1.    This Briefing Paper is Part II of the larger discussion on Indigenous peoples’ rights and draft OP/BP 4.10. It is restricted to three specific rights issues implicated by draft OP 4.10 and compares the latter with international guarantees. The three issues are rights to lands and resources, rights to free prior and informed consent, participation and to be consulted, and the right to be free from involuntary relocation. We start with a brief look at the stated objective of draft OP 4.10.

2.    Paragraph 1 of draft OP 4.10 states that its “broad objective” is to “ensure that the development process fosters full respect for the dignity, human rights and cultures of indigenous peoples, thereby contributing to the Bank’s mission of poverty reduction and sustainable development.” Paragraph 2 recognizes that the “identities, cultures, lands and resources of indigenous peoples are uniquely intertwined and especially vulnerable to changes caused by development programs.” Consequently, Indigenous peoples require “special measures” that will ensure that they are not disadvantaged by and that they participate in and benefit from development programs.

3.    Logically, if the Bank is to ensure and foster “full respect for the dignity, human rights and cultures of indigenous peoples” the final OP should both account for and be consistent with Indigenous peoples’ human rights. The same is also true for the nature of the “special measures” envisaged in paragraph 2. As we shall see, this is not the case, both in terms of consistency with human rights standards and the procedures that must be followed to implement the policy.

4.    Paragraphs 12 and 13 of draft OP 4.10 read as follows:

12.   The economies, identities and forms of social organization of indigenous peoples are often closely tied to land, water and other natural resources. Therefore, in Bank-assisted projects which affect indigenous peoples, the Borrower takes into account their individual and collective rights to use and develop the lands that they occupy, to continue to have access to natural resources vital to their subsistence, to the sustainability of their cultures, and to their future development

13.   In order to avoid or minimize adverse impacts of Bank-assisted projects on affected indigenous groups, and to determine measures which may be needed to enhance their security over lands and other resources, in the design of the project the Borrower gives particular attention to:

       (a)   the cultural, religious and sacred values that these groups attribute to their lands and resources;

       (b)   their individual and communal or collective rights to use and develop the lands they occupy and to be protected against encroachment;

       (c)   their customary use of the natural resources vital to their cultures and ways of life; and

       (d)   their natural resources management practices and the long-term sustainability of these practices.

       Where a Bank-assisted project has an impact on the lands and resources occupied or used by indigenous peoples and taking into account the Borrower's legislation, consideration is given to establishing legal recognition of the customary or traditional land tenure systems of affected indigenous peoples or granting them long-term renewable rights of custodianship and use.

5.    While these paragraphs do note the cultural significance of Indigenous lands, territories and resources, very little is required with respect to recognition of and respect for Indigenous rights over them and the policy fails to require in any way that Indigenous ownership rights be recognized and respected. They simply require that the Borrower “takes into account” Indigenous individual and collective rights, that the Borrower “gives particular attention to” Indigenous rights and, taking into account the Borrower’s legislation, that “consideration is given to establishing legal recognition of the customary or traditional land tenure systems of affected indigenous peoples or granting them long-term renewable rights of custodianship and use.”

6.    The Indigenous rights referred to are the “individual and collective rights to use and develop the lands that they occupy ….” Use and development of lands may be incidents of ownership but they are not equivalent; ownership amounts to control, although not necessarily absolute, over a thing. In practice, should the state be opposed to recognition of Indigenous ownership rights, it need not recognize these rights and may implement a variety of projects that undermine or violate Indigenous peoples’ property rights.

7.    International law, on the other hand, requires that Indigenous peoples’ ownership and other rights to their lands, territories and resources be legally recognized and respected, which includes titling, demarcation and measures to ensure their integrity. These rights are protected under international law in connection with a variety of other rights, including the general prohibition of racial discrimination, the right to property, the right to cultural integrity and as part and parcel of the right to self determination.

