. (Draft Resolution)
Review of Policy on Minerals in Northern Areas of Pakistan
NALA in its unanimous resolution dated ——— on the topic appreciates Government of Pakistan for signing United
Nations Universal Declaration (Agenda 21: chapter 26) Titled Recognizing and Strengthening the role of Indigenous
People and their Communities. It also realizes that this region’s economical potentials are limited and the Government
will be appreciative of the spirit enshrined in the above mentioned documents and expects adoption of appropriate laws
and consequent rules on award of mineral leases to protect the economical interest of present as well as future
generation of indigenous populations. It has two distinct examples in the international arena which prompts it to adopt
this resolution. First one is the impact and inherent exploitation of mineral lease given to multinational or affluent
entrepreneurs in the African continent, prime example being that of Democratic Republic of Congo– - exemplified
through the famous BBC serial on “Bloody Diamonds”- The second examples is that of laws prevalent in the oil rich
gulf countries where only indigenous people enjoy the ownership of any business through a legal 51% share even if the
entire investment is done by a non resident investor.
It is note-worthy to mention that full potential of mineral wealth, such as gemstones and semi precious stones can be
realized only after development of technically competent manpower and the availability of cheap energy source.
With dwindling oil resources and skyrocketing oil prices, it is only prudent that present and future government in
Pakistan will develop the enormous water and power sustainable potential existing in the region, while the
Government, Karakururn International university and a few NGO’s have undertaken relevant programs to develop
appropriate manpower in this field specially as a poverty alleviation tool which will in a few decades train the required
manpower.
With this background information, the Northern Areas Assembly has evolved a draft law on Mineral Leases in
Northern Areas of Pakistan and expects the competent authority (Chairman NALA/Minister of Kashmir Affairs &
Northern Areas) to promulgate the same immediately and help evolve indigenous population friendly rules to reform
the existing practices.
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Agenda 21: Chapter 26
RECOGNIZING AND STRENGTHENING THE ROLE OF
INDIGENOUS PEOPLE AND THEIR COMMUMTES
PROGRAMME AREA
Basis for action
26.1. Indigenous people and their communities have an historic relationship with their lands and are generally
descendants of the origin inhabitants of such lands. In the context of this chapter the term lands is understood to include
the environment of the areas which the people concerned traditionally occupy. Indigenous people and their
communities represent a significant percentage of the global population. They have developed over many generations a
holistic traditional scientific knowledge of their lands, natural resources and environment. Indigenous people at their
communities shall enjoy the full measure of human rights and fundamental freedoms without hindrance or
discrimination. Their ability to participate fully in sustainable development practices on their lands has tended to be
limited as a result of factors of an economic, social and historical nature. In view of the interrelationship between the
natural environment and its sustainable development and the cultural, social, economic and physical well-being of
indigenous people, national and international efforts to implement environmentally sound and sustainable development
should recognize, accommodate, promote and strengthen the role of indigenous people and their communities.
26.2. Some of the goals inherent in the objectives and activities of this programme area are already contained in such
international legal instrument as the ILO Indigenous and Tribal Peoples Convention (No. 169) and are being
incorporated into the draft universal declaration on indigenous rights being prepared by the United Nations working
group on indigenous populations. The International Year for the World’s Indigenous People (1993), proclaimed by the
General Assembly in its resolution 45/164 of 18 December 1990, presents a timely opportunity to mobilize further
international technical and financial cooperation.
Objectives
26.3. In full partnership with indigenous people and their communities, Governments and, where appropriate,
intergovernmental organizations should aim at fulfilling the following objectives:
(a) Establishment of a process to empower indigenous people and their communities through measures that include:
i. Adoption or strengthening of appropriate policies and/or legal instruments at the national level;
ii. Recognition that the lands of indigenous people and their communities should be protected from activities that are
environmentally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate;
iii. Recognition of their values, traditional knowledge and resource management practices with a view to promoting
environmentally sound and sustainable development;
iv. Recognition that traditional and direct dependence on renewable resources and ecosystems, including sustainable
harvesting, continues to be essential to the cultural, economic and physical well-being of indigenous people and their
communities;
v. Development and strengthening of national dispute-resolution arrangements in relation to settlement of land and
resource- management concerns;
vi. Support for alternative environmentally sound means of production to ensure a range of choices on how to improve
their quality of life so that they effectively participate in sustainable development;
vii. Enhancement of capacity-building for indigenous communities, based on the adaptation and exchange of traditional
experience, knowledge and resource-management practices, to ensure their sustainable development;
(b) Establishment, where appropriate, of arrangements to strengthen the active participation of indigenous people and
their communities in the national formulation of policies, laws and programmes relating to resource management and
other development processes that may affect them, and their initiation of proposals for such policies and programmes;
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(c) Involvement of indigenous people and their communities at the national and local levels in resource management
and conservation strategies and other relevant programmes established to support and review sustainable development
strategies, such as those suggested in other programme areas of Agenda 21.
