Mr. Navin Rai,
Co-ordinator,
Indigenous Peoples Policy (MSN 5-509),
The World Bank,
1818 H Street NW, Washington DC 20433
USA

Dear Navin and IP Policy team,

Forest Peoples Programme comments on the revision of the World Bank's Indigenous Peoples Policy (OD4.20) and draft OP/BP4.10

The Forest Peoples Programme welcomes the opportunity to make comments on the revision of the World Bank's Indigenous Peoples Policy. Our response to the Bank's call for public comments sets out our concerns about procedural and substantive issues. We first outline our doubts about the current plans for finalising the revised policy. Misgivings about the current round of public consultations are then highlighted before summarising our criticism of the contents of draft OP/BP4.10. The last part of the letter lists some key recommendations for improving the contents of the final policy.

By means of this letter we urge the Bank to delay completion of the policy revision to take proper account of the final full report of the OED implementation review of OD4.20 and to hold further public consultations on its findings. We maintain that, as it stands, the draft OP/BP4.10 is a step backwards and would constitute a less useful safeguard policy if it were adopted. We therefore also strongly recommend that the Bank makes major amendments to the draft to ensure it is consistent with international human rights standards and properly reflects the priorities and concerns expressed by indigenous peoples in the 1998 consultations and in the recent consultations held during the autumn/winter 2001.

Flawed process for finalising the policy

According to the information available to us, the Bank's current plans for finalising the IP policy means that the policy revision will not benefit from the full findings of the OED implementation review of OD4.20, due to be completed by April 2003. [i] Your team's only commitment at this stage is to take account of the preliminary Phase I of the OED review when finalising the policy, which will be sent to CODE some time in early or mid 2002. As we understand it, the final Phase II OED report based on a participatory assessment of the quality of implementation of OD4.20 in selected countries will only influence the contents of the non-mandatory sourcebook on indigenous peoples.

These plans disregard the consistent demands made by indigenous peoples' organisations since 1995 that any revision of the Bank's IP policy must be informed by a thorough participatory implementation review of the existing policy. Indigenous organisations and support NGOs have argued that such a review is necessary to ensure that any policy revisions stem from practical lessons based on the experience of indigenous peoples with previous World Bank projects and programmes. If carried out in a participatory way, the OED review should generate useful recommendations for improving both policy content and operational practice.

The Forest Peoples Programme therefore considers that the schedule for completing the revision process is flawed because the final policy will not take proper account of the full recommendations from the OED implementation review. We note that similar concerns about the Bank's plans for finalising the policy have been expressed by indigenous participants in the Banks "global discussions" at the UN, in the recent meetings in Asia and in statements made by indigenous peoples and NGOs in Latin America. [ii] We consequently urge the Bank to reschedule its policy revision to ensure that the revised policy incorporates the final recommendations of the OED review of the implementation of OD4.20. In the meantime, we understand that the full provisions of OD4.20 still remain in force in all Bank operations covered by the policy.

Unsatisfactory public consultations

Any revision of the Bank's Indigenous Peoples Policy (and other policies) should be based on inclusive, participatory public consultations undertaken in good faith. We consider that the recent public consultations undertaken by the IP policy revision team have been pro-forma exercises. We note that participants in several of the stakeholder meetings have denounced the consultation process as wholly inadequate. [iii] The consultation process is also criticised by indigenous and civil society participants who attended the consultation meetings (as well as by organisations that were not able to attend). [iv] Their reports indicate that the consultations have been unsatisfactory on a number of counts including:

·         rushed meetings with insufficient time for open and reasoned discussion (several meetings only lasted one day, for example in New Delhi and Manila) [v]

·         lack of timely prior provision of relevant documentation [vi]

·         poor moderation and inadequate translation facilities [vii]

·         insufficient representation of indigenous peoples (e.g., in Latin America) [viii]

Given these serious deficiencies, we support the call by indigenous participants for a further round of in-depth consultations once the complete findings of the OED implementation review are available. [ix] The World Bank should ensure proactive dissemination of the findings of the OED review to foster the informed participation of indigenous and civil society organisations in any public consultation (as achieved by the Bank during its consultations on its Forest Policy Implementation Review and Strategy in 2000).

