4.1. Concept, History of Environment Protection in Nepal

11/12/2022 1
Concept, history of environment

protection in Nepal
Unit IV
Environmental Laws of Nepal
Unit IV: Environmental Laws of Nepal

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3.1 Concept, History and Environment Protection in Nepal.

3.2 Sources of Nepalese Environmental Laws.
3.3 Water Conservation Laws.
Course 3.4 Biodiversity and Wildlife Conservation Laws.

3.5 Cultural Heritage Preservation Laws.
3.6 Pollution Prevention and Control Laws.
3.7 Climate Change Policies and Action Plans.

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 Environment protection is about controlling pollution and

ensuring livelihood security.
 Environmental protection is the practice of protecting the
natural environment by individuals, organizations and
governments. Its objectives are to conserve natural resources
Concept of and the existing natural environment.
environment  The term environment refers to our surrounding which

includes physical, biological and socio-cultural aspects.
protection  The non-living things such as air, water, land etc come under
physical aspects and plants, animals etc come under biological
aspects and man-made buildings, culture, religion etc come
under cultural aspects.

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 Environment is the source of our need.

 Activities of humans have degraded environment everyday. In
order to protect environment from being deteriorated,
Concept of government has made many laws and policies.

 Once the laws are enacted, these work as a shield in protecting
environment environment and safeguarding our environmental rights
protection guaranteed by the Constitution 2015.

 Policies and laws are the key tools to steer development
activities towards environmentally sustainable development
and green growth.

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 Environment protection and management were addressed from

ancient times in Nepal.
 Legal history of environment protection is categorized under 3
periods:
Concept of  Ancient Nepal
environment  Kirat dynasty

 Lichavi dynasty
protection  Medieval Nepal
 Malla dynasty
 Modern Nepal
 Shah dynasty

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Ancient Nepal
 Influenced by religious texts such as Vedas, and dharma

shastras.
 The protection of the environment was understood to be
closely related to the protection of the heavens and earth.
Between these two lies the atmosphere and the
Concept of environment or paryavaran.
environment
protection  The Rig Veda venerates deities like Mitra, Varuna, Indra,
Maruts and Aditya, that are responsible for maintaining the
requisite balance in the functioning of all entities of Nature
whether the mountains, lakes, heaven and earth, the forests
or the waters.

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• The Rig Veda makes a clear reference to the

presence of a protective layer which we know
now to be the ozone layer that filters the harmful
rays of the sun and protects the earth and praises
the radiation that enters the atmosphere that is
Concept of responsible for the health of the environment.
environment • The five elements — space, air, fire, water and
protection earth — are the foundation of an interconnected
web of life.
• Even the religious writings mention of
respecting environment.

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 During Kirat dynasty, rules were made to keep

the villages clean.
Concept of  Such rules can be traced in “Mundhum”.
environment  State intervention of issuing rules was largely
protection limited to instances in which local community
rules proved deficient.
 Water related conflicts and other issues were
looked by local assemblies and individual.

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 During Lichhivi Period, royal orders were

issued that
 allowed people to harvest trees and other
non-timber forest products for domestic
Concept of purposes.
environment  Authorized local bodies like Panchalis (a
protection committee of village elders) to settle
matters such as those relating to the use of
forests.

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 Manu Smriti, Narad smriti, Yagyavalka smriti etc.

according to cultural practice and dharmashastra.
 Panchali, Drang, Adhikarn, Birtawaal.
Concept of  Panchali was village level assembly of five adults like a

trial court, all case: within their jurisdiction.
environment  Drang was province level or appeal level court,
protection
 and Adhikarn was central level.
 Birtawala had authority to hear local level water related
cases within their Birta land area. (Birtawalas were person
who received land grants, usually tax free, from the state.

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 In the rule of King Shiva Deva locals were

allowed to cut up to 40 trees to make charcoal
or use them for the construction of dwellings
but prohibited them to cut trees for selling.
Concept of
environment
protection  During the same rule a Royal Order was sent to
the people of Pheranga Kotta not to prevent
people of other areas from collecting non-wood
forest products.

