1. (Land & Labour Specialists)
Ten Questions Around the Land Issue in Nepal A presentation to Constituent Assembly Members
L. Alden Wily, S. Sharma &
D. Chapagain
(Land & Labour Specialists)
February 17, 2009

2. 10 Questions ... Why is land an important issue in modern Nepal?
What is the core land issue in Nepal?
What are the problems around land today?
Weren’t these supposed to have been solved through the land reforms?
Why have reforms so far failed?
Is there anything to learn from land reform globally?
Should land be a constitutional subject?
What does the current constitution say about land?
What other matters might be usefully embedded in the new constitution?
What land questions could be put to constituents?

3. 1. Why is land an important issue in modern Nepal?
1. A KEY FACTOR IN CONFLICT PAST & PRESENT
Grievances over land clearly a factor in conflict. Of more concern, history shows us that failure to tackle these after civil wars is a main reason why people return to war.
2. LAND IS THE CORE CAPITAL ASSET IN AGRICULTURALLY-BASED STATES
Nepal is an agrarian economy - the majority depend upon farming to live, not salaries. Even with urbanisation this will remain the case. Urbanization usually brings the same inequities and challenges into the urban property sphere.
SECURE SHELTER & SECURE ACCESS TO FARMLAND IN RURAL AREAS ARE BASIC HUMAN RIGHTS
STABLE ECONOMIC TRANSFORMATION DEPENDS UPON ‘FAIR’ LAND RELATIONS
With rising food security demands fair access to land becomes yet more important
LANDLESSNESS & HOMELESSNESS ARE KEY FACTORS IN POVERTY & OTHER DISADVANTAGES

4. 2. What is the core land issue?
The fundamental land issues is always about OWNERSHIP.
The issue is structured around class, caste and ethnicity.
It is also structured between people and the State. Governments in the 20th century often captured many important resources which more rightfully belong to local communities.
Who owns the land is a main determinant of -
Who controls the land, makes decisions about land access & rights
How land is used
How benefits are distributed: crop shares, income, livelihood, forest , pasture & water use
How labour is valued
How far rural majorities may move out of poverty – owning a house and farm is a key route towards upward economic mobility
How quickly disadvantages of caste, class, gender & ethnicity are overcome

5. 3. What are the key land problems around land tenure today?
1. Shortage of farmland: intensification is key
2. Continuing significant landlessness and land poverty (sub-optimal plots for the majority)
3. Insufficient security, benefit, rights, or incentives for tillers
4. Deep insecurity in the sector as a whole helping to create agricultural stagnation
5. Idle lands, low investment & incentives
6. Low adherence to land laws - no enforcement, contributing to weak rule of law

6. Continued ...
Lack of basic infrastructural support in the farming sector: roads, irrigation & electricity
8. Founding inequities & issues remain ignored – such as –
The effects of colonisation policies in plains and remote areas
The suppression of customary land rights held by indigenous groups, especially as relating to forest resources
Land distribution has become a Party football even though at one time or another most parties have supported redistribution to encourage stable owner-based smallholder farming and know that insecure tenancy is damaging production
Lack of cheap credit for especially poor farmers; indebtedness is a major factor in holding back agriculture

7. Continued ...
11. Remote and at times corrupt land registration & court redress
12. An estimated two thirds tenants remain unregistered and insecure as to rights and most registered tenants do not yet have their land share
13. An estimated third of owners do not have registered entitlement for their small farms – mainly the poorest farmers
14. The basis for recognising what constitutes ownership is out-dated such as failure to understand collective rights as a private property right (affects communities and especially indigenous groups)
15.The system of making decisions is centralised and beyond the control of landholders themselves; leads to undemocratic land governance

8. 4. Weren’t these problems supposed to be solved by land reforms?
YES – State-driven land reform since 1951 in four phases –
1950s – mainly about privatisation & registration
1960s – redistribution on the agenda
1990s – new, firmer phase of redistribution
2000s - focus on the bonded labourers
BUT MORE TALK THAN IMPLEMENTATION
SOME SUCCESSES – for example
2,000 ha to ex-Khamaiya – but > 100,000 waiting
Removed intermediaries – but did not return power to tillers
Abolished bonded labour systems – but not enforced
Registered tenants – but only 1/3 and less got land in hand
Established minimum wage – but not enforced
Incentives for female land registration – but probably taken up mainly to conceal size of holdings
Supreme Court ruling that redistribution is in the public interest
1950s: modernisation and nationalisation
: agrarian reform but weak implementation
1990s: new boost with democratisation but poor/slow uptake
2006+: scientific land reform but no real delivery other than waiver debts; all talk
SOME SUCCESSES: abolition intermediaries, partial registration tenants, abolition bonded labourer, recent female registration, minimum farming wage
BUT MANY FAILURES:
Distribution still skewed, real distribution hidden,

9. Overall little delivery on land reforms - for example
Redistribution still skewed with high rates landlessness and land poverty
Credit systems failed – poor can’t become competitive farmers in their own right
Little public investment in needed supports -roads, irrigation, electricity, etc. Better on marketing
Guthi lands still a haven for tax and exploitation
Ceilings avoided and lowered ceilings not enforced and minimal real redistribution of identified lands
Half-hearted tenancy reforms led to more insecurity, evictions and exploitation of labour
Reforms not structured in a way which forces or assists landlords to remove their capital into off-farm or light industrial investments; instead keep their rural lands idle and continue to speculate on land

