expanding the use of country systems in bank...

This document, prepared by World Bank Management, and dated April 6, 2005, was

submitted to the Board of Executive Directors in connection with its consideration of the Indigenous Peoples Policy on May 10, 2005. The document is

posted for public view in accordance with the World Bank Policy on Disclosure of Information.

STAFF RESPONSE TO PUBLIC COMMENTS

REVISED DRAFT POLICY ON INDIGENOUS PEOPLES (OP 4.10) OF DECEMBER 1, 2004

ENVIRONMENTALLY AND SOCIALLY SUSTAINABLE DEVELOPMENT

APRIL 6, 2005

Abbreviations and Acronyms

BP Bank Procedures CSO Civil Society Organization EIR Extractive Industries Review FPIC Free, Prior and Informed Consent FPICon Free, Prior and Informed Consultation HR Human Rights HRIA Human Rights Impact Assessment ICT Information and Communication Technologies IHR International Human Rights ILO International Labor Organization IPO Indigenous Peoples Organization IPP Indigenous Peoples Plan IPPF Indigenous Peoples Planning Framework OD Operational Directive OP Operational Policy PPAs Parks and Protected Areas SA Social Assessment UN United Nations

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Contents 1. INTRODUCTION ..................................................................................................................... 1 2. LIST OF WRITTEN COMMENTS RECEIVED ......................................................................... 2 3. MATRIX OF PUBLIC COMMENTS AND STAFF RESPONSE ................................................... 3

I. General Comments..................................................................................................... 3 A. Scope of Safeguard: Application to Development Policy Lending .......................... 3 B. Consistency with Extractive Industries Review (EIR) Report.................................. 3 C. Use of Country Systems (Para. 5)............................................................................. 3 D. Terminology.............................................................................................................. 4 E. Equity........................................................................................................................ 4 F. Public Consultation Process on Revised Operational Policy.................................... 5

II. International Human Rights (IHR) Law.................................................................. 6 A. General Comments on IHR Law............................................................................... 6 B. References to Specific IHR Laws and Agreements .................................................. 6 C. Specific Inconsistencies between Revised OP and IHR Law ................................... 7

III. Screening and Identification of Indigenous Peoples ............................................... 8 A. Process for Screening Projects to Identify Indigenous Peoples ................................ 8 B. Specific Criteria for Identifying Indigenous Peoples................................................ 8

IV. Land Rights .............................................................................................................. 10 A. General Considerations........................................................................................... 10 B. Physical Relocation of Indigenous Peoples ............................................................ 11 C. Parks and Protected Areas (PPAs).......................................................................... 12 D. Compensation ......................................................................................................... 13

V. Free, Prior and Informed Consultation and Broad Community Support..................................................................................... 14

A. Free, Prior and Informed Consultation (FPICon) ................................................... 14 B. Broad Community Support ..................................................................................... 15

VI. Social Assessment, Indigenous Peoples Plans and Frameworks.......................... 18 A. Indigenous Peoples Participation............................................................................ 18 B. Social Assessment (SA).......................................................................................... 18 C. Indigenous Peoples Plan (IPP) and Indigenous Peoples Planning Framework (IPPF) ................................................................................... 20

VII. Impacts, Mitigation and Grievance Mechanisms.................................................. 23 A. Promotion of Positive Development Impacts ......................................................... 23 B. Adverse Impacts Mitigation.................................................................................... 23 C. Commercial Development of Natural Resources.................................................... 24 D. Commercial Development of Indigenous Peoples Cultural Resources .................. 25 E. Supervision and Grievance Mechanisms ................................................................ 25

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1. INTRODUCTION

This document presents the Staff Response to Public Comments received from external stakeholders during the public comment period on the World Bank’s Revised Draft Operational Policy (OP) 4.10, Indigenous Peoples. The Revised Draft was posted on the Bank’s external website from December 1, 2004 until February 28, 2005. This Revised Draft has been developed over the last seven years, evolving from an Approach Paper (1998) through a first draft (2001) to the present version. The process of consultation on the Approach Paper and the first draft has been both extensive and intensive, involving Indigenous Peoples leaders, Civil Society Organizations (CSOs) and representatives of borrower governments around the globe. The draft policy documents (OP/BP 4.10; Version March 23, 2001) were circulated in eleven languages (Arabic, Bahasa–Indonesia, Cebuano, Chinese, English, French, Hindi, Portuguese, Russian, Spanish, and Vietnamese). For the first time in Bank history, extensive, direct consultations were undertaken with Indigenous Peoples’ leaders from around the world. Representatives of borrower governments were normally invited to consultations held in their countries. A number of countries did send representatives, among them Brazil, India, Mexico, Panama, Peru, Philippines, Russia, Venezuela and Vietnam. The Bank participated in 32 consultation meetings with external stakeholders from 35 countries, including representatives of borrower governments, Indigenous Peoples Organizations (IPOs), other CSOs, academia and development institutions. About 1,200 stakeholders participated in these meetings. Written input was also received from 345 individuals. In 2002, the Bank held two roundtables with global Indigenous leaders on outstanding issues. Consultations continued in 2003 and input into policy revision was garnered at annual meetings of the United Nations (UN) Permanent Forum on Indigenous Issues and the UN Working Group on Indigenous Populations. In May 2004, representatives of Indigenous Peoples and Bank Legal Department staff held a meeting to discuss the draft policy. For the final round of public comments, which ended on February 28, 2005, the Revised Draft (Version December 1, 2004) was posted in three languages (English, French and Spanish). During the public comment period, the Bank received comments from twenty-one entities and individuals. Seven came from IPOs and six from other nongovernmental organizations. The remainder came from UN bodies, a bilateral development agency, a professional association, the private sector and individuals.

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2. LIST OF WRITTEN COMMENTS RECEIVED

1. Dr. Kai Schmidt-Soltau Comments

2. Liwanag ng Buhay Disability Foundation, Inc. Comments

3. Aché Community / Asociación de Comunidades Indígenas Aché Guayakí de la Región Orienta Comments

4. CAPAJ (Comisión Jurídica para el Auto desarrollo de los Pueblos Originarios Andinos) Comments

5. Integrador Nacional de Descendientes de Indigenas Americanos (I.N.D.I.A.) Comments

6. Asociación Regional de Empresas de Petróleo y Gas Natural en Latinoamérica y el Caribe (ARPEL) Comments

7. Desarrollo Sostenible Indígena Comments

8. UN Permanent Forum on Indigenous Issues Workshop Report

9. Bank Information Center (BIC) Web Page

10. Bretton Woods Project Web Page

11. Business for Social Responsibility Resource Monitor Report

12. Forest Peoples Programme (FPP) Web Page and Comments

13. Dawson Associates International, Inc. Comments

14. Assembly of First Nations Comments

15. Indigenous Media Network, et al. Comments

16. Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH (Coordination Unit, Indigenous Peoples in Latin America and the Caribbean) Comments

17. Robert Goodland Comments

18. Indian Law Resource Center Comments

19. American Anthropological Association Comments

20. Halifax Initiative Comments

21. International Labour Organisation – South Asia Sub-Regional Office Comments

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3. MATRIX OF PUBLIC COMMENTS AND STAFF RESPONSE

Question/Issue/Suggestion Staff Response Commenters1

I. GENERAL COMMENTS

A. Scope of Safeguard: Application to Development Policy Lending

1. Operational Policy (OP) 4.10 should apply to “structural adjustment” and program lending not just investment projects.

The World Bank safeguards policies are designed to apply only to investment projects and not to Development Policy Lending. Bank Operational Policy (OP) 8.60 paragraph 10, details provisions for social aspects of development policy operations. Among other provisions, the Bank determines whether specific country policies supported by the operation are likely to have significant poverty and social consequences, especially on poor people and vulnerable groups. The Bank has also issued A Good Practice Note on Poverty and Social Impact Analysis and Development Policy Lending.

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2. It is not clear whether the new guidelines would impact upon projects that are currently underway with Bank financing.

The Revised OP specifies that OP/BP 4.10 will apply to all projects for which a Concept Review takes place after the date that the Board approves the Revised OP/BP. Until such time, the Bank Operational Directive on Indigenous Peoples (OD 4.20) is applied to all Bank investment projects affecting Indigenous Peoples.

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B. Consistency with Extractive Industries Review (EIR) Report

1. The Revised OP does not apply final EIR recommendations with respect to Free, Prior and Informed Consent (FPIC) to plans or activities that may affect traditional lands, territories and resources.