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 State taxes called “sinkar” on the export of

wood products and herbs were also levied
Concept of during the Lichhivi period.
environment  State functionaries like Vaskaradhikarta,
protection Basota were assigned responsibilities for
protection of forest and allied activities.

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Medieval Period
 Medieval period is between 13th – 18th
century.
Concept of  During Malla period, forest was used for
environment strategic purposes.
protection
 Village administration was given the
jurisdiction over land, irrigation and
roads.

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 State functionary called Mahane were

assigned responsibilities for protection of
forest and allied activities.
Concept of  Royal Orders were issued to protect forests of

environment areas like Kirtipur, Swayambhu, Balaju,
protection Changu, Gokarna and Bajrajogini as ban gadh
(forest moats).
 People in these areas were prevented from
cutting trees.

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 Annual cleaning and maintenance of canals by its users

made mandatory and non compliance was punishable.
 Everybody had right to use waster irrespective of their
caste. E.g. Sithi Nakha, a cultural practices observed by
Newar communities residing in the valley.
 Pancha Samuchaya (Assembly of five local people),
Dwares (gateman), Birtawala (land lord). Pundit (Priests).
 All village level disputes including water related.
 All appointed by king, princes or ministers to hear petty
cases including water related issues of their respective
areas.
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 In 1626 AD. Jitamitri Malla of Bhaktapur

issued a royal order to levy for the use of
canal water.
Concept of  Water related disputes were not considered as

environment important disputes of the society.
protection  Any violations of the Royal Order were

criminalized and invited sanctions.
 The policy of strategic forest use continued
during the time of Prithvi Narayan Shah and
afterwards.
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 In the Royal Edict of Ram Shah, he promulgated people’s

law recognized by state laws. For instance,
 he issued rules relating to the protection of pastureland,
Concept of  spring sources and cultivated land.
environment  He also decreed elaborated provisions requiring people
protection  to maintain gauchar (pastures for cattle) in every village,

including exit and entry routes,
 to maintain trees along paths or foot-trails (12th & 13th
Code of Ram Shah).

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 The 14th Code of Ram Shah had especially mentioned

the importance of forest,
 “Maintain trees around water springs. In the
absence of trees water will not last all through the
Concept of year and the spring will run dry. If forests are
environment cleared on a massive scale, there will be many
protection landslides. Landslides will bring flood, that could
wash away even khet (level terraces), forests. Thus
fine rupees five to whosoever cuts trees around
water sources”.

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Modern Period
 Modern period starts from Prithvi Narayan Shah’s
rule.
Concept of  In the beginning King Prithvi Narayan issued several
environment rules relating to the protection of environment.
protection  During unification period, there was no uniform
policy of forest protection applicable to whole
country. Rather, problems were addressed in an ad
hoc manner.

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 Orders were issued

 to protect forests where deforestation
threatened specific infrastructure such as
Concept of dams, canals, bridges, and spring
environment sources or
protection  where protection of religious forests,
flora and fauna , and high value trees
was thought to be necessary.

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 During latter part of (1744-1816) period

 some institutions were established in Kathmandu
valley
 but most forest protection were undertaken by local
Concept of people and local functionaries like Amal, Birtawar,
environment Mahane and Chitaidar.
protection  A timber export policy was adopted for the Terai
forests and some British traders were granted
permission to cut timber for export to India.
 Custom duties were levied for some of these exports.

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 During Rana period

 active reclamation of forestland,
Concept of  commodization of forest resources, and
environment  concentration of rights over forests in the
hands of the ruling class and other
protection courtesans
 Timber exports peaked in this period.

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 First Muluki ain promulgated and contained

 separate chapter “on felling of trees” that
set regulatory norms, and
Concept of  Chapter on “jagga jaminko” that stated
environment landowners not to create obstruction on
watering places.
protection
 In the same chapter of “jagga jaminko” in
section 3 and 4 it prohibits throwing dirty water
and dirty wastes in the street.