8.    Indigenous rights to lands, territories and resources have been addressed a number of times by intergovernmental bodies under human rights instruments of general application. Concerning the territorial aspects of self-determination, the UN Human Rights Committee (HRC), stated

that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (article 1(2)). … The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant. [1]

9.    The HRC reached similar conclusions – that the State implement and respect the right of Indigenous peoples to self-determination, particularly in connection with their traditional lands – in its Concluding Observations on the reports of Mexico and Norway issued in 1999 and Australia in 2000. [2] In its complaints-based jurisprudence, [1] the HRC has also related the right to self-determination to the right of Indigenous peoples to enjoy their culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). [3]

10.  Under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) states-parties are obligated to recognize, respect and guarantee the right “to own property alone as well as in association with others” and the right to inherit property, without discrimination. [4] In its 1997 General Recommendation, the UN Committee on the Elimination of Racial Discrimination elaborated on Indigenous rights under CERD. In particular, the Committee called upon states-parties to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories.” [5]

11.  The principal provisions of CERD are declaratory of customary international law obliging the Bank to act consistently therewith. [6] Also, over three quarters of the Bank’s membership has ratified CERD, obliging the Bank to account for and respect their attendant obligations.

12.  Article 27 of the ICCPR, provides that: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” [2] This article protects linguistic, cultural and religious rights and, in the case of Indigenous peoples, includes, among others, land and resource, subsistence and participation rights. [7] These rights are held by individuals, but exercised “in community with other members of the group,” thereby providing some measure of collectivity.

13.  Similar language is found in article 30 of the UN Convention on the Rights of the Child, therefore, the points made here are also relevant to the rights of Indigenous children, and by implication the larger Indigenous community, under that instrument. [3] Article 30 and ICCPR article 27 embody one manifestation of the general norm of international law relating to the right to cultural integrity. [8]

14.  The HRC has interpreted article 27 to include the “rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” In reaching this conclusion, the HRC recognized that Indigenous peoples’ subsistence and other traditional economic activities are an integral part of their culture, and interference with those activities can be detrimental to their cultural integrity and survival. By necessity, the land, resource base and the environment thereof also require protection if subsistence activities are to be safeguarded.

15.  The HRC further elaborated upon its interpretation of article 27 by stating that

With regard to the exercise of the cultural rights protected under Article 27, the committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specifically in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. [9]

16.  In July 2000, the HRC added that article 27 requires that “necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands …” and that “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities … must be protected under article 27….” [10]

17.  Similar conclusions about Indigenous peoples’ rights have been reached under Inter-American human rights instruments, specifically the American Convention on Human Rights. First, it is well established in the Inter-American system that Indigenous peoples have been historically discriminated against and disadvantaged and therefore, that special measures and protections (affirmative action) are required if they are to enjoy equal protection of the law and the full enjoyment of other human rights. These special measures include protections for Indigenous languages, cultures, economies, ecosystems and natural resource base, religious practices, “ancestral and communal lands,” and the establishment of an institutional order that facilitates Indigenous participation through their freely chosen representatives. [11] The Inter-American Commission of Human Rights (IACHR) characterized the preceding as “human rights also essential to the right to life of peoples.” [12] In the negative, protection of these rights amounts to a broad prohibition of forcible assimilation and ethnocide.

18.  According to the IACHR, Indigenous peoples’ property rights – including ownership rights – derive from their own forms of land tenure and traditional occupation and use, and pre-exist in the absence of formal recognition by the state. [13] It has related territorial rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between Indigenous land tenure and resource security and the right to practice, develop and transmit culture free from unwarranted interference. In 1997, for instance, the IACHR stated that:

For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being. Control over the land refers to both its capacity for providing the resources which sustain life, and to 'the geographical space necessary for the cultural and social reproduction of the group.’ [14]

19.  The IACHR reiterated this conclusion in its Second Report on the Human Rights Situation in Peru, stating that “Land, for the indigenous peoples, is a condition of individual security and liaison with the group. The recovery, recognition, demarcation and registration of the lands represents essential rights for cultural survival and for maintaining the community’s integrity.” [15]

20.  The Inter-American Court on Human Rights in The Mayagna (Sumo) Indigenous Community of Awas Tingni v. the Republic of Nicaragua Case confirmed that Indigenous territorial rights arise from traditional occupation and use and Indigenous forms of tenure, not from grants, recognition or registration by the state. In its judgment, issued in September 2001, the Court observed that:

Among indigenous communities, there is a communal tradition as demonstrated by their communal form of collective ownership of their lands, in the sense that ownership is not centered in the individual but rather in the group and in the community. By virtue of the fact of their very existence, indigenous communities have the right to live freely on their own territories; the close relationship that the communities have with the land must be recognized and understood as a foundation for their cultures, spiritual life, cultural integrity and economic survival. For indigenous communities, the relationship with the land is not merely one of possession and production, but also a material and spiritual element that they should fully enjoy, as well as a means through which to preserve their cultural heritage and pass it on to future generations. [16]

21.  Finding that “The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership;” [17] the Court held, among others, that “the State must adopt measures of a legislative, administrative, and whatever other character necessary to create an effective mechanism for official delimitation, demarcation, and titling of the indigenous communities' properties, in accordance with the customary law, values, usage, and customs of these communities.” [18]

22.  Most recently, in the Mary and Carrie Dann Case, citing international jurisprudence, the IACHR stated that “general international legal principles applicable in the context of indigenous human rights … include:

·       the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property;

·       the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; and

·       where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.

·       This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost.” [19]

23.  In this case, it interpreted the American Declaration on the Rights and Duties of Man (1948) to require “special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources …,” [20] and held that that, “Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole.” [21]

24.  International Labour Organisation Convention No 169 contains a number of provisions on Indigenous territorial rights. [4] These provisions are framed by Art. 13(1) which requires that governments recognize and respect the special spiritual, cultural and economic relationship that Indigenous peoples have with their lands and territories and especially “the collective aspects of this relationship.” Art. 14 requires that Indigenous peoples’ collective “rights of ownership and possession . . . over the lands which they traditionally occupy shall be recognized” and that states “shall take steps as necessary to identify” these lands and to “guarantee effective protection of [Indigenous peoples’] rights of ownership and possession.” Art. 13(2) defines the term “lands” to include “the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.”

25.  The preceding provisions on land rights must all be read in connection with Article 7(1) of the ILO 169 which provides that

The people concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.

This provision recognizes that Indigenous peoples have the right to some measure of self-government with regard to their institutions and in determining the direction and scope of their economic, social and cultural development (the latter is limited by reference to other provisions of the Convention).

26.  ILO 169’s predecessor, ILO 107 adopted in 1957, also provides that “The right of ownership, collective or individual, of the members of the population concerned over the lands which these populations traditionally occupy shall be recognized.” The ILO Committee of Experts has held that the rights that attach under Article11 also apply to lands presently occupied irrespective of immemorial possession or occupation. The ILO Committee stated that the fact that the people has some form of relationship with land presently occupied, even if only for a short time was sufficient to form an interest and, therefore, rights to that land and the attendant resources. [22] ILO 107 has been ratified by 27 states, many of them in Asia and Africa, including Brazil and India, two of the Bank’s major borrowers. [23]

27.  The African Charter on Human and Peoples’ Rights is also relevant here. Property rights are guaranteed under Article 14 and the right to equal protection of the law, both for individuals and peoples (Articles 3 and 19), and the prohibition of discrimination (article 2) are also recognized. If UN and IACHR jurisprudence are relied upon, these provisions read together will amount to a recognition of Indigenous property rights based upon traditional occupation and use.

28.  Articles 19-24 of the African Charter set out the rights of peoples, including the right to self-determination, the right to freely dispose of natural wealth and the right to a satisfactory environment. There is little clarity however about who are the holders of peoples’ rights, especially whether sub-state entities such as Indigenous peoples are beneficiaries. In some cases, the African Commission on Human and Peoples’ Rights has found that peoples’ rights only attach to the entire population of independent states, in others, to sub-state entities within those independent states. [24] The African Commission recently established a Working Group on Indigenous Peoples with a mandate to assess Indigenous rights in relation to the right to self-determination and other rights which may provide further guidance on this issue. [25]

29.  Recent normative developments relating to Indigenous lands, territories and resources are expansive, requiring legal recognition, restitution and compensation, protection of the total environment thereof, and various measures of participation in extra-territorial activities that may affect subsistence rights and environmental and cultural integrity. Article 26 of the UN Draft Declaration, for instance, provides that

Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal sea, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by states to prevent any interference with, alienation or encroachment upon these rights.

