1.    This briefing focuses on the connection between poverty alleviation and property rights. It has three primary purposes:

1)   To demonstrate that poverty alleviation, development and secure property rights are inextricably linked, especially in the case of indigenous peoples;

2)   To show that the World Bank and the international development community have accepted this fundamental linkage, and;

3)   to show that the failure to account for and respect indigenous peoples’ property rights in draft OP 4.10 on Indigenous Peoples, not only violates human rights standards, binding on the Bank and accepted by the vast majority of its members, but also constitutes unsound development practice that will ultimately exacerbate poverty in contravention of the Bank’s mandate and raison d'être 

2.    As stated many times, the mandate, indeed, the professed overriding purpose, of the World Bank is poverty alleviation; its website proclaims that the “dream” of the Bank is “a world free of poverty.”  While the Bank has maintained that it is not bound by international norms protecting fundamental human rights – a position that “is without merit, on legal or policy grounds” [1] - it is incongruous, to say the least, for the Bank, including its members, to adopt a policy that fails to account for one of the primary identified means of alleviating poverty: recognition and protection of property rights.

3.         For indigenous peoples, secure, effective collective property rights are fundamental to their economic and social development, to their physical and cultural integrity, to their livelihoods and sustenance. Secure land and resource rights are also essential for the maintenance of the worldviews and spirituality of indigenous peoples and, in short, to their very survival as viable territorial communities. [2]   Failure to recognize and require respect for these rights in Draft OP 4.10 not only undermines any credible claim that the Bank may have towards alleviating indigenous peoples’ poverty and achieving sustainable development, it also calls into question the entire rationale for having a safeguard policy at all.  If the Bank’s policy fails to account for one of the most important foundations underlying indigenous peoples’ well being, economic and social security, and survival, can it be called a safeguard at all? 

4.         The World Bank has highlighted the fundamental importance of property rights to overall development and poverty alleviation efforts on numerous occasions as have many other development actors.  The President of the Bank, for instance, states that “Without the protection of human and property rights, and a comprehensive framework of laws, no equitable development is possible.” [3]   Additionally, a 1998 World Bank publication states unequivocally that:

Property is the ultimate potential asset of every poor person. It is the foundation upon which citizens participate in community and political life. … The main problem in developing countries is that property claims by the poor, while acknowledged within the community, are too often not recognized by the state. As a result, these informal owners, who account for more than 50 percent of the poor, lack access to the social and economic benefits that secure property rights provide. [4]

5.         A document submitted to the Bank’s Board in 2001 provides a brief outline of the reasons the Bank is involved with land issues and property rights.  It states that “The rules governing access to and use of land are essential for the Bank's goal of poverty reduction …” and, “[c]onceptually, the Bank's involvement in land issues rests on three pillars, namely (i) the establishment and guarantee of secure property rights in socially sustainable manner; (ii) creation of the institutional and administrative infrastructure to facilitate proper land use and well-functioning land markets that can help in the development of other factor markets (e.g. credit); and (iii) policies and specific mechanisms to improve access to land by the poor.” [5]

6.         The need for strong and effective property rights is amplified in the case of indigenous peoples and cannot be overstated.  These rights are almost always collective in nature and often involve rights and duties held of and owed to previous and future generations. According to the UN Rapporteur on indigenous land rights:

(i) a profound relationship exists between indigenous peoples and their lands, territories and resources; (ii) this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; (iii) the collective dimension of this relationship is significant; and (iv) the intergenerational aspect of such a relationship is also crucial to indigenous peoples’ identity, survival and cultural viability. [6]

7.         For indigenous peoples, security of tenure over traditional lands, territories and resources is indispensable to their economic and social well being and development as well as their physical and cultural integrity and survival. The Inter-American Court on Human Rights further confirms this: “… 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.” [7]

8.         In accord with the preceding, one of the Bank’s senior sociologist in the Indigenous Peoples Program identifies land rights as a fundamental and basic element of development. Discussing a project in Ecuador, he states that: “By supporting indigenous peoples’ rights to land, [the Bank] is supporting the basic conditions for their development.” [8]  

9.         The multifaceted nature of indigenous peoples’ relationship to land, as well as the relationship between development and property rights, is also emphasized by United Nations High Commissioner for Human Rights, Mary Robinson, in her December 2001 Presidential Fellow’s Lecture at the Bank. She states that, for indigenous peoples 

… economic improvements cannot be envisaged without protection of land and resource rights. Rights over land need to include recognition of the spiritual relation indigenous peoples have with their ancestral territories. And the economic base that land provides needs to be accompanied by a recognition of indigenous peoples’ own political and legal institutions, cultural traditions and social organizations. Land and culture, development, spiritual values and knowledge are as one. To fail to recognize one is to fail on all. [9]