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 During early Panchayat government,

 several laws related to forest, aquatic
animals, ancient monuments etc. were
Concept of enacted.
environment  Ancient Monument Act 2013
protection  National Parks and Wildlife
Conservation Act 2029

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 Environmental issues such as forests, soil

Concept of conservation, resettlement, medicinal plants
environment etc. were addressed from sixth plan (2056-
protection 61) onwards.

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 Democratic Nepal (2047-2062)

 Many important environment legislations were
enacted during this period.
 EPA 1997 and EPR 1999
Concept of  Forest Act 1992
environment  Water resources Act 2049
protection  Many laws were translated in accordance to the

Rio Conference.
 The most important law that was enacted was an
umbrella Act focusing on environmental issues
“Environmental Protection Act 1997”.
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 Landmark cases were decided in response

to environment protection.
 Surya Prasad Dhungel Sharma v. Godavari
Concept of Marble,
environment  Yogi Narahari Nath v. PM Girija Koirala
protection etc.
 Bal Krishna Neupane v. PM Girija and
Others, decision number 6393, NKP 2954-
39

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Federal Nepal and Environment

 The Constitution of Nepal 2072 has guaranteed “right to
Clean Environment” in Article 30 as a fundamental right to
the citizens.
1. Every citizen shall have the right to live in a clean and
Concept of healthy environment,
environment 2. The victim shall have the right to obtain compensation,

in accordance with law, for any injury caused from
protection environmental pollution or degradation,
3. This Article shall not be deemed to prevent the making
of necessary legal provisions for a proper balance
between the environment and development, in
development works of the nation.
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 In State policies the Constitution has stipulated

state’s duty to protect environment (Article 51).
 (1) to protect, promote, and make
Concept of environmental friendly and sustainable use of,
natural resources available in the country, in
environment consonance with national interest and adopting
protection the concept of intergenerational equity, and
make equitable distribution of fruits, according
priority and preferential right to the local
communities,

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 (2) to make multi-purpose development of

water resources, while according priority to
domestic investment based on public
participation,
Concept of  (3) to ensure reliable supply of energy in an
environment affordable and easy manner, and make proper
protection use of energy, for the fulfillment of the basic
needs of citizens, by generating and developing
renewable energy,

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 (4) to develop sustainable and reliable

irrigation by making control of water-induced
disasters, and river management,
Concept of  (5) to conserve, promote, and make sustainable
environment use of, forests, wildlife, birds, vegetation and
protection bio-diversity, by mitigating possible risks to
environment from industrial and physical
development, while raising awareness of
general public about environment cleanliness,

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 (6) to maintain the forest area in necessary

lands for ecological balance,
Concept of  (7) to adopt appropriate measures to abolish
environment or mitigate existing or possible adverse
protection environmental impacts on the nature,
environment or biological diversity,

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 (8) to pursue the principles of

environmentally sustainable development
such as the principles of polluter pays, of
Concept of precaution in environmental protection and
environment of prior informed consent.
protection  (9) to make advance warning, preparedness,
rescue, relief and rehabilitation in order to
mitigate risks from natural disasters.

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 National Natural Resources and Fiscal

Commission (part 26)
 (2) The President shall, on the recommendation
of the Constitutional Council, appoint the
Concept of Chairperson and members of the National
environment Natural Resources and Fiscal Commission.
 (3) The term of office of the Chairperson and
protection members of the National Natural Resources and
Fiscal Commission shall be six years from the
date of appointment.

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 Article 251: Functions, duties and powers of

NNRFC
 (1) The functions, duties and powers of the
National Natural Resources and Fiscal
Concept of Commission shall be as follows:
environment  (2) The National Natural Resources and Fiscal

Commission shall carry out necessary study and
protection research work about environmental impact
assessment required in the course of distribution
of natural resources, and make
recommendations to the Government of Nepal.

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 Many important environmental legislations have been enacted.

Among them:
 Environment Protection Act 2076 and Environment Protection
Regulation 2077
 Forest Act Act 2076 and Forest Regulation 2077
Concept of  CITES Act 2073
environment  National Natural Resources and Fiscal Act 2073

 Food Right Act 2074
protection  Solid Waste Management Act 2068
 The Right to Food and Food Sovereignty Act 2075
 Radioactive Substance (Use and Regulation) Act 2077
 Climate Change Policy 2019
 Etc.