10. 5. Why has there been failure?
Main driver was to modernise private landholding, not redistribution
Limited effort to break the feudal alliance between bureaucracy & landlords
Weak on essential credit provision for poor
Although eventually focused on the most deprived, never redistributed with the majority in mind – i.e. The 47.7% rural households with less than 0.5 ha of land, the backbone of agricultural production
Did not back up redistribution with infrastructure and systems reforms
Did not pay compensation in forms which would force landlords to become capitalist entrepreneurs; still profitable to leave lands idle
Failed to engage public as implementers and monitors
Focused only on the landlord-tenant issue, not state-people issues or the truly landless (recently took up the latter)
Failed to reform the system of recognising who owns land; discriminated against traditional tenure systems, increasing grievance and awkward solutions which now are doubly hard to remedy in especially the Terai
All the above driven by – weak political will for reform

11. 6. Is there anything to learn from land reforms globally?
Sooner or later all post-feudal and post-colonial states have to reform systems of land ownership. Boosting agricultural production without attending to land ownership is usually self-defeating
Land grievances do NOT go away with modernization: they have to be faced, tackled and resolved. Equity and ‘fairness’ do matter in property relations and therefore in stable agrarian economies.
Two focal issues in 55+ land reforms around the world -
equitable farmland distribution in especially feudal economies
recognising indigenous/customary rights in feudal and colonised societies (internal or external colonisation)
Land reform is NOT the preserve of communist regimes: some of the most successful redistributions have been driven by western capitalism (e.g. Taiwan, Japan, South Korea)

12. 5. Large scale farming is NOT superior to smallholder production in labour surplus economies; more important is owner-based security and removal of land ownership grievances
6. Market-assisted redistribution (promoted especially in 1990s) has on the whole failed to be the answer
7. Redistribution does NOT automatically result in economic advancement. Supporting investment in agriculture required along with credit for new farmers, and giving landlords compensation in the form of shares in privatising state enterprise or credit to start off-farm businesses
8. Reforms which focus only on mapping and registration development can make inequities worse if they rely on existing records which exclude half legitimate land holders

13. With global democratisation, land reforms are having to turn away from militant coercion as the instrument to -
more devolved and localised programmes, and related
building majority public will to drive and sustain reforms
10. Everywhere land reform is widening its scope beyond the farm, taking in –
urban and peri-urban land rights & management
public land issues – who owns the forests the pastures?
governance issues - where best to locate control ?
customary land rights issues – how to regard claims?

14. 7. Should land be a constitutional subject?
Some considerations –
Lack of clear agreement as to basic principles and national strategies are creating uncertainty as to rights, civil strife and help to keep agriculture stagnant
Land issues are fundamental in agrarian states and requires determination of fundamental principles by the nation’s community
Without constitutional pledges land ownership principles can become a political football among parties and never get resolved or can lead to fears that a new government will change everything all over again
Land is already a constitutional matter but scattered under various articles and not always clear in implication

15. 8. What does the current Constitution say on land?
Eight specific provisions and at least 7 other provisions with implications for land ownership
KEY PROVISIONS -
Cannot take property except for public interest and will pay compensation when taken for redistribution
Sons & daughters have equal right to inherit property
State is obliged to set a common minimum programme for ridding Nepal of feudalism – has begun to do so
Special assistance including land will be given to freed bonded labourers, landless squatters, and other disadvantaged groups including Dalits, indigenous nationalities, Madhesi & Muslims

16. 9. What land matters might usefully be in the Constitution?
1. LAND RIGHTS
e.g. The basic land rights of all citizens and non-citizens, protection of private rights, and the basis upon which a property right is recognised
e.g. The special assistance that will be applied to enable women, Dalits and other disadvantaged groups to secure their land rights
e.g. Including clarifying the basis upon which private property is recognised to ensure that even though unregistered, the long occupancy and land use of holders is recognised as property rights
2. PRINCIPLES OF LAND HOLDING IN NEPAL
e.g. The basic land policy of the nation such as forbidding land hoarding for speculation, imposition of development conditions to prevent idle lands, the right to impose ceilings and the process through which that will occur
e.g. Exactly what scientific land reform means and any changes in land rights that may occur as a result

17. 3. CLASSES OF LAND HOLDING & ENTITLEMENTS
e.g. Providing for national, government, private and community lands
e.g. Providing for family and collective ownership, not just individual ownership
e.g. The position of customary land rights; including for example the procedure through which relevant public land areas may be secured by those communities as their collective property
4. LAND ADMINISTRATION
e.g. General principle of democratic land governance, leading logically to –
Making land administration a federal responsibility
Establishing federal land commissions for overall policy and implementation, within the parameters of national constitutional principles and pledges
Vesting authority in most local level possible – e.g. Empowering each VDC to have authority and responsibility to ensure equitable land ownership relations, within boundaries of fair, accountable procedures and practices
OWNERSHIP OF NATURAL RESOURCES
e.g. Recognition that resources can be conserved by people and also owned by people and subject to conservation regulation

18. 10. What land questions might be useful to ask constituents?
1. Where should responsibility for land administration be located? Do local people believe they could take on responsibility for reforming land relations within their respective areas, and in a fair and inclusive manner? What kind of issues would they focus on and what kind of national guidelines would they expect?
2. What are their own views as to what is needed for the majority small farmers and landless to mobilise agricultural production?
3. How can overlapping property rights of indigenous groups and others be resolved at the local level?
4. Would having explicit commitments in the Constitution on land rights make difference to local realities? What accountability linkage is needed?