10.       In short, without secure and enforceable property rights, indigenous peoples’ means of subsistence are permanently threatened. Their lands and territories are their resource base and “food basket”. Land and territory are also the source of, inter alia, medicines, construction materials and household and other tools and implements.  Loss or degradation of land and resources results in deprivation of the basics required to sustain life and to maintain an adequate standard of living.  The Bank’s issue paper on land policy concurs on this point. It highlights the importance of sustainable management of resources as part of securing property rights “especially where these resources are maintained by indigenous or minority groups for whom such resources may perform a highly relevant safety net function even if their average contribution to income may be low.” [10]  

11.       The UN Committee on Economic, Social and Cultural Rights also addressed this issue in its General Recommendation No. 12 on the right to food stating that, states must refrain from taking measures liable to deprive anyone of access to food (the obligation to respect). This obligation would be violated, for example, if the state arbitrarily deprived an individual or group of individuals of their land in a case where the land was the individual’s or group’s physical means of securing the right to food. [11]   The UN Rapporteur on indigenous land rights goes further stating that failure to guarantee property rights substantially undermines indigenous peoples’ socio-cultural integrity and economic security: “Indigenous societies in a number of countries are in a state of rapid deterioration and change due in large part to the denial of the rights of the indigenous peoples to lands, territories and resources …” [12]

12.       Threats to indigenous lands are particularly acute in relation to national development projects and corporate operations.  These projects/operations have had and continue to have a devastating impact on indigenous peoples frequently degrading their quality of life and ability to support themselves.  Over the past 50 years, the World Bank has often involved in financing projects that affect indigenous peoples and this was one of the major reasons for adoption of a safeguard policy.  Indeed, the Bank’s first policy on indigenous peoples - Operational Manual Statement 2.34 Tribal People in Bank-Financed Projects – was adopted in response to “internal and external condemnation of the disastrous experiences of indigenous groups in Bank-financed projects in the Amazon region.” [13]   Moreover, these violations are not confined to the past: as the UN Special Rapporteur comments:

…resources are being extracted and/or developed by other interests (oil, mining, logging, fisheries, etc.) with little or no benefits for the indigenous communities that occupy the land. Whereas the World Bank has developed operational directives concerning its own activities in relation to these issues … and some national legislation specifically protects the interests of indigenous communities in this respect, in numerous instances the rights and needs of indigenous peoples are disregarded, making this one of the major human rights problems faced by them in recent decades. [14]

Other intergovernmental human rights bodies have reached similar conclusions (see below). It is therefore of grave concern that Draft OP/BP 4.10 does not adequately guarantee indigenous property rights, giving preference to resource exploitation over measures to ensure security of tenure. [15]  

13.       Multilateral donors other than the World Bank have recognized that loss of traditional lands exacerbates indigenous peoples’ poverty. The Asian Development Bank, for instance, states that “…indigenous peoples can be disadvantaged by loss of access to ancestral lands and the natural resources and other sources of income contained in these lands … Lack of participation in development combined with the loss of access to land and resources have in many cases marginalized indigenous peoples.” [16]  

14.       The UNDP explicitly recognizes the link between poverty and land and resource rights. Its policy on indigenous peoples states, under the heading ‘Poverty Reduction’ that, “In order to tackle issues with respect to ownership and use of land and natural resources … a focus on poverty-reduction strategies that include indigenous peoples is vital.” [17]   The Inter-American Development Bank’s Strategies and Procedures on Socio-Cultural Issues as Related to the Environment clearly state that:

The general principles which will guide the Bank's activities with regard to tribal and other people inhabiting natural environment areas are: Recognition of the individual and collective rights of indigenous populations, [including]: … (2) the right of possession and property of the lands they traditionally inhabit and the natural resources found there within. Bank actions: Design of project components aimed at protecting indigenous population groups, [include], … measures to demarcate and title tribal lands…. In general the IDB will not support projects that involve unnecessary or avoidable encroachment onto territories used or occupied by tribal groups or projects affecting tribal lands, unless the tribal society is in agreement, and unless it is ensured that the executing agencies have the capabilities of implementing effective measures to safeguard tribal populations and their lands. [18]

15.       The preceding demonstrates that consensus exists with regard to the centrality of property rights to poverty alleviation and sustainable development.  The Bank and other members of the development community have repeatedly stressed this point. The Bank goes so far as to blame developing countries for failing to recognize property rights of the poor and, consequentially, denying poor people access to social and economic benefits. [19] The need to guarantee indigenous peoples’ collective property rights, given that their lands, resources and cultural and other relationships therewith form the very basis for their development and survival as viable social, cultural, territorial and political entities, is also stressed and widely accepted by development actors.  It would appear logical then that OP 4.10 would also stress and require recognition of and respect for these rights and apply strict standards of scrutiny to ensure that these rights are in fact respected: however, this is not the case.  

