Briefing Paper: Strong Legal and Policy Measures Can Substantially Promote Poor and Vulnerable People's Access To Common Resources

STRONG LEGAL AND POLICY MEASURES CAN
SUBSTANTIALLY PROMOTE POOR AND VULNERABLE

PEOPLES ACCESS TO COMMON RESOURCES
BRIEFING PAPER
BRIEFING PAPER
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 PAPER
Strong Legal and Policy Measures Can Substantially Promote
Poor and Vulnerable Peoples 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 on
March 2014
Cover Photo
Nazim Ahmed
Design & Printed by
ARKA
Oxfam in Bangladesh
House 4, Road 3, Block I
Banani, Dhaka 1213, Bangladesh
Phone: +880 8813607-9, 8824440
Fax: +880 8817402
www.oxfam.org/bangladesh
http://growbd.worldpress.com
http://twitter.com/growbangladesh
http://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 PAPER
Strong Legal and Policy Measures Can Substantially Promote
Poor and Vulnerable Peoples 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 on
March 2014
Cover Photo
Nazim Ahmed
Design & Printed by
ARKA
Oxfam in Bangladesh
House 4, Road 3, Block I
Banani, Dhaka 1213, Bangladesh
Phone: +880 8813607-9, 8824440
Fax: +880 8817402
www.oxfam.org/bangladesh
http://growbd.worldpress.com
http://twitter.com/growbangladesh
http://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 Paper
STRONG LEGAL AND POLICY MEASURES CAN SUBSTANTIALLY PROMOTE
POOR AND VULNERABLE PEOPLES ACCESS TO COMMON RESOURCES
SUMMARY
Natural resources support the livelihoods of Bangladeshs 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-
1
management resource management projects implemented previously in
2
Bangladesh. In response to such governance challenge of common resources
management, it is also essential to reform the regulatory regime of common
3
resources.
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 countrys 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
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;
approaches worldwide to improving the management of common natural
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 Paper
SUMMARY
Natural resources support the livelihoods of Bangladeshs 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-
1
management resource management projects implemented previously in
2
Bangladesh. In response to such governance challenge of common resources
management, it is also essential to reform the regulatory regime of common
3
resources.
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 countrys natural resources as common
property resources;
04 05
1 INTRODUCTION
The livelihoods of Bangladeshs rural poor comprising an overwhelming majority of the
population are sustained by the countrys 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
4
pool 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
5
implemented 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
peoples 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 Paper
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 Bangladeshs rural poor comprising an overwhelming majority of the
population are sustained by the countrys 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
4
pool 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
5
implemented 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
peoples 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 Paper
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 peoples access to common resources.
08
Briefing Paper
09
7
Box 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 dont 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
dont 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 Challenges
The 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
6
people 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.
9
Box 2: Occupying Borodoi beel
10
Haor 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
11
consists 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
12
is 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 peoples 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 Fishermens 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 Fishermens Cooperative Association had
come to an end, the influential group backing the association didnt 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
8
resource dependant mass in a sustainable manner.
Briefing Paper
9
Box 2: Occupying Borodoi beel
10
Haor 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
11
consists 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
12
is 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 peoples 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 Fishermens 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 Fishermens Cooperative Association had
come to an end, the influential group backing the association didnt 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
8
resource dependant mass in a sustainable manner.
Briefing Paper
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
15
present 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
16
resources .
According to the core sections (Sections 3,20 and 44) of the State Acquisition and
17
Tenancy 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.
18
In 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
19
territory 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
13
pending final hearing.
Climate change and natural disasters coupled with social disasters are additional
hurdles that restrict poor peoples 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.
14
Article 16 places special emphasis on the development of rural communities .
Regulatory Regime of Natural Resources: Context of Access
to Common Resource
Briefing Paper
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
15
present 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
16
resources .
According to the core sections (Sections 3,20 and 44) of the State Acquisition and
17
Tenancy 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.
18
In 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
19
territory 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
13
pending final hearing.
Climate change and natural disasters coupled with social disasters are additional
hurdles that restrict poor peoples 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.
14
Article 16 places special emphasis on the development of rural communities .
Regulatory Regime of Natural Resources: Context of Access
to Common Resource
Briefing Paper
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
20
adjuncts 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
21
institution 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.
22
The committee consists of GoB officials without any representation of the civil society .
23
The 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 persons land for work;
ii. Family of martyr or wounded freedom fighter which has an able male member
involved in agricultural work on leased land;
25
iii. 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
26
objection .
The policy provides necessary direction in conducting the selection process so as to
27
avoid 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 Paper
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
20
adjuncts 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
21
institution 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.
22
The committee consists of GoB officials without any representation of the civil society .
