distribution and Administration of Non Agricultural Khas Land in 1995

Non agriculture Khas land shall include the land of four metropolitan areas, every municipality area, every thana sadar, all agricultural land inside the above mentioned area, any land outside the above mentioned areas that are not agriculture land.

Section- 3(d) of the policy provides the poor very little access to Non Agricultural Khas land. It only allows the land to be distributed among the family who have become destitute by natural disaster or any family legally resettled by the Government.

It was specified by Section-7 of the Land Reform Ordinance 1984 that the Government shall give preference to the landless farmers and labourers during allotment of non-agricultural khas land. However, the policy of 1995 did not consider the landless farmers and labourers in the same context. In 1997, another policy named “Agriculture Khas Land Management and Settlement Policy 1997” was adopted to eliminate corruption related to the distribution of khas land to give real landless people access to the land. The policy states that all khas land available in 61 districts will be given to the landless people.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Government through Gazette notification. The major laws on khas land management are the Bangladesh State Acquisition and Tenancy Act 1950 and Land Reforms Ordinance 1984.These Acts contain substantive provisions, and the procedural provisions are guided by the three policies - Policy for Distributing Khas Land among the Landless 1987, Policy for Distribution and Administration of Non Agricultural Khas Land 1995 and Agriculture Khas Land Management and Settlement Policy 1997.

The State Acquisition and Tenancy (SAT) Act 1950 is a framework legal document which was adopted to abolish the Zamindari system (Permanent Settlement of 1793). This law is the basis for all subsequent laws on khas land which declared that "So far agricultural lands.... are concerned, they shall be held by one class of people to be known as maliks or raiyats which means that those shall be no intermediary between the State at the top and malik or raiyats, and the malik or raiyats to be regarded as the tillers of the soil at the bottom". It defines khas land as “in relation to any person, includes any land let out together with any building standing thereon and necessary

20adjuncts thereto, otherwise than in perpetuity” . The Act defines khas land which is in khas possession of any person including the Government.

The Land Reform Ordinance 1984 in Section 7 is concerned with the settlement of khas land for homestead purpose. As per the provisions of the Ordinance, in rural areas if any khas land fit for being used as homestead is available, the Government shall, in setting such land, give preference to landless farmers and labourers. The maximum limit of such allotment will be five katha for each family and the family can inherit the land but cannot transfer it. However, the law is silent about the procedure to distribute such land.

Policy for Distributing Khas Land among the Landless: In 1987 the Ministry of Land launched the Land Reforms Action Programme, an initiative to distribute Khas and unoccupied State owned land to landless families. On 1 July 1987, the Government adopted the “Policy for Distributing Khas Land among the Landless” with the objective of equal distribution of land and income with maximum output from the land. The policy also projected the provision of work for the landless to strengthen the rural economy.

Khas land has been defined by the policy as all land which are recorded in Khatian (record of rights) No 1. Besides this, any land which is: 1) abandoned; 2) vested to Government of Bangladesh(GoB) or public easement; 3) alluvial; 4) land purchased by the Government through open bidding; 5) acquired land under Section 92 of SAT Act; 6) Land without ownership; and/or 7) Unused land acquired by the Government dept or

21institution is also khas land .

To identify such khas land and to recover the land from illegal possession, a number of committees have been formed at national, district and Upzila levels under the policy.

22The committee consists of GoB officials without any representation of the civil society . 23The policy provides directions to evict illegal possessors from the khas land .

24 The policy places priority on the following categories of landless people during the allocation of khas land:

i. Any family that has become landless due to river erosion and a male or female

member of that family has leased another person’s land for work;ii. Family of martyr or wounded freedom fighter which has an able male member

involved in agricultural work on leased land;25iii.Widow or single woman who has an adult boy.

Procedural provisions for the allocation of khas land involve the following steps: • Application by the landless family by submitting prescribed form for khas land;• Review of applications by Upazila Land Reform Committee and preparation of a

priority list; • Interview of applicants in a public meeting held in the presence of elected MP and

Upazila chairman; • Publishing the names of selected applicants in all local Government offices.

However, any person within 15 days of such publication can raise objection to the District Commissioner (DC) and DC is to take necessary inquiry against the

26objection .

The policy provides necessary direction in conducting the selection process so as to 27avoid corruption and misrepresentation and to distribute the land to the selected

landless person/s. It provides a wide range of power to the DC who can cancel the distribution at any time by mentioning the reason, though the aggrieved person can file an appeal against the decision of the DC to the Divisional commissioner whose decision is deemed to be final. Policy for Distribution and Administration of Non Agricultural Khas Land 1995: As there was no policy for non-agricultural Khas land, the Government adopted the Policy for Distribution and Administration of Non Agricultural Khas Land in 1995.

14 15

Box 5: Non Agricultural Khas land as defined in the Policy for Distribution and Administration of Non Agricultural Khas Land in 1995

Non agriculture Khas land shall include the land of four metropolitan areas, every municipality area, every thana sadar, all agricultural land inside the above mentioned area, any land outside the above mentioned areas that are not agriculture land.

Section- 3(d) of the policy provides the poor very little access to Non Agricultural Khas land. It only allows the land to be distributed among the family who have become destitute by natural disaster or any family legally resettled by the Government.

It was specified by Section-7 of the Land Reform Ordinance 1984 that the Government shall give preference to the landless farmers and labourers during allotment of non-agricultural khas land. However, the policy of 1995 did not consider the landless farmers and labourers in the same context. In 1997, another policy named “Agriculture Khas Land Management and Settlement Policy 1997” was adopted to eliminate corruption related to the distribution of khas land to give real landless people access to the land. The policy states that all khas land available in 61 districts will be given to the landless people.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

The policy defined agricultural khas land as follows: “Any cultivable khas land is agricultural khas land if it is not situated within the metropolitan, municipal or thana

28sadar area” . It reiterates the national khas land management committee but is silent about civil society representation.

The basic laws regulating forest resources in Bangladesh are the Forests Act 1927 30and the Private Forests Ordinance, 1959 . The Act of 1927 was amended in 2000 in

order to incorporate related provisions on Social Forestry and the Government has further adopted the Social Forestry Rules, 2004, which was again amended in 2010. In addition, some other laws have relevant provisions regarding forest resource management.

The Forest Act 1927 contains provisions for establishing the Reserved Forest and Protected Forest, with responsibility attributed to the Forest Department (FD) to manage these types of forests. Moreover, the Act provides the scope of participatory management approach in the contexts of social forestry and establishment of the village forest. Chapter II of the Act empowers the Government to constitute a special

31category of lands of reserved forests . The Act also provides options for adopting special rules for use of these lands. As per these rules, in order to establish a reserved forest, the Government needs to publish a declaration of the reservation in the official Gazette with a description of the forest’s boundaries and appoint a Forest Settlement Officer (FSO). The Act also provides the scope of appealing to the Divisional Commissioner against a decision passed by Forest Settlement Officer appointed for

32the purpose of declaration of reserve forest .

The Act of 1927 further requires the protection of right of way, right of pasture and rights 33to forest produce or a watercourse . If it becomes essential to compromise such rights,

the Government must compensate the aggrieved persons with a sum of money or 34grant of land . The Government can prevent any public or private way or watercourse

in a reserved forest, subject to providing alternative means. Chapter IV of the Act authorizes the Government to create “protected forests”. Similar to the process of declaring reserved forests, the Government can establish protected forests on Government lands through declaration. However, unlike reserved forests, the Government must inquire into and resolve private rights before publishing the notification regarding the protected forest. Once the Government has established a

35protected forest, it has extensive authority to limit the forest’s use .

Chapter III of the Forest Act 1927 provides the option of constituting Village Forests. The Government may allocate parts of the reserved forests to particular villages for their use and participatory management. Section 28 of the Forest Act authorizes

36“Village Forests” in reserve forests, authorizing the Government to hand over the rights of the Government over any reserved forest to any village community to manage and for their use. Notwithstanding the existence of such provision in the forest laws, since its adoption, no such Village Forests have yet been established. However, the amendments made in 2000 to the Forest Act inserted new Section, 28A, which sanctions “Social Forestry” on any Government land or private land under

Forest Management

Reserve and Protected Forests

Village Forests and Social Forestry

37particular agreement and provided further scope to adopt rules and programs. In accordance with the provision of this law, the Government adopted Social Forestry Rules (SFR), as amended in 2010 and a social forestry program in 2004. The amended Social Forestry Rules defines the ‘Forest Villagers’ as registered forest villagers under the Article 28 of the Bangladesh Forest Manual (part two). It also defines the ‘Local Community’, as interested local communities such as ethnic minorities inhabiting the forests who are competent to be selected as beneficiaries under the criteria stated in Rule 6 for social forestry.

Social Forestry Rules define the roles of stakeholders involved in Social Forestry. The Social Forestry Wing of the FD was established under the SFR as the main implementing agency of the program at the national level, with district forest officers (DFOs) being responsible at the district level. Local participants are encouraged to elect 9-member Social Forestry Management Committees (SFMCs) to manage and protect the plantations without any decision-making authority. The FD and DFO identify beneficiaries and appropriate locations for plantation and the SFMC assists in implementing these decisions. An advisory committee is formed in each participating district, comprising the local DFO, an NGO representative, and a representative from the local SFMCs. Through these advisory committees, SFMCs can request support and contribute ideas and suggestions for plantation management and benefit distribution. It is worth mentioning that although the Forest Department started experimenting with social forestry two decades ago, it still continues with ad hoc social forestry projects.

Article 42 (under Part III, Fundamental Rights) of the Constitution provides citizens the right to hold the property and necessitates the paying of compensation if such property

38is acquired by the Government . Article 47 provides further guidance for the Article 42 as the Parliament can pass laws to acquire property in pursuit of the national policy goals as spelled out in Part II of the Constitution and in several existing laws, including the State Acquisition and Tenancy (SAT) Act 1950. Article 84 of the Constitution requires all revenues received by the Government to “form part of one fund to be

39known as the Consolidated Fund” . This Article might be explained in favor of reserving forest revenues for reinvestment in forest management or for payment to participants in community forestry programs.