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Innovative Aspect of the Constitution 2072

 This constitution is broad and has encapsulated
the current issues, such as, carbon trading, food
Concept of security etc.
environment  The constitution has incorporated, among
protection others, the concept of polluter pays principle,
sustainable development, intergenerational
equity, fair distribution in the fundamental right
and state policies.

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 The constitution has established the

commission particularly for the
Concept of management, distribution of natural
environment resources.
protection  The constitution has created synergies

among Federal unit, State unit and Local
unit with regard to environmental issues.

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Weaknesses
 The constitution is too broad and creates
ambiguity in distribution of benefits of natural
resources with others.
Concept of  The constitution has applied many development
environment terms such as “sustainable development,
protection intergenerational equity, PPP, etc” and it is
difficult to translate these into practice. E.g.
Godavari Marble Industry case because it took
22 years to give decision by the Supreme Court.

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 There are no policies or laws regarding equitable

distribution of natural resources.
 It is difficult to create synergies among Federal
unit, State unit and Local unit in regard to natural
Concept of resources and benefit sharing. E.g. Manang case
environment few years back where locals were killed.
protection  The most important part is that this
constitution has not mentioned about
environmental taxes that Federal, State and
Local units would levied on.
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 No mention of environmental audit.

 An environmental audit is a type of evaluation
intended to identify environmental compliance
Concept of and management system implementation gaps,

along with related corrective actions. In this
environment way they perform an analogous (similar)
protection function to financial audits. There are generally
two different types of environmental audits:
compliance audits and management systems
audits.

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Sources of Nepalese
Environmental Law
Unit IV
Environmental Laws of Nepal

11/12/2022 43
 There are mainly three sources:
Sources of  Constitution
Nepalese Law  Statutory
 Case laws (judicial decisions or judge
made law or precedents)

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 Constitutions:
 Till date we have got seven constitutions in Nepal.
 “Constitution of Kingdom of Nepal 2047” has
addressed provision relating to environment protection.
Sources of  Art. 26(4): The State shall give priority to the protection
of the environment and also to the prevention of its
Nepalese Law further damage due to physical development activities
by increasing the awareness of the general public about
environmental cleanliness and the State shall also make
arrangements for the protection of the rare wildlife, the
forests and the vegetation.

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 (Constitution 2047) Art. 64: The House of

Representatives may by rules, regulate the
constitution and management of
Sources of Committees on …. Natural Resources,
Protection of the Environment…….and
Nepalese Law such committees on other subjects as
required.

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 (Constitution 2047) Art. 126(2): The laws to be made …

shall, inter alia, require that the ratification of, accession
to, acceptance of or approval of treaties or agreements on
the following subjects be done by a majority of two-thirds
Sources of of the members present at a joint sitting of both Houses of

Parliament:
Nepalese Law  ….. (d) natural resources, and the distribution of their uses.
 (4) Notwithstanding anything contained ……, no treaty
or agreement shall be concluded that is detrimental to the
territorial integrity of the Kingdom of Nepal.

11/12/2022 47
Constitution of Nepal 2072

 Right to clean environment – Article 30
 Every citizen shall have the right to live in clean and
healthy environment (Art. 30(1)).
Sources of  Victim[s] to receive compensation from the polluter[s]
Nepalese Law for environmental pollution or degradation. [closely
associated with the polluter pays principle.] (Art. 30(2)).
 Relevant law for environment protection and
development (Art. 30(3)). [closely associated with
sustainable development concept]

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 Article 32(2) has given right to participate

in cultural activities.
Sources of
Nepalese Law  Article 32(3) has explicitly mentioned of
right to heritage promotion and protection.

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State Policies
 Dissemination of information, research, and
study for the protection, promotion and
development of historical, archeological
Sources of
cultural heritage – Article 51(c)(2).
Nepalese Law
 Policies regarding agriculture and land
reform – article 51(e).

