CSOs acknowledge ADB’s progress in Draft ESF but express concerns over interpretation of FPIC

A coalition of 22 Civil Society Organisations have written to Asian Development Bank (ADB) recommending a number of changes to the Bank’s Indigenous Peoples policy (ESS7) in the new draft Environmental and Social Framework (ESF).

Read the letter here. 

CSOs note whilst there has been improvement over the Bank’s 2009 Safeguard Policy Statement, such as explicit reference in ESS7 to the recognition of indigenous peoples' right to Free, Prior, and Informed Consent (FPIC), concerns persist as to how this right is stipulated in the draft ESF.

Currently FPIC is referenced as a "special requirement" and provisional under specific circumstances, a serious misinterpretation when one considers the right to FPIC is derived from other rights - such as the right to self-determination, to non-discrimination and to effective participation – rather than an ‘expansion’ of “the process of meaningful consultation” as the current draft ESF suggests.

Indigenous peoples have long decried attempts to subvert their right to FPIC to lesser standards such as FPICon/consultation (not consent) and Broad Community Support. The new draft ESF risks replicating this trend as "meaningful consultation" is repeatedly referenced when FPIC is required.

The coalition of CSOs have requested ADB to apply the right to FPIC in the draft ESF to any activity that affects indigenous peoples’, or in appropriate circumstances other collective rightsholders’, lands or resources. This means whenever any activity is proposed that affects customary lands, it should be the subject of an FPIC process, involving genuine good faith negotiations with a view to reaching a mutually satisfactory outcome.

Currently the draft ESF limits FPIC to activities with "adverse" impacts on indigenous peoples. CSOs caution against framing the right to FPIC as conditional on the level of risk determined by external parties rather than indigenous peoples themselves.

The CSO letter also raises concerns over the Bank’s definition of "indigenous peoples" noting it could be enhanced to better reflect the inherent nature of indigenous identity whereby the right to be recognized as indigenous is not contingent upon external acknowledgment. This is especially important considering many States have not fulfilled their legal obligations to recognise indigenous peoples within their jurisdictions. The present legal framework In Indonesia, for example, allows for indigenous communities to seek legal recognition of their communal ownership of lands only if their existence is first affirmed in a regulation by their local government.  

The third major bone of contention is Section E of the draft ESS7 - which relates to "Private Sector Responsibilities Where Government is Responsible for Managing Indigenous Peoples Issues," – as it potentially limits government requirement to comply with ESS7 as “the responsible government agency” only has to comply with ESS7 “to the extent feasible and permitted by the agency”, potentially limiting the application of FPIC to national laws and interpretation. CSOs stress If the borrower is a government agency, they should be obliged to comply with ESS7, similarly if the borrower is a non-government agency, but they are partnering with the government, they should commit to comply with ESS7.

A set of recommendations has been sent to ADB and we are awaiting their response before the next stage of the Bank’s Safeguard Policy Review.