Article 19(2) of the Constitution of Bangladesh calls for the elimination of gender inequalities and intends to ensure ‘equitable distribution of wealth among citizens’ and provide opportunities to attain a uniform level of economic development. Article 23 of the Constitution requires ‘adopting measures to conserve the cultural traditions and

40heritage of the people of Bangladesh’ . The above principles of State policy explicitly obligate the protection of private rights and traditions from all forms of exploitation and interference. Though the forest laws regulating forestry and the laws governing tenancy were enacted long before adopting the 1972 Constitution of Bangladesh, the provisions of these laws should be interpreted and applied in line with the Constitution.

Recognition of customary land rights is one of the foundations of the development of tenancy laws in Bangladesh. The Bengal Tenancy Act, 1885, obliged the Courts to consider local custom and values in determining whether a tenant is a tenure holder or

Forest Ownership and Customary Rights

16 17

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

The policy defined agricultural khas land as follows: “Any cultivable khas land is agricultural khas land if it is not situated within the metropolitan, municipal or thana

28sadar area” . It reiterates the national khas land management committee but is silent about civil society representation.

The basic laws regulating forest resources in Bangladesh are the Forests Act 1927 30and the Private Forests Ordinance, 1959 . The Act of 1927 was amended in 2000 in

order to incorporate related provisions on Social Forestry and the Government has further adopted the Social Forestry Rules, 2004, which was again amended in 2010. In addition, some other laws have relevant provisions regarding forest resource management.

The Forest Act 1927 contains provisions for establishing the Reserved Forest and Protected Forest, with responsibility attributed to the Forest Department (FD) to manage these types of forests. Moreover, the Act provides the scope of participatory management approach in the contexts of social forestry and establishment of the village forest. Chapter II of the Act empowers the Government to constitute a special

31category of lands of reserved forests . The Act also provides options for adopting special rules for use of these lands. As per these rules, in order to establish a reserved forest, the Government needs to publish a declaration of the reservation in the official Gazette with a description of the forest’s boundaries and appoint a Forest Settlement Officer (FSO). The Act also provides the scope of appealing to the Divisional Commissioner against a decision passed by Forest Settlement Officer appointed for

32the purpose of declaration of reserve forest .

The Act of 1927 further requires the protection of right of way, right of pasture and rights 33to forest produce or a watercourse . If it becomes essential to compromise such rights,

the Government must compensate the aggrieved persons with a sum of money or 34grant of land . The Government can prevent any public or private way or watercourse

in a reserved forest, subject to providing alternative means. Chapter IV of the Act authorizes the Government to create “protected forests”. Similar to the process of declaring reserved forests, the Government can establish protected forests on Government lands through declaration. However, unlike reserved forests, the Government must inquire into and resolve private rights before publishing the notification regarding the protected forest. Once the Government has established a

35protected forest, it has extensive authority to limit the forest’s use .

Chapter III of the Forest Act 1927 provides the option of constituting Village Forests. The Government may allocate parts of the reserved forests to particular villages for their use and participatory management. Section 28 of the Forest Act authorizes

36“Village Forests” in reserve forests, authorizing the Government to hand over the rights of the Government over any reserved forest to any village community to manage and for their use. Notwithstanding the existence of such provision in the forest laws, since its adoption, no such Village Forests have yet been established. However, the amendments made in 2000 to the Forest Act inserted new Section, 28A, which sanctions “Social Forestry” on any Government land or private land under

Forest Management

Reserve and Protected Forests

Village Forests and Social Forestry

37particular agreement and provided further scope to adopt rules and programs. In accordance with the provision of this law, the Government adopted Social Forestry Rules (SFR), as amended in 2010 and a social forestry program in 2004. The amended Social Forestry Rules defines the ‘Forest Villagers’ as registered forest villagers under the Article 28 of the Bangladesh Forest Manual (part two). It also defines the ‘Local Community’, as interested local communities such as ethnic minorities inhabiting the forests who are competent to be selected as beneficiaries under the criteria stated in Rule 6 for social forestry.

Social Forestry Rules define the roles of stakeholders involved in Social Forestry. The Social Forestry Wing of the FD was established under the SFR as the main implementing agency of the program at the national level, with district forest officers (DFOs) being responsible at the district level. Local participants are encouraged to elect 9-member Social Forestry Management Committees (SFMCs) to manage and protect the plantations without any decision-making authority. The FD and DFO identify beneficiaries and appropriate locations for plantation and the SFMC assists in implementing these decisions. An advisory committee is formed in each participating district, comprising the local DFO, an NGO representative, and a representative from the local SFMCs. Through these advisory committees, SFMCs can request support and contribute ideas and suggestions for plantation management and benefit distribution. It is worth mentioning that although the Forest Department started experimenting with social forestry two decades ago, it still continues with ad hoc social forestry projects.

Article 42 (under Part III, Fundamental Rights) of the Constitution provides citizens the right to hold the property and necessitates the paying of compensation if such property

38is acquired by the Government . Article 47 provides further guidance for the Article 42 as the Parliament can pass laws to acquire property in pursuit of the national policy goals as spelled out in Part II of the Constitution and in several existing laws, including the State Acquisition and Tenancy (SAT) Act 1950. Article 84 of the Constitution requires all revenues received by the Government to “form part of one fund to be

39known as the Consolidated Fund” . This Article might be explained in favor of reserving forest revenues for reinvestment in forest management or for payment to participants in community forestry programs.

Article 19(2) of the Constitution of Bangladesh calls for the elimination of gender inequalities and intends to ensure ‘equitable distribution of wealth among citizens’ and provide opportunities to attain a uniform level of economic development. Article 23 of the Constitution requires ‘adopting measures to conserve the cultural traditions and

40heritage of the people of Bangladesh’ . The above principles of State policy explicitly obligate the protection of private rights and traditions from all forms of exploitation and interference. Though the forest laws regulating forestry and the laws governing tenancy were enacted long before adopting the 1972 Constitution of Bangladesh, the provisions of these laws should be interpreted and applied in line with the Constitution.

Recognition of customary land rights is one of the foundations of the development of tenancy laws in Bangladesh. The Bengal Tenancy Act, 1885, obliged the Courts to consider local custom and values in determining whether a tenant is a tenure holder or

Forest Ownership and Customary Rights

16 17

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

raiyat (right to hold land for the purposes of cultivation). In accordance with the said law, a person who, for a period of twelve years, had continuously held land as a raiyat situated in any village, whether under lease or otherwise, was deemed to have become a settled raiyat with a right of occupancy. Therefore, the legal provisions and jurisprudence supported customs and user rights in regulating land tenure issues.

The SAT Act did not repeal the 1885 Act but further divested the tenure rights from the landlords to the occupants. An important provision in Section 97 of the SAT recognizes

41special tenure status of lands falling within traditional domain of aborigines. The Section empowers the Government to declare by notification any aboriginal castes or tribes as ‘aboriginal’ for the purpose of the Section.

However, the said provisions provide explicitly that an aboriginal can only transfer his land in favour of another aboriginal ‘domiciled and permanently residing in Bangladesh’. The law, in this case, recognizes the individual land holding rights of aboriginal communities and not in the form of ‘common property rights’. The law does not, however, restrict the transfer of land to another tribe or caste coming from other parts of Bangladesh as long as the transferee permanently resides in the country. However, the provisions of the SAT Act, are not applicable to the Chittagong Hill Tracts where a large number of ethnic community members live under a customary system

42headed by tribal Chiefs .

In pursuance of the Forestry Sector Master Plan (FSMP) 1993, the Forestry Policy 1994 was adopted with a view to raising the total forest coverage of the country to 20% by the year 2015 ensuring ‘Participatory/Social Forestry’ (SPF) program. It proposes afforestation, tree plantation and nursery establishment, development, maintenance and preservation through involving, encouraging and extending cooperation of the community people. It further proposes that all State owned forests of natural origin and the plantations of the Hills and Sal forest will be used for producing forest resources keeping aside the areas earmarked for conserving soil and water resources, and maintaining biodiversity.

The Policy also recommends the identification of inaccessible areas such as slopes of the hills, fragile watersheds, swamps, etc. and keeping them as protected forests. It also emphasizes ensuring multiple uses of forests, water and fish of the Sundarbans through sustained management, keeping the bio-environment of the area intact. For the fulfilment of the aforesaid targets, the Policy recommends amendment of laws, rules and regulations pertaining to the forestry sector and/or, promulgating new laws and rules, if necessary.

Repealing the Bangladesh Wild Life (Preservation) Order, 1973, the Wildlife (Protection and Safety) Act 2012 was adopted with a view to providing a comprehensive framework for the protection and conservation of biodiversity, forest

43and wildlife with the spirit of recently incorporated Constitutional provision. This Act provides definitions of Sanctuary, Eco-park, Eco-tourism, Botanical Garden, Community Conservation Area, Corridor, Core Zone, Wetland, Buffer Zone, Comanagement, and Protected Area.

Forestry Policy 1994

Wildlife and Biodiversity

Protected Area Management

Water and Fisheries/Water bodies Management

Section 13 of the Wildlife (Protection and Safety) Act, 2012, stipulates the declaration of wildlife sanctuary taking into account the importance of forest, biodiversity and wildlife protection and preservation within Government owned forests, lands and wetlands. This section also recognizes the traditional rights of livelihoods over the wetlands declared as sanctuary and authorizes for the protection of such traditional

44livelihoods , provided that restrictions can be imposed on fishing and boating within 45the declared sanctuary with due consultation with co-management committee. The

Act provides the scope for co-management of natural resources within the declared sanctuary ensuring the effective participation of community people for utilization of resources, protection and management. It further authorizes the formation of co-

46management committee and its functions and modalities.

This new Act recognizes the co-management of forest resources. It provides the co-management option for forest sanctuary involving the forest department, forest dwellers and local people and also for forming co-management committees to

47determine the rules of the committees. However, this provision does not recognize the rights of the indigenous peoples who have traditional rights over the forest. Different stakeholders have criticized the newly adopted legislation for not ensuring the rights of forest dwellers regarding occupations, traditions and livelihoods and thus adversely affecting the rights of those, including the indigenous members, who are

48dependant on the forests.