The Revised OP is consistent with World Bank Group Management Response to the Extractive Industries Review (EIR) which committed the Bank to as to address, in the Revised OP, the requirement of free, prior and informed consultation (FPICon) leading to broad support of affected Indigenous Peoples communities and to ensure that Indigenous Peoples benefit from extractive industry projects carried out on traditional lands. Please see World Bank Group Management Response to the Final Report of the EIR, September 17, 2004.

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2. The Revised OP incorporates few of the recommendations of the EIR relating to international human rights (IHR) law, FPIC and land and territorial rights.

See I.B.1 above. The Revised OP is consistent with Bank Management’s Response to the EIR.

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C. Use of Country Systems (Para. 5)

1. OP should require assessment of host country implementation equivalence of laws at the local as well as the national level.

Before deciding on the use of country systems, the Bank would also assess the acceptability of the borrower’s implementation practices, track record and capacity The Bank may decide to use a country’s systems to address Indigenous Peoples issues only when such systems meet the policy objectives and operational principles for Indigenous Peoples as set forth in the Bank’s Policy on Piloting the Use of Borrower Systems to Address Environmental and Social Issues in Bank-Supported Projects (OP 4.00).

1, 12, 16,18

2. Need for “objective, measurable, comparable and transparent [to all parties]” criteria to assess equivalence of country systems. This assessment should not be left entirely to the Bank’s discretion.

The criteria and requirements contained in, OP 4.00 are being be updated to make them consistent with the policy on Indigenous Peoples. The Bank is committed to applying criteria for assessing equivalence that are objective and measurable. Although the Bank will have primary responsibility for undertaking the assessment of equivalence, to promote transparency and facilitate accountability, the Bank makes publicly available its analysis of equivalence of borrower systems and Bank requirements and its assessment of the acceptability of borrower implementation practices, track record and capacity.

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1 The numbers in this column correspond to the commenters under Section 2, List of Written Comments Received.

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3. There is no clear definition of the use of “country systems.”

See I.C.2 above. When used in Revised OP 4.10 and OP 4.00 the term “country systems” means a country’s legal and institutional framework consisting of its national, sub-national or sector implementing institutions and applicable laws, regulations rules and procedures.

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4. The introduction of the Use of Country System option (Para. 5) instead of the Revised OP is based on a “weak condition” that the borrower’s legal framework only be consistent with the objectives of the Bank safeguards, not with detailed safeguards requirements.

See I.C.2-3 above. Following extensive stakeholder consultation and public comment on Revised 4.00, as many of the detailed safeguards requirements as is feasible have been incorporated into the Revised OP. Other detailed requirements apply to Bank Procedures and have been incorporated into BP 4.00.

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5. Use of Country System approach does not specify criteria and timeframe the Bank would use to ensure that deficiencies are strengthened prior to approval, if necessary improvements were not carried out, or were later weakened.

See I.C.2-4. If the borrower has to fill gaps in its system in order to meet equivalence and acceptability criteria and is committed to doing so, such measures are to be carried out before the borrower undertakes implementation of the relevant project activities. If the borrower subsequently revised its system in a manner inconsistent with the legal framework agreed with the Bank, the Bank’s contractual remedies apply.

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D. Terminology

1. Some terms and concepts are “paternalistic” and “neocolonial;” e.g. “losing their identity,” and “Indigenous Peoples Planning Framework.” (IPPF) Views Indigenous Peoples as “objects” rather than “subjects.”

The term “loss of identify” is also used by Indigenous Peoples and is not imposed on Indigenous Peoples by other parties. There is a strong provision of consultations with IPOs for finalization of an IPPF to ensure that they act as partners.

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2. There is a tendency to make the process “extremely bureaucratic.”

A global policy intended to foster full participation of Indigenous Peoples in development opportunities and to avoid adverse impacts on them calls for extensive mandatory requirements. However, the policy acknowledges that not all requirements apply in all situations; the resulting flexibility has the effect of making the policy less bureaucratic.

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3. Much of the language is “loose and vague.” Directives are couched in terms of avoidance rather than prohibition, e.g., “give priority to,” rather than “ensure,” “pay attention to, rather than “adhere.”

The use of such language reflects the need for flexibility in response to diverse circumstances at the project level.

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E. Equity

1. How does one balance the country’s development interests with the rights of minority populations?

The Bank views the participation of Indigenous Peoples and other minorities in development as an integral part of the development process. There is a large body of international law and practice that provides recognition for minority rights. The Bank policy on Indigenous Peoples recognizes Indigenous Peoples having distinct social, cultural and economic rights.

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2. Many developing countries sacrifice the needs of minorities in order to satisfy the needs of

See I.E.1 above. Application of the policy will ensure that Indigenous Peoples’ needs and priorities are recognized in Bank-financed investment

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the majority. projects.

3. Commitment to gender and inter-generational equity should be strengthened by using Declaration from Indigenous Peoples’ Statement of the Americas 2001.

The Revised OP 4.10 has adopted clear language on gender and intergenerational equity.

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F. Public Consultation Process on Revised OP

1. The 90 day comment period was too short to provide for a full consideration of the issues and to engage significant participation by Indigenous Peoples whose access to communications process may be limited.

The 90-day comment period was determined by mutual agreement among IPOs, CSOs and the World Bank. It should also be noted that the comment period on the latest Revised Indigenous Peoples policy is but the culmination of three years of intensive consultations with IPOs, CSOs, governments, and other stakeholders in a diverse range of countries and regions. Appreciating the difficulty of communicating with Indigenous Peoples that often lack access to global communications, we distributed hard copies of the Revised OP 4.10 on Indigenous Peoples (Revised OP) in three languages (English, Spanish and French) in the past consultations as well as during this round of external comment period through international Indigenous Peoples meeting.

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2. The Bank should have disseminated an invitation to comment on the Revised OP to Indigenous Peoples through local radio channels.

The Revised OP is a carefully worded document. Accordingly, written communications have been the preferred medium for disseminating information on the comment period and for receiving comments.

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3. The Revised OP should have been published in local newspapers.

The Bank has found that the internet and email are more effective means of dialogue than newspapers.

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4. The Bank should have organized meetings directly with local nongovernmental organizations or government officials.

The recent comment period on the Revised OP was the culmination of three years of intensive consultations with IPOs, CSO and government officials as well as other stakeholders, which included direct meetings with IPOs, and CSOs.

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5. The Revised OP should not be finalized and adopted until BP 4.10 has been subject to public comment and been subject to good faith consultations with Indigenous Peoples aimed at clarifying ambiguities and agreement on procedural standards for the final revised policy.

The Revised OP, which was made public for comments from external stakeholders, details all mandatory operational requirements and provisions. The corresponding BP 4.10 reflects the Bank procedures on the implementation of the Policy. The Revised of BP 4.10 will be submitted to the Board along with the Revised OP and a report on the Staff Response to Public Comments.

12, 17

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II. INTERNATIONAL HUMAN RIGHTS (IHR) LAW

A. General Comments on IHR Law

1. Revised OP makes only “passing and inconsequential” mention (Para. 2) on Indigenous Peoples’ rights established under international law, in particular, the right of self-determination.

The Bank policy recognizes the social, cultural and economic rights of Indigenous Peoples. It recognizes their right to benefit from culturally appropriate development process through FPICon leading to their broad support for the project. It also recognizes their right to benefit sharing from commercial development of natural resources. It puts in place a process of recognition of lands or territories that Indigenous Peoples traditionally owned, or customarily used or occupied. Prior agreement of Indigenous Peoples is required for the commercial development of their cultural resources and knowledge. Thus Bank draft policy provides for a strong role for Indigenous peoples in economic, social and cultural issues. However, political issues fall outside the mandate of the Bank.

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2. There is still a need for the Bank to fulfill its commitment to hold a legal roundtable with Indigenous Peoples’ representatives to clarify how Revised OP/BP 4.10 relates to Indigenous Peoples’ rights established under international law and HR agreements.

The Bank’s position on international law and HR agreements pertaining to Indigenous Peoples was clarified during the October 2002 roundtable between the Indigenous Peoples leaders and the Bank as well as in a meeting in May 2004 in New York. The Bank has also clarified its position on the issues in the various briefing session it holds for international Indigenous community. Please see Legal Note on Indigenous Peoples prepared by World Bank Legal Department.

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3. The Revised OP incorporates few of the recommendations of the EIR relating to IHR law.

See I.B.1-2 above. The Revised OP 4.10 is consistent with Bank Management‘s response to the EIR with respect to Indigenous Peoples, wherein the Bank stated its support for the importance of protecting the rights of those affected by extractive industry projects.