23
The 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 persons land for work;
ii. Family of martyr or wounded freedom fighter which has an able male member
involved in agricultural work on leased land;
25
iii. 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
26
objection .
The policy provides necessary direction in conducting the selection process so as to
27
avoid 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 Paper
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
28
sadar 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
30
and 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
31
category 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 forests 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
32
the purpose of declaration of reserve forest .
The Act of 1927 further requires the protection of right of way, right of pasture and rights
33
to 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
34
grant 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
35
protected forest, it has extensive authority to limit the forests 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
37
particular 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
38
is 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
39
known 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
40
heritage 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 Paper
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
28
sadar 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
30
and 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
31
category 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 forests 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
32
the purpose of declaration of reserve forest .
The Act of 1927 further requires the protection of right of way, right of pasture and rights
33
to 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
34
grant 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
35
protected forest, it has extensive authority to limit the forests 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
37
particular 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
38
is 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
39
known 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
40
heritage 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 Paper
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
41
special 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
42
headed 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
43
and 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
44
livelihoods , provided that restrictions can be imposed on fishing and boating within
45
the 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-
46
management 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
47
determine 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
48
dependant 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
49
of 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
50
of 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
51
describe the procedure of obtaining public opinion or the sanction of the same .
18 19
Briefing Paper
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
41
special 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
42
headed 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
43
and 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
44
livelihoods , provided that restrictions can be imposed on fishing and boating within
45
the 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-
46
management committee and its functions and modalities.
This new Act recognizes the co-management of forest resources. It provides the co-
dwellers and local people and also for forming co-management committees to
47
determine 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
48
dependant 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
49
of 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
50
of 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
51
describe the procedure of obtaining public opinion or the sanction of the same .
18 19
Briefing Paper
52
The Haor Development Board Ordinance, 1977 proposes the establishment of a
53
Haor 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
54
literally 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
55
production and exploitation. There are two basic laws in Bangladesh for the
regulation of fresh water fisheries and marine fisheries, namely the Protection and
56
Conservation of Fish Act 1950 amended in 1995, and the Marine Fisheries Ordinance
57
1983.
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
58
authorities presently engaged . It also suggests giving priority to the genuine
fishermen to obtain khas water bodies and requires the Government to take necessary
59
steps 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
60
bodies 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
61
agencies 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
62
rights of the landlords or Zamindars . However, SAT has declared fisheries as
nonretainable under private ownership. Many fisheries are also vested in the name of
63
God 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,
64
dighee, 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
65
from 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 Paper
52
The Haor Development Board Ordinance, 1977 proposes the establishment of a
53
Haor 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
54
literally 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
55
production and exploitation. There are two basic laws in Bangladesh for the
regulation of fresh water fisheries and marine fisheries, namely the Protection and
56
Conservation of Fish Act 1950 amended in 1995, and the Marine Fisheries Ordinance
57
1983.
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
58
authorities presently engaged . It also suggests giving priority to the genuine
fishermen to obtain khas water bodies and requires the Government to take necessary
59
steps 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
60
bodies 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
61
agencies 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
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
62
rights of the landlords or Zamindars . However, SAT has declared fisheries as
nonretainable under private ownership. Many fisheries are also vested in the name of
63
God 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,
64
dighee, 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
65
from 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 Paper
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.
66
However, 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 years 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 CBOs 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
67
improvement 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
68
degradation 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
69
Impact 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.
70
Following 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
22 23
Briefing Paper
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.
66
However, 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 years 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 CBOs 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
67
improvement 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
68
degradation 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
69
Impact 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.
