Summary:

The purpose of this briefing is: (i) to alert indigenous peoples’ organisations and support NGOs about the current public consultation on the World Bank’s revised policy on Indigenous Peoples; and (ii) to identify some potential useful provisions and some major outstanding weaknesses and gaps in the December 2004 draft revised policy.

Since 1996, the World Bank has been in the process of revising its existing operational policy on Indigenous Peoples. Proposed changes to the policy have already been the subject of two rounds of public consultations in 1998 and 2001/2002.[1] The whole revision process has been slow and highly controversial as indigenous peoples have repeatedly claimed that their key recommendations have not so far been incorporated in the revised drafts and the proposed provisions have not met international standards and guarantees on the rights of indigenous peoples.[2] For these reasons, the March 2001 draft policy did not meet expectations and was rejected by indigenous peoples in 2002. Since then the Bank policy team and legal department have been re-writing the policy in an effort to take account of indigenous peoples’ concerns and the recommendations of the Extractive Industries Review (EIR) – as well as the views of governments and Bank staff. In December 2004, the Bank team finally released the second draft of the revised policy for 90 days’ public consultation.

The draft revised policy is available at: http://www.worldbank.org/indigenous

Public consultation period:     02 December 2004 until February 28, 2005

Submit Comments to:  indigenouspeoples@worldbank.org

The most recent revised draft policy dated 1 December 2004 has gone some way towards dealing with certain aspects of the previous recommendations made by indigenous peoples. However, there are also key issues and recommendations that are not addressed, and key concerns that are only partially dealt with. In addition, the latest draft of the proposed policy contains a series of loopholes and ambiguities that would undermine the usefulness of the policy as a safeguard and accountability mechanism. In short, the current draft contains some potentially useful elements as well as some serious gaps and shortcomings.

The remainder of this briefing intends to evaluate some of the strengths and weaknesses of the current draft. The following summary is not exhaustive. It is therefore advised that it is read together with a full copy of the December 2004 draft revised policy in hand.

C.1.   Some potentially useful and progressive elements

The draft policy includes a number of elements that could be useful if the associated weaknesses that limit their potential usefulness (identified below) are fully addressed in any final policy. Useful elements that could be built upon and are worth noting are:

• Self-identification is a key element (among others) for determining where the policy applies [para. 4]
• Linkage to the Bank’s Information Disclosure Policy [para. 15]
• Requirements that stipulate that the draft Indigenous Peoples Plan (IPP) or Indigenous Peoples Planning Framework (IPPF) must be made publicly available “in an appropriate form, manner and language” prior to project approval [paras. 6(e) and 15]
• Borrowers must seek to avoid resettlement of indigenous peoples
• Borrowers are to be prohibited from carrying out relocation of indigenous peoples in Bank-financed loan operations without the broad community support of affected indigenous communities [para. 20.]
• The Bank stipulates that it will not proceed with projects “if it is unable to ascertain that (broad community) support exists” [para. 11]
• A process of free prior and informed “consultation” is required for each stage of the project [para. 6(c)]
• A requirement to undertake culturally appropriate consultation [para. 10(b)]
• In relation to protected area projects, “the Bank recognizes the significance of” indigenous peoples’ ownership rights over lands they have “traditionally owned, or customarily used or occupied” [para. 21]
• The policy stipulates that “involuntary restrictions” on the access of Indigenous Peoples to protected areas should be avoided
• A clear mandatory requirement for the borrower to undertake a social assessment
• Possible (but not mandatory) provision for grievance mechanisms at the project level
• Recognition (in a footnote) of the need for a participation and consultation procedure based on a: “culturally appropriate and collective decision-making process subsequent to meaningful and good faith consultation and informed participation regarding the preparation and implementation of the project” [footnote 3]
• Suggested (but not mandatory) provision for “formal agreements” between indigenous peoples’ organisations and communities and project agencies [para. 11(e)]