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4. The Revised OP is “equivocal” on HR. It cites HR in the first sentence and “weakly notes” that Indigenous Peoples’ rights are being addressed in domestic and international law (Para. 2) but fails to mandate compliance with Indigenous Peoples’ rights as established under international law.

See II.A.1 above. 17

5. The Revised OP needs clear statement that Bank will not finance projects/activities that contravene borrower/host country obligations under international law.

Countries that are party to international agreements have the responsibility to determine how to implement their obligations under such agreements. The Bank stands ready to provide borrower countries with programmatic and project assistance in meeting their obligations when the borrower country so requests. The Bank included this statement in other policies (Environment and Forests) because projects triggering those policies could have transboundary impacts.

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B. References to Specific IHR Laws and Agreements

1. The Revised OP fails to conform to ILO Convention 169. While Convention 69 requires that consultations be conducted with the intent of achieving consent, this obligation arises independently of any commitment made by

Since its adoption in 1989, ILO Convention 169 has been ratified only by 17 countries, thirteen of which are in Latin America. Thus we do not consider ILO Convention as representing established and globally accepted principles of international law. The Bank draft policy requires FPICon leading to broad community support for the project.

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parties to 169 per Inter-American HR Commission and Court decisions regarding Indigenous Peoples’ property rights.

2. The Revised OP fails to conform to the UN Declaration on Civil and Political rights.

The Bank’s mandate centers around economic development and poverty alleviation. Political and civil rights issues per se fall outside the mandate of the Bank.

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3. The Revised OP fails to conform to the UN Declaration on Economic, Social and Cultural Rights.

The Bank has taken note of the UN Draft Declaration on the Rights of Indigenous Peoples and respects the views giving rise to the Declaration. However, the Bank notes that the Draft Declaration has not yet been adopted.

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4. The Revised OP fails to conform to the Revised UN Declaration on Rights of Indigenous Peoples by failing to recognize their “collective and individual right to maintain and develop their distinct identifies…including the right to identify themselves as indigenous and be recognized as such. “

The Bank has taken note of the Revised UN Declaration on Rights of Indigenous Peoples and respects the views giving rise to the Declaration. However, the Bank notes that language of the Revised Declaration has not been agreed upon among parties concerned.

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5. The Revised OP fails to conform to the proposed American Declaration on the Rights of Indigenous Peoples.

The Bank has taken note of the proposed Draft American Declaration on Rights of Indigenous Peoples and respects the views giving rise to the proposed Declaration. However, the Bank notes that the draft declaration has not yet been adopted.

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6. The Bank should support Indigenous Peoples’ rights proclaimed in international legislation regardless of norms existing in the borrower country.

See II.A.1 above. Countries that are party to international agreements are responsible for determining how to implement their obligations under such agreements The Bank stands ready to provide borrower countries with programmatic and project assistance in meeting their obligations when the borrower country so requests.

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C. Specific Inconsistencies between Revised OP and IHR Law

1. The Revised OP is inconsistent with international law with respect to land and resource rights of Indigenous Peoples.

Please see responses to II.A.1-5, above. 4

2. The Revised OP is inconsistent with international law with respect to the principle of FPIC.

We do not believe that the concept of FPIC forms an established principle of international law. As mentioned before, ILO Convention 169 has only been ratified by 17 countries, thirteen of which are in Latin America. The draft World Bank policy recognizes FPICon leading to broad community support for the project which gives Indigenous Peoples major say in projects affecting them.

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3. The option to convert collective customary rights to individual ownership rights (Para. 17) without FPIC of affected Indigenous Peoples is contrary to IHR law and Indigenous Peoples’ cultures and customs.

Please see responses to II.A.1-6, and II.C.2. 12

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III. SCREENING AND IDENTIFICATION OF INDIGENOUS PEOPLES

A. Process for Screening Projects to Identify Indigenous Peoples

1. Screening should include participation of “qualified Indigenous Peoples” in addition to social scientists.

In addition to seeking technical advice from qualified social scientists, Bank policy requires that direct consultations with project affected Indigenous Peoples should be held. The Bank may engage social scientists, including those of indigenous origin, when necessary and appropriate to screen projects to identify Indigenous Peoples.

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2. “Technical judgments” regarding identification of Indigenous Peoples ought to include submissions by the Indigenous Peoples being considered and any regional indigenous organizations.

See response to III.A.1 above. In addition, Bank Regional Guidelines on the Identification of Indigenous Peoples are anticipated to be issued within one year of the approval of this policy. The Bank is preparing Indigenous Peoples Guidebook to provide additional guidance.

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3. Screening should include health professionals because health impacts are a primary impact of development on Indigenous Peoples and baseline data on Indigenous Peoples’ health conditions is essential to project evaluation.

The Bank would seek of expertise of health professionals where screening indicates that health impacts could potentially result directly or indirectly from a Bank-financed project.

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4. Criteria for identifying Indigenous Peoples should be clearly ranked in order of importance; not all criteria have equal weight.

Given that it is unlikely that all criteria would have equal weight in all cases, the Bank policy does not rank them. By applying consistent criteria but not ranking them, the Bank hopes to facilitate the emergence of criteria that will accurately reflect local conditions of Indigenous Peoples. The details of the criteria will be further refined in the Indigenous Peoples Guidebook (under preparation).

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5. A community should not have to have all eight criteria to be eligible for the policy; the policy needs to guide Bank staff on how many criteria must be met.

The Revised OP cites four characteristic criteria for identification of Indigenous Peoples and specifies that the four characteristics should be met in varying degrees. The Bank Regional Guidelines on the Identification of Indigenous Peoples and the Indigenous Peoples Guidebook will provide further details on the four characteristics.

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6. Screening should not rely on borrower frameworks as borrowers are disinclined to identify Indigenous Peoples. Borrowers’ frameworks are of “doubtful utility.”

The Revised OP provides that the Bank will not use the borrower’s framework for identification of Indigenous Peoples during project screening unless that framework is consistent with this policy.

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7. “Technical judgments” regarding identification of Indigenous Peoples ought to identify the standards used for the technical judgment.

We believe that the criteria set forth in the Revised OP are sufficiently clear to guide qualified social scientists to reach a technical judgment on identification of Indigenous Peoples.

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B. Specific Criteria for Identifying Indigenous Peoples

1. Self-identification should be the primary criterion for qualification as Indigenous Peoples. Otherwise, the Revised OP gives the state control over

The Revised OP recognizes “self-identification as members of a distinct indigenous cultural group and recognition of this identity by others” as one of the four characteristics for identification of Indigenous Peoples By putting self-identification first in the list, the Bank is recognizing its importance. Furthermore, technical judgment of qualified social scientists may be sought

14, 17, 19, 20

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the identification of indigenous citizenship which may be adverse to the manner in which Indigenous Peoples define their citizenship.

when the self-identification criteria among project affected Indigenous Peoples is determined.

2. By emphasizing cultural attachment to geographically distinct habitats or ancestral territories, the Revised OP overlooks the dynamics of urban and mestizo societies.

The Revised OP does not automatically exclude groups of urban Indigenous Peoples and “mestizo peoples” from coverage of the policy. For example, the policy will apply to Indigenous Peoples who experience “forced severance;” which refers to loss of collective attachment to geographically distinct habitats or ancestral territories occurring within the concerned group members’ lifetime because of conflict, government resettlement programs, dispossession from their lands, natural calamities or incorporation of such territories into an urban area. The policy will not apply to economic migrants to urban areas.

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3. The term “Indigenous Peoples” is not a defined concept. Therefore, it is preferable to focus on “vulnerable ethnic minorities,” of which Indigenous Peoples merit the most protection, but which may also include non-indigenous ethnic minorities, e.g. “Afro-Descendants.”

The Bank policy on Indigenous Peoples (both the OD 4.20, issued in 1991 as well as the Revised OP 4.10), is intended for “Indigenous Peoples” who meet the four characteristics specified in Revised OP 4.10, paragraph 4. Therefore, on the one hand, it is a more inclusive policy for Indigenous Peoples (and not just vulnerable Indigenous Peoples) and, on the other hand, it is not an all encompassing policy for vulnerable groups (numerical minorities, religious minorities). Other Bank policies (Involuntary Resettlement, Gender, Country Social Assessment) are intended to promote equity among social groups that may be affected by Bank supported programs and projects.

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4. Determination of “collective attachment” (“a fairly ambiguous term”) should be assessed both by Indigenous Peoples themselves and as well as impartial review.

See III.A.1. The Bank policy recommends that direct consultations with project affected people (including Indigenous Peoples) should be held as part of the identification and screening process.