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 Policies regarding conservation, promotion

and utilization of national resources –
Article 51(g).
1. explicitly mentions intergenerational
equity.
Sources of
Nepalese Law 2. mentions special rights and fair
distribution.
3. development and production of
renewable energy.
4. Management of river.
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5. Biodiversity conservation promotion and

sustainable utilization of resources.
6. Maintenance of forest areas.
7. Use appropriate remedy to protect environment and
Sources of biodiversity from negative effect.
Nepalese Law 8. Use elements of sustainable development such as PPP,
precautionary principle and preventive principle.
9. Pre-information, preparedness and rehabilitation to
reduce risk from natural disaster.

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 Food security – Article 51(h)(12).

 Equitable distribution of natural resources and
certain benefits to be shared among the affected
Sources of area and or the community – Article 59(4).
Nepalese Law  Priority to be given to the local community
when investing in the utilization of natural
resources – Article 59(5).

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 National Natural Resources and Finance

Commission – Part 26.
(This is the first type of provision stated in
Sources of the constitution, where a commission is
Nepalese Law established to oversee the benefit sharing of
natural resources.
The commission is mandated to perform
EIA when distributing natural resources.)

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 Article 279(2)(d) is related to ratification of,

Sources of accession to , acceptance of or approval of
Nepalese Law treaties or agreements regarding to natural
resources and their distribution and uses.

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 E.g. Tanakpur case (Advocate Bal Krishna

Neupane vs. Rt. Honorable Prime Minister Girija
Prasad Koirala and Others, NKP 2054 (2),
Decision number 6313), treaty and Nepal’s
Sources of obligation to stick to the principles the treaty has
Nepalese Law outlined. “…..natural resources of Nepal is a
public property of all citizens. Therefore, citizens
have substantive relation in the development and
environment protection of a country”.

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 This constitution has given mandate to make policies related to

various topics to federal, state and local in Appendix 5,
Appendix-6 and Appendix-8.
Sources of Among other things Federal body is mandated for:

 mines excavating;
Nepalese Law  water protection;
 environment management and parks, wetlands, forest policy
and carbon services;
 land utilization;
 heritage importance.

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 State body is mandated for

 water distribution, irrigation, water services;
 mines research and management.
Under mutual/cooperative rights of Federation and State –

Sources of Appendix-8:
Nepalese Law  boundary demarcation;
 river course;
 environment protection and biodiversity;
 Mines; and
 land policy.
11/12/2022 58
 Local body is mandated – Appendix-8:

 Local level irrigation;
 Agriculture land management;
Sources of  drinking water, small hydro-projects,
Nepalese Law renewable energy;
 river course, wildlife; and
 mines and minerals protection.

11/12/2022 59
 Rights between Federal, State and Local –

Appendix-9:
 drinking water and irrigation;
 distribution of royalty from natural resources;
Sources of  forest, wildlife, utilization of water,
Nepalese Law environment and biodiversity;
 mines and minerals;
 archeological monuments and heritage;
 royalty from natural resources

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Statutory
 A statute is a formal written enactment of
a legislative authority that governs the legal
entities of a country. Statutes command or
Sources of prohibit something.
Nepalese Law  Statutes are rules made by legislative bodies; they
are distinguished from case law or precedent,
which is decided by courts, and regulations issued
by government agencies.

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 There are many environmental related laws

in Nepal.
 Environment Protection Act 2076 is the
Sources of umbrella law.
Nepalese Law  Among others there are laws on pollution,
water, cultural heritage, wildlife protection
etc.