Problems with Draft OP/BP4.10

As you will be aware following our meeting in London on 31 July 2001, the Forest Peoples Programme has multiple concerns regarding the contents of draft OP/BP4.10. Our analyses show that the draft policy contains a number of serious deficiencies including, but not limited to, its:

a)   lack of clear provisions to safeguard the right of indigenous peoples to own, use and manage their lands;

b)   failure to prohibit involuntary resettlement;

c)   failure to clearly respect the right of free and prior informed consent;

d)   failure to adopt ­self-identification as the principal criterion for the application of the policy;

e)   failure to require detailed participatory baseline studies for all investment operations affecting indigenous peoples;

f)    lack of clear preconditions or benchmarks that must be complied with before the World Bank will approve a loan affecting indigenous peoples;

g)   confusion over participation and "consultation";

h)   lack of mandatory requirements for participatory monitoring;

i)    failure to extend safeguard provisions to structural adjustment operations.

We briefly deal with each of these deficiencies below.

(a) Inadequate safeguards for land and resource security

The World Bank's existing IP policy rightly requires staff and borrowers to take special action to protect indigenous land and resource security (OD4.20: paras 2,9,15c,17]. We are alarmed to see that Draft OP/BP4.10 no longer contains this important safeguard, as borrowers are now simply supposed to "take account" and "pay particular attention" to land tenure and customary resource rights (OP4.10: paras. 12 and 13). These are, in effect, "empty" provisions that on close scrutiny do not require the borrower to take any action to secure indigenous tenure. OP4.10 now only offers Bank assistance for regularising land tenure "upon request from the Borrower" (Draft OP4.10 paras. 12,13,20e). Paragraph 12 of OP4.10 is also seriously flawed as it only acknowledges usufruct rights and does not recognise indigenous ownership rights over land based on their customary laws.

Together, these modifications to OD4.20 constitute a serious substantive negative change to the Bank's existing IP policy. They also contravene international human rights instruments and international customary law that requires states to take action to respect and protect indigenous rights to own, use and manage their lands and traditional territories. [x] This understanding of international human rights law has recently been upheld in a landmark decision by the Inter-American Court of Human Rights (IACHR) in the Awas-Tingni case regarding indigenous land rights in Nicaragua. The IACHR found that the Nicaraguan government "…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." [xi]

FPP's analysis of the human rights obligations of the World Bank Group finds that the Bank is bound by international customary law. [xii] As a consequence, its internal policies and operations should not contravene international law nor cause client governments to violate their own obligations under international instruments. As it stands, OP4.10 makes no requirements for borrowers to legally recognise and respect indigenous lands. The policy therefore fails to comply with the Bank's obligations under international law, does not meet international human rights standards in relation to the land rights of indigenous peoples and risks causing borrowers to contravene such standards. [xiii] It is widely recognised that securing property rights is fundamental to effective poverty eradication and sustainable development. This is especially relevant for indigenous peoples, as Mary Robinson stated in her speech on human rights and development given at the World Bank on 3 December 2001:

"The United Nations draft declaration states the link between human rights and development, namely that the one is not possible without the other. Thus, 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".

The Bank's policy, as it stands, merely pays lip service to land rights requiring nothing of substance on these issues. The dilution of the existing policy is especially disappointing because it means that the Bank has ignored the indigenous peoples' call for stronger provisions on land and resource security, as made in response to the Bank's Approach Paper in 1998.

We note that participants in the 2001 consultation meetings in Russia, Bangladesh and India have all expressed their disappointment that their recommendations have been disregarded and have again demanded that the revised policy provide improved safeguards for indigenous land and resource rights. [xiv] We urge the Bank to listen to these concerns and act on the recommendations for improved and strengthened provisions on "Land and Resources".

(b) Failure to prohibit involuntary resettlement

A further key demand made by indigenous peoples in the 1998 consultations was that any new IP policy should prevent the Bank from funding operations that would result in the forced relocation of indigenous communities. It is therefore unfortunate that Draft OP/BP4.10 does not prohibit forced relocation, a factor which is especially problematic given the serious deficiencies in the Bank's Involuntary Resettlement Policy (OP/BP4.12). This failure to safeguard indigenous peoples from forced resettlement contradicts the Bank's own studies which recognise 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." [xv]

As we have commented elsewhere [xvi] , FPP considers that OP4.12 is inconsistent with international law, which requires that consent be obtained prior to resettlement and that this is a principle of customary international law binding on the World Bank. It is clear that international law accords indigenous peoples, given their special 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 this reason, the European Union, the Inter-American Development Bank and the World Commission on Dams all prohibit relocation without indigenous peoples' consent. [xvii]

We urge the World Bank to adopt this standard by including a prohibition on involuntary resettlement of indigenous peoples in its revised policy.

