The provisions in the proposed bill made to establish and manage the Bagmati Valley Civilisation Development Council are in general positive. Making some changes in it would however make it a more effective act. These suggestions have been provided below the related articles in the proposed bill. Those provisions in the bill that have been left unchanged are not included in this paper.
Provisions that need to be further added or changed
Whereas it has been deemed necessary to establish and implement the Bagmati Valley Civilisation Development Act in order to keep the Bagmati and its tributary rivers clean, healthy, pure, and free from illegal occupation, and protect and promote the regions surrounding the river, the natural, archeological, cultural and religious heritage, civilization and environment, and develop the necessary physical infrastructure necessary for the purpose, this Act has been made by the Constituent Assembly as per Article 83, Sub section (1) of the Interim Constitution of Nepal, 2063.
Suggestion: As the preamble of the proposed bill intends to keep the Bagmati river and its tributaries and their surrounding areas healthy and free from illegal occupation, and it is necessary to preserve and promote the river.
Suggestion: As the council is being established with the intention of preserving and promoting the Bagamati civilization and keeping the river and its tributaries clean, healthy, and pollution free and saving its historic significance, if the provision in the proposed bill is further widened the goal might be more effective gained.
Determining/limiting the flow region of the river:
The council shall determine a minimum flow area that is not less than the one that was marked in the 2021 BS mapping.
Suggestion: In this article of the Act, the provision that “the flow area shall be determined in a manner that does not reduce the flow area from what it was when this bill was inacted,” suggests that the historic and natural flow area of the river cannot be maintained, therefore it should be replaced with : “the minimum flow area shall be determined ensuring that it is not less than the historic natural flow area of the river.”
Suggestion: It is necessary to increase civil society participation in the executive committee and make it more participatory, it is therefore necessary that the Nepal Government appoint 3 people with minimum 2 women as members of the council on the recommendation of the vice chair of the council.
15. Work, Duty and Rights of the Committee: Besides what is already mentioned in this Act, the following shall also be the work, duty and rights of the committee:-
a. prepare necessary policies to develop necessary physical infrastructure to keep the Bagmati river and its tributaries healthy, clean, pollution and illegal occupation free, and protect and promote the surrounding natural environment, historical, cultural and religious heritage and civilization, and delimit the river, and present these findings to the Council
b. determine the policy, strategy, programs and budget of the council and present it to the council
c. construct, operate, repair and maintain the necessary roads, sewage processing system, embankments, check dams, and green areas
d. prevent or stop any kind of garbage from being thrown, kept or collected or unprocessed sewage from being mixed in the river
e. do the necessary to stop illegal sand mining from Bagmati and its tributaries
f. protect the source areas of Bagmati and its tributaries and conduct tree plantation around such areas
g. conduct public awareness programs to ensure that Bagmati and its tributaries remain pollution and open defecation free areas
h. conduct activities to protect and promote the natural heritage, culture and environment of the areas that are within the jurisdiction of the council
i. identify true/original landless refugees/squatters illegally occupying areas around the Bagmati and its tributaries and prepare alternative provisions to recommend their removal to the government
j. Conduct public private partnership as per necessity or construct, operate or handover or implement a participatory plan that includes community organizations, consumer committees, and/or private sectors
k. Collect resources necessary for the Council
l. Implement or have implemented the plans and activities approved by the council
m. Take consultations from experts for the Council’s works as per necessity
n. Prepare the organizational structure and necessary employee posts and present it to the council for approval
o. Conduct other works to fulfill the objectives of this Act
p. Endeavour to make the waters of Bagmati and its tributaries at least bathable if not drinkable
q. Develop, manage and operate eco-tourism concepts in and around Bagmati and its tributaries
Suggestion: As it was important to add “protect and promote the environment around Bagmati river and its tributaries to make them healthy, illegal occupation free” instead of what is there with regards to the works, duty and rights of the committee. Likewise because it was also necessary to add “make the waters of Bagmati river and its tributaries safe enough to bathe in and develop, conduct, manage and operate eco-tourism activities” in the mentioned works, duty and rights.
16. Right to regulate, ban, or control: (1) No one has the right to conduct any activities that lessen the flow of Bagmati and its tributaries, illegally occupy the river banks or influence or cause to influence the change of flow of Bagmati or its tributaries. The subsection shall in no way be deemed to be obstructing any of the works, duties and rights of the Council conducted as per the Act.