Activities
26.4. Some indigenous people and their communities may require, in accordance with national legislation, greater
control over their lands, self- management of their resources, participation in development decisions affecting them,
including, where appropriate, participation in the establishment or management of protected areas. The following are
some of the specific measures which Governments could take:
(a) Consider the ratification and application of existing international conventions relevant to indigenous people and
their communities (where not yet done) and provide support for the adoption by the General Assembly of a declaration
on indigenous rights;
(b) Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and
cultural property and the right to preserve customary and administrative systems and practices.
26.5. United Nations organizations and other international development and finance organizations and Governments
should, drawing on the active participation of indigenous people and their communities, as appropriate, take the
following measures, inter alia, to incorporate their values, views and knowledge, including the unique contribution of
indigenous women, in resource management and other policies and programmes that may affect them:
(a) Appoint a special focal point within each international organization, and organize annual interorganizational
coordination meetings in consultation with Governments and indigenous organizations, as appropriate, and develop a
procedure within and between operational agencies for assisting Governments in ensuring the coherent and coordinated
incorporation of the views of indigenous people in the design and implementation of policies and programmes. Under
this procedure, indigenous people and their communities should be informed and consulted and allowed to participate
in national decision-making, in particular regarding regional and international cooperative efforts. In addition, these
policies and programmes should take fully into account strategies based on local indigenous initiatives;
(b) Provide technical and financial assistance for capacity-building programmes to support the sustainable selfdevelopment of indigenous people and their communities;
(c) Strengthen research and education programmes aimed at:
i. Achieving a better understanding of indigenous peoples knowledge and management experience related to the
environment, and applying this to contemporary development challenges;
ii. Increasing the efficiency of indigenous people’s resource management systems, for example, by promoting the
adaptation and dissemination of suitable technological innovations;
(d) Contribute to the endeavours of indigenous people and their communities in resource management and conservation
strategies (such as those that may be developed under appropriate projects funded through the Global Environment
Facility and the Tropical Forestry Action Plan) and other programme areas of Agenda 21, including programmes to
collect, analyse and use data and other information in support of sustainable development projects.
26.6. Governments, in full partnership with indigenous people, and their communities should, where appropriate:
(a) Develop or strengthen national arrangements to consult with indigenous people and their communities with a view
to reflecting their needs and incorporating their values and traditional and other knowledge and practices in national
policies and programmes in the field of natural resource management and conservation and other development
programmes affecting them;
(b) Cooperate at the regional level, where appropriate, to address common indigenous issues with a view to recognizing
and strengthening their participation in sustainable development.
Means of implementation
A) Financing and cost evaluation
26.7. The Conference secretariat has estimated the average total annual cost (1993-2000) of implementing the activities
of this programme to be about $3 million on grant or concessional terms. These are indicative and order-of- magnitude
estimates only and have not been reviewed by Governments. Actual costs and financial terms, including any that are
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non-concessional, will depend upon, inter alia, the specific strategies and programmes Governments decide upon for
implementation.
B) Legal and administrative frameworks
26.8. Governments should incorporate, in collaboration with the indigenous people affected, the rights and
responsibilities of indigenous people and their communities in the legislation of each country, suitable to the country’s
specific situation. Developing countries may require technical assistance to implement these activities.
C) Human resource development
26.9. International development agencies and Governments should commit financial and other resources to education
and training for indigenous people and their communities to develop their capacities to achieve their sustainable selfdevelopment, and to contribute to and participate in sustainable and equitable development at the national level.
Particular attention should be given to strengthening the role of indigenous women.
5. “Harmonization of Customary Laws: Governing Natural Resource Management in the Northern Areas”
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 Northern Areas 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 Northern Areas 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 Northern Areas. And yet
few of them have been documented so far. There are many opportunities for reforming statutory laws governing natural
resources in the Northern Areas 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
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resources in the Northern Areas 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 the Northern Areas and discussions with researchers and resource persons born and raised there indicate
that the Northern Areas 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 Northern
Areas, 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
Northern Areas 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, and Gojal;
b) Settled Areas: Gilgit, Godai/Bubin, Khaplu/Karmang/Shigar and Rondu; and
c) Tribal Areas: Darel, Tangir.
The customary legal system in Northern Areas is structured around the principles of shared space and shared blood
relations. In each of the three areas - Rajgiri, Settled and Tribal - different combinations 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
5
reformed itself to incorporate elements of statutory law. Long-term, effective regulation of natural resources in
Northern Areas 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 Northern Areas.