(c) Failure to recognise the right of prior informed consent

Draft OP/BP4.10 makes no explicit recognition of the right of indigenous peoples to informed consent regarding any decisions or activities that may affect their lands and resources. Again, this disregards a consistent demand made by indigenous peoples during the 1998 public consultations. As a result, the draft is at odds with human rights standards which require that states obtain indigenous peoples' free and informed consent for activities and measures that affect them. For instance, under the Convention on the Elimination of all forms of Racial Discrimination (CERD) states-parties are required to "ensure that indigenous peoples have equal rights in respect of public life, and that no decisions directly relating to their rights and interests are taken without their informed consent". [xviii] The Awas Tingni case has further affirmed the general application of this principle by finding that the Nicaraguan state violated the right to property under the American Convention of Human Rights by granting logging concessions over indigenous lands "without the consent of the Awas Tingni community". [xix]

FPP notes that numerous participants in the Bank's 2001 consultations have criticised the draft policy for failing to recognise the "right to say no" and have again called for the inclusion of an explicit safeguard to respect the right of prior informed consent. [xx]

(d) Ambiguous policy trigger

Another fundamental recommendation of indigenous peoples in 1998 was that the main criterion for the application of the policy should be self-identification. This proposal has also been disregarded in Draft OP/BP4.10. As a result, the draft policy is ambiguous about the operational procedure for deciding where the policy applies (compare Draft OP4.10 para 5. versus para 8). Bank staff are supposed to use screening based on distinctive characteristics of indigenous peoples (para 5) on the one hand, but may also be guided by borrower legislation on the other. It is not clear how these different elements combine to trigger OP4.10. For example, what weighting does self-identification (para.5e) have in this screening process? The best way to remove such ambiguities would be to act on indigenous peoples' recommendations and adopt self-identification as the main policy trigger.

(e) Loss of baseline study safeguard

Our reading of Draft OP/BP4.10 is that there is no longer any mandatory requirement for a participatory baseline study for all investment operations affecting indigenous peoples as currently required under OD4.20 (para.16). Both Bank and independent studies have demonstrated time and again that field baseline studies are an essential precondition for effective development in both "do good" projects such as land regularisation, and "do no harm" or mitigation project components. [xxi] Meticulous baseline studies are important because they reveal the pre-project situation of affected communities and their concerns, priorities and preferences in relation to a particular development proposal.

We therefore cannot understand why Draft OP/BP4.10 requires field baseline studies solely for a social assessment, itself only triggered where Bank staff consider a project may have adverse impacts on indigenous peoples.  FPP considers that the loss of the baseline study safeguard is another serious negative change to the Bank's existing IP policy. Relying on the judgement of Bank staff to decide whether or not a project is likely to have negative impact is also a serious loophole in the draft policy. Again, Bank and independent evaluations show that supposedly "benign" projects can do serious harm to affected indigenous communities as the Nagarhole Ecodevelopment Project demonstrates. [xxii]

We urge the Bank to ensure that any revised safeguard policy retains the standard requirement for detailed field baseline studies for all investment projects affecting indigenous peoples. To retain this precautionary safeguard and to guarantee participatory baseline studies, we suggest the revised policy require a social assessment for all investment projects irrespective of their prior classification according to Bank criteria.

(f) Lack of clear preconditions for project approval

With the limited exceptions of BP4.10 paras 5 and 7, Draft OP/BP4.10 contains no clear preconditions for project approval. The draft policy introduces vague language which only commits Bank staff to take account of indigenous views and review borrower plans to ensure consistency with the OP (OP4.10 para 9). This is a marked change from OD4.20, which states that the Bank will "refuse appraisal" until suitable plans are submitted by the borrower. The revised policy would be much improved by adding new preconditions for project approval stating that the Bank will not fund operations which (i) risk contravening the borrowers' international obligations on human rights and the environment (ii) have not been prepared with the effective participation of indigenous peoples (iii) infringe or violate the rights of affected indigenous communities (iv) have not secured the informed consent of affected communities and their representative institutions.

It is noteworthy that the Bank's Environmental Assessment Policy (OP4.01) already contains a prohibition of Bank financing of operations that contravene a borrower's obligations under international environmental agreements. We therefore recommend that a similar precondition is included in the Bank's revised IP policy in relation to borrower's obligations under international human rights agreements. As we explain in our analysis of the human rights obligations of the World Bank, we do not consider that requiring borrowers to meet their obligations under international instruments they have already ratified consitutes an infringement of their sovereignty. [xxiii]

(g) Unclear and sub-standard provisions on participation

Draft OP 4.10 adopts a varied and inconsistent approach to participation. The Draft contains the terms, 'consultation', 'meaningful consultation', involvement, and, in one place, 'agreement', the latter signifying consent.  These different 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."  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).