16.       Paragraph 1 of OP 4.10 states that its ‘broad objective’ is to “ensure that 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.”  While this language is encouraging, a careful reading of OP 4.10 reveals that Bank staff and Borrowers are not required to recognize or respect indigenous peoples’ property rights.  In particular, in direct contravention of the Bank’s poverty alleviation mandate, public statements, accepted development policy and international human rights guarantees, the Bank has omitted any reference to indigenous peoples’ ownership rights to their property. Measures to address these rights are left entirely to the discretion of the Borrower, the same entity that often has vested interests in not respecting these rights.

17.     Paragraphs 12 and 13 of 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.

18.       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 peoples’ rights over them. Crucially, the policy fails to require in any way that indigenous ownership rights be recognized and respected. The proposed policy provisions simply require that the Borrower “takes into account” indigenous individual and collective rights, and that the Borrower “gives particular attention to” Indigenous rights. Having regard for the Borrower’s legislation, the policy simply states 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.”  This statement cannot be construed in any way as a stipulation or requirement to take action to safeguard indigenous peoples’ land rights under the policy. It is essentially an empty and meaningless provision.

19.       The indigenous rights referred to in Draft OP/BP4.10 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 and respect for indigenous ownership rights in connection with Bank projects, it need not do so and may implement a variety of projects in violation of those rights.  That recognition of and respect for indigenous peoples’ ownership rights 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” (emphasis added).  This is not only inconsistent with human rights standards, it is also entirely inconsistent with the Bank’s public views on the centrality of property rights to development and poverty alleviation.

20.       In order to satisfy OP 4.10, the Borrower only need show that it took indigenous use rights into account, that it paid particular attention to those to those rights, that it considered legal recognition thereof or that its domestic laws somehow preclude it from doing so.  The Bank need simply verify that the Borrower has in fact done the preceding.  Apart from being vague and subjective, the OP’s provisions on indigenous property rights lack any semblance of accountability, both on the part of the Bank and the Borrower.  To quote the UN Committee on Economic, Social and Cultural Rights’ important statement on poverty and human rights, “Critically, rights and obligations demand accountability: unless supported by a system of accountability, they can become no more than windowdressing.” [20]  

21.       With regard to indigenous peoples’ property rights, the Inter-American Court on Human Rights has found 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.” [21] The Court then held, inter alia, 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.” [22]  

22.       In July 2000, the UN Human Rights Committee concluded that article 27 of the International Covenant on Civil and Political Rights [23] 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….” [24]   A year earlier, discussing the rights of indigenous peoples in Canada, the Committee concluded and emphasized “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)).”  It recommended that “decisive and urgent action” be taken to guarantee indigenous land rights and “that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant.” [25]

23.       As shown here, indigenous peoples’ rights to own, control and peacefully enjoy their lands, territories and resources are well established in and guaranteed by international human rights law.  States have positive and immediate obligations to recognize, respect and fulfill these rights.  The Bank, as a subject of international law and bound by its norms, also has obligations to respect these rights. OP 4.10 fails to recognize and respect indigenous peoples’ property rights nor does it require that Borrowers do so in the course of Bank-funded projects.  This contravenes the legal obligations of the Bank, the legal obligations of vast majority of its Borrowers who have ratified human rights instruments guaranteeing indigenous property rights, and is inconsistent with a rights-based approach to development.

24.       Finally, the UN Committee on Economic, Social and Cultural Rights recently defined ‘poverty’ in light of international human rights law.  This definition clearly encompasses and recognizes the need to guarantee indigenous peoples’ property rights as part and parcel of eradicating poverty:

In the recent past, poverty was often defined as insufficient income to buy a minimum basket of goods and services. Today, the term is usually understood more broadly as the lack of basic capabilities to live in dignity. This definition recognizes poverty's broader features, such as hunger, poor education, discrimination, vulnerability and social exclusion. The Committee notes that this understanding of poverty corresponds with numerous provisions of the Covenant.

In the light of the International Bill of Rights, poverty may be defined as a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights. While acknowledging that there is no universally accepted definition, the Committee endorses this multi-dimensional understanding of poverty, which reflects the indivisible and interdependent nature of all human rights. [26]

25.       The World Bank’s draft Operational Policy 4.10 on Indigenous Peoples is intended to provide safeguards to ensure that indigenous peoples’ rights and interests are not adversely affected by Bank-financed operations. However, Draft OP/BP4.10 fails to require that the Bank and its Borrowers legally recognize and respect the rights of indigenous peoples to own and peacefully enjoy their traditional lands, territories and resources.  While the OP does set certain procedures in place concerning indigenous lands and resources, the standards pertaining to those procedures are vague and subjective and demonstrate a basic lack of accountability on the part of the Bank and its Borrowers towards indigenous peoples. This failure to recognize and respect indigenous peoples’ property rights is contrary to the Bank’s mandate of poverty alleviation and its professed recognition of the centrality of property rights and culture to poverty alleviation and sustainable development. Given the preceding, it is difficult to see how the Bank can justify the position adopted in OP/BP 4.10, a position that raises serious and substantial concerns and objections.