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 Statutory:
 Environment Protection Act 2076 and Environment
Protection Regulation 2077
 Forest Act Act 2076 and Forest Regulation 2077
 CITES Act 2073
 National Natural Resources and Fiscal Act 2073
Sources of  Food Right Act 2074
Nepalese Laws  Solid Waste Management Act 2068
 The Right to Food and Food Sovereignty Act 2075
 Radioactive Substance (Use and Regulation) Act
2077
 Climate Change Policy 2019

11/12/2022 63
Case Laws or precedents
 Precedents are derived from the decisions issued by

judges in the cases.
Sources of  After the establishment of Pradhan Nyayalaya

Nepalese Law precedents were legally accepted and it plays a
significant role.
 The Importance of Precedent in a common law system,
judges are obliged to make their rulings as consistent as
reasonably possible with previous judicial decisions on
the same subject.
11/12/2022 64
 Each case decided by a common law court becomes

a precedent, or guideline, for subsequent decisions
involving similar disputes.
 These decisions are not binding on the legislature,
Sources of which can pass laws to overrule unpopular court
Nepalese Law decisions.

 Unless these laws are determined to be
unconstitutional by the Supreme Court, Judges
deciding cases are bound by the new law, rather than
the precedent cases.

11/12/2022 65
 Stare decisis is a legal doctrine that obligates

courts to follow historical cases when making a
ruling on a similar case.
Sources of  Stare decisis ensures that cases with similar
Nepalese Law scenarios and facts are approached in the same
way. Meaning, it binds courts to follow
legal precedents set by previous decisions.

11/12/2022 66
• E.g of case laws:

• Narayan Prasad Devkota vs GoN
• Surya Prasad Dhungel Sharma vs.
Godawari Marble Quarry.
• All these cases have used previous
decisions as well.

11/12/2022 67
References  Country Environment Note Nepal, 2015, ADB

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11/12/2022 1

Concept, history of environment

Unit IV: Environmental Laws of Nepal

3.1 Concept, History and Environment Protection in Nepal.

Course 3.4 Biodiversity and Wildlife Conservation Laws.

Unit IV: Environmental Laws of Nepal

 Environment protection is about controlling pollution and

environment  The term environment refers to our surrounding which

Unit IV: Environmental Laws of Nepal

 Environment is the source of our need.

Concept of government has made many laws and policies.

protection guaranteed by the Constitution 2015.

Unit IV: Environmental Laws of Nepal

 Environment protection and management were addressed from

Concept of  Ancient Nepal

environment  Kirat dynasty

Unit IV: Environmental Laws of Nepal

 Influenced by religious texts such as Vedas, and dharma

Unit IV: Environmental Laws of Nepal

• The Rig Veda makes a clear reference to the

Unit IV: Environmental Laws of Nepal

 During Kirat dynasty, rules were made to keep

Unit IV: Environmental Laws of Nepal

 During Lichhivi Period, royal orders were

Unit IV: Environmental Laws of Nepal

 Manu Smriti, Narad smriti, Yagyavalka smriti etc.

Concept of  Panchali was village level assembly of five adults like a

Unit IV: Environmental Laws of Nepal

 In the rule of King Shiva Deva locals were

Unit IV: Environmental Laws of Nepal

 State taxes called “sinkar” on the export of

Unit IV: Environmental Laws of Nepal

Unit IV: Environmental Laws of Nepal

 State functionary called Mahane were

Concept of  Royal Orders were issued to protect forests of

Unit IV: Environmental Laws of Nepal

 Annual cleaning and maintenance of canals by its users

 In 1626 AD. Jitamitri Malla of Bhaktapur

Concept of  Water related disputes were not considered as

protection  Any violations of the Royal Order were

 In the Royal Edict of Ram Shah, he promulgated people’s

environment  He also decreed elaborated provisions requiring people

protection  to maintain gauchar (pastures for cattle) in every village,

Unit IV: Environmental Laws of Nepal

 The 14th Code of Ram Shah had especially mentioned

Unit IV: Environmental Laws of Nepal

Unit IV: Environmental Laws of Nepal

 Orders were issued

Unit IV: Environmental Laws of Nepal

 During latter part of (1744-1816) period

Unit IV: Environmental Laws of Nepal

 During Rana period

Unit IV: Environmental Laws of Nepal

 First Muluki ain promulgated and contained

Unit IV: Environmental Laws of Nepal

 During early Panchayat government,

Unit IV: Environmental Laws of Nepal

 Environmental issues such as forests, soil