C.2. Some key weaknesses and gaps

• Does not prohibit World Bank funding of projects or programmes that risk contravening a borrower’s international obligations on human rights and the environment
• Only makes a passing and inconsequential mention of indigenous peoples’ rights established under international law [final sentence, paragraph 2]
• Other than the mention of human rights in the policy objective, the policy does not deal with or note the relevance of particular international human rights instruments
• No requirement that the Bank and borrower respect indigenous peoples’ right to free prior and informed consent (FPIC)
• Introduction of potentially confusing principle of Free Prior Informed Consultation (FPICon) leading to “Broad Community Support”
• Stipulates that FPICon: “…does not constitute a veto right for individuals or groups” (last sentence, footnote 3 – emphasis added)
• No clear definition or verifiable criteria for “broad community support”, and no explication of how the Bank will “ascertain” such support does or does not exist among affected communities. No procedural or disclosure safeguards to ensure that such judgements are credible [paragraph 11];
• No requirement that the decisive voice in determining whether community support exists must come from indigenous peoples [it is left to Bank staff and consultants to make this judgement]
• No requirement that any assessment of “community support” is validated by affected communities and their representative organisations and independent third parties
• The Bank only commits to paying “attention” to the outcome of the process of FPICon alongside consideration of other information, suggesting that indigenous support may not be the decisive factor in deciding to fund a project [paragraph 11]
• Contains ambiguous and deficient language in relation to indigenous peoples’ collective attachment to their lands and territories [paragraphs 6(c), 8, 9 and 10]
• Restrictive and unhelpful definitions of “collective attachment” to and “forced severance” from traditional lands [paragraph 4]
• Documentation of the outcomes of FPICon (i.e. views and positions of affected indigenous peoples) is left entirely to the Borrower government
• No requirement for formal agreements with IPOs to be incorporated in loan covenants
• No formal mechanism for complaints about broad community support
• Inconsistent treatment of key requirements between different provisions and footnotes [e.g., requirement for informed participation is lost in paragraph 10]
• Consultation methods are to be mainly determined by the Borrower [paragraph 10]
• Policy scope to address land and customary rights is limited and restrictive [paragraph 16]
• The Borrower is only required to “pay particular attention to” land and resource rights. Such “attention” is conditional on the Bank’s unilateral judgement that the affected Indigenous Peoples maintain close ties to the land and that such ties will be affected by a proposed project [paragraph 16]
• Action to recognise and secure existing customary land tenure systems is confined to land titling or land acquisition projects [paragraph 17]
• Action to strengthen legislation to establish legal recognition of the land rights of indigenous peoples is only to be addressed in other Bank projects upon request of the Borrower [paragraphs 17 and 22(a)]
• No requirement that the policy applies to adjustment loans, and only a brief mention in a footnote of the Bank’s OP8.60 on Development Policy Lending that makes no explicit reference to Indigenous Peoples nor to OP4.10
• Policy requirements are largely confined to obligations to prepare studies and documents (assessments, plans, consultation records) with few clear requirements to take action to safeguard the rights of indigenous peoples. Without stringent additional action-orientated  and rights-based safeguards the current draft policy is open to superficial “checklist” compliance on paper;
• Social assessments are to be prepared by the Borrower with no provision for independent third-party review to assess the quality and reliability of such impact studies [paragraph 9]
• Vagueness regarding the minimum requirements for acceptable social assessments, IPPs and/or IPPFs [see paragraph 7]. The draft policy simply advises that various elements (e.g., legal framework studies, baseline studies etc.) are only to be included “as needed”. This means mandatory requirements under the existing OD4.20 have now become optional. This leaves a wide margin of discretion to the Borrower and may allow them to disregard key issues of importance to indigenous peoples.
• Human Rights Impacts Assessments (HRIA) and cultural impact assessment are not specified as a requirement for social assessments
• In the same way, there are no minimum requirements for the contents of an Indigenous Peoples Plan that is only expected to include possible elements “as needed” [Annex  B.]
• Current guidance for the Social Assessment and IPP does not contain any clear mandatory requirement that these studies address customary land rights, territorial rights or customary resource use and access regimes [See Paragraph 16 and Annex A and Annex B]
• No requirement that the contents of the draft IPP, IPPF and “process frameworks” be approved and agreed by affected communities prior to their finalisation, adoption and implementation [Paragraphs 12 and 13 and Annex B]
• Risky introduction of the use of existing “country-systems” in Bank projects for dealing with indigenous peoples safeguard issues, without any specification that adoption of this approach is still subject to future Board approval based on lessons learned through the Bank’s ongoing pilot initiative. [paragraph 5]
• Few details on existing and new oversight and compliance mechanisms required to ensure that any revised policy is effectively implemented on the ground [presumably to be stipulated in a forthcoming BP4.10??]
• The status of key footnotes in the policy is not clear: are these part of the mandatory provisions?

There are some potentially useful elements in the December 2004 draft revised policy that could be built upon to provide some measure of accountability and some potential for protection of indigenous rights and interests. However, the draft revised policy clearly does not incorporate key recommendations of the Extractive Industries Review (EIR). In particular, it does not directly address key indigenous recommendations relating to international human rights law, free prior and informed consent and land and territorial rights. The policy still contains serious gaps and ambiguities and some highly controversial and new risky language (e.g., on FPICon,  on country systems etc.) that must be clarified and rectified if the policy is to provide a useful safeguard that will help the Bank ensure its projects better respect indigenous peoples’ rights.

In general the mixed quality of the December 2004 draft generates a number of questions for indigenous peoples:

• Is it acceptable for OP 4.10 to omit FPIC and use free, prior and informed consultation [FPICon] resulting in broad community support – should this be condemned and the OP rejected as incompatible with indigenous peoples’ rights and demands?

• Is it acceptable that the entity designated to give broad community support is a community rather than indigenous peoples? By adopting this position it could be argued that the Bank is negating indigenous peoples’ territoriality and self-determining status. 

• Is it acceptable to reject OP 4.10 for failing to incorporate FPIC but at the same time to seek clarification and definition of “broad community support” as well as the strongest possible interpretation of this term within the Bank?  If so, where should such clarification and definition take place – in the OP, in the association Best Practices document, in the ‘Indigenous Peoples Guidebook’, all of the above, or elsewhere?

• Is it acceptable that the decision on the need to take action on land rights in a particular project is still largely left up to the Borrower?

• Is it acceptable that the Bank is proposing to use “country systems” to deal with indigenous peoples affected by its projects without first establishing additional and strict safeguards?

• The public consultation period on OP 4.10 extends until 28 February 2005.  What, if anything, should be done to address, condemn or seek changes to the OP during that period?  While the consultation period is primarily for written comments, perhaps it would be a good idea to seek a further face-to-face meeting with Bank staff to discuss the shortcoming in the draft policy?

For more background information on issues relating to this policy, see documentation on the FPP web pages at:

http://www.forestpeoples.org/Briefings/World%20Bank/WBIPPbase.htm