Climate risk of Nepal's hydropower project: seeking right to free, prior, informed consent

By Vaishnavi Varadarajan* 
Biba Devi Thapa Magar, an 83-year-old elder woman from the Magar Indigenous community at Rishing Paltyang in Tanahu district, shares how the land her community has lived on is sacred. Her ancestors were cremated here. Worrying about the future where she and her family may be displaced from their lands by the Tanahu Hydropower project, she breaks down into tears and asks “Where will my corpse be cremated? What will our children get?”
Indigenous and Dalit communities in Tanahu have been confronting the reality of being displaced from their lands since 2013, when they found out that their lands are going to be inundated by the Tanahu Hydropower Project. They are at risk of not only losing their land, but also their identity, culture, and way of life, which are intrinsically and inextricably connected to the land and natural resources.
Indigenous communities in Tanahu mostly belong to the Magar group, the largest group of indigenous peoples in Nepal. They are among the first settlers and cultivators in the region and have been preserving their culture and traditions across generations. The project has threatened to displace them from their agricultural lands where they grow rice, maize, and other crops, their grazing lands where they graze their animals, their forests where they get their firewood and collect wild vegetables and herbs, and also their ceremonial lands where they worship their gods and ancestors. With the loss of their lands, they fear they will not be able to pass on their knowledge to future generations.
In addition, the Dalit community has been historically marginalised by the hierarchical caste system followed by Hinduism and have been one of the most vulnerable groups in Nepal. They already face discrimination due to their caste identity and if the project leaves them landless tomorrow, they may face double oppression.

False climate solution

The Tanahu Hydropower Project is being developed by Tanahu Hydropower Limited (THL), a subsidiary of Nepal Electricity Authority. The Project is co-financed by multiple international financial institutions, including the Asian Development Bank (ADB), the European Investment Bank (EIB), Japanese International Cooperation Agency (JICA), and KfW Development Bank. The Project will construct a 140m high concrete gravity dam with a crest length of 215m on the Seti River, which will create a reservoir 18 km long along the river with a surface area of 7.26 km.
The construction of the Project has been contracted to a Chinese state-owned entity Sino Hydro Corporation and Song Da-Kalika JV which is a joint venture between a Vietnamese construction company, Song Da Corporation and Nepal’s Kalika group.
According to the latest Environment Monitoring Report shared by the company in January 2022, the physical civil pre-construction activities such as building access roads, drainage channels, etc. have been completed and the construction of the hydropower project and transmission lines are underway.
Large hydropower projects have caused adverse impacts on indigenous and rural communities all over the world and have immense climate risks yet development banks continue to promote hydropower as a false climate solution. The investments in the Tanahu Hydropower Project have been justified by the European Investment Bank and Asian Development Bank as a renewable energy project and a solution to the energy crisis in Nepal.

Community grievances

Affected communities that have been experiencing the harmful impacts of the Tanahu Hydropower Project on their land, resources, and livelihoods demand that such development should happen with meaningful consultations, adequate compensation, and equitable energy justice.
The Magar and Dalit communities affected by the hydropower project have filed multiple complaints since 2018 with the independent accountability mechanisms of the Asian Development Bank and the European Investment Bank, namely the Office of the Special Project Facilitator (OSPF) and European Investments-Complaint Mechanism (EIB-CM), respectively. Throughout the complaint processes, they have been supported by NGO advisors from various civil society organizations including Community Empowerment and Social Justice Network (CEMSOJ), Indigenous Women’s Legal Awareness Group (INWOLAG), International Accountability Project (IAP), and NGO Forum on ADB.

Sand mining along Seti river bank makes land uncultivable

With their complaints, they have asserted their right to free, prior and informed consent (FPIC) and for land-for-land compensation, among other demands such as benefit sharing and alternative environment and socio-cultural assessments to be conducted. They have been participating in the dispute resolution facilitated by the independent accountability mechanisms in the hope that they will be involved in the decision-making process and will be adequately compensated for the loss of their ancestral land and resources.
Filing complaints with the independent accountability mechanisms of the Asian Development Bank and the European Investment Bank has been a time-consuming and tiring experience for the communities as they navigate through the complex and often inaccessible procedures of the mechanisms of two different banks.
The number of complainants that have filed grievances against the Tanahu Hydropower project has been increasing as more community members find their land and livelihoods impacted by the construction of the project. 

Initially, there were 32 families from the Magar indigenous community belonging to Palytang and Rishing Patan, who organized themselves within a collective called ‘Directly Inundation Affected Peoples Collective Rights Protection Committee’ and filed a complaint with the Office of Special Project Facilitator (OSPF) -- which conducts dispute resolution -- in August 2018 and also filed a complaint with the EIB-CM in February 2020. 

Later, there were new complainants from the Magar (15 families), Newar (1 family), and also from the Dalit community (10 families) who live on or have their lands next to the inundation area in Wantangitaar and Jalbire Khet. 

They found themselves threatened by the reservoir but they were not considered as affected and were not consulted for the studies and assessments conducted by the project promoter such as the Environment Impact Assessment and Resettlement and Indigenous Peoples Plan. These new complainants filed a separate complaint to the ADB’s Accountability Mechanism in February 2021 and a complaint with the EIB’s Complaint Mechanism in June 2021.
With the complaints filed to OSFP, both the set of complainants faced obstacles with meeting the eligibility criteria as they were deemed ineligible due to a lack of good faith effort with the ADB management to resolve their grievances. The initial complainants then wrote to the ADB management and the company and filed another complaint with the OSPF which was accepted in February 2020. The complaint filed by the new complainants was forwarded to the ABD management who have been conducting a separate assessment of the case.
While both the complaints faced delays due to COVID-19, the construction of the project continued amidst the pandemic. During this time, the increase in online meetings with the independent accountability mechanisms also made participation challenging for the complainants due to technical difficulties and translation issues. 