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5. There is “an apparent double standard” in Para. 9 in requiring Indigenous Peoples to prove collective attachment to territories over “generations” (footnote 7) while ignoring intergenerational conflict.

See III.B.2. We recognize that there can be intergenerational conflict and therefore the Bank policy requires inter-generational representation during free, prior and informed consultations with Indigenous Peoples.

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IV. LAND RIGHTS

A. General Considerations

1. Para 17 (a) should be amended to include “rented land.”

The Revised OP does not intend to include rented land. 6?

2. Lands and territories that Indigenous Peoples have acquired by means “other than traditional or customary occupation or use” i.e. as a result of Indigenous Peoples’ illegal displacement from their traditional lands, should be covered by Para. 17.

Such lands and territories are covered under the policy when the Indigenous Peoples communities were displaced from their land through forced severance. (See also IV.B.2 below)

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3. Indigenous land rights can not be individual. “Collective ownership of Indigenous national territories is essential for ….the very survival of Indigenous Peoples.” Therefore, conversion of customary usage rights into individual ownership rights should not be considered as an option. Para 17(b) should be amended to delete the term “and/or individual…”

The intent of the language in the Revised OP is the recognition of collective ownership. Some Indigenous Peoples however may, through a consensus process, choose to a combination of collective and individual ownership based on customary use and domestic legislation.

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4. Indigenous lands should not be converted individual titles without the community’s consent.

See IV.A.3. above 18

5. Para. 17 undermines the type and nature of legal recognition that should be required. Under IHR law, and independently of the domestic laws of states, Indigenous Peoples have the right to collective ownership and use of their lands and territories based on their long-standing use and occupancy. Accordingly, the Bank should recognize such rights, “regardless of whether such rights are recognized under a borrower’s domestic law.” Otherwise, the Bank and borrowers are able to reduce Indigenous Peoples’ rights to “mere usufruct or user rights.”

The Revised OP includes provisions relating to full legal recognition of existing customary land tenure systems of Indigenous Peoples, conversion of customary usage rights to communal and/or individual ownership rights and measures for legal recognition of long-term renewable custodial or use rights.

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6. Indigenous land rights can In some countries, long-term renewable measures may be interim legal 15

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not be temporary. This would introduce a new category of rights. Indigenous rights cannot be granted for a specific period of time with an obligation to apply for renewal, possibly connected with costly administrative procedures and payment of fees. Para 17 should be amended to delete the term “or long-term, renewable….”

measures to identify the customary rights of Indigenous Peoples.

7. Revised OP limits actions to be taken to secure the legal recognition of Indigenous Peoples’ customarily used and occupied land to only land title and acquisition projects.

Revised OP requires that the Indigenous Peoples Plan (IPP) set forth an action plan for the legal recognition of such ownership, occupation, or usage. The Bank believes that this is an adequate measure since IPP is legally covenanted and Bank supervision will monitor the implementation of the IPP.

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B. Physical Relocation of Indigenous Peoples

1. What “exceptional circumstances… would justify forcing [Indigenous Peoples] off their land?” The term is vulnerable to significant manipulation to suit the purposes of those whose interests will be furthered by resettlement. Borrowers will “find any excuse to relocate [Indigenous Peoples].”

The Revised OP requires that the borrower avoids physical relocation of Indigenous Peoples. In exceptional circumstances, when it is not feasible to avoid it, the borrower carries out such relocation only after obtaining broad support from the affected communities. Exceptional circumstances could include imminent natural disasters. It could also include voluntary relocation by Indigenous Peoples to areas with better land and natural resources.

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2. Forced relocation should be prohibited.

The Revised OP as well as the Bank policy on Involuntary Resettlement (OP 4.12) provides a number of restrictions on physical relocation of project-affected communities.

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3. Using the “lifetime of the concerned group members” as the temporal threshold for identifying victims of “forced severance” is ambiguous and may not take into account documented historical events or distinguish between factual and legal severance This refusal to recognize historical displacement is an unreasonable limitation,” that fails to acknowledge that historical displacement is a critical factor in the poverty faced by Indigenous Peoples.

The Bank acknowledges the difficulty of determining the temporal threshold for identifying people affected by forced severance. Taking this difficulty into account, it proposed that such timeframe should be “within the lifetime of the concerned groups’ members.”

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4. The limited definition of “forced severance” to “within the concerned group members’ lifetime” is inconsistent with the

See IV.B.3 above. 14

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reference to “intergenerational issues” in Para. 22.

5. “Broad support” (per Para. 20) is too ambiguous and vulnerable to subjective interpretation to serve as sufficient justification for involuntary relocation of Indigenous Peoples. The issue of broad support is left undefined in terms of its extent and the borrower is the source of information on the consultation and determination of the level of support. Express consent by the indigenous group must be obtained, preferably in writing and by way of a culturally specific decision-making process prior to the approval of physical relocation.

See V.A.1-4; V.B.1-12 below on FPICon and broad community support. 14, 20

6. After obtaining express consent (as in 4, above) the borrower should be required to Revised the Resettlement Plan jointly with and obtain the agreement of the indigenous group, including with respect to compensation.

The Revised OP as well as the Bank policy on Involuntary Resettlement (OP 4.12) provides a number of restrictions on physical relocation of project-affected communities. Physical relocation of Indigenous Peoples may take place in exceptional circumstances and when the affected groups provide their broad support through a process of free, prior, informed consultation.

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7. The term “allow” should be deleted from the last sentence of Para. 20 and the sentence restated to read: “the resettlement plan provide for the affected Indigenous Peoples, where possible, to return to the lands and territories…..”

The term “allow” presumes a larger decision-making role for Indigenous Peoples than the term “provide.”

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8. The Revised OP should stipulate that relocation will not take place without FPIC of affected communities.

The Revised OP requires that physical relocation of Indigenous Peoples is carried out only if and when the affected communities have provided their broad support through a process of FPICon.

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9. There should be an independent mechanism to help verify and assess the feasibility of alternatives involuntary resettlement.

The Bank will ascertain whether the affected Indigenous Peoples have provided their broad support for the physical relocation through a FPICon process.

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C. Parks and Protected Areas (PPAs)

1. Language on treatment of Indigenous Peoples affected by PPAs (Para 21) is “discriminatory…[and provide] inadequate safeguards, that

The Bank acknowledges that the issue of Indigenous Peoples’ rights in PPAs is a complex one. This paragraph of the Revised OP reflects the Bank safeguard provisions made under five Bank Operational Policies (Environmental Assessment, Natural Habitats, Indigenous Peoples, Involuntary Resettlement and Forests).

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contrary to international law and contravene the Convention on Biological Diversity.”

2. Para. 20 incorrectly assumes that under international law the Bank and the borrower can decide to restrict Indigenous Peoples’ rights to lands and resources (e.g. hunting, fishing, and gathering) on Indigenous Peoples’ lands that overlap with PPAs. Indigenous Peoples must be able to continue to access PPAs and receive fair compensation for loss of their lands included in PPAs without their consent.

It is the Bank’s understanding that the right of Indigenous Peoples to freely access PPAs is not fully mainstreamed under international law. The Revised OP protects the customary rights of Indigenous Peoples to access PPAs located on lands that they have traditionally owned or customarily used or occupied.

18

3. “Exceptional circumstances” are left undefined and could include assigning sole responsibility for environmental degradation to long-term indigenous residents.

The Bank’s use of the term “exceptional circumstances” in this context is not intended to assign responsibility for environmental degradation of PPAs, but to recognize the reality that there may be circumstances under which access restrictions are the only feasible means to protect critical habitat.

20

4. Establishment of a PPA should not proceed until indigenous claims have been settled and Indigenous Peoples have provided FPIC.

Bank support is not necessary for a country to establish a PPA. Therefore, there are circumstances where a PPA may already have been established prior to Bank consideration of a project affecting Indigenous Peoples that may be affected by the establishment of the PPA. Where Bank support is sought to establish a PPA, Bank Policy on Involuntary Resettlement (OP 4.12) requires that a process framework is designed and implemented to ensure that affected Indigenous Peoples participate in the design, implementation, monitoring and evaluation of the PPA management plan and that the plan give priority to collaborative arrangements that enable the Indigenous Peoples, as custodians of the resources, to enable to use them in an ecologically sustainable manner.

18

D. Compensation

1. How is compensation evaluated or decided upon?

The Bank policy on Involuntary Resettlement (OP 4.12) provides guidelines for evaluating compensation.

