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Monday, April 2, 2012

HARMONIZATION OF CUSTOMARY LAWS ON NATURAL RESOURCES OF GB


Preamble:     Presently the mineral and gem sector is regulated through the regulation of Mines and oilfields and Mineral Development (Federal Control) Act 1948 (XXIV of 1948) in Pakistan extended to the Northern Areas through the Northern Areas Mining Concession Rules 1963, further amended through a statutory notification (SRO) in 2003, called as the Northern Areas Mining Concession Rules 2003.
There are major policy constraints with this regulation and procedures for leasing, licensing and monitoring compliance. As the mines are in de facto control of the local communities who own and control the mines, rangelands and natural resources through customary laws (and rights) for centuries, however Gilgit and Baltistan Mineral Department issues:
i) Mining Leases and
ii) Exploration Licenses to private parties mostly without knowledge of the local communities in possession of the mines, which creates social, political and legal complications.
United Nations in its Universal Declaration (Agenda 21: Chapter 26) titled "Recognizing and Strengthening the Role of Indigenous People and their Communities" has called on Governments to recognize that the lands of indigenous people and their communities should be protected from activities that the indigenous people consider to be socially and culturally inappropriate through adoption or strengthening of appropriate policies and /or legal instruments at the national level (or intergovernmental organizations) . Government of Pakistan being a signatory to this declaration has the moral responsibility to harmonize the customary laws (and rights of indigenous people) to evolve indigenous population friendly rules.
The constitution of Pakistan as well as National Mineral Policy considers Mineral to be a Provincial subject for legislation purposes; however this has not yet been included in the legislative list allowed to Gilgit and Baltistan Legislative Assembly.
Customary laws, established by communal practice and usage for generations and passed down through oral tradition, are familiar, effective and continue to be practiced to a greater or lesser extent throughout the Gilgit and Baltistan. And yet few of them have been documented so far. There are many opportunities for reforming statutory laws governing natural resources in Gilgit and Baltistan to converge with elements of customary law, thus adding greater legitimacy and efficacy to the State's efforts towards conservation of natural resources in the region. The objective of this draft law and analysis is to draw out and evolve an interface of customary laws governing the use and management of mineral resources in the Gilgit and Baltistan and modification in the statutory laws so that the spirit of UN universal declaration on the rights of indigenous people applied for the same purpose is also actualized in this field.
The history of Gilgit and Baltistan and discussions with researchers and resource persons born and raised there indicate that Gilgit and Baltistan even today can be described according to the political and legal systems that were in existence prior to Independence. Certain areas had been ruled by local Rajas since ancient times; in some parts of Gilgit and Baltistan, the law of the Rajas survived till as late as 1972. Other areas had been settled by the British in the 1800s and were under British law. Certain historically tribal republics remain as such after their conditional accession to Pakistan. Due to these historic differences the universe of the research was divided into three domains that correspond to the politico-legal systems:
a)     Rajgiri Areas - those that had been ruled by local Rajas;
b)     Settled Areas - those that had been directly governed by the British; and
c)     Tribal Areas - the tribal republics.
The three domains would ensure that any possible variations in the customary laws regarding natural resources in Gilgit and Baltistan could be encompassed and that research findings would fairly represent the reality of the universe (Russell, 1994.p 78).
The target populations were:
a)     Rajgiri Areas: Punial, Ishkoman, Gupis, Yasin, Hunza, Nagar,
b)     Settled Areas: Astore, Chilas, Gilgit, Godai/Bubin, Khaplu/Karmang/Shigar and Rondu; and
c)     Tribal Areas: Darel, Tangir.
The customary legal system in Gilgit and Baltistan is structured around the principles of shared space and shared blood relations. In each of the three areas - Rajgiri, Settled and Tribal - different combination s and permutations of these two principles underlie the management and use of natural resources. The customary regulatory system is based on collective responsibility that in most cases aims at using natural resources in a sustainable manner.
This collective responsibility is built into the structure of the customary regulatory institutions, which are similar in all three areas, although there are local variations on specific powers and duties. Members of the communities select the functionaries of these institutions and compensate them; therefore all members of a community have a stake in their performance. People listen to the customary authorities because they are members of the community, rather than outsiders.
Collective ownership of pastures and forests predominates, although some individual rights in pastures and forests are recognized in Rajgiri and Settled areas. Ownership may be collective within a single tribe, among tribes in a village, and among villages. In Settled Areas, where the government allocated pasture lands during the settlement process, there were more reports of disputes over ownership and use rights in pastures than in either the Rajgiri Areas or the Tribal Areas. Individual ownership of agricultural land is reported in Rajgiri and Settled areas.
Customary law in the Rajgiri Areas is unique in that it provides for a user fee - lagan - that permits use of a pasture by those without ownership or use rights in it. In the Tribal Areas,
Customary law contains many of the same elements and operates in much the same way as statutory law - with the exception of the focus on equity in distribution of benefits. These results suggest that there would be relatively little difficulty in harmonizing customary and statutory law at the operational level. Introducing the concept of collective property rights into the current statutory system would be more complicated, but feasible through consultation and consensus building. Harmonization in the sense of equity would undoubtedly be the most difficult issue to resolve, given long-standing vested interests in the benefits of natural resource exploitation.
"Harmonization" in this sense does not mean diluting customary law, incorporating it into statutory law and expecting that it would then disappear. Rather, it means understanding and respecting customary law as a sophisticated and dynamic legal system, with at least as long a regulatory history as statutory law if not longer, and which has already reformed itself to incorporate elements of statutory law. Long-term, effective regulation of natural resources in Gilgit and Baltistan will require reciprocal recognition of customary law and corresponding reform to incorporate many elements of it into statutory law. The implications for sovereignty have been addressed and resolved in countries that have already taken steps to recognize and provide for the survival of the customary legal traditions practiced in their territories.
International agreements and processes are placing increasing emphasis on recognition of community property rights and equitable sharing of benefits. Pakistan is already a Party to many of these agreements and is an active participant in the global processes. The country has an excellent opportunity to contribute to these processes by taking the results of this study to the next phase of ground-breaking work on the nexus between customary and statutory law for natural resource conservation - substantive legal reform that promotes sustainable livelihoods for natural resource-dependent communities in Gilgit and Baltistan.
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