Recently, the Government of Bangladesh enacted the Bangladesh Water Act 2013, which defines water resources and wetlands. It entrusts the ownership of territorial water to the Government on behalf of the people. It also suggests the establishment of a Water Parishad headed by the Prime Minister as the highest authority in the country providing guidance for integrated water resource management in the country.

The wetlands of Bangladesh are governed in accordance with the general provisions 49of the State Acquisition and Tenancy Act, 1950 and the Land Management Manual,

1990. Besides, the wetlands in Bangladesh are regulated on the basis of adhoc executive orders, gazette notifications issued from time to time, based on the State Acquisition and Tenancy Act, 1950 and the Land Management Manual, 1990.

The Water Resource Planning Act, 1992 was adopted with the view to develop and ensure equitable use of water resources. This Act authorizes the formation of an administrative unit for water resource planning in Bangladesh. Later, in 2000, the Bangladesh Water Development Board Act was enacted with a view to development of water resources and effective management. In accordance with this Act, the Water Development Board is authorized to maintain the flow of water ways through establishing required infrastructure and to manage the water resources with due authorization of concerned Government authority and without affecting the legal rights

50of any individuals . Section 6 of the Act requires that the Board organizes the beneficiaries and ensures their participation in all relevant water related projects. However, the Act does not define the water related rights of the people nor does it

51describe the procedure of obtaining public opinion or the sanction of the same .

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POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

raiyat (right to hold land for the purposes of cultivation). In accordance with the said law, a person who, for a period of twelve years, had continuously held land as a raiyat situated in any village, whether under lease or otherwise, was deemed to have become a settled raiyat with a right of occupancy. Therefore, the legal provisions and jurisprudence supported customs and user rights in regulating land tenure issues.

The SAT Act did not repeal the 1885 Act but further divested the tenure rights from the landlords to the occupants. An important provision in Section 97 of the SAT recognizes

41special tenure status of lands falling within traditional domain of aborigines. The Section empowers the Government to declare by notification any aboriginal castes or tribes as ‘aboriginal’ for the purpose of the Section.

However, the said provisions provide explicitly that an aboriginal can only transfer his land in favour of another aboriginal ‘domiciled and permanently residing in Bangladesh’. The law, in this case, recognizes the individual land holding rights of aboriginal communities and not in the form of ‘common property rights’. The law does not, however, restrict the transfer of land to another tribe or caste coming from other parts of Bangladesh as long as the transferee permanently resides in the country. However, the provisions of the SAT Act, are not applicable to the Chittagong Hill Tracts where a large number of ethnic community members live under a customary system

42headed by tribal Chiefs .

In pursuance of the Forestry Sector Master Plan (FSMP) 1993, the Forestry Policy 1994 was adopted with a view to raising the total forest coverage of the country to 20% by the year 2015 ensuring ‘Participatory/Social Forestry’ (SPF) program. It proposes afforestation, tree plantation and nursery establishment, development, maintenance and preservation through involving, encouraging and extending cooperation of the community people. It further proposes that all State owned forests of natural origin and the plantations of the Hills and Sal forest will be used for producing forest resources keeping aside the areas earmarked for conserving soil and water resources, and maintaining biodiversity.

The Policy also recommends the identification of inaccessible areas such as slopes of the hills, fragile watersheds, swamps, etc. and keeping them as protected forests. It also emphasizes ensuring multiple uses of forests, water and fish of the Sundarbans through sustained management, keeping the bio-environment of the area intact. For the fulfilment of the aforesaid targets, the Policy recommends amendment of laws, rules and regulations pertaining to the forestry sector and/or, promulgating new laws and rules, if necessary.

Repealing the Bangladesh Wild Life (Preservation) Order, 1973, the Wildlife (Protection and Safety) Act 2012 was adopted with a view to providing a comprehensive framework for the protection and conservation of biodiversity, forest

43and wildlife with the spirit of recently incorporated Constitutional provision. This Act provides definitions of Sanctuary, Eco-park, Eco-tourism, Botanical Garden, Community Conservation Area, Corridor, Core Zone, Wetland, Buffer Zone, Comanagement, and Protected Area.

Forestry Policy 1994

Wildlife and Biodiversity

Protected Area Management

Water and Fisheries/Water bodies Management

Section 13 of the Wildlife (Protection and Safety) Act, 2012, stipulates the declaration of wildlife sanctuary taking into account the importance of forest, biodiversity and wildlife protection and preservation within Government owned forests, lands and wetlands. This section also recognizes the traditional rights of livelihoods over the wetlands declared as sanctuary and authorizes for the protection of such traditional

44livelihoods , provided that restrictions can be imposed on fishing and boating within 45the declared sanctuary with due consultation with co-management committee. The

Act provides the scope for co-management of natural resources within the declared sanctuary ensuring the effective participation of community people for utilization of resources, protection and management. It further authorizes the formation of co-

46management committee and its functions and modalities.

This new Act recognizes the co-management of forest resources. It provides the co-management option for forest sanctuary involving the forest department, forest dwellers and local people and also for forming co-management committees to

47determine the rules of the committees. However, this provision does not recognize the rights of the indigenous peoples who have traditional rights over the forest. Different stakeholders have criticized the newly adopted legislation for not ensuring the rights of forest dwellers regarding occupations, traditions and livelihoods and thus adversely affecting the rights of those, including the indigenous members, who are

48dependant on the forests.

Recently, the Government of Bangladesh enacted the Bangladesh Water Act 2013, which defines water resources and wetlands. It entrusts the ownership of territorial water to the Government on behalf of the people. It also suggests the establishment of a Water Parishad headed by the Prime Minister as the highest authority in the country providing guidance for integrated water resource management in the country.

The wetlands of Bangladesh are governed in accordance with the general provisions 49of the State Acquisition and Tenancy Act, 1950 and the Land Management Manual,

1990. Besides, the wetlands in Bangladesh are regulated on the basis of adhoc executive orders, gazette notifications issued from time to time, based on the State Acquisition and Tenancy Act, 1950 and the Land Management Manual, 1990.

The Water Resource Planning Act, 1992 was adopted with the view to develop and ensure equitable use of water resources. This Act authorizes the formation of an administrative unit for water resource planning in Bangladesh. Later, in 2000, the Bangladesh Water Development Board Act was enacted with a view to development of water resources and effective management. In accordance with this Act, the Water Development Board is authorized to maintain the flow of water ways through establishing required infrastructure and to manage the water resources with due authorization of concerned Government authority and without affecting the legal rights

50of any individuals . Section 6 of the Act requires that the Board organizes the beneficiaries and ensures their participation in all relevant water related projects. However, the Act does not define the water related rights of the people nor does it

51describe the procedure of obtaining public opinion or the sanction of the same .

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POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

52The Haor Development Board Ordinance, 1977 proposes the establishment of a 53Haor Development Board to prepare projects and schemes for the development of

scheduled haors and to execute such projects and schemes. This Ordinance fails to consider the special needs of the two crore people living around the haors who are

54literally arrested by water for more than half of the year as this Ordinance does not have any provision to ensure the participation of these people in the management of the haor.

The role of fisheries resources in the national economy is very important in terms of livelihoods and food supply. Inland and marine waters are the main sources of fisheries

55production and exploitation. There are two basic laws in Bangladesh for the regulation of fresh water fisheries and marine fisheries, namely the Protection and

56Conservation of Fish Act 1950 amended in 1995, and the Marine Fisheries Ordinance 571983.

The Fisheries Policy 1998 provides the broader framework of inland and marine fish and fisheries management in Bangladesh and addresses the concerns of the traditional fisher folks and their involvement in the management and conservation process. The policy states that the Fishermen Societies along with the local Government will be engaged in the execution of the fish conservation besides the

58authorities presently engaged . It also suggests giving priority to the genuine fishermen to obtain khas water bodies and requires the Government to take necessary

59steps to develop the standard of lifestyle of the fishermen. Moreover, the Policy suggests for the establishment of fish sanctuaries in order to increase fish production and to conserve biodiversity. It ascribes care and management of the declared fish sanctuaries on the Department of Fisheries with the help of fishers’ societies and

60bodies of local Government . Under its various projects, the Department of Fisheries has established a number of fish sanctuaries. However, since the concept has no legal sanction, the sanctuaries are confronted with serious problems after the completion of the relevant projects, as the local groups lack support to coordinate with the other

61agencies on pollution control and revenue earning.

While the laws related to fish and fisheries deal with the conservation aspects of fisheries, the management (leasing out etc.) of the fisheries is regulated by land related laws. The Ministry of Land is responsible for the management of all the fisheries designated as Jalmohals and all other land and water bodies in the country in accordance with the land related laws. Existing governance mechanisms of water bodies is focused on harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor fishers within the context of conservation of natural resources.

The fishing rights of communities in the subcontinent are based on traditional customs and cultural values. However, British rulers developed a governing regime of natural resources (including fisheries) based on a revenue earning approach. In accordance with Permanent Settlement Regulation1793, all jalmohals were permanently settled

Fisheries Management

Water body/Jalmohal Management

with the Zamindars on payment of fixed annual revenue. Through the State Acquisition and Tenancy Act 1950 [SAT] in 1947, the Government took over the rentreceiving

62rights of the landlords or Zamindars . However, SAT has declared fisheries as ‘nonretainable’ under private ownership. Many fisheries are also vested in the name of

63God or Wakf or Debotter.

Through promulgation of the State Acquisition and Tenancy Act 1950, the management of water bodies was vested with the Government which passed some policy decisions for the management of Jalmohals for earning revenue through exploitation of fisheries. The responsibility of management of the Jalmohal was given to the Ministry of Land (MoL) and till 1990 the MoL leased out fisheries according to the Government Estate Manual 1958 (G Manual). In 1990, the G Manual was repealed by the promulgation of the Land Management Manual 1990. Over the years, the management details of fisheries were subjected to policy decisions following provisions of the Land Management Manual, 1990. Subsequent orders and circulars of the Government and judicial pronouncements introduced a few elements in the management of fisheries regarding the socio-economic conditions of the people and community needs.