30.  The OAS Proposed Declaration also provides a substantial measure of protection (Art. XVIII):

1.  Indigenous peoples have the right to the legal recognition of the various and specific forms of control, ownership and enjoyment of territories and property.

2.  Indigenous peoples have the right to the recognition of their property and ownership rights with respect to lands and territories they have historically occupied, as well as to the use of those to which they have historically had access for their traditional activities and livelihood.

3.  i)    Subject to 3.ii.), where property and user rights of indigenous peoples arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous peoples relative thereto as permanent, exclusive, inalienable, imprescriptible and indefeasible. 

     ii)   Such titles may only be changed by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.   

     iii)   Nothing in 3.i.) shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them. 

4.  The rights of indigenous peoples to existing natural resources on their lands must be especially protected. These rights include the right to the use, management and conservation of such resources.

31.  As can be seen from the preceding, human rights standards, as set out in treaties, in jurisprudence interpreting those treaties and in emerging standards, all require that Indigenous ownership rights, at a minimum over lands traditionally occupied, be recognized and respected. All that it is required by draft OP 4.10 is that Borrowers consider doing so. That this is left to the discretion of the Borrower is clear from paragraph 20(e), which permits the Bank to provide technical assistance, “[a]t the Borrower’s request,” to “establish legal recognition of the customary or traditional land tenure systems of indigenous peoples, or grant long-term renewable rights of custodianship and use.” This is not only inconsistent with human rights standards, it is also entirely inconsistent with the Bank’s views on the centrality of property rights to overall development and poverty alleviation efforts. On these grounds alone it is difficult to see how the Bank can justify this approach.

32.  Paragraphs 12 and 13 may not even comply with the Convention on Biological Diversity (CBD), a binding international environmental treaty. At least one Bank policy (Environmental Assessment: OP 4.01, para. 3) requires that the Bank not finance projects that contravene their members obligations under international environmental treaties. Footnote 1 to draft OP 4.10 states that it should be read together with other relevant Bank polices and specifically mentions the policy on Environmental Assessment, as well as OP 4.04 on Natural Habitats.

33.  Art. 10(c)of the CBD provides that States shall “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.” Although the precise scope and meaning of this article have yet to be formally articulated, it would most likely include Indigenous agriculture, agro-forestry, hunting, fishing, gathering and use of medicinal plants and other subsistence activities. This article, by implication, should also be read to include a certain measure of protection for the land base, ecosystem and environment in which those resources are found. These observations on article 10(c) are supported by the analysis of the Secretariat of the CBD in its background paper entitled “Traditional Knowledge and Biological Diversity’. In that paper, the Secretariat said the following about the language “protect and encourage” found in 10(c):

In order to protect and encourage, the necessary conditions may be in place, namely, security of tenure over traditional terrestrial and marine estates; control over and use of traditional natural resources; and respect for the heritage, languages and cultures of indigenous and local communities, best evidenced by appropriate legislative protection (which includes protection of intellectual property, sacred places, and so on). Discussions on these issues in other United Nations forums have also dealt with the issue of respect for the right to self-determination, which is often interpreted to mean the exercise of self-government. [26]

34.  Finally, Professors Anaya and Williams state that “the relevant practice of states and international institutions establishes that, as a matter of customary international law, states must recognize and protect indigenous peoples’ rights to land and natural resources in connection with traditional or ancestral use and occupancy patterns.” [27] These land and resource rights include ownership rights. Anaya and Williams are not alone among scholars in reaching this conclusion [28] and these rights are already protected under customary international law in connection with the principal provisions of CERD.

35.  In October 2001, the IACHR confirmed that Indigenous rights to lands and resources are protected and guaranteed under customary international law (see, para. 22, above).