6

2. The borrower should be required to revise the Resettlement Plan (per Para. 20) jointly with and obtain the agreement of the indigenous group, including with respect to compensation.

The Resettlement Action Plan required by the Bank as part of OP 4.12 is a living document that can be revised during implementation to take account of new circumstances.

14

13


V. FREE, PRIOR AND INFORMED CONSULTATION AND BROAD COMMUNITY SUPPORT

A. Free, Prior and Informed Consultation (FPICon)

1. FPICon is not an adequate substitute for FPIC of “the affected communities and people.” Any lower standard is “a violation of our human and indigenous rights, and is completely unacceptable.”

See II.C.2 above on Bank’s position on the rights of “free, prior, informed consent” of Indigenous Peoples in the international law. More importantly, the Bank agrees that it will provide project financing only where a project has broad community support by affected Indigenous Peoples resulting from a process of free, prior and informed consultation (FPICon) with the affected Indigenous Peoples’ communities. The difference between FPICon (resulting in broad community support) and FPIC of the affected communities and people is that the process supported by the Bank is a consensual process that does not include a veto right for individuals or groups.

4, 12, 14, 18, 20, 21

2. FPICon is “meaningless” (it is just a “negotiating process.”) In which the only option that Indigenous Peoples have is to work to improve the conditions of a project) but that the borrower can ultimately proceed with a project (“carte blanche”) in the absence of the consent of affected Indigenous Peoples.

We respectfully disagree with the characterization of FPICon as “meaningless.” On the contrary, the process imposes on the borrower the responsibility of demonstrating that a project has broad community support through a rigorous FPICon process. Should a borrower ultimately decide to proceed with a project in the absence of broad community support by affected Indigenous Peoples, the Bank would not provide support for the project in question.

15, 19, 20

3. FPICon needs to be clearly defined, e.g. in relation to FPIC and broad community support. What is the difference between the “community,” that can theoretically withhold support [under broad community support] and the “group” which is denied veto power [under FPICon]?

The difference between FPICon and the “free, prior, informed consent” (FPIC) of the affected communities and people, is that the process supported by the Bank is a consensual process that does not include a veto right for individuals or groups. The difference between FPICon and broad community support is that FPICon is a process of which broad community support is one of several potential outcomes. “Support” is a relative affirmative decision reflecting the consensus of a community whereas a “veto” is a definitive negative decision of a limited group within the broader community.

3, 17, 20

4. FPICon could be construed as regressing the Bank’s mandated position on “meaningful participation.” Participation cannot be meaningful if the choice to reject a project is prohibited.

The Revised OP contains extensive provisions designed to ensure that FPICon involves meaningful consultation and informed participation on the part of Indigenous Peoples. The objective of the consultation is precisely to define the degree of community support for a project. The Bank will not proceed further with project processing if it is unable to ascertain that broad community support exists.

17

5. Who will ensure that the borrower actually seeks, documents and follows up on opinions of Indigenous Peoples? There is no supervision mechanism that assures that consultation is done honestly and clearly, with all relevant information provided to the Indigenous Peoples in the area affected.

In deciding whether to proceed with the project, the Bank reviews the process and the outcome of the FPICon carried out by the borrower to ascertain that the affected Indigenous Peoples’ communities have provided their broad support to the project. The Bank pays particular attention to the social assessment (SA) and to the record and outcome of the FPICon with the affected Indigenous Peoples’ communities as a basis for ascertaining whether there is such support. The Bank will not proceed further with project processing if it is unable to ascertain that such support exists. In doing so, the Bank may consult affected communities and independent third parties. When project implementation begins, Bank will supervise the implementation of IPP/IPPF.

3, 4

6. Mechanisms for (a) community agreement on procedures for FPICon and (b) community validation of the

Under the Revised OP the Bank has to satisfy itself through review of the process and outcome of the FPICon carried out by the borrower that the affected Indigenous Peoples’ communities have provided their broad support to the project.

12

14


outcomes of FPICon should be mandated.

7. The results of FPICon should be documented, not just the process and documentation should not be left entirely to the borrower.

Under the Revised OP the borrower is required to prepare a “detailed report that documents” the findings of the SA as well as the results of the FPICon process. The Bank reviews the borrower documentation and ascertains its adequacy.

12, 18

8. FPICon should be required for all stages of project design and implementation, including prior to any significant formalization of project planning and execution.

FPICon is key during project preparation. Once the basic design has been agreed on, it is important to ensure its implementation and thus close supervision is required. The Revised OP underlines the need for “early consultation,” recognizing that decision making among Indigenous Peoples may be an iterative process, as well as the need for sufficient time to fully understand and incorporate concerns and recommendations of Indigenous Peoples into project design. More details on appropriate consultation methods will be included in the forthcoming “Indigenous Peoples Guidebook.”

3

9. The requirement for “prior agreement” of Indigenous Peoples with respect to commercial development of their cultural resources and knowledge (per Para. 19) should be extended to land and natural resources (Para. 18) IPPs (Para. 12), IPPFs (Para 13) and resettlement (Paras. 20-21), “etc.”

The Bank believes that the prior agreement of Indigenous Peoples to the commercial development of their cultural resources and knowledge is an appropriate standard because stewardship of such resources and knowledge is generally unique to Indigenous Peoples. Land and other natural resources are more often subject to conflicting claims of ownership or user rights from other stakeholders (including the government) in addition to Indigenous Peoples and requires a more flexible and inclusive arrangements. Under the revised policy, if the project involves the commercial development of natural resources on lands or territories that Indigenous Peoples traditionally owned, or customarily used or occupied, the borrower ensures that as part of the FPICon process the affected communities are informed of their rights to such resources under statutory and customary law and the arrangements to enable the Indigenous Peoples to share equitably in the benefits to be derived from such commercial development.

12

10. Grievance mechanisms are needed for FPICon.

The Bank believes that grievance mechanisms are more appropriately included within the framework of an IPP. See Revised OP 4.10 Annex B(h)

17

B. Broad Community Support

1. The concept of broad community support is too vague and requires further clarification.

The elements required to demonstrate broad community support are outlined in the Revised OP/BP. The Indigenous Peoples Guidebook (under preparation) will provide further guidance.

12, 14, 16

2. Broad community support “establishes veto power over the community close to the project’s impact.” Such “veto power” needs to be approved by “regional tripartite actors” governments, Indigenous Peoples and industry) as early as the “pre-planning consultation stage,” as illustrated by the Bank-supported Environmental Energy and Population Program and be reflected in the Revised OP.

The Bank’s conception of broad community support is intentionally designed to avoid any notion of a veto right for individuals or groups.

6

3. The “decisive voice” in determining broad community support must come from

The term “broad community support” intentionally refers to “Indigenous Peoples communities.” As noted in the Revised OP, it is ultimately the Bank’s responsibility to ascertain whether affected Indigenous Peoples communities

12

15


Indigenous Peoples, not borrower and Bank staff.

have provided their broad support to the project.

4. There is a contradiction between broad community support and the option to proceed with a project if avoidance of adverse effects is not feasible. Are Indigenous communities expected to “broadly support” such adverse effects?

The Revised OP requires that Indigenous Peoples’ communities provide their broad support to the project, not necessarily to all the effects of a project. A project may pose the potential of causing adverse effects that Indigenous Peoples communities may agree to accept as the means of obtaining greater positive development effects that may also accompany a project.

14

5. Assessment of broad community support must be validated by affected communities and their representative organizations and independent third parties.

Revised OP 4.10 requires that the Bank satisfy itself through a review of the process and outcome of FPICon that the affected Indigenous Peoples’ communities have provided their broad support to the project. In doing so, the Bank may consult affected communities and independent third parties.

12

6. Broad community support needs a clear definition, transparent and verifiable criteria of how the Bank will “ascertain” that broad community support exists with clear procedural and disclosure safeguards to ensure credibility of such judgments.

The Revised OP/BP 4.10 includes a list of transparent and verifiable criteria to be used by the Bank in ascertaining the existence of broad community support.

12, 16

7. Broad community support needs to be made mandatory and “mainstreamed” to apply to all phases of project preparation (Para.6), including SA (Paras. 9, 10, 11) IPP, and IPPF (Paras 12 and 13) commercial development of natural resources (Para. 18) commercial development of Indigenous Peoples’ cultural resources and knowledge (Para. 19) and resettlement (Paras. 20 and 21).

Broad community support is an outcome of FPICon that is a necessary prerequisite for Bank support of a project. The SA, IPP, and IPPF are procedures that may lead to different outcomes, of which broad community support is one possibility. Commercial development of natural and cultural resources and knowledge, as well as resettlement are all specialized impacts of projects that require more specialized decision making procedures that are outlined in Revised OP 4.10.