The Land Management Manual, 1990 identified the Fisheries as Jalmohals and categorized these Jalmohals as “Open” and “Closed” depending on the nature of the water bodies. The open Jalmohals have been defined as those which are not surrounded by land and in which fishing cannot be regulated for a certain period to ensure minimum growth of the stock. By this definition, all Jalmohals in the flowing rivers and streams are treated as open Jalmohals. On the other hand, closed Jalmohals are defined as those which are confined within specific boundaries, in other words, which are surrounded by land and in which fishes are caught at a particular time of the year so that they get enough time for full growth. Generally, haor, baor, jheel,

64dighee, lake, pond and ditches are known as closed Jalmohals.

According to the Land Management Manual 1990, the Government leases out the water bodies/jalmohals to genuine fishers’ cooperative societies through tenders/negotiations for the utilization of fishes during a specified period of time, usually three years. In the event that genuine fishermen cooperative societies are not available, it provided for leasing through open auction. In 1995, the Government abolished the leasing system in flowing rivers (open Jalmohal) and fishing in those Jalmohals was declared open to all without any fees or licensing system. The Government declared the Jalmohals open for the welfare of the poor fishers, but in reality nearly all the jalmohals are being enjoyed by influential locals, musclemen etc.

The preamble of the Public Water body Management Policy 2009, provides for the public water body to be leased out to real fisher folks with due preference in order to promote biological management of fisheries along with revenue collection. The policy also defines fishermen and fisheries. Fishermen are defined as those who catch fish

65from natural sources and the sell them as means of livelihood . It further stipulates that only real fishermen are eligible for applying for lease of the water bodies. The policy provides for the lease of the water bodies to the registered CBOs of fisher folks

Water body Management Policy, 2009

20 21

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

52The Haor Development Board Ordinance, 1977 proposes the establishment of a 53Haor Development Board to prepare projects and schemes for the development of

scheduled haors and to execute such projects and schemes. This Ordinance fails to consider the special needs of the two crore people living around the haors who are

54literally arrested by water for more than half of the year as this Ordinance does not have any provision to ensure the participation of these people in the management of the haor.

The role of fisheries resources in the national economy is very important in terms of livelihoods and food supply. Inland and marine waters are the main sources of fisheries

55production and exploitation. There are two basic laws in Bangladesh for the regulation of fresh water fisheries and marine fisheries, namely the Protection and

56Conservation of Fish Act 1950 amended in 1995, and the Marine Fisheries Ordinance 571983.

The Fisheries Policy 1998 provides the broader framework of inland and marine fish and fisheries management in Bangladesh and addresses the concerns of the traditional fisher folks and their involvement in the management and conservation process. The policy states that the Fishermen Societies along with the local Government will be engaged in the execution of the fish conservation besides the

58authorities presently engaged . It also suggests giving priority to the genuine fishermen to obtain khas water bodies and requires the Government to take necessary

59steps to develop the standard of lifestyle of the fishermen. Moreover, the Policy suggests for the establishment of fish sanctuaries in order to increase fish production and to conserve biodiversity. It ascribes care and management of the declared fish sanctuaries on the Department of Fisheries with the help of fishers’ societies and

60bodies of local Government . Under its various projects, the Department of Fisheries has established a number of fish sanctuaries. However, since the concept has no legal sanction, the sanctuaries are confronted with serious problems after the completion of the relevant projects, as the local groups lack support to coordinate with the other

61agencies on pollution control and revenue earning.

While the laws related to fish and fisheries deal with the conservation aspects of fisheries, the management (leasing out etc.) of the fisheries is regulated by land related laws. The Ministry of Land is responsible for the management of all the fisheries designated as Jalmohals and all other land and water bodies in the country in accordance with the land related laws. Existing governance mechanisms of water bodies is focused on harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor fishers within the context of conservation of natural resources.

The fishing rights of communities in the subcontinent are based on traditional customs and cultural values. However, British rulers developed a governing regime of natural resources (including fisheries) based on a revenue earning approach. In accordance with Permanent Settlement Regulation1793, all jalmohals were permanently settled

Fisheries Management

Water body/Jalmohal Management

with the Zamindars on payment of fixed annual revenue. Through the State Acquisition and Tenancy Act 1950 [SAT] in 1947, the Government took over the rentreceiving

62rights of the landlords or Zamindars . However, SAT has declared fisheries as ‘nonretainable’ under private ownership. Many fisheries are also vested in the name of

63God or Wakf or Debotter.

Through promulgation of the State Acquisition and Tenancy Act 1950, the management of water bodies was vested with the Government which passed some policy decisions for the management of Jalmohals for earning revenue through exploitation of fisheries. The responsibility of management of the Jalmohal was given to the Ministry of Land (MoL) and till 1990 the MoL leased out fisheries according to the Government Estate Manual 1958 (G Manual). In 1990, the G Manual was repealed by the promulgation of the Land Management Manual 1990. Over the years, the management details of fisheries were subjected to policy decisions following provisions of the Land Management Manual, 1990. Subsequent orders and circulars of the Government and judicial pronouncements introduced a few elements in the management of fisheries regarding the socio-economic conditions of the people and community needs.

The Land Management Manual, 1990 identified the Fisheries as Jalmohals and categorized these Jalmohals as “Open” and “Closed” depending on the nature of the water bodies. The open Jalmohals have been defined as those which are not surrounded by land and in which fishing cannot be regulated for a certain period to ensure minimum growth of the stock. By this definition, all Jalmohals in the flowing rivers and streams are treated as open Jalmohals. On the other hand, closed Jalmohals are defined as those which are confined within specific boundaries, in other words, which are surrounded by land and in which fishes are caught at a particular time of the year so that they get enough time for full growth. Generally, haor, baor, jheel,

64dighee, lake, pond and ditches are known as closed Jalmohals.

According to the Land Management Manual 1990, the Government leases out the water bodies/jalmohals to genuine fishers’ cooperative societies through tenders/negotiations for the utilization of fishes during a specified period of time, usually three years. In the event that genuine fishermen cooperative societies are not available, it provided for leasing through open auction. In 1995, the Government abolished the leasing system in flowing rivers (open Jalmohal) and fishing in those Jalmohals was declared open to all without any fees or licensing system. The Government declared the Jalmohals open for the welfare of the poor fishers, but in reality nearly all the jalmohals are being enjoyed by influential locals, musclemen etc.

The preamble of the Public Water body Management Policy 2009, provides for the public water body to be leased out to real fisher folks with due preference in order to promote biological management of fisheries along with revenue collection. The policy also defines fishermen and fisheries. Fishermen are defined as those who catch fish

65from natural sources and the sell them as means of livelihood . It further stipulates that only real fishermen are eligible for applying for lease of the water bodies. The policy provides for the lease of the water bodies to the registered CBOs of fisher folks

Water body Management Policy, 2009

20 21

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

and to apply for lease, registered CBOs of fisher folks have to provide the certificate obtained from concerned authority along with audit reports for the last two years.

66However, newly formed CBOs are not required to submit such documents.

In reality, there is clear evidence to show that such lease is often secured by individuals who are not real fishers but have substantial earning through renting out equipment, or engaging fishermen as day labourer. Concerns also remain regarding social equity on selecting real fishermen to allocate water bodies for management. Other concerns include the lease period and lease value, as the lease period is valid for three years and the lease value rises by 5% from the previous year’s value in accordance with Section (4a) of the policy.

A number of committees have been suggested in this policy to determine the subjective issues to proceed further. It also includes local parliament members as the advisor to the district Water body Management Committee. While the provision could be appreciated in the context of a democratic procedure, experience demonstrates that this bureaucratic and complex political interest deprives the illiterate poor and marginalized people from exercising their rights.

The policy provides administrative redress regarding the conflicts in relation to the leasing procedure. A decision of the lower tier can be brought up to the higher tier and the land tribunal reserves the final authority to dispose of the disputed issue. There are two things to be considered here: firstly, the decision of the land tribunal cannot be challenged in any formal judicial forum; and secondly, a dispute regarding the assessment of the CBO’s performance cannot be challenged, as there is no such forum. Therefore, although the policy addresses the issues of long term leasing system under particular agreements, it also creates new avenues of undue influence.

The Environment Policy 1992 was adopted taking into account the serious impediments to the protection of environment and suggested the protection and

67improvement of the environment through an integrated approach . The Policy of 1992, identified specific sectors like agriculture, industry, health and sanitation, energy and fuel, water development, flood control and irrigation, land, forest, wildlife and biodiversity, fisheries and livestock, food, coastal and marine environment, transport and communication, housing and urbanization, population, education and public awareness, science technology and research.

The Environment Policy provides directives to amend all laws and regulations related to the protection of the environment, conservation of natural resources, and control of environmental pollution and degradation. It also suggests the formation of new laws in all sectors necessary to control activities concerning environmental pollution and

68degradation and to ensure proper implementation of all relevant laws/regulations . The Policy provides further guidelines for institutional mechanisms and directs the Ministry of Environment and Forest (MoEF) to take appropriate steps to review and update this policy taking into account the changing socio, economic and ecological changes. The DoE is made responsible for reviewing and approving Environmental

69Impact Assessment (EIA) in order to avoid the environmental and ecological damage .

The Environment Policy 1992

As is apparent, even this policy provides guidance for the management of the sectors involved with common resources and an initiative needs to be taken to address the common resource management.

70Following the Environment Policy, 1992, the Environmental Conservation Act (ECA) , was adopted in 1995, providing a broader framework in order to promote conservation, improvement of environmental quality and control and mitigation of environmental pollution.

Environmental Conservation Act (ECA) 1995

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POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

and to apply for lease, registered CBOs of fisher folks have to provide the certificate obtained from concerned authority along with audit reports for the last two years.

66However, newly formed CBOs are not required to submit such documents.

In reality, there is clear evidence to show that such lease is often secured by individuals who are not real fishers but have substantial earning through renting out equipment, or engaging fishermen as day labourer. Concerns also remain regarding social equity on selecting real fishermen to allocate water bodies for management. Other concerns include the lease period and lease value, as the lease period is valid for three years and the lease value rises by 5% from the previous year’s value in accordance with Section (4a) of the policy.

A number of committees have been suggested in this policy to determine the subjective issues to proceed further. It also includes local parliament members as the advisor to the district Water body Management Committee. While the provision could be appreciated in the context of a democratic procedure, experience demonstrates that this bureaucratic and complex political interest deprives the illiterate poor and marginalized people from exercising their rights.