36.  Draft OP 4.10 employs the terms, “consultation”, “meaningful consultation”, “involvement”, and, in one place, “agreement”, the latter signifying consent. These terms are scattered throughout the text and appear to be used inconsistently insofar as it is difficult to ascertain with any certainty which standard is to be used in what context. Paragraph 7, for instance, provides that Bank-assisted operations require “Meaningful consultation” and mechanisms “to foster the informed participation” of Indigenous peoples; paragraph 9, entitled “Consultation and Participation” mentions only “meaningful consultation” and “consultation.”

37.  Further, paragraph 10 specifies that for projects, either identified as having adverse effects or specially designed to benefit Indigenous peoples, “informed participation” is required, however, its sub-paragraphs detailing processing requirements simply require that activities be undertaken “in consultation” with Indigenous peoples. For potentially damaging resource exploitation operations, the draft OP requires consultation and that Indigenous peoples be involved in decision making (para. 14); for activities pertaining to parks and protected areas affecting customary usufruct rights, informed participation is required (para. 15); and, for exploitation of cultural resources, consent is required (para. 16).

38.  Irrespective of which standard applies, pursuant to paragraph 9 the Borrower merely “considers the views and preferences” of Indigenous peoples when deciding to move ahead with the project and in determining if any project modifications are necessary. The Bank then has the dubious task of determining if the Borrower’s judgment is consistent with the policy as a whole. Rather than examine each of the paragraphs mentioned above, we will confine our comments to paragraph 14. As with the paragraphs discussed in the preceding section, paragraph 14 also falls short of human rights standards. It reads:

Commercial Use of Lands and Resources. When Bank-assisted projects involve the commercial exploitation of natural resources (including forests, mineral, and hydrocarbon resources) on lands owned, or customarily used by indigenous groups, the Borrower:

(a)   informs these groups of their rights to such resources under statutory and customary law;

(b)   informs them of the potential impacts of such projects on their livelihoods, environments and use of natural resources;

(c)   consults them at an early stage on the development of the project, and involves them in decisions which affect them; and

(d)   provides them with opportunities to derive benefits from the project.

As in all projects which affect indigenous groups, adverse impacts upon them are avoided or minimized, and benefits should be culturally appropriate.

39.  This paragraph of draft OP 4.10 defines procedural mechanisms to be employed when the Bank finances resource exploitation on Indigenous lands, in this case defined as lands both owned and customarily used. I will focus here only on sub-paragraph (c), except to say that sub-paragraph (d) is substandard as international standards require that Indigenous peoples share in benefits derived from exploitation of resources pertaining to their lands and that compensation be rendered for any related damages. [5] The draft OP requires neither, although compensation may be provided for under domestic law and procedures.

40.  Sub-paragraph (c) requires that consultation take place “at an early stage” in project development and that Indigenous peoples be involved in decision-making. Apart from it being unclear when exactly is “an early stage” of the project and why consultation should not take place from inception, consulting with and involving Indigenous peoples is clearly substandard. While different human rights instruments and bodies have employed different standards – these range from free and informed consent to effective, meaningful or informed participation to good faith consultation aimed at achieving agreement or consent – they all surpass the standard set in the draft OP.

41.  The 1997 General Recommendation, issued by the Committee on the Elimination of Racial Discrimination, for instance, called upon states-parties to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.” The Committee later recognized Indigenous peoples’ right to “effective participation . . . in decisions affecting their land rights, as required under article 5(c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of ensuring the “informed consent” of indigenous peoples” (emphasis added). [29] Article 30 of the UN draft Declaration is consistent with this:

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that states obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

42.  In 2001, the UN Committee on Economic, Social and Cultural Rights noted “with regret that the traditional lands of indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil companies, at the expense of the exercise of their culture and the equilibrium of the ecosystem.” [30] It then recommended that the state “ensure the participation of indigenous peoples in decisions affecting their lives. The Committee particularly urges the State party to consult and seek the consent of the indigenous peoples concerned, prior to the implementation of timber, soil or subsoil mining projects and on any public policy affecting them, in accordance with ILO Convention No.169.” [31]