GLOSSARY:
Agarbati - incense stick
Ashknach - herb, vegetable
Baleech - snow cock; similar to a patridge, but larger
Bani - holly oak (also known as holm oak), Quercus ilex
Bankhakhri - Podophyllum emodi; a medicinal plant with properties that improve blood flow
Begana - outsider
Behek - a type of tree, in Yasin
Bud dua - a curse, in Tribal Areas
Chaksi - musk
Charbo - person responsible for making public announcements on behalf of a Raja
Chari dar - 12-bore rifle
Chilli - juniper
Dacoity - banditry
Dehqan - tenant under a landlord
Diyar - a variety of cedar, Cedrus deodara. In local languages, also called “deodar”.
Dondrash - a type of tree, in Yasin; wild grass
Gandhak - sulphur
Gon - turn at receiving water
Haitien - village warden
Hanafi fiqha - Hanafi school of Islamic jurisprudence
Hashtam - person who takes care of horses
Hawiltara - shepherd
Ishtamal key malikana haqooq - ownership rights arising from use
Jagir - estate
Jastero - member of a jirga in Tribal Areas, village notable
Jirga - traditional council
Jirgadar - member of a jirga in Rajgiri and Settled Areas
Kalang - fine, compensation, tenancy fee
Kalto - an herb, said in the Settled Areas to be eaten by the ibex
Kanal - measure of land equivalent to 605 square yards
Kasabgar - artisan
Khabo - an herb used to treat fevers in parts of the Settled Areas
Khusman - poor
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Kool - water channel, irrigation channel
Kora - strap, whip; a stroke of the whip or lash.
Kothi - a kind of charity or offering given at the threshing ground before taking the first crop
Kush roi juro - pasture owned by the Raja, in Ishkoman
Laqmoos - medicinal herb used in the Tribal Areas
Leech - Monal pheasant
Lora pa - village warden in Shigar
Lumbardar - village headman
Makhuteen - a medicinal plant
Malia - revenue; tax on crops
Maliki - property
Malkiat - property; ownership (in Hunza)
Mari - Slaughter of an animal to be shared among members of the community
Maund - measure equivalent to approximately 40 kg.
Mauza - an area approximately equivalent to a village
Mawaish khana, dukri, harai - animal enclosure, cattle shed; dukri and harai are usually temporary
Mohallah -neighborhood, spacial unit of a few households
Mukhtabrin - village notables
Nigran chowkidar - water steward in Gorikot
Nizam - administration; also the person who administers
Nobat - turn at receiving water
Nullah - stream, and the surrounding pasture and forest land
Numberdar/Lumbardar/Trangpa - village headman
Opoom - a liaison person between a Raja and his subjects
Pao - a measure equivalent to approximately 250 gm.
Phosht pho -herb used in parts of the Settled Areas to treat blood problems
Qasid chowkidar - person responsible for organising collective village work in G o r i k o t
Rajaaki - collective work tradition
Ramak - medicinal herb, used in Tribal Areas
Sagho - herb used as a contraceptive
Sahu - a type of wood usually used for making domestic objects in Rajgiri Areas
Sakhdar - a warden in Gupis
Salajeet - excrement of the flying fox or bat. Villagers collect it from where it accumulates on the floor of a cave. It is
said to be a pain reliever and also an aphrodisiac.
Sarmah - village council in Shigar
Saroo - pine tree
Seer - a measure of grain, equivalent to approximately 1kg
Shamilat - range lands
Sharba - member of a village council in Rondu; jirgadar
Shikari - hunter
Soochi hunar - herb used in Rajgiri Areas for curing eye pain
Sulah - agreement, truce
Tamoro - wild thyme
Tanzim-i-hussaini - religious group
Tapsick - medicinal herb used in the Tribal Areas
Tarangan - village warden in Rondu
Tarangia - in Rajgiri Areas, an official who reported directly to a Raja
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Tawan - restitution, reparation
Tehsil - administrative unit at sub-district level
Til - a type of tree, in Yasin
Tola - a measure equivalent to approximately 11.5 gm
Toli - distribution of property, money or goods in equal shares, by lots; in Tribal Areas
Trangpa - village headman, in Rajgiri Areas
Tul - a type of wood used for making domestic tools, in Rajgiri Areas
Wai sigalo - water steward, in Tribal Areas
Yathkoin - water steward, in Hunza
Zaitu/n - village warden
Zeher muhra - antidote for poison, particularly snakebite, in Settled Areas
Zen - sulphur (also gandhak)
Zu - cross between a yak and a cow
Zulum - cruelty
Zuni - village warden, in Darel, Tribal Areas
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