ALSO

A critical analysis of "Consultation Draft of the Safeguard Policy Statement" of Asian Development Bank

 

In October 2007, Asian Development Bank released its “Consultation Draft of the Safeguard Policy Statement” and held “Indigenous Peoples’ Consultation” in Manila , Philippines on 27 November 2007.

 

ADB’s Consultation Draft of the Safeguard Policy Statement in general and its “Safeguard Requirements for Borrowers/Clients on Indigenous Peoples” (hereinafter referred as “Indigenous Peoples Safeguards”) in particular are deeply flawed.  A cursory reading of the Indigenous Peoples Safeguards shows that the ADB places excessive trust on the borrowers/clients at the cost of the fundamental rights of the indigenous peoples.

 

I. General concerns

 

a. Lack of borrower’s obligations under international law

 

The Asian Development Bank has virtually kept the borrowers/clients outside the purview of the international laws. They do not have any obligation under international law. The ADB has overlooked various mechanisms and polices on indigenous peoples approved by the United Nations including the Declaration on the Rights of Indigenous Peoples.

 

b. No responsibility for the ADB

 

The ADB has also shunned its responsibilities under international law towards the indigenous peoples once the projects