(2) Except for the Council no one else may conduct any activities in the flow area or towards either the left or right banks or the areas mentioned under Article 8 section (b) of the Bagmati river or any of its tributaries.
(3) The committee may periodically publish notices informing the general public and all concerned of the following activities that are regulated, prohibited, or controlled within the jurisdiction areas defined by Article 8, section ( c) of the council, and no one may conduct such activities without the approval of the committee:
(a) any kind of construction work
(b) take benefit of agriculture, natural heritage, archeological, religious and historic place, use of public land or immovable property, or raise cattle or poultry
(c ) settle people or make settlements, or pass maps for such settlement purposes
(d) create or establish fields for sports, entertainment, fair, market
(e) Mine sand, stones, gravel, mud, or export water (in water tanks) without authority
(f) establish or bring to operation any industry, or mix or cause to flow any unprocessed sewage, drainage, water, chemical refuge in the river
(g) any activities or works that might adversely affect the natural beauty, importance of the tourist destination, or the health of the general public or the environment
(f) constructing sewage and mixing it in the river
(g) Dumping or mixing any garbage, or causing pollution
17. Deconstructing or removing physical infrastructure: (1) The Committee shall issue a 90 day ultimatum and notice to remove or deconstruct any illegally built infrastructure from the public land that falls within the jurisdiction area of the Council
Suggestion: Because it is necessary to allow time to those illegally living around the Bagmati river and its tributaries to remove their belongings besides the physical infrastructure.
18. Document government and public owned land: The committee must periodically maintain the documentation of all the land (government, public or otherwise) that is within the jurisdiction of the council, and submit a copy each to the District Administration Office, Land Revenue Office, and the District Development Committee.
Suggestion: Because the Land Revenue Office is an important agency in keeping track of the government and public land it is necessary to mention the agency in this provision.
Send for departmental action to be taken: (1) As per this paragraph the Committee may write or recommend to any agency for any action, or write to concerned authority for departmental action against the head of any department or agency that has not taken recommended action in time as per the committies recommendation.
Suggestion: The concerned agency head has a direct role in the execution of any it’s office works. Along with the agency head the other staff and employees of the department also have a role in executing the works on time, it is therefore important that there be provisions to recommend departmental action to authorized personnel against other staff and employees of the agency or deparment who have not executed their given responsibilities on time.
Suggestion: Allotting 0.05 percent of the land and building tax and sewage tax collected from houses within the Kathamndu metropolitan city, sub metropolitan city, municipality and VDCs might allow valley residents to feel ownership of river conservation and promotion activities as well as allow the council to become financially independent which will in turn assist the councils works to be carried out in a timely regular and effective manner.
31. Punishment: (1) If anyone conducts any activity that opposes Article 16 of the Act and falls in the area within the jurisdiction of the Council, the Council may fine the individual up to Rs 300,000/- and destroy the physical infrastructure thus constructed there.
Suggestion: Because it is important to discourage/prevent anyone from conducting any activity against Article 16 of the Act, a minimum fine has to be imposed.
(5) If anyone refuses to follow the orders as per this Act or conduct any activity that opposes anything mentioned in sub sections (1), (2), (3), (4) of this Act, or any other regulation made under this Act, the committee may collect the due as well as fine Rs 25,000 to the individual.
Suggestion: So all may follow the directions and order issued as per this Act and may discourage anyone from conducting anything that opposes this Act.
This investigation and recommendation paper was prepared by Advocate PRkash Mani Sharma for the Nepal Constitution Foundation with final inputs from women, Madhesi, Janajati, Dalit, youth, and other related pressure groups. The Foundation is grateful to Gajendra Kumar Thakur, Ratna Gurung, Shova Ranamagar, Dharmarak BK, Kamala BK, Saraswoti Chaudhary, Radheshyam Adhikary, Ekraj Bhandari, Anil Bhadra Khanal, Bharat Gautam, Lokesh Dhakal, Mahesh Bahadur Basnet, Prawati Rana, Deena Shrestha, Sanjeev Lama, Dr. Surya Dhungel, Phurpa Tamang, and Dr. Bipin Adhikari.
This study was conducted with assistance from The Asia Foundation but the views and opinions expressed here are those of the writers and do not reflect the views and opinions of The Asia Foundation.