World Bank to undermine regional and global legal standards on indigenous peoples' rights

The World Bank has been reviewing its suite of safeguard policies since late 2010 (see prior FPP newsletters from May 2014, Oct 2013, April 2013, Oct 2012 and Oct 2011). The Bank has spent these past 4 years in ‘listening mode’ as thousands of comments came in from constituencies around the world with little or no concrete feedback from the Bank. Much is at stake with this process of review, as the Bank seeks to incorporate critical project level protections for social and environmental outcomes into the wider process of reform in the Bank overseen by President Kim.

The Bank has had protections in place for indigenous peoples since it released the Operational Manual Statement 2.34 on "Tribal Peoples in Bank-Financed Projects" in 1982. This was then replaced with ‘Operational Directive 4.20’ (applied from 1991 - 2004) and again with the currently applied Operational Policy 4.10 (since 2004). In OP4.10 the Bank lags behind international standards on the need to protect the rights of indigenous peoples, most notably in its continued failure to require that borrowers gain the free, prior and informed consent (FPIC) of indigenous peoples prior to undertaking projects with significant impact on the lands, territories, resources or livelihoods of those peoples. Consistent input from indigenous peoples’ organisations and others over the past years has insisted that this basic protection, already existing in international law and the legal commitments of borrowers, be placed into Bank policy.

In August, concrete feedback on the safeguard review may become available as the Bank is due to send a new proposed set of safeguard policies to the Committee on Development Effectiveness (CODE) in July, a committee of the Executive Board which will decide whether the proposed policies must be further revised by Bank staff or if they will be released for public consultation.

Even before the public release of the new draft however, serious concerns have already emerged about the content of this new proposed set of safeguards. Internal Bank emails and discussions on the new draft safeguards reveal worry within the Bank regarding some of the proposals being made. These worries include concern about some shocking ideas on the future content and direction of the indigenous peoples’ policy regarding requirements for free, prior and informed consent and the regional approach to the indigenous peoples’ policy in Africa.

Leaked emails show that the Bank may be trying to evade the debate on free, prior and informed consent by requiring FPIC that is (for the purpose of the Bank) defined only as broad community support (BCS). BCS is the current and inadequate standard that the Bank uses and has been roundly rejected by indigenous peoples. As recognized in the emails: “the Bank may face significant challenges in operations and in external relations if the bank defines FPIC solely as collective expression of broad community support (BCS)” (emphasis added) and that with functionally nothing more than the current policy reiterated  “the incorporation of FPIC may be seen as a superficial gesture”. It is our view that such a position, if it is released to public consultation, will indeed be viewed as the superficial gesture that it is, and an attempt to evade three years of input asking for real protections for FPIC.

Perhaps even more concerning is the proposal contained in the safeguard drafts that gained a high degree of internal attention – the proposal that protections for indigenous peoples be applied differently in Africa than elsewhere in the world. While details of what this means are difficult to discern without the actual proposals in front of us, what is clear is that treating indigenous peoples in Africa differently from those in other regions of the world undermines and contradicts decades of development of international law protections for the rights of indigenous peoples.

The assertion that indigenous peoples in Africa should be treated differently from other regions has no basis in morality nor in law. The African regional human rights mechanisms (the African Commission on Human and Peoples Rights and the associated African Court on Human and Peoples Rights) together with the Working Group on Indigenous Populations/Communities established by the African Commission recognize the presence of indigenous peoples in Africa. An increasing body of jurisprudence and law protects the rights of indigenous peoples in the continent, both at the regional level and in national parliaments and legislatures.

The idea that the World Bank may be acting to undermine the situation of indigenous peoples in Africa is grave. The Endorois and the Sengwer in Kenya, the San in the Kalihari in South Africa, the Batwa in Uganda and many, many other peoples in the continent have used and are using national, regional and international law and legal processes to assert their rights and protect their futures. To deny the applicability of this law is a grave threat to the human rights of these peoples, and must be removed from any new framework of safeguard policies from the World Bank.