12

8. Broad community support must be “mandatory and timely.”

Broad community support is a mandatory prerequisite for Bank support of project that affects Indigenous Peoples.

12, 17

9. There needs to be a formal mechanism that allows Indigenous Peoples to dispute situations in which they feel that they have withheld their [broad community support], yet the borrower has determined otherwise.

It is the responsibility of the Bank, not the borrower, to make the final determination whether affected Indigenous Peoples’ communities provide their broad support to the project.

12, 18

10. There needs to be a mechanism for communities to rescind support for a project if

If circumstances giving rise to broad community support for a project subsequently change, affected communities need to discuss this with the borrower and the Bank (during supervision missions). As a final recourse, the

18

16


circumstances change. affected communities may approach the Bank’s Inspection Panel.

11. Documentation of the existence or non-existence of broad community support needs to be mandatory. Consultations that do not result in broad community support should be documented and evaluated as well as those that do.

Under the Revised OP the borrower is required to prepare a detailed report that documents the process and outcomes that demonstrate, to the satisfaction of the Bank that Indigenous Peoples communities have provided their broad support to a project.

12, 18

12. The broad community support process needs a formal complaint mechanism.

The Bank would ascertain the broad community support as an outcome of the FPICon process. The Bank will not proceed with project processing if broad community support cannot be ascertained.

12

17


VI. SOCIAL ASSESSMENT, INDIGENOUS PEOPLES PLANS AND FRAMEWORKS

A. Indigenous Peoples Participation

1. Language regarding minimum requirements for acceptable SA, IPP and/or IPPFs is vague, various elements are to be included only “as needed.”

Not all potential elements of an SA, IPP or IPPF are relevant to all circumstances in which project affect Indigenous Peoples. Flexibility is needed to design and finalize these planning instruments to the circumstances of each project.

12

2. The need for the SA and IPP to address customary land and territorial rights or natural resource management practice should be described as mandatory rather than only directing the borrower to “pay particular attention to” them.

The policy requires that the SA or IPP address customary land territorial rights and natural resource management practice in all circumstances when projects result in impacts in these areas.

20

3. The contents of Revised IPP, IPPF and “process frameworks” (Paras. 12-13 and Annex B) should be approved and agreed by affected communities prior to finalization, adoption and implementation.

The IPP and IPPF are documents prepared by the borrower through FPICon of affected Indigenous Peoples and represent the proposals on how the project should be implemented so as to provide affected Indigenous Peoples with culturally appropriate social and economic benefits while avoiding, minimizing, mitigating and compensating for adverse effects. These documents are then made available to affected Indigenous Peoples communities in appropriate form, manner and language. Based on these documents, the affected Indigenous Peoples communities would be asked to provide their broad community support.

12

4. Clear, minimum requirements are needed for the contents of SA, and IPP, including Human Rights Impact Assessment (HRIA) and cultural impact assessments.

Bank believes that clear minimum requirements for SA and IPP are provided in Annexes A and B of Revised OP 4.10. The Human Rights and Cultural Impact Assessments are not formal Bank procedures for projects.

12

5. There should be a mandatory requirement for full and effective informed participation of affected Indigenous Peoples and their representative organizations in all project related social and other assessments.

Revised OP 4.10 requires the borrower to elaborate a culturally appropriate process for consulting with Indigenous Peoples at each stage of project preparation and implementation.

12, 18

6. There should be third party review of SA, IPP, IFFP, the Project Appraisal Document and other important areas of information and practice before project approval, continued planning and implementation.

Revised OP 4.10 provides the Bank with the ability to seek independent technical advice from qualified social scientists with expertise on the social and cultural groups in the area, and where necessary, to hold direct consultations with project affected people with respect to all stages of project preparation and implementation.

20

B. Social Assessment (SA)

1. There must be full and informed participation of Indigenous Peoples in SA on an equal basis with other participants.

The SA procedure, as prescribed in the Revised OP includes an assessment, based on FPICon with the affected Indigenous Peoples’ communities, of the potential adverse and positive effects of the project.

12, 14

18


2. SA needs to be mandatory, as it was in OD 4.20, and not “as needed” as in Revised OP 4.10.

The Revised OP states that an SA to be prepared by the borrower is a requirement for a project proposed for Bank financing.

17

3. The last sentence of Para. 9 should be amended by inserting “Indigenous Peoples on an equal basis with social scientists…”

The Bank believes that the objective of this suggestion is fulfilled by the SA procedure, as prescribed in the Revised OP that includes an assessment, based on FPICon with the affected Indigenous Peoples’ communities, of the potential adverse and positive effects of the project.

14

4. The last sentence of Para. 9 should be amended by adding that the qualifications, experience and terms of reference of social scientists engaged to conduct the SA be acceptable not only the Bank but also “to the affected Indigenous Peoples…”

The Bank believes that the acceptability of the qualifications, experience and terms of reference of social scientists engaged to conduct the SA are best determined by a peer review process conducted by the Bank.

14

5. Para. 10 should include a new section (d) requiring that the borrower “ensure the availability of sufficient financial resources to cover the expenses of Indigenous Peoples with a view to a proper representation of all affected communities in the consultation process.”

The Bank believes that it is the responsibility of the borrower to ensure that Indigenous Peoples are provided, in a culturally appropriate manner at each stage of project implementation, with all relevant information about projects potentially affecting them. To implement such consultation process, the borrower would need to make adequate financial resources available.

14, 15

6. Indigenous Peoples have limited capacity to participate in SA. The cultural and educational reality of many indigenous communities does not equip them “to handle inclusion.”

It is the Bank’s experience that Indigenous Peoples contribute greatly to the SA process.

6

7. There must be minimum requirements for SA.

The minimum requirements for SA are specified in the Revised OP, Annex A. 12

8. SA should include environmental assessment.

Environmental Assessment is a mandatory requirement for all Bank projects that may result in adverse impacts.

15

9. HR should be a mandatory element in SA. SA should include a HRIA.

The Revised OP explicitly cites the Bank’s policy of ensuring that the development process fully respects the human rights of Indigenous Peoples. See also IV.A.4

12, 16, 17

10. SA should include cultural impact assessment.

The Bank takes cultural impacts into account in its environmental and social assessments of project.

12, 15, 16

11. FPIC needs to be a clear component of SA.

The Revised OP requires FPICon with the affected Indigenous Peoples’ communities during the SA.

17

12. SA must address the question of broad community support.

Broad community support is an outcome of FPICon process, of which SA is an important component.

12

13. Mandatory grievance mechanisms should be a clear component of SA.

The SA will identify appropriate grievance mechanisms which can then be included within the framework of an IPP/IPPF.

17

19


14. The “formal agreements” reached with Indigenous Peoples communities and/or IPOs (Para. 11 (e)) should be made mandatory.

The Revised OP requires formal agreement is reached between Indigenous Peoples’ communities and/or IPOs when it pertains to the commercial development of cultural resources. In other instances, the Revised OP requires that the affected Indigenous Peoples communities provide their broad community support through the FPICon process, which may result in formal agreements.

17

15. Secondary sources in the borrower country should be consulted as part of SA, long as this does not raise costs or delay decisions unnecessarily.

The Bank expects borrowers to take as much time as necessary to engage in necessary consultations in preparation of SAs and other project planning documentation.

5

16. Third party verification of SA analysis and recommendations should be mandatory. A review mechanism should be included for SA (as well as environmental and cultural assessments) during both the drafting process and on the final revision of the SA.

The Bank carries out its own review of SA analysis and recommendations as part of its project appraisal process.

12, 15, 17

17. The Bank should not rely on the borrower to conduct the SA because Indigenous Peoples “would never trust” an SA conducted by the government or most nongovernmental organizations. The Bank should conduct the SA.

In the Bank’s view, the responsibility to conduct the SA (or Environmental Assessment) should be that of the borrower as it is the borrower who will be responsible for implementing the project in consultation with affected Indigenous Peoples. In practice, the SA is carried out by consultants, whose terms of reference and selection process are approved by the Bank. To the extent the borrower has ownership of the SA process and findings, the borrower will be better prepared to implement the findings of the SA.

3

18. Affected Indigenous Peoples should have right of approval of SA prior to finalization and implementation, and not be limited to comment on the final document (Para. 15).

The SA is prepared by the borrower and represents the borrower’s assessment of the project’s potential effects on Indigenous Peoples and the project alternatives. These documents are then made available to affected Indigenous Peoples communities in appropriate form, manner and language. Based on these documents, the affected Indigenous Peoples communities have the option to provide their broad community support to the project.