The policy provides administrative redress regarding the conflicts in relation to the leasing procedure. A decision of the lower tier can be brought up to the higher tier and the land tribunal reserves the final authority to dispose of the disputed issue. There are two things to be considered here: firstly, the decision of the land tribunal cannot be challenged in any formal judicial forum; and secondly, a dispute regarding the assessment of the CBO’s performance cannot be challenged, as there is no such forum. Therefore, although the policy addresses the issues of long term leasing system under particular agreements, it also creates new avenues of undue influence.

The Environment Policy 1992 was adopted taking into account the serious impediments to the protection of environment and suggested the protection and

67improvement of the environment through an integrated approach . The Policy of 1992, identified specific sectors like agriculture, industry, health and sanitation, energy and fuel, water development, flood control and irrigation, land, forest, wildlife and biodiversity, fisheries and livestock, food, coastal and marine environment, transport and communication, housing and urbanization, population, education and public awareness, science technology and research.

The Environment Policy provides directives to amend all laws and regulations related to the protection of the environment, conservation of natural resources, and control of environmental pollution and degradation. It also suggests the formation of new laws in all sectors necessary to control activities concerning environmental pollution and

68degradation and to ensure proper implementation of all relevant laws/regulations . The Policy provides further guidelines for institutional mechanisms and directs the Ministry of Environment and Forest (MoEF) to take appropriate steps to review and update this policy taking into account the changing socio, economic and ecological changes. The DoE is made responsible for reviewing and approving Environmental

69Impact Assessment (EIA) in order to avoid the environmental and ecological damage .

The Environment Policy 1992

As is apparent, even this policy provides guidance for the management of the sectors involved with common resources and an initiative needs to be taken to address the common resource management.

70Following the Environment Policy, 1992, the Environmental Conservation Act (ECA) , was adopted in 1995, providing a broader framework in order to promote conservation, improvement of environmental quality and control and mitigation of environmental pollution.

Environmental Conservation Act (ECA) 1995

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POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

3 COMMUNITY PARTICIPATION IN COMMON RESOURCE MANAGEMENT

Community-based management and co-management are by now widespread approaches practiced worldwide to improve the management of common natural

71resources . Consequently, Community Based Organizations (CBOs) are acting as new alliances/actors in the natural resource governance regime thereby creating new opportunities of community participation in the governance of resource management. At least at the local level these actors are empowered to some extent to influence the decision making process taking into account their interests. This bottom up approach provides a new dimension to the governance regime of natural resources

72management in Bangladesh .

The Forest Act, 1927 (as amended in 2000), explicitly recognizes the prospect of co-management of public and private forest. Section 28 of the Forest Act provides the option of establishing “Village Forests” in the reserve forest areas, authorizing the Government to assign to “any village community” the rights of the Government over

73any reserved forest . However, though this option exists from 1927, the Government is yet to take any initiative to establish any such Village Forests. Moreover, the amendments made in 2000 to the Forest Act, 1927 incorporated Section 28A, which authorizes “Social Forestry” and elaborates further through adopting the Rules in 2004, which provides guidance for the co-management approach in forest management in Bangladesh. In accordance with the Rules of 2004, the Forest Department has taken some ad hoc social forestry projects but is yet to take any pragmatic approach to the co-management of forest resources.

The Forest Policy, 2004 recognizes the need for coordinated efforts of the Government and NGOs and active participation of the people in order to achieve ‘self reliance in forest products and maintenance of ecological balance.’ To realize these objectives, the Policy further stresses upon the involvement of local people, the disadvantaged groups, i.e. women and landless poor, NGOs, etc. It stipulates that afforestation programmes in the denuded hilly areas of Unclassed State Forest (USF) in Rangamati, Bandarban and Khagrachari to be undertaken under the auspices of the Government and private initiatives, and the participation and rehabilitation of the local jhum cultivators to be ensured under the auspices of the Ministry of Land in cooperation with the local Government by keeping the land ownership rights intact.

The tribal people would be imparted ownership of certain amounts of land through the forest settlement process. The rest of the forest land will be brought under permanent protection.

A few other policies also support the co-management approach in natural resource management in Bangladesh. The Forest Department’s Nishorgo Vision 2010, focuses on co-management and community partnerships as strategies for strengthening the management of protected areas. The National Biodiversity Strategy Action Plan for

74Bangladesh, 2004 describes co-management as, ‘the sharing of authority, responsibility and benefits between Government and local communities in the management of natural resources’. The said Plan also calls for the enhanced

protected area management, including co-management, and urges the adoption of participatory mechanisms to promote biodiversity conservation, use, and benefitsharing with local communities and other partners.

The Climate Change Strategy and Action Plan 2009 also addresses participatory resource management. Recently passed Wildlife (Protection and Safety) Act, 2012 recognizes the co-management of forest resources. It provides for the co-management option for forest sanctuary involving the forest department, forest dwellers and local people and for forming co-management committees to determine

75the rule of the committees .

It is worth mentioning that management of community-based fisheries, in particular, have developed well enough and this concept scaled up the co-management strategy in the management of other resources including water, forest, and disaster preparedness and

26now in adaptation to climate change . However, The Fish Act, 1950 does not contain any provision on community management or co-management of fisheries resources.

Nevertheless, some of the soft laws particularly on fisheries have advanced the issue of community based fisheries management. A Memorandum of Understanding (MoU) signed between the Ministry of Fisheries and the Ministry of Land and the guidelines developed there under for the biological management of water bodies with community participation also suggests further institutional mapping. Moreover, the Water body Management Policy, 2009 also favors community-based fisher’s organizations for leasing out water bodies. However, the management of community-based resource needs to be institutionalized under comprehensible legal authority.

With the support of USAID, from 1998-2009, the Government of Bangladesh implemented MACH (Management of Aquatic Ecosystems through Community Husbandry) project. The aim of the project was to establish community-based co-management and restore and increase sustainable productivity at the ecosystem level in three large wetlands: Hail Haor in Sreemongal, Turag-Bangshi river and wetlands in Kaliakoir and the Kangsha-Malijhee basin in Sherpur. In the wet season, these wetlands cover about 32,000 hector areas and in the dry season they include over 100 distinct water bodies. Over 110 villages inhabited by over 184,000 people are directly involved with these water bodies. The project broadly achieved the goal of ensuring poor fishers' long term access to water bodies through agreements with the Ministry of Land to reserve those water bodies for RMO management and suggested further

77policy interventions as follows:

• Ensure secure access of CBOs having legal identity, and other compliance to rules, and ensure equitable access of poor stakeholders to decision making and resources, self assessment procedure and transparent accounting;

• Ensure necessary services from the local Government by reorienting local Government to provide support to the CBOs under any circumstances; and ensure accountability of the local government in delivering its services;

Project based Approaches: Good Practices and Lessons Learned

Water Bodies Related Projects: MACH Project

24 25

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

3 COMMUNITY PARTICIPATION IN COMMON RESOURCE MANAGEMENT

Community-based management and co-management are by now widespread approaches practiced worldwide to improve the management of common natural

71resources . Consequently, Community Based Organizations (CBOs) are acting as new alliances/actors in the natural resource governance regime thereby creating new opportunities of community participation in the governance of resource management. At least at the local level these actors are empowered to some extent to influence the decision making process taking into account their interests. This bottom up approach provides a new dimension to the governance regime of natural resources

72management in Bangladesh .

The Forest Act, 1927 (as amended in 2000), explicitly recognizes the prospect of co-management of public and private forest. Section 28 of the Forest Act provides the option of establishing “Village Forests” in the reserve forest areas, authorizing the Government to assign to “any village community” the rights of the Government over

73any reserved forest . However, though this option exists from 1927, the Government is yet to take any initiative to establish any such Village Forests. Moreover, the amendments made in 2000 to the Forest Act, 1927 incorporated Section 28A, which authorizes “Social Forestry” and elaborates further through adopting the Rules in 2004, which provides guidance for the co-management approach in forest management in Bangladesh. In accordance with the Rules of 2004, the Forest Department has taken some ad hoc social forestry projects but is yet to take any pragmatic approach to the co-management of forest resources.

The Forest Policy, 2004 recognizes the need for coordinated efforts of the Government and NGOs and active participation of the people in order to achieve ‘self reliance in forest products and maintenance of ecological balance.’ To realize these objectives, the Policy further stresses upon the involvement of local people, the disadvantaged groups, i.e. women and landless poor, NGOs, etc. It stipulates that afforestation programmes in the denuded hilly areas of Unclassed State Forest (USF) in Rangamati, Bandarban and Khagrachari to be undertaken under the auspices of the Government and private initiatives, and the participation and rehabilitation of the local jhum cultivators to be ensured under the auspices of the Ministry of Land in cooperation with the local Government by keeping the land ownership rights intact.

The tribal people would be imparted ownership of certain amounts of land through the forest settlement process. The rest of the forest land will be brought under permanent protection.

A few other policies also support the co-management approach in natural resource management in Bangladesh. The Forest Department’s Nishorgo Vision 2010, focuses on co-management and community partnerships as strategies for strengthening the management of protected areas. The National Biodiversity Strategy Action Plan for

74Bangladesh, 2004 describes co-management as, ‘the sharing of authority, responsibility and benefits between Government and local communities in the management of natural resources’. The said Plan also calls for the enhanced

protected area management, including co-management, and urges the adoption of participatory mechanisms to promote biodiversity conservation, use, and benefitsharing with local communities and other partners.

The Climate Change Strategy and Action Plan 2009 also addresses participatory resource management. Recently passed Wildlife (Protection and Safety) Act, 2012 recognizes the co-management of forest resources. It provides for the co-management option for forest sanctuary involving the forest department, forest dwellers and local people and for forming co-management committees to determine

75the rule of the committees .

It is worth mentioning that management of community-based fisheries, in particular, have developed well enough and this concept scaled up the co-management strategy in the management of other resources including water, forest, and disaster preparedness and

26now in adaptation to climate change . However, The Fish Act, 1950 does not contain any provision on community management or co-management of fisheries resources.