70
Following 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
22 23
Briefing Paper
3 COMMUNITY PARTICIPATION IN COMMON RESOURCE
MANAGEMENT
approaches practiced worldwide to improve the management of common natural
71
resources . 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
72
management 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
73
any 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 Departments 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
74
Bangladesh, 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-
dwellers and local people and for forming co-management committees to determine
75
the 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
26
now 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 fishers 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
77
policy 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 Paper
3 COMMUNITY PARTICIPATION IN COMMON RESOURCE
MANAGEMENT
71
resources . 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
72
management 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
73
any 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 Departments 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
74
Bangladesh, 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-
dwellers and local people and for forming co-management committees to determine
75
the 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
26
now 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 fishers 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
77
policy 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 Paper
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
78
Protected 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
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
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
peoples 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 Paper
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
78
Protected 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
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
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
peoples 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 Paper
Community based management and co-management are widespread
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
6
http://www.moef.gov.bd/prsp_jan_2006.pdf
7
The case story has been prepared by the Oxfam supported campaign group-CSRL
8
Supra Note 1, page 1
9
10
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 2011-2015
13
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 1927
19
Section, 3 of the Bangladesh Water Act, 2013
20
Section 2(15) of the SAT Act
21
Policy for Distributing Khas Land Among the Landless 1987 , Article 15
22
Ibid, Article 9-13
23
Ibid, Article 17
24
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 43
26
Article 65
27
Article 67-89
28
Agriculture Khas Land Management and Settlement Policy 1997, Article 9.0
29
Act No. XVI of 1927
30
Ordinance No. XXXIV of 1959
31
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, Ibid
35
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 Paper
Community based management and co-management are widespread
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
2
Community-based Floodplain Management: Access and Justice Issues, The Daily Star, 21 May, 2011, ,
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
6
http://www.moef.gov.bd/prsp_jan_2006.pdf
7
8
Supra Note 1, page 1
9
10
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 2011-2015
13
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 1927
19
Section, 3 of the Bangladesh Water Act, 2013
20
Section 2(15) of the SAT Act
21
Policy for Distributing Khas Land Among the Landless 1987 , Article 15
22
Ibid, Article 9-13
23
Ibid, Article 17
24
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 43
26
Article 65
27
Article 67-89
28
Agriculture Khas Land Management and Settlement Policy 1997, Article 9.0
29
Act No. XVI of 1927
30
Ordinance No. XXXIV of 1959
31
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, Ibid
35
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 Paper
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, 2012
44
Ibid, Section 13 (3)
45
46
Ibid, Section 21
47
Abid, Section 21
48
http://www.aippnet.org/home/daily-sharing/921-bangladesh-wildlife-act-passed-in-the-parliament-
indigenous-leaders-spark-into-reaction
49
Act. No. XXVIII of 1950
50
Section 5 (2), of Bangladesh Water Development Board Act, 2000
51
Management of Natural Resources: Access and Justice Issues, BELA, 2002, p.7
52
Ordinance No. IX of 1977
53
Article 3 of the Haor Development Board Ordinance, 1977
54
Supra Note, 39, p.8
55
Sections 1 & 2 of the Fisheries Policy, 1998
56
Bengal Act XVIII of 1950
57
Ordinance No. XXXV of 1983
58
Section, 6.9 of the Fisheries Policy, 1998
59
Section 12.1 of the Fisheries Policy, 1998
60
61
Supra Note, 39 p.3
62
The East Bengal Act-XXVIII of 1951
63
Supra Note, 95, Pp.5
64
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, 2009
67
Preamble, the National Environment Policy, 1992
68
Abid, Section, 4.2
69
Abid, Section, 5.3
70
Act No 1 of 1995
71
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 mmu 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
74
National Biodiversity Strategy and Action Plan for Bangladesh, Ministry of Environment and Forest,
Government of the Peoples Republic of Bangladesh, 2004
75
Section 21of the Wildlife (Protection and Safety) Act, 2012
76
M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, an article
77
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=48
79
See the project description on: http://www.ashrayanpmo.gov.bd/
30 31
Briefing Paper
36
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, 2012
44
45
46
Ibid, Section 21
47
Abid, Section 21
48
http://www.aippnet.org/home/daily-sharing/921-bangladesh-wildlife-act-passed-in-the-parliament-
indigenous-leaders-spark-into-reaction
49
Act. No. XXVIII of 1950
50
Section 5 (2), of Bangladesh Water Development Board Act, 2000
51
Management of Natural Resources: Access and Justice Issues, BELA, 2002, p.7
52
Ordinance No. IX of 1977
53
Article 3 of the Haor Development Board Ordinance, 1977
54
Supra Note, 39, p.8
55
Sections 1 & 2 of the Fisheries Policy, 1998
56
Bengal Act XVIII of 1950
57
Ordinance No. XXXV of 1983
58
Section, 6.9 of the Fisheries Policy, 1998
59
60
61
Supra Note, 39 p.3
62
The East Bengal Act-XXVIII of 1951
63
Supra Note, 95, Pp.5
64
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, 2009
67
Preamble, the National Environment Policy, 1992
68
Abid, Section, 4.2
69
Abid, Section, 5.3
70
Act No 1 of 1995
71
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 mmu 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
74
National Biodiversity Strategy and Action Plan for Bangladesh, Ministry of Environment and Forest,
Government of the Peoples Republic of Bangladesh, 2004
75
Section 21of the Wildlife (Protection and Safety) Act, 2012
76
M. Hafijul Islam Khan, Community-based Floodplain Management: Access and Justice Issues, an article
77
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=48
79
See the project description on: http://www.ashrayanpmo.gov.bd/
30 31
Briefing Paper
House 4, Road 3, Block I, Banani, Dhaka 1213, Bangladesh
Phone : +88 02 8813607-9, 8824440, Fax : +88 02 8817402
/OxfamBangladesh
/OxfaminBD
/OxfaminBangladesh
/Oxfam-in-Bangladesh

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