12, 15

19. The SA should be conducted by “mixed teams” with an equal number of indigenous and non-indigenous team members.

The Revised OP prescribes that SA includes an assessment, based on FPICon with the affected Indigenous Peoples’ communities, of the potential adverse and positive effects of the project. The borrower may engage social scientists, including those of indigenous origin, for conducting the SA.

15

20. The results of SA need to be enshrined in legal covenants, just as the results of EA are already.

The Bank will covenant the implementation of the IPP in the legal documents. 17

21. SA needs to be expanded in Revised BP 4.10.

The methodology for SA will be further elaborated in the Indigenous Peoples Guidebook (under preparation).

17

C. Indigenous Peoples Plan (IPP) and Indigenous Peoples Planning Framework (IPPF)

1. The borrower needs to give Indigenous Peoples frequent opportunities to study all drafts of reports, not just the final draft.

The Revised OP requires the borrower to make available the draft IPP/IPPF and to finalize the IPP/IPPF in consultation with affected Indigenous Peoples’ communities.

3

2. The IPP and IPPF should The Revised OP requires that the borrower prepare the IPP in consultation 14

20


be prepared in consultation with the Indigenous Peoples affected.

with affect Indigenous Peoples’ communities. In the case of IPPF, the borrower consults IPOs at the appropriate national, regional, or local levels to reach Indigenous Peoples who are likely to be affected by the project.

3. The IPP (Para. 12) should be required to set out measures by which the borrower will ensure that Indigenous Peoples affected by a project receive not only culturally appropriate, but also “ongoing and effectively just and equitable “ economic and social benefits.

The Bank is committed to ensure that proposed/planned development measures are both culturally appropriate as well as equitable.

14

4. If a borrower does not have the funds for the infrastructure required to carry out the elements described in an IPP, will the Bank finance that infrastructure?

The borrower allocates adequate financial and human resources for its implementation of IPP/IIPF. Specific elements of the IPP can be funded from the Bank loan or credit. Additionally, Revised OP refers to measures to enhance the capacity building of project implementing agencies and/or Indigenous Peoples organizations.

14

5. IPP should include participatory mechanisms to make sure Indigenous Peoples receive benefits from their rights.

The Revised OP includes among the elements of an IPP, an action plan to ensure that Indigenous Peoples receive social and economic benefits that are culturally appropriate.

4

6. Neither the Revised OP nor Annex B addresses punitive or other measures that the Bank may take (withholding of fund in the termination of project, etc.) in the event the borrower infringes upon the rights of Indigenous Peoples without their express consent or otherwise fails to meet its obligations under the IPP.

The legal documents include remedies to address failure of the borrower to comply with the provisions of those documents.

14

7. The IPP and IPPF should be included in legal covenants.

The Bank’s legal covenants would obligate borrowers to carry out the IPP/ IPPF.

17

8. The definition of “grievance procedure” in the IPP context needs to be clarified. Does it mean that the problems are going to be addressed, when the damage has already occurred and the only recourse is compensation?

The Revised OP commits the borrower to avoid potentially adverse effects on Indigenous Peoples’ communities, or where avoidance is not feasible, to minimize, mitigate or compensate for such effects. Grievance procedures can be invoked at different stages of project implementation. Not all damages are irreversible. Where damages are reversible, compensation is not the only available recourse. However, the Bank acknowledges that there may be circumstances where compensation is the only available recourse.

15

9. Affected Indigenous Peoples should have right of approval of IPP and IPPF prior to finalization and implementation.

The IPP and IPPF are documents prepared by the borrower and represent the borrower’s proposals on how the project should be implemented so as to provide affected Indigenous Peoples with culturally appropriate social and economic benefits while avoiding, minimizing, mitigating and compensating for adverse effects. These documents are then made available to affected Indigenous Peoples communities in appropriate form, manner and language.

12

10. What would be the legal mechanism that would allow

The Bank will agree to proceed with project preparation only when it can ascertain that the affected Indigenous Peoples communities have provided

3

21


Indigenous Peoples to stop a project from proceeding if the Bank approved an IPP on paper, but the indigenous communities were subsequently affected in negative ways?

their broad community support through the FPICon process. In the eventualities, the affected Indigenous Peoples communities have recourse to the Bank’s Inspection Panel.

11. IPP and IPPF should not rely on borrower.

In the Bank’s view, the responsibility to preparation of the IPP/IPPF should be kept with the borrower as it is the borrower who will be responsible for implementing it. To the extent the borrower has ownership of the IPP/IPPF preparation, the borrower will be better prepared to implement the IPP/IPPF in a manner that is sensitive to and respectful of the rights and interests of affected Indigenous Peoples.

3

12. Footnote 11 should be amended by adding: “by trying to include these groups as much as possible into the group of beneficiaries of the IPP.”

The purpose of the IPP is to ensure that affected Indigenous Peoples receive appropriate benefits from Bank supported projects. Other Bank assessment and management procedures are applied to foster sustainable development for other affected stakeholders.

1

13. The elaboration of IPP on the part of an operating company, “rings of state interventionism that contradicts principles of freedom and self determination on Indigenous Peoples.”

The IPP is finalized only after the process of FPICon with affected Indigenous Peoples is carried out.

6

14. The IPPF concept is flawed by “neocolonialism, exoticism, and worse, the idea of ‘Human Museums’…evident in the visions of pure conservationists.”

Learning from Bank‘s experience of preparing IPPs during the last twelve years, the IPPF concept was developed for projects that involve the preparation and implementation of annual investment programs or multiple subprojects but where Indigenous Peoples presence or collective attachment cannot be determined until the programs or subprojects are identified.

6

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VII. IMPACTS, MITIGATION AND GRIEVANCE MECHANISMS

A. Promotion of Positive Development Impacts

1. Provisions should be made for employing Indigenous Peoples in new positions created by development projects.

The Bank encourages borrowers to employ Indigenous Peoples in project teams. In fact, in cases such as Ecuador’s Indigenous and Afro Ecuadorian Peoples Development Project, close to 70% of the consultants were indigenous and afro descendants. This idea will be further explored and developed in the forthcoming “Indigenous Peoples Guidebook.”

4

2. What are the criteria for determining what “culturally appropriate” development benefits are? How is this related to human rights?

Culturally appropriate development benefits are identified through FPICon. There is widespread recognition that cultural rights are among the human rights attributed to Indigenous Peoples. The Revised OP explicitly cites the Bank’s policy of ensuring that the development process fully respects the human rights of indigenous peoples. It is the only OP that makes reference to human rights.

6

3. The identification of “culturally appropriate project benefits”? (Para. 4.12) should be made through FPICon.

The Bank agrees that the FPICon process should contribute to the identification of culturally appropriate project benefits.

1

4. There is no direct linkage to OP 8.60, Development Policy Lending, other than a “weak reference” in footnote 2.

See I.A.1 Bank safeguards policies, including the Revised OP 4.10 do not apply to Development Policy Lending; however, OP 8.60, Development Policy Lending includes provisions for assessing social aspects of development policy operations.

12

5. The requirement that “Bank financed projects [be] designed to ensure that [Indigenous Peoples] receive social and economic benefits that are culturally appropriate and gender and inter-generationally sensitive” should be rewritten to conform to the 2001 Declaration from the Indigenous Peoples Summit of the Americas.

The gender and intergeneration issue will be elaborated in the Indigenous Peoples Guidebook.

14

6. Para. 22 (d) should be amended to include “elders” as a group whose special needs must be addressed.

Inter-generational issues are identified as part of the SA process and the elders are one specific group who hold special needs.

14

B. Adverse Impacts Mitigation

1. “Measures which address adverse effects” should be negotiated with Indigenous Peoples.

The identification of measures that may be required to address adverse effects is an integral part of the SA and is subject to the FPICon process with affected Indigenous Peoples’ communities.

1

2. The statement “when avoidance is not feasible….” suggests that the Bank will allow projects to proceed that will have negative effects on Indigenous Peoples (Para. 1b).

The Bank will proceed only when it ascertains that affected Indigenous Peoples have provided broad community support to the project, an outcome which could occur if, for example, the affected Indigenous Peoples’ communities conclude that the positive effects of the project outweigh the negative effects.

3

3. Will Indigenous Peoples participate in the determination

The determination will be made as part of the FPICon process with the affected Indigenous Peoples.

3

23


that “avoidance is not feasible?” (Para 1b).

4. The policy should ensure that situations “where avoidance is not feasible” are limited to exceptional circumstances and that proponents be required to demonstrate that avoidance is not feasible.”