Nevertheless, some of the soft laws particularly on fisheries have advanced the issue of community based fisheries management. A Memorandum of Understanding (MoU) signed between the Ministry of Fisheries and the Ministry of Land and the guidelines developed there under for the biological management of water bodies with community participation also suggests further institutional mapping. Moreover, the Water body Management Policy, 2009 also favors community-based fisher’s organizations for leasing out water bodies. However, the management of community-based resource needs to be institutionalized under comprehensible legal authority.

With the support of USAID, from 1998-2009, the Government of Bangladesh implemented MACH (Management of Aquatic Ecosystems through Community Husbandry) project. The aim of the project was to establish community-based co-management and restore and increase sustainable productivity at the ecosystem level in three large wetlands: Hail Haor in Sreemongal, Turag-Bangshi river and wetlands in Kaliakoir and the Kangsha-Malijhee basin in Sherpur. In the wet season, these wetlands cover about 32,000 hector areas and in the dry season they include over 100 distinct water bodies. Over 110 villages inhabited by over 184,000 people are directly involved with these water bodies. The project broadly achieved the goal of ensuring poor fishers' long term access to water bodies through agreements with the Ministry of Land to reserve those water bodies for RMO management and suggested further

77policy interventions as follows:

• Ensure secure access of CBOs having legal identity, and other compliance to rules, and ensure equitable access of poor stakeholders to decision making and resources, self assessment procedure and transparent accounting;

• Ensure necessary services from the local Government by reorienting local Government to provide support to the CBOs under any circumstances; and ensure accountability of the local government in delivering its services;

Project based Approaches: Good Practices and Lessons Learned

Water Bodies Related Projects: MACH Project

24 25

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

• Establish legal framework for the protection and preservation of such sanctuaries and for institutionalizing the shared management of the common resources through formal agreement between the local communities and the Government;

,

From 2001 to 2007, with the assistance of the World Fish Centre, the Government of Bangladesh implemented a Community Based Fisheries Management (CBFM) Project. The project involved a wide range of partners including 11 NGOs who were responsible for the identification and development of 130 CBOs managing 116 water bodies including closed beels, open beels, rivers and flood plains. The lessons and further policy interventions suggested from this project are as follows:

• Experiences from the CBFM- project in Bangladesh show that directly involved community members do benefit through community co-management works (i.e. CBFM works) in terms of improving the water body productivity and biodiversity, as shown by a broad range of indicators of livelihood gains;

• The legal status of community management institutions and practices in Bangladesh needs to be clarified and given official recognition. At present, there is no legal definition of sanctuaries, lease periods are too short and, in some instances, lease costs are often too high for sustainable community management.

The Nishorgo Support Project was launched in 2003 as an undertaking of the Forest Department of Bangladesh, with financial and technical support from USAID. The overall goal of the Nishorgo Support Project was to enhance biodiversity conservation in targeted protected areas through the active and formal involvement of local communities dependent on forest resources. The lessons learnt from this project are as follows:

• The idea that people might be kept out of forest Protected Areas (PAs) in Bangladesh is unimaginable. Even in the vast Sundarban Wildlife Sanctuaries, honey collectors, wood collectors, and fisher folk are a regular presence;

• Recognizing and accepting Comanagement Organizations as the Principal 78Protected Area Management Partner .

The Asrayon Project-2 is being implemented by the Prime Minister's Office with a view to alleviating the poverty of the landless and homeless families and to improve their living conditions, education, health and earning opportunities. The specific objective of the project is to settle 50,000 landless and homeless families/people, especially the people victimized by cyclones (Aila etc.) in the coastal region, river erosion and flood on khas land/resumed land/donated land/in some cases purchased land with living accommodation, title deed of ownership of the land jointly in the name of wife and husband. The project aims at creating dynamic villages and stimulating socio-economic development of the people. Previously, the Government of Bangladesh also implanted some other projects to rehabilitate the landless people but the practices and realities related to access of khas land by the landless people remains difficult.

CBFM-2 Project

Forest Related Projects: Nishorgo Support Project

Khas land related projects: The Asrayon Project-2

26 27

KEY FINDINGS AND RECOMMENDATIONS

This section provides a brief description of the key findings and recommendations on the relevant aspects of legal, policy and institutional mechanisms to explore the way forward for further policy interventions:

• Though the Constitution of the Peoples’ Republic of Bangladesh does not contain any specific provision on common resource management, a number of its provisions have implications on common resource management in Bangladesh; The Constitution of Bangladesh assigns responsibility on the Government of Bangladesh and its citizens to protect natural resources as common property resources;

• There are already a few existing laws recognizing community based management. For instance, laws and policies regulating forest and fisheries provide some preliminary guidance for co-management and community based management. Legal and policy framework on forest management regime provides guidance on Common Pool Forest Resources, particularly provisions on reserve and protected forests, village forests and social forestry, and provides the scope of participatory management of common pool resources.

• The Wildlife (Protection and Safety) Act, 2012, provides detailed guidance for protected area management with recognition of the rights of traditional livelihoods and participatory management involving the community. The Water body Management Policy, 2009 provides scope for community based fisheries management, but challenges remain with regards to the effective implementation of the legal and policy instruments.

• There exists inter sectoral jurisdiction issues which affect the proper implementation of the relevant laws and policies. For example, laws related to fish and fisheries deal with the conservation aspects of fisheries, while the management (leasing out etc.) of fisheries is regulated by land related laws. The Ministry of Land is also responsible for management of all the fisheries designated as Jalmohals and all other land and water bodies in the country in accordance with the land related laws.

• Existing governance mechanisms of water bodies aim at harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor fishers within the context of conservation of natural resources.

• The policies, laws and the regulations related to Khas land management provide adhoc basis solutions facing sectoral conflict and contradictions in terms of legal and institutional structures on allotment process and possessions.

• The poor and marginalized people are still deprived of access to common resources and many are losing their traditional rights and entitlement to the common resources due to lack of adequate legal and regulatory mechanisms, lack of their participation in decision making process relating to management and use of natural resources. Conversely, with undue access, depriving the poor people’s access, the rich and the powerful elites of the society are over exploiting the resources without considering the future productivity and sustainability of the resources.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

• Establish legal framework for the protection and preservation of such sanctuaries and for institutionalizing the shared management of the common resources through formal agreement between the local communities and the Government;

,

From 2001 to 2007, with the assistance of the World Fish Centre, the Government of Bangladesh implemented a Community Based Fisheries Management (CBFM) Project. The project involved a wide range of partners including 11 NGOs who were responsible for the identification and development of 130 CBOs managing 116 water bodies including closed beels, open beels, rivers and flood plains. The lessons and further policy interventions suggested from this project are as follows:

• Experiences from the CBFM- project in Bangladesh show that directly involved community members do benefit through community co-management works (i.e. CBFM works) in terms of improving the water body productivity and biodiversity, as shown by a broad range of indicators of livelihood gains;

• The legal status of community management institutions and practices in Bangladesh needs to be clarified and given official recognition. At present, there is no legal definition of sanctuaries, lease periods are too short and, in some instances, lease costs are often too high for sustainable community management.

The Nishorgo Support Project was launched in 2003 as an undertaking of the Forest Department of Bangladesh, with financial and technical support from USAID. The overall goal of the Nishorgo Support Project was to enhance biodiversity conservation in targeted protected areas through the active and formal involvement of local communities dependent on forest resources. The lessons learnt from this project are as follows:

• The idea that people might be kept out of forest Protected Areas (PAs) in Bangladesh is unimaginable. Even in the vast Sundarban Wildlife Sanctuaries, honey collectors, wood collectors, and fisher folk are a regular presence;

• Recognizing and accepting Comanagement Organizations as the Principal 78Protected Area Management Partner .

The Asrayon Project-2 is being implemented by the Prime Minister's Office with a view to alleviating the poverty of the landless and homeless families and to improve their living conditions, education, health and earning opportunities. The specific objective of the project is to settle 50,000 landless and homeless families/people, especially the people victimized by cyclones (Aila etc.) in the coastal region, river erosion and flood on khas land/resumed land/donated land/in some cases purchased land with living accommodation, title deed of ownership of the land jointly in the name of wife and husband. The project aims at creating dynamic villages and stimulating socio-economic development of the people. Previously, the Government of Bangladesh also implanted some other projects to rehabilitate the landless people but the practices and realities related to access of khas land by the landless people remains difficult.

CBFM-2 Project

Forest Related Projects: Nishorgo Support Project

Khas land related projects: The Asrayon Project-2

26 27

KEY FINDINGS AND RECOMMENDATIONS

This section provides a brief description of the key findings and recommendations on the relevant aspects of legal, policy and institutional mechanisms to explore the way forward for further policy interventions:

• Though the Constitution of the Peoples’ Republic of Bangladesh does not contain any specific provision on common resource management, a number of its provisions have implications on common resource management in Bangladesh; The Constitution of Bangladesh assigns responsibility on the Government of Bangladesh and its citizens to protect natural resources as common property resources;

• There are already a few existing laws recognizing community based management. For instance, laws and policies regulating forest and fisheries provide some preliminary guidance for co-management and community based management. Legal and policy framework on forest management regime provides guidance on Common Pool Forest Resources, particularly provisions on reserve and protected forests, village forests and social forestry, and provides the scope of participatory management of common pool resources.

• The Wildlife (Protection and Safety) Act, 2012, provides detailed guidance for protected area management with recognition of the rights of traditional livelihoods and participatory management involving the community. The Water body Management Policy, 2009 provides scope for community based fisheries management, but challenges remain with regards to the effective implementation of the legal and policy instruments.

• There exists inter sectoral jurisdiction issues which affect the proper implementation of the relevant laws and policies. For example, laws related to fish and fisheries deal with the conservation aspects of fisheries, while the management (leasing out etc.) of fisheries is regulated by land related laws. The Ministry of Land is also responsible for management of all the fisheries designated as Jalmohals and all other land and water bodies in the country in accordance with the land related laws.

• Existing governance mechanisms of water bodies aim at harnessing of revenue instead of ecological and biological management, whereas the management approach should facilitate the traditional lives and livelihoods of poor fishers within the context of conservation of natural resources.

• The policies, laws and the regulations related to Khas land management provide adhoc basis solutions facing sectoral conflict and contradictions in terms of legal and institutional structures on allotment process and possessions.