43.  Similarly, finding that Nicaragua had violated the right to property, judicial protection and due process of lawby granting logging concessions on Indigenous lands without taking steps to title and demarcate those lands, the IACHR stated that

The State of Nicaragua is actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni Community. [32]

44.  The IACHR has also found that inter-American human rights law requires “special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation.” [33]

45.  While not requiring consent, ILO 169 requires that states “establish or maintain procedures through which [it] shall consult these peoples” to determine the extent to which “their interests would be prejudiced” prior to engaging in, or allowing resource exploitation (Art. 15(2)). This provision should be read consistently with Art. 6(2)’s general requirement that consultation be undertaken “in good faith . . . in a form appropriate to the circumstances, with the objective of achieving agreement or consent.”

46.  Article XVIII(5) of the Proposed OAS Declaration provides that states “must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these peoples would be adversely affected and to what extent, before undertaking or authorizing” operations on Indigenous lands. Also, the HRC has found that respect for Article 27 of the ICCPR includes “measures to ensure the effective participation of members of minority communities in decisions which affect them….” [34]

47.  To be consistent international standards, the final OP must, at a minimum, require Indigenous peoples’ effective or meaningful participation. It also can also be persuasively argued that, as interpretations of CERD carry additional weight given the status attributed to the norm prohibiting racial discrimination in international law, the policy should comply with the standard set by the Committee: ensuring effective participation and informed consent. Inclusion of such a low standard in draft OP 4.10 is extremely disturbing given the history of severe problems that Indigenous peoples have experienced with resource exploitation. A strong, effective and verifiable participation/consent standard is also required in light of the failure of the Bank in the past to ensure that participation did in fact occur – an internal Bank study, for instance, found that only half of Bank projects between 1992-97 had involved any consultation with Indigenous authorities about project design and implementation. [35]

48.  While previous drafts of OP 4.10 addressed the issue of involuntary resettlement in some detail, [36] the present draft makes only one reference in a footnote to the issue. OP 4.12 on Involuntary Resettlement is therefore the primary reference point. We will deal with it here for two reasons: first, because it illustrates a major deficiency in draft OP 4.10: its failure to address an issue of vital importance in the larger scheme of indigenous peoples’ human rights. Second, because it permits analysis of another Bank policy on human rights grounds providing further insight into the overall treatment of Indigenous rights in Bank policies.

49.  International attention has focused on the issue of involuntary resettlement in recent years more than at any other time; it “is considered a practice that does grave and disastrous harm to the basic civil, political, economic, social and cultural rights of large numbers of people, both individual persons and collectivities.” [37] This is also recognized in a World Bank study on resettlement, which states that “The potential for violating individual and group rights under domestic and international law makes compulsory resettlement unlike any other project activity. … Carrying out resettlement in a manner that respects the rights of affected persons is not just an issue of compliance with the law, but also constitutes sound development practice.” [38]

50.  For Indigenous peoples, forcible relocation can be disastrous, severing entirely their various relationships with their ancestral lands. [39] As observed by the UN Sub-Commission, “where population transfer is the primary cause for an indigenous people's land loss, it constitutes a principal factor in the process of ethnocide;” [40] and, “[f]or indigenous peoples, the loss of ancestral land is tantamount to the loss of cultural life, with all its implications.” [41]

51.  OP 4.12 itself recognizes the connection between resettlement and Indigenous peoples’ cultural integrity, stating in paragraph 9 that

Bank experience has shown that resettlement of indigenous peoples with traditional land-based modes of production is particularly complex and may have significant adverse impacts on their cultural survival. For this reason, the Bank satisfies itself that the borrower has explored all viable alternative project designs to avoid physical displacement of these groups. Where it is not feasible to avoid such displacement, preference is given to land-based resettlement strategies for these groups that are compatible with their cultural preferences and are prepared in consultation with them.

