Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asianot expressly overruled. Tens of thousands of acres were granted tooutsiders in the 1970s and 80s, either for the establishment of commercialplantations and industries, 17 or to re-settle an estimated 450,000 ethnicBengali settlers in the region. 18 In both cases, the customary land rights ofindigenous communities were wantonly violated, including by bypassingthe headmen and chiefs in the settlement and lease-granting process. 19Land grant authority is vested upon the senior-most district-level civiladministration official known as the Deputy Commissioner (“DC”) underthe supervision of higher officials. However, the traditional headmen havethe authority to formally grant homestead land to indigenous residents, toadvise the DC on land title grants and transfers, and to allot lands for use forswidden or ‘shifting’ cultivation or other customary use, in a semiformalisedmanner. Likewise, the DC is obliged to consult the chiefs on“important matters affecting the administration of the CHT”, which was notdone in this case. 20Land administration and management by the mauza headmen and the HillDistrict CouncilsThe aforesaid system of land administration is expressly provided for in theconcerned laws, or sanctioned through long-standing administrativepractices, while others are exercised on the basis of customary law, beingimplicitly recognised by the CHT Regulation of 1900. 21 Thus there areoverlapping layers of concurrent authority, one based upon mainstreamconcepts of land ownership (as exercised by the DC) and another basedupon traditional customs, some of which have been formalised by statuteand exercised under the supervision of the village karbaries, mauzaheadmen and circle chiefs. To the aforesaid two layers of landadministration authorities – the bureaucratic and the traditional – has been17 Roy 2002:3118 Roy 1997:169-173; Roy 2002:29,3019 Roy 2002; Roy 201020 Rule 39, CHT Regulation 1900.21 Roy 2004b:21,62-66111
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaadded a third authority, namely, the three hill district councils, under thesupervision of the CHT Regional Council. 22 The concerned laws – thealmost identical Hill District Councils Acts of 1989 [at section 64(1)(a)]provide that, “notwithstanding anything contained in any law for the timebeing in force- (a) no land including the khas land suitable for settlementwithin the jurisdiction of Rangamati Hill District shall be leased out, settledwith, purchased, sold out or transferred otherwise without the priorapproval of the Council”. Similarly, “no land, hills and forests under thecontrol and jurisdiction of the Council shall be acquired withoutconsultation with and the consent of, the Council”. 23Formal land grants by the DCs have been suspended since 1989, except inthe case of religious or educational institutions. 24 On certain occasions, DCshave instructed the traditional headmen to refrain from processing landgrant applications. However, the practice of customary use of land, whetherfor swidden cultivation, or for use of produce from forests (other thanformally classified ‘reserved forests’) or in other such ways, continues,although frowned upon and discouraged by district non-indigenousfunctionaries. Surveys of lands have not been conducted in most parts of theCHT, barring some market centres and townships.Therefore, the only officials who have detailed knowledge about untitledland – which form the bulk of the CHT – are the headmen, and theirdeputies, the karbaries. This is one of the prime reasons – not having landsurvey records - for which the alienation of further community land hasbeen prevented by the refusal of the traditional leaders to assist outsiders in22 The posts of chairperson, and two-thirds of the members of the aforesaid councils,are reserved by law for “tribals”. The district-level councils were introduced in1989, with their powers being strengthened in 1998, through legal amendmentsfollowing the signing of the CHT Accord of 1997, otherwise known as the “peaceaccord”.23 Section 64(1)(b), Rangamati Hill District Council Act, 1989 (as amended in1998). Identical provisions are contained in the Khagrachari and Bandarban HillDistrict Council Acts of 1989 (as amended in 1998).24 Executive orders of the Ministry of CHT Affairs, Government of Bangladesh.112
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