• The poor and marginalized people are still deprived of access to common resources and many are losing their traditional rights and entitlement to the common resources due to lack of adequate legal and regulatory mechanisms, lack of their participation in decision making process relating to management and use of natural resources. Conversely, with undue access, depriving the poor people’s access, the rich and the powerful elites of the society are over exploiting the resources without considering the future productivity and sustainability of the resources.

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Community based management and co-management are widespread approaches practiced worldwide to improve the management of common natural resources. Bangladesh also has adopted these approaches in different projects implemented by the Government.

• CBOs are acting as the new alliances/actors to the natural resource governance regime in Bangladesh and community participation has created a new way of governance of resource management. This bottom up approach provides a new dimension to the governance of natural resources management in Bangladesh. However, any notion of CBO must be socially inclusive and must reflect the voices of poor and marginalized segments of society.

• Legal recognition of the community based approach and the co-management for the natural resource management is important to ensure a participatory, inclusive, and transparent system.

Taking into consideration the above observations, the following recommendations have been put forward for necessary actions to ensure increased access of the poor to common resources as well as the sustainable management of common resources:

• Amendments of the sectoral laws including Forest Act, Fisheries Act, Water Act, to include related provisions on access and participation of the community people.

• Review and amendments of the khas land management regulatory regime taking into account the different aspects of ensuring access of the poor and of the sustainable management of the common resources.

• Ensure legal recognition of the community based approach and the co-management with regards to the natural resource management through a specific legal framework.

• Amendment of the Environment Conservation Act, 1995 with the Constitutional spirit in order to address the access and participation rights of community people related to natural resource management.

• Amendments of the existing laws recognizing the community based management taking into account the comprehensive aspects of common resource management followed by adopting necessary Procedural Rules to facilitate proper implementation.

• Removal of the contradictions between and among the sectoral policies and legislations, improving the implementation mechanisms of policies and legislations and developing the capacity of implementing agencies.

• End notes

1 For example: Community Based Fisheries Management projects. Supported by Ford Foundation, UK DFID and IFAD, Established 107 CBOs in different types of water body, Ended in March 2007; Management of Aquatic Ecosystems through Community Husbandry project, Supported by USAID. Established 16 CBOs in three large wetlands, Ended in June 2007

2 Community-based Floodplain Management: Access and Justice Issues, The Daily Star, 21 May, 2011, , available at, http://www.thedailystar.net/newDesign/news-details.php?nid=186636

3 Carter, M.R. “Designing Land and Property Rights Reform for Poverty Alleviation and Food Security,” Land Reform (2003): 45- 57.

4 Supra Note, 1, p.5 5 For example: Community Based Fisheries Management projects. Supported by Ford Foundation, UK

DFID and IFAD, Established 107 CBOs in different types of water body, Ended in March 2007; Management of Aquatic Ecosystems through Community Husbandry project, Supported by USAID. Established 16 CBOs in three large wetlands, Ended in June 2007

6 http://www.moef.gov.bd/prsp_jan_2006.pdf7 The case story has been prepared by the Oxfam supported campaign group-CSRL8 Supra Note 1, page 19 The case story has been prepared by the Oxfam supported campaign group-CSRL10 Haor is a bowl-shaped depression between the natural levees of a river mostly found in the eastern region

of greater Sylhet and Mymenshingh districts (BCAS; 2006)11 Lowest part of the flood plain landscape, usually saucer shaped (BCAS; 2006)12 6th Five year plan FY 2011-201513 Writ Petition No 123/2004, filed by Bangladesh Environmental lawyers Association (BELA) 15 Article 18A was inserted by the Fifteenth Amendment, in 2011 16 M.C Mehta vs. Kamal Nath, WP 182/1996, India 17 Act No. XXVIII of 1951 18 Act No. XVI of 192719 Section, 3 of the Bangladesh Water Act, 2013 20 Section 2(15) of the SAT Act21 Policy for Distributing Khas Land Among the Landless 1987 , Article 15 22 Ibid, Article 9-1323 Ibid, Article 1724 The Policy 1987 define landless person as any family who have no homestead or agricultural land and

depend on agriculture; or any family who have homestead but no agricultural land and depend on agriculture; or any family who have homestead and agricultural land but the total amount of land is less than 0.50 akor (Article 41)

25 Ibid, Article 4326 Article 6527 Article 67-8928 Agriculture Khas Land Management and Settlement Policy 1997, Article 9.029 Act No. XVI of 192730 Ordinance No. XXXIV of 195931 Section 3: Power to reserve forests.–The State Government may constitute any forest-land or waste-land

which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.

32 Section 17: Any person who has made a claim under this Act, or any Forest-Officer or other person generally or specially empowered by the Government in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement- Officer under section 11, section 12, section 15 or section 16, present an appeal, from such order to the Divisional Commissioner concerned.

33 Sections 12-15, the Forest Act, 1927 34 Section 16, Ibid35 Section 29 (1), Protected forests: The Government] may, by notification in the official Gazette, declare the

provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary right, or to the whole or any part of the forest-produce to which the Government is entitled.

28 29

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

Community based management and co-management are widespread approaches practiced worldwide to improve the management of common natural resources. Bangladesh also has adopted these approaches in different projects implemented by the Government.

• CBOs are acting as the new alliances/actors to the natural resource governance regime in Bangladesh and community participation has created a new way of governance of resource management. This bottom up approach provides a new dimension to the governance of natural resources management in Bangladesh. However, any notion of CBO must be socially inclusive and must reflect the voices of poor and marginalized segments of society.

• Legal recognition of the community based approach and the co-management for the natural resource management is important to ensure a participatory, inclusive, and transparent system.

Taking into consideration the above observations, the following recommendations have been put forward for necessary actions to ensure increased access of the poor to common resources as well as the sustainable management of common resources:

• Amendments of the sectoral laws including Forest Act, Fisheries Act, Water Act, to include related provisions on access and participation of the community people.

• Review and amendments of the khas land management regulatory regime taking into account the different aspects of ensuring access of the poor and of the sustainable management of the common resources.

• Ensure legal recognition of the community based approach and the co-management with regards to the natural resource management through a specific legal framework.

• Amendment of the Environment Conservation Act, 1995 with the Constitutional spirit in order to address the access and participation rights of community people related to natural resource management.

• Amendments of the existing laws recognizing the community based management taking into account the comprehensive aspects of common resource management followed by adopting necessary Procedural Rules to facilitate proper implementation.

• Removal of the contradictions between and among the sectoral policies and legislations, improving the implementation mechanisms of policies and legislations and developing the capacity of implementing agencies.

• End notes

1 For example: Community Based Fisheries Management projects. Supported by Ford Foundation, UK DFID and IFAD, Established 107 CBOs in different types of water body, Ended in March 2007; Management of Aquatic Ecosystems through Community Husbandry project, Supported by USAID. Established 16 CBOs in three large wetlands, Ended in June 2007

2 Community-based Floodplain Management: Access and Justice Issues, The Daily Star, 21 May, 2011, , available at, http://www.thedailystar.net/newDesign/news-details.php?nid=186636

3 Carter, M.R. “Designing Land and Property Rights Reform for Poverty Alleviation and Food Security,” Land Reform (2003): 45- 57.

4 Supra Note, 1, p.5 5 For example: Community Based Fisheries Management projects. Supported by Ford Foundation, UK

DFID and IFAD, Established 107 CBOs in different types of water body, Ended in March 2007; Management of Aquatic Ecosystems through Community Husbandry project, Supported by USAID. Established 16 CBOs in three large wetlands, Ended in June 2007

6 http://www.moef.gov.bd/prsp_jan_2006.pdf7 The case story has been prepared by the Oxfam supported campaign group-CSRL8 Supra Note 1, page 19 The case story has been prepared by the Oxfam supported campaign group-CSRL10 Haor is a bowl-shaped depression between the natural levees of a river mostly found in the eastern region

of greater Sylhet and Mymenshingh districts (BCAS; 2006)11 Lowest part of the flood plain landscape, usually saucer shaped (BCAS; 2006)12 6th Five year plan FY 2011-201513 Writ Petition No 123/2004, filed by Bangladesh Environmental lawyers Association (BELA) 15 Article 18A was inserted by the Fifteenth Amendment, in 2011 16 M.C Mehta vs. Kamal Nath, WP 182/1996, India 17 Act No. XXVIII of 1951 18 Act No. XVI of 192719 Section, 3 of the Bangladesh Water Act, 2013 20 Section 2(15) of the SAT Act21 Policy for Distributing Khas Land Among the Landless 1987 , Article 15 22 Ibid, Article 9-1323 Ibid, Article 1724 The Policy 1987 define landless person as any family who have no homestead or agricultural land and

depend on agriculture; or any family who have homestead but no agricultural land and depend on agriculture; or any family who have homestead and agricultural land but the total amount of land is less than 0.50 akor (Article 41)

25 Ibid, Article 4326 Article 6527 Article 67-8928 Agriculture Khas Land Management and Settlement Policy 1997, Article 9.029 Act No. XVI of 192730 Ordinance No. XXXIV of 195931 Section 3: Power to reserve forests.–The State Government may constitute any forest-land or waste-land

which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.

32 Section 17: Any person who has made a claim under this Act, or any Forest-Officer or other person generally or specially empowered by the Government in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement- Officer under section 11, section 12, section 15 or section 16, present an appeal, from such order to the Divisional Commissioner concerned.

33 Sections 12-15, the Forest Act, 1927 34 Section 16, Ibid35 Section 29 (1), Protected forests: The Government] may, by notification in the official Gazette, declare the

provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary right, or to the whole or any part of the forest-produce to which the Government is entitled.

28 29

Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

36 Section 28: 1. The Government may assign to any village community the right of Government to or over any land that has been constituted reserved forest, and may cancel such assignment. All forest so assigned shall be called village-forest. 2. The Government may make rules for regulating the management of village-forests, prescribing the conditions under which the community to which any assignment is made may be provided with timber or other forest produce or pasture, and their duties for the protection and improvement of such forests. 3. All the provisions of this Act relating to reserved forest shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

37 28A. Social Forestry: - (1) On any land which is the property of the Government or over which the Government has the proprietary rights, and on any other land assigned to the Government by voluntary written agreement of the owner for the purpose of afforestation, conservation or management through social forestry, the Government may establish a social forestry programme under sub-section (2). (2) -A social Forestry programme is established when the Government, by one or more written agreements assigns rights to forest-produce or rights to use the land, for the purposes of social forestry, to persons assisting the Government in management of the land.