The borrower will demonstrate that complete avoidance of adverse impact is not feasible. The affected Indigenous Peoples communities need to provide their broad community support to such proposed projects.

14

5. It is insufficient to “pay particular attention to land and natural resources” (Para. 16). The Revised OP should include directives that explicitly address protecting land rights, natural resources, cultural values and traditional livelihoods.

For those projects that involve land and natural resources, there are detailed requirements in the Revised OP 4.10 relating to legal recognition of existing customary land tenure systems of Indigenous Peoples, conversion of customary usage rights to communal and/or individual ownership rights and measures for legal recognition of long-term renewable custodial or use rights.

4

C. Commercial Development of Natural Resources

1. Para 18 is an “excellent point.” Could the Bank encourage all governments to adopt Para. 18?

The Revised OP provides for the Bank to provide, at a member country’s request, assistance for a variety of initiatives to make the development process more inclusive of Indigenous Peoples.

3

2. Para. 18 risks undermining Indigenous Peoples’ internationally guaranteed rights by only requiring that compensation and recognition of rights be only “equivalent” to non-Indigenous Peoples property owners. Indigenous Peoples are not comparable to “any landowner,” given their rights as distinct peoples under international law.

Revised OP requires the borrower to include arrangements in the IPP to enable the Indigenous Peoples to share equitably in the benefits to be derived from such commercial development. The IPP arrangements; at a minimum, ensures that the Indigenous Peoples (including those without full legal title to the land) receive, in a culturally appropriate way, benefits, compensation and rights to due process at least equivalent to that to which any landowner with full legal title to the land would be entitled in the case of commercial development on their land.

12

3. Para 18 is seriously weakened by not being linked to the potentially useful safeguards of prior consultation, broad community support and/or prior consent.

Para. 18 explicitly cites FPICon as a requirement for informing affected Indigenous Peoples of their rights, the scope and nature of proposed commercial development and the effects of such development. Broad community support applies to Bank support of the project as a whole. The Revised OP does not require “prior consent,” construed as a veto by any group or individual to apply to the commercial development and natural resources.

12, 18

4. Para 18 should be strengthened to insert the term “subsoil” after “territories.”

The para makes reference to subsoil resources (such as minerals, hydrocarbon resources) on lands or territories that Indigenous Peoples traditionally owned, or customarily used or occupied.

14

5. Para. 18 fails to cover project activities – such as infrastructure and other large “mega projects” that affect Indigenous Peoples’ lands and territories in general, and not just the natural resources located on those lands.

The Revised OP is designed to cover all projects seeking Bank support, including infrastructure and other large projects that affect lands and territories that Indigenous Peoples traditionally owned, or customarily used or occupied.

18

24


6. Inclusion of the following resources under the provisions of Para. 18 would be “vital..[for] the survival of Indigenous economies and cultures”: respect for sacred sites; assurance of continued survival of traditional economic communities; and principle of co-existence between Indigenous and non-Indigenous economies.

The definition of cultural resources is provided in the Revised OP and is not intended to be exclusive.

15

D. Commercial Development of Indigenous Peoples Cultural Resources

1. Para. 19 does not mention respecting and securing community ownership of traditional knowledge with related rights of Indigenous Peoples to their cultural and intellectual property. Accordingly, the following sentence should be added: “These principles must also be adhered to in case of projects related to the evolution of the Information Society, such as documentation of Indigenous traditional knowledge and its digitalization and/or its disclosure via ICTs.”

The Revised OP refers to the community ownership of traditional knowledge. It also includes measures to protect it from digitalization and/or disclosure via information and communication technologies.

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2. Para. 22 (h) should read: “protect the full ownership and control of the genetic resources, traditional knowledge, cultural expressions and cultural heritage of Indigenous Peoples. including by strengthening intellectual property rights.”

The language cited in the Revised OP is meant as a proactive section and not necessarily meant as a mandatory requirement. As it stands and when it is done at the explicit request of the borrower, it may encompass a whole of range of proactive elements.

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3. Para 22 (h) should read: “protect community ownership of indigenous knowledge, including by strengthening intellectual and cultural property rights, taking due account of culturally diverse concepts and provisions of indigenous customary laws in defining the term “intellectual and cultural property.”

See VII.D.2 above. 15

E. Supervision and Grievance Mechanisms

1. Mutually acceptable grievance mechanisms should be required for all projects that trigger the Revised OP.

The Revised OP makes provision for “accessible procedures appropriate to the project to address grievances by the affected Indigenous Peoples’ communities arising from project implementation. When designing the grievance procedures, the borrower takes into account the availability of

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judicial recourse and customary dispute settlement mechanisms among the Indigenous Peoples.” Not all projects affecting Indigenous Peoples may require formal grievance mechanisms. However, such grievance mechanisms are available when needed.

2. The definition of “grievance procedure in the IPP context needs to be clarified.” Revised OP should include a clear complaints mechanism, located at the Bank itself, for Indigenous Peoples at all stages, regardless of whether IPP or IPPF are applied and whether or not there is an additional dispute mechanism between the affected Indigenous Peoples and the borrower. The mechanism should provide Indigenous Peoples with the ability to act on adverse effects before irreversible damage is done.

See IV.E.1 above. Beyond grievance mechanisms established between the borrower and affected Indigenous Peoples, all stakeholders have recourse to the World Bank’s Inspection Panel which has a mandate to intervene under appropriate circumstances before adverse effects become irreversible.

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3. The Bank and not national governments should be responsible for assessing adequate implementation of the Revised OP.

Responsibility for assessment of compliance of safeguards policy and for implementation of IPP/IPPF is an integral part of Bank project supervision.

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4. The group of inspectors should consist of one representative each of the Bank, the borrower and Indigenous Peoples.

Bank supervision procedures provide for engagement of social development experts, who could be of indigenous origin, as required for effective monitoring and oversight.

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5. “Inspectors” should inspect each phase of the project cycle and report on need to continue or cancel project execution.

Bank supervision procedures are implemented at successive stages of the project cycle and routinely include provisions for recommending project continuation as well as a full range of remedial actions.

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6. “Inspectors” should supervise compensation of Indigenous Peoples and consult with affected Indigenous Peoples in language appropriate to the community.

Bank Supervision of implementation of IPP/IPPF, where required as part of a project, is an integral focus of Bank supervision policy. The Bank makes efforts to consult with all affected stakeholders in a language and format appropriate to their communities.

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7. Compliance with the Revised OP should be a condition for obtaining financing, not an “optional element.”

Compliance with World Bank safeguard policies is mandatory. 4

8. The Bank leaves too many decisions that affect Indigenous Peoples to national governments that are at odds with Indigenous Peoples, exploit them, ignore their needs and support a

Revised OP 4.10 sets forth borrower responsibilities with respect to projects that affect Indigenous Peoples. However, the final decision on whether to support such projects and on what terms, remains with the Bank. In deciding whether to proceed with the project, the Bank satisfies itself through a review of the process and the outcome of the consultation carried out by the borrower that the affected Indigenous Peoples’ communities have provided

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Question/Issue/Suggestion Staff Response Commenters1 “culture of corruption” that keeps funds destined for Indigenous Peoples from ever reaching them. The Bank needs to work directly with Indigenous Peoples (Para. 5).

their broad support to the project. The Bank pays particular attention to the SA and to the record and outcome of the FPICon with the affected Indigenous Peoples’ communities as a basis for ascertaining whether there is such support. The Bank will not proceed further with project processing if it is unable to ascertain that such support exists.

In addition, the Bank may, at a member country’s request, support initiatives that are designed, among other things, to: make the development process more inclusive of Indigenous Peoples; support the development priorities of Indigenous Peoples through community driven development programs and locally managed social funds; strengthen the capacity of Indigenous Peoples’ communities and IPOs to prepare, implement monitor and evaluate development programs; and to facilitate partnerships among government, IPOs, CSOs and the private sector to promote Indigenous Peoples’ development programs.

9. The Bank should engage Indigenous consultants to oversee and help implement the Revised OP.

The Bank may engage consultants from among Indigenous Peoples when necessary and appropriate to carry out project supervision.

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10. No policy will be effective without mechanisms to deal with corruption and lack of transparency.

The Bank has extensive programs and mechanisms to address corruption and enhance transparency in all of its activities. This issue of corruption is not limited to Indigenous Peoples policy and is best addressed through other Bank mechanisms. The World Bank Policy on Disclosure of Information provides an overview of measures to support transparency.

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expanding the use of country systems in bank...

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