52.  Rather than prohibit involuntary resettlement as a gross violation of Indigenous peoples’ rights to, among others, cultural integrity and survival, the Bank will finance activities involving resettlement, even resulting in significant adverse impacts on their cultural survival, if it is satisfied that the Borrower has explored all feasible project design alternatives. Paragraph 2(b) of OP 4.12 adds that “Displaced persons should be meaningfully consulted and have opportunities to participate in planning and implementing resettlement programs.” Despite the language of the Bank report quoted above highlighting respect for the rights of affected persons, OP 4.12 stands in sharp contrast to Indigenous peoples’ rights as defined by international law. Two immediate concerns are apparent: the failure to require that consent be obtained prior to relocation and the complete disregard for Indigenous peoples’ cultural rights.

53.  Due to the importance attached to Indigenous cultural, spiritual and economic relationships to land and resources, international law treats relocation as a serious human rights issue. [42] In international instruments, strict standards of scrutiny are employed and Indigenous peoples’ free and informed consent must be obtained. [6] Relocation may only be considered as an exceptional measure in extreme and extraordinary cases. The implicit statement contained in these standards is that forcible relocation is prohibited as a gross violation of human rights. [43]

54.  The report of the Representative of the UN Secretary General on this issue concluded that “an express prohibition of arbitrary displacement is contained in humanitarian law and in the law relating to indigenous peoples” [44] and, “[e]fforts should be made to obtain the free and informed consent of those to be displaced. Where these guarantees are absent, such measures would be arbitrary and therefore unlawful. Special protection should be afforded to indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.” [45] Another report found that the principle of consent has obtained the status of a binding general principle of international law. [46] Finally, the IACHR has found that “[t]he preponderant doctrine” holds that the principle of consent is of general application to cases involving relocation. [47]

55.  From the preceding, it is clear that international law requires that consent be obtained prior to resettlement and that this is a principle of customary international law binding on the Bank. It is also clear that international law accords Indigenous peoples, given their unique connection with their lands and resources, a higher standard of protection than applies to others. This higher standard in part entails a substantial, if not complete, limitation on the exercise of eminent domain powers by the state. For these reasons, the European Union, the Inter-American Development Bank and the World Commission on Dams all prohibit relocation absent Indigenous peoples’ consent. [48]

56.  Again given the fundamental physical, cultural, spiritual and other relationships that Indigenous peoples have with their lands and resources, forcible resettlement amounts to a gross violation of a series of human rights cumulatively defined as cultural integrity. It certainly amounts to a violation of Article 27 of the ICCPR and Article 30 of the Convention on the Rights of the Child in that it amounts to a denial of the right of Indigenous persons and children, respectively, to enjoy their culture. [49] Articles 27 and 30 are one manifestation of the general norm of international law relating to the right to cultural integrity, a norm binding on the Bank. [50] Also in the jurisprudence of the IACHR, forcible relocation amounts to a violation of human rights “essential to the right to life of peoples.” [51]

57.  The paragraphs of OP 4.12 requiring compensation and provision of lands of equal value do not alter the conclusion reached in the preceding paragraph. Commenting on forcible relocation, Sharon Venne, an Indigenous lawyer, explains that “Does no one realize that our relationship to the land is to a particular place? There seems to be an assumption that any land will be adequate. In our worldview, the land which identifies us does not change like the wind. Removing us from our land base is, in fact, to take away our life force.” [52] With regard to compensation, a UN report concludes that “Monetary compensation for relocating indigenous peoples raises a number of very difficult questions. Past experience has demonstrated that monetary compensation is actually an effective contribution to the demise of entire indigenous peoples and has resulted in the impoverishment and marginalization of most tribal and indigenous peoples thus relocated.” [53] The report cites a World Bank study to reach this conclusion. [54]

58.  To conclude this section, the OP 4.12 on Involuntary Resettlement directly contravenes at least two norms of customary international law. These norms are binding on the Bank, requiring at a minimum that Bank polices account for and respect them. The damage caused to Indigenous peoples by involuntary resettlement is by its nature irreparable and therefore must be avoided at all costs. By failing to address this issue, draft OP 4.10 again falls far short of ensuring that the “development process fosters full respect for the dignity, human rights and cultures of indigenous peoples,” and further undermines the claim that draft OP 4.10 is a meaningful safeguard for Indigenous peoples.