However, with the support of the NGO advisors, the complainants received digital training and participated actively online. Once the restrictions of COVID travel eased, the OSPF, the ADB, and the EIB-CM organized missions from December 2021 to February 2022 to the site to meet with the community in person and understand their issues and demands.

Magar community leader Til Bahadur showing sand mining

As of now, the OSPF has been conducting the problem-solving process for the initial complainants after a two-year-long assessment, which included a land valuation and socio-cultural assessment by independent evaluators. Parallelly, the EIB-CM is also conducting a joint collaborative resolution process for the two complaints filed by the new complainants with them.

Challenges faced by complainants

The complainants have regularly communicated to the company and independent accountability mechanisms that for their Free, Prior and Informed Consent (FPIC) to be respected, information has to be given in advance and has to be translated in their local languages, Nepali and Magar so that they can understand the information and participate effectively. However they found that FPIC was not always complied with as they often received communication about field missions and meetings at the last minute or were not properly consulted. 

The initial complainants had earlier raised concerns about the appointment of the land evaluator by the OSPF, who was chosen without their consent, and that there was minimal community participation in the process of land valuation. While the OSPF and the EIB-CM claim to uphold FPIC, the complainants feel they have had to reiterate their protocols for consultation and self-determination according to FPIC at each stage of the complaint process.
The complainants also do not feel confident that Tanahu Hydropower Limited is willing to proceed with land-based compensation. “In their communications till now, the company has dismissed their demand for land for land and requested them to consider cash-based compensation, which according to them is more compliant with the legal procedures in Nepal,” said Prabindra Shakya of CEMSOJ. “In doing so, the company has ignored their obligations to comply with the Safeguards of the ADB and the EIB.”
A cash-based compensation however would not be enough for communities to buy land, restore their living conditions, and preserve their cultural identity. “It has been almost five years and THL and the government have not given us proper attention. The price of land has spiked. We cannot buy land in other areas with the compensation they are offering”, said Tej Bahadur, a complainant from the Magar community. Complainants have also been demanding that the company comply with the ADB’s Safeguard Policy Statement and the EIB’s Environment and Social Standards, which give priority to land-based compensation in cases of involuntary resettlement.

The new complainants are further distressed as the determination of the buffer zone (i.e the land next to the river, which the dam will inundate) has not yet been initiated so as to confirm if they are considered as project-affected. Through their complaints, they have demanded an immediate definition of the buffer zone of the inundation area which has been continuously delayed by the company and they fear if they will even be provided with their due compensation.
Over the past five years, the affected communities along the inundation area of the project have been prone to more climate-induced disasters with increased landslides in the area. Since 2019, there has also been extraction of sand and stone from the riverbanks in the inundation area; which has been growing progressively. These extraction activities have been an environmental hazard as they have led to the pollution of the river water and deterioration of the agricultural lands of the communities located next to the river. 

Magar, Dalit community leaders

The communities living in this area complain of regular dust and noise pollution from the extraction site. Community leaders who opposed or spoke out against the extraction activities have also faced intimidation and received threats. “According to an interim order passed by the Supreme court of Nepal last year, sand mining activities were to be stopped in the seven provinces of Nepal but still sand mining has continued here” said Advocate Indira Shreesh from INWOLAG.
Affected communities have been addressing their concerns about sand mining and the climate risks they have been facing since the project construction began. The company however has denied that these climate risks are linked to the project and neither has there been any proper climate impact assessment conducted.
The project being constructed without affected communities being rehabilitated and consulted properly has intensified the violations faced by the complainants as they engage with the independent accountability mechanisms. In light of the multiple challenges and risks that local Indigenous and Dalit communities have been facing, the complainants are now raising the demand that the project construction be stopped until their grievances are adequately addressed.

Ongoing struggle, solidarity

As the complainants received communication about the dispute resolution meetings by the independent accountability mechanisms of the ADB and the EIB, they requested the NGO advisors for a capacity-building training. From 5th to 7th July 2022, INWOLAG, CEMSOJ, and IAP co-organized a community training program in Bhimad municipality, supported by the Community Resource Exchange.

The training created a space for the complainants to come together and share about the success and challenges they have faced in their long struggle and collectively mobilize for the next steps. Various interactive activities and in-depth sessions were conducted to strengthen their understanding of accountability mechanisms and reinforce their demands in the dispute resolution process.
Magar and Dalit affected communities in Tanahu continue to strongly raise their demands for land-based compensation and free, prior, and informed consent, by asserting the rights provided to them in the safeguard policies of the ADB and the EIB, as well as international human rights instruments such as the UN Declaration on the Rights of Indigenous People and the ILO Convention 169. Their struggle reminds us that for the energy transition to be just and sustainable, it has to be centered on development that is led by communities. It is time that the investors, contractors, and promoters of the project also recognise this, by respecting their rights and putting people and ecosystems before profit.
---
*Community organizer for South Asia in the International Accountability Project. To learn more about the community-led response in Tanahu, you can read this detailed timeline compiled by CEMSOJ and watch this moving documentary ‘Land Older than the Government’ produced by INWOLAG. A version of this article was first published in accountability.medium.com