The proposed 'Bangladesh Land Act 2020' has stirred a good many quarters of thinkers. However, what has not come to much focus is the issue of land rights of the indigenous people. For generations, the indigenous people are fighting for their ancestors' lands which have been systematically taken away either for settling outsiders or for realising various government projects. It is high time their rights be recognised and implemented in and through domestic laws.
Article 6(2) of the Bangladesh Constitution provides that, 'The people of Bangladesh shall be known as Bangalees as a nation and the citizens of Bangladesh shall be known as Bangladeshis'. This provision masks indigenous people's identities with a majoritarian identity: both in terms of nationality and citizenship. Article 23A, articulates that 'it should be the policy of the state to take step to protect and develop unique local culture and tradition of the tribes, minor races, ethnic sects and communities.' However, without preserving the economic, political, educational and land rights it seems next to impossible to protect the cultural rights of the indigenous people.
The proposed Land Act in Section 112 (5) provides that no land owned by indigenous community should be taken over unless for the development and protection of them and their environment. On the other hand, Section 111 deals with the regular provision of acquisition in case of public interest subject to the approval of the District Commissioner. If any party feels aggrieved by such decision, (s)he has to file objection against such application to the district commissioner under section 118. An authority who is supposed to give the permission for acquisition, is assigned to adjudicate upon complaint on the same issue. It strikes at the very root of the basic principles of natural justice.
The lifestyle of the indigenous people is unique; because they tend to have a very close connection with and because they depend on their surrounding nature, lands, forests and swamps for their living. Though Section 112(5) gives protection to the lands recorded in their names (apparently their homestead and immovable properties owned by them), it does not guarantee protection from changes in surrounding areas' forests, and lands by privatisation, commercialisation and other projects. But the obligation not to dismantle or bring any structural changes in these areas is well recognised under international law such as ILO Convention No. 107, United Nation's Declaration on the Rights of Indigenous People etc. If such areas be selected for acquisition under section 111, their life, culture, habitat and livelihood will be subjected to serious threat. And if so happens, for the impropriety of section 118, they will remain incompetent to get any remedy. In this regard, we cannot conclude that if the proposed land act comes into force, the section 112 (5) shall be enough to safeguard the interest of the indigenous community. The root of the problem lies in the lack of inclusivity of the indigenous community in proper legal and administrative forums. It is evident from numerous case studies that though there are provisions for compensation and settling issues regarding land acquisition of indigenous communities, those have merely been followed.
Under Chittagong Hill Tracts Treaty of 1997, no khas land or tenancy of hill tracts can be subjected to disposal, transfer or lease without the prior permission of the regional district councils. However, the reality is that the regional district councils representing the indigenous communities have not yet been entrusted with the responsibility of land administration, general administration, law and order, and local policing according to the CHT Accord of 1997. All these functions are regulated by and under the authority of the local district Commissioner. Fewer provisions of the Peace Treaty have been implemented till date. In this context, if the proposed Land Act comes into force consigning all powers to the District Commissioner and the Settlement Officer, the council's provision would become meaningless.
In this backdrop, a comprehensive legislation on protecting the rights of the indigenous people needs to be enacted. Additionally, Peace treaty of 1997 needs to be properly implemented. To enforce the Peace Treaty in the fullest sense, land administration of hill tract areas and other local administrative responsibilities should be assigned to the CHT district councils. All the Hill tract Regional Councils (Bandarban, Rangamati, Khagracgari) should include the local tribal groups therein according to the Act. All the government projects in CHT areas should be initiated after consulting with the indigenous communities. There should be special allocation for the advancement of the indigenous community in the national budget.
The writer is LL.M. student at the University of Dhaka.