38 42. Rights to property: (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, sold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law(2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which or the manner in which, the compensation is to be assessed or paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.

39 Article 84 (1): All revenues received by the Government, all loans raised by the Government, and all moneys received by it in repayment of any loan, shall from part of one fund to be known as the Consolidated Fund.

40 23. Nation culture: The State shall adopt measures to conserve the cultural tradition and heritage of the people, and so to foster and improve the national language, literature and the arts that all sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture.

41 97. (1) The Government may from time to time, by notification, declare that the provisions of this section shall, in any district or local area, apply to such of the following aboriginal castes or tribes as may be specified in the notification, and that such castes or tribes shall be deemed to be aboriginals for the purposes of this section, and the publication of such notification shall be conclusive evidence that the provisions of this section have been duly applied to such castes or tribes, namely:-Santals, Bhuiyas, Bhumijes, Dalus, Garos, Gonds, Hadis, Hajangs, Hos, Kharias, Kharwars, Kochs (Dhaka Division), Koras, Maghs (Bakarganj District), Mal and Sauria Paharias, Maches, Mundas, Mundais, Oraons and Turis.

42 Land and land Law: Forest Legislation Needs to Reflect Human Values and Culture, Selected Writings of Mohiuddin Farooque, Environmental Order, The Security of Survival, BELA, 2004, Pp.185

43 Preamble, the Wildlife (Protection and Safety) Act, 201244 Ibid, Section 13 (3)45 Ibid, Section 16 (2) 46 Ibid, Section 2147 Abid, Section 2148 http://www.aippnet.org/home/daily-sharing/921-bangladesh-wildlife-act-passed-in-the-parliament-

indigenous-leaders-spark-into-reaction49 Act. No. XXVIII of 195050 Section 5 (2), of Bangladesh Water Development Board Act, 200051 Management of Natural Resources: Access and Justice Issues, BELA, 2002, p.752 Ordinance No. IX of 1977 53 Article 3 of the Haor Development Board Ordinance, 197754 Supra Note, 39, p.855 Sections 1 & 2 of the Fisheries Policy, 199856 Bengal Act XVIII of 195057 Ordinance No. XXXV of 198358 Section, 6.9 of the Fisheries Policy, 199859 Section 12.1 of the Fisheries Policy, 199860 Section 6.2 of the Fisheries Policy, 199861 Supra Note, 39 p.362 The East Bengal Act-XXVIII of 1951

63 Supra Note, 95, Pp.564 Section 187 and section 188 of the Land Management Manual, 1990 65 Section 2(a) of the Water Policy, 2009 66 Section 5(1) of the Water Policy, 200967 Preamble, the National Environment Policy, 199268 Abid, Section, 4.269 Abid, Section, 5.370 Act No 1 of 199571 Dr. Paul Thompson, Scaling up Community-based Co-Management of Wetlands and Fisheries in

Bangladesh, Policy Brief, MACH project, available at,http://www.nishorgo.org/tbltd/upload/pdf/0.9497 1 0 0 0 % 2 0 1 3 5 4 6 9 6 7 8 2 _ S c a l i n g % 2 0 u p % 2 0 C o m m u n i t y % 2 0 B a s e d % 2 0 C o -management%20of%20Wetlands.pdf

72 M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, Policy Brief, BELA May, 2011

73 Section 28: 1. The Government may assign to any village community the right of Government to or over any land that has been constituted reserved forest, and may cancel such assignment. All forest so assigned shall be called village-forest. 2. The Government may make rules for regulating the management of village-forests, prescribing the conditions under which the community to which any assignment is made may be provided with timber or other forest produce or pasture, and their duties for the protection and improvement of such forests. 3. All the provisions of this Act relating to reserved forest shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

74 National Biodiversity Strategy and Action Plan for Bangladesh, Ministry of Environment and Forest, Government of the People’s Republic of Bangladesh, 2004

75 Section 21of the Wildlife (Protection and Safety) Act, 201276 M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, an article

available at, http://www.thedailystar.net/newDesign/news-details.php?nid=18663677 Community-based Co-Management: A Solution to Wetland Degradation in Bangladesh, Policy Brief,

available at http://www.nishorgo.org/tbltd/upload/pdf/0.21456200%201357811949_Community %20Based-Policy%20Solution%20for%20Wetland%20Degradation.pdf, last access 16 July, 2013

78 http://www.nishorgo.org/index.php?id=4879 See the project description on: http://www.ashrayanpmo.gov.bd/

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POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

36 Section 28: 1. The Government may assign to any village community the right of Government to or over any land that has been constituted reserved forest, and may cancel such assignment. All forest so assigned shall be called village-forest. 2. The Government may make rules for regulating the management of village-forests, prescribing the conditions under which the community to which any assignment is made may be provided with timber or other forest produce or pasture, and their duties for the protection and improvement of such forests. 3. All the provisions of this Act relating to reserved forest shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

37 28A. Social Forestry: - (1) On any land which is the property of the Government or over which the Government has the proprietary rights, and on any other land assigned to the Government by voluntary written agreement of the owner for the purpose of afforestation, conservation or management through social forestry, the Government may establish a social forestry programme under sub-section (2). (2) -A social Forestry programme is established when the Government, by one or more written agreements assigns rights to forest-produce or rights to use the land, for the purposes of social forestry, to persons assisting the Government in management of the land.

38 42. Rights to property: (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, sold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law(2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which or the manner in which, the compensation is to be assessed or paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.

39 Article 84 (1): All revenues received by the Government, all loans raised by the Government, and all moneys received by it in repayment of any loan, shall from part of one fund to be known as the Consolidated Fund.

40 23. Nation culture: The State shall adopt measures to conserve the cultural tradition and heritage of the people, and so to foster and improve the national language, literature and the arts that all sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture.

41 97. (1) The Government may from time to time, by notification, declare that the provisions of this section shall, in any district or local area, apply to such of the following aboriginal castes or tribes as may be specified in the notification, and that such castes or tribes shall be deemed to be aboriginals for the purposes of this section, and the publication of such notification shall be conclusive evidence that the provisions of this section have been duly applied to such castes or tribes, namely:-Santals, Bhuiyas, Bhumijes, Dalus, Garos, Gonds, Hadis, Hajangs, Hos, Kharias, Kharwars, Kochs (Dhaka Division), Koras, Maghs (Bakarganj District), Mal and Sauria Paharias, Maches, Mundas, Mundais, Oraons and Turis.

42 Land and land Law: Forest Legislation Needs to Reflect Human Values and Culture, Selected Writings of Mohiuddin Farooque, Environmental Order, The Security of Survival, BELA, 2004, Pp.185

43 Preamble, the Wildlife (Protection and Safety) Act, 201244 Ibid, Section 13 (3)45 Ibid, Section 16 (2) 46 Ibid, Section 2147 Abid, Section 2148 http://www.aippnet.org/home/daily-sharing/921-bangladesh-wildlife-act-passed-in-the-parliament-

indigenous-leaders-spark-into-reaction49 Act. No. XXVIII of 195050 Section 5 (2), of Bangladesh Water Development Board Act, 200051 Management of Natural Resources: Access and Justice Issues, BELA, 2002, p.752 Ordinance No. IX of 1977 53 Article 3 of the Haor Development Board Ordinance, 197754 Supra Note, 39, p.855 Sections 1 & 2 of the Fisheries Policy, 199856 Bengal Act XVIII of 195057 Ordinance No. XXXV of 198358 Section, 6.9 of the Fisheries Policy, 199859 Section 12.1 of the Fisheries Policy, 199860 Section 6.2 of the Fisheries Policy, 199861 Supra Note, 39 p.362 The East Bengal Act-XXVIII of 1951

63 Supra Note, 95, Pp.564 Section 187 and section 188 of the Land Management Manual, 1990 65 Section 2(a) of the Water Policy, 2009 66 Section 5(1) of the Water Policy, 200967 Preamble, the National Environment Policy, 199268 Abid, Section, 4.269 Abid, Section, 5.370 Act No 1 of 199571 Dr. Paul Thompson, Scaling up Community-based Co-Management of Wetlands and Fisheries in

Bangladesh, Policy Brief, MACH project, available at,http://www.nishorgo.org/tbltd/upload/pdf/0.9497 1 0 0 0 % 2 0 1 3 5 4 6 9 6 7 8 2 _ S c a l i n g % 2 0 u p % 2 0 C o m m u n i t y % 2 0 B a s e d % 2 0 C o -management%20of%20Wetlands.pdf

72 M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, Policy Brief, BELA May, 2011

73 Section 28: 1. The Government may assign to any village community the right of Government to or over any land that has been constituted reserved forest, and may cancel such assignment. All forest so assigned shall be called village-forest. 2. The Government may make rules for regulating the management of village-forests, prescribing the conditions under which the community to which any assignment is made may be provided with timber or other forest produce or pasture, and their duties for the protection and improvement of such forests. 3. All the provisions of this Act relating to reserved forest shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

74 National Biodiversity Strategy and Action Plan for Bangladesh, Ministry of Environment and Forest, Government of the People’s Republic of Bangladesh, 2004

75 Section 21of the Wildlife (Protection and Safety) Act, 201276 M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, an article

available at, http://www.thedailystar.net/newDesign/news-details.php?nid=18663677 Community-based Co-Management: A Solution to Wetland Degradation in Bangladesh, Policy Brief,

available at http://www.nishorgo.org/tbltd/upload/pdf/0.21456200%201357811949_Community %20Based-Policy%20Solution%20for%20Wetland%20Degradation.pdf, last access 16 July, 2013

78 http://www.nishorgo.org/index.php?id=4879 See the project description on: http://www.ashrayanpmo.gov.bd/

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Briefing PaperSTRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE

POOR AND VULNERABLE PEOPLE’S ACCESS TO COMMON RESOURCES

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