Paragraph 15 of the Draft OP only requires borrowers to "consult" and "involve" indigenous peoples in decisions that affect them. This requirement does not meet established international standards on participation which all surpass the standard set in the OP. [xxiv]

(h) Lack of mandatory requirements for participatory monitoring

Numerous responses to the Bank's Approach Paper in 1998 called for new policy requirements for the active engagement of affected indigenous communities and their representative organisations in tracking and monitoring World Bank loan operations. In the recent round of consultations, indigenous peoples and civil society organisations have expressed disappointment that this recommendation has not been included in the draft policy. The Bank's own studies recognise that there is a need to undertake "fundamental" reforms to improve accountability in Bank operations. [xxv] We appreciate that the Bank is currently establishing internal reforms to improve accountability, [xxvi] but there is still a crucial need to institute effective reforms at the operational level by involving local people in monitoring and evaluation. The failure to require grassroots monitoring as a new policy standard is a missed opportunity to empower indigenous peoples affected by World Bank projects.

Participatory monitoring has been proven to improve development effectiveness in Bank projects. Inclusive monitoring procedures with joint agreements on criteria and benchmarks for project performance could also feed into new and complementary accountability mechanisms at the project and programme level. We strongly recommend that the Bank listens to continuing calls by indigenous peoples and NGOs for participatory monitoring as a requirement in all Bank operations affecting indigenous peoples. [xxvii]

(i) Failure to extend the policy to adjustment and other programmatic lending

In recent years, indigenous movements both in particular countries and globally have protested against the severe negative impacts of World Bank-funded structural adjustment programmes on their welfare and their territories. During the global discussions held by the World Bank team in Geneva in July 2001 at the UN Working Group on Indigenous Populations, numerous indigenous participants complained that the Draft OP/BP4.10 has sidestepped the crucial issue of adjustment. The World Bank's October 2001 update on its public consultations rightly records that: "concern was expressed that the policy will not be applicable to structural adjustment operations and programmatic lending". [xxviii] We urge the Bank act on these concerns by taking steps to ensure that the draft revised policy addresses structural adjustment loans by making reference to existing and future social, environmental and participation standards for these operations.

Conclusion and recommendations

The above summary response confirms that the FPP considers that the March 2001 Draft OP/BP4.10 is a regressive policy that does not meet international human rights standards for indigenous peoples. There are few concrete safeguards that would enable the Bank to adhere to the central objective of the policy which is to foster "full respect for dignity, human rights and cultures of indigenous peoples" (OP4.10: para 1). The only safeguards we can detect are those relating to participation and the selective use of social assessments, which themselves are deficient as they stand.

To be effective, the policy must be revised to ensure that all the human rights of indigenous peoples are respected, including their right to own, use and manage their lands according to their customary laws. In this context, we recommend that the Bank accepts the offer of guidance on how to integrate human rights standards into policies and operations recently made by the UN Office of the High Commissioner for Human Rights. [xxix]

Finally, there are a number of measures that should be taken to improve the contents and application of a revised World Bank policy on Indigenous Peoples:

q       Delay the revision of the IP policy to take account of the full findings of the OED Implementation review. The incorporation of the review findings in the policy revisions should be the subject of a thorough public discussion with indigenous peoples and civil society;

q       Ensure that the revised policy is consistent with existing and emerging international human rights and development standards and adheres to the principles in the UN Draft Declaration on the Rights of Indigenous Peoples;

q       Include binding safeguards to respect and secure indigenous rights to land and natural resources;

q       Respect the principle of free and informed prior consent;

q       Apply the principle of self-identification as the primary trigger for the policy;

q       Prohibit involuntary resettlement of indigenous peoples and adopt standards established by the World Commission on Dams;

q       Include language that prevents the Bank from financing operations that contravene the obligations of borrowers under ratified international human rights instruments and other international agreements on environment and development;

q       Include clear benchmarks or preconditions that must be met for project or program approval;

q       Require participatory field baseline studies for all investment operations affecting indigenous peoples;

q       Include mandatory requirements for participatory monitoring and evaluation;

q       Extend the coverage of the policy to address structural adjustment and programmatic lending;

q       Require enforceable legal covenants in loan agreements (at a minimum) between the World Bank, borrower governments and affected indigenous peoples;

q       Ensure the participation of indigenous representatives in equitable, multi-sector executive agencies for implementation;

q       Require the establishment of independent local-level dispute-resolution mechanisms through which indigenous peoples can appeal and seek redress for grievances in connection with Bank projects.

We are enclosing our comparison of Draft OP/BP4.10 with international human rights standards along with other FPP documentation relating to the revision of OD4.20. We hope you will study these documents and consider their contents together with the summary points made in this letter.

Your sincerely

Tom Griffiths
(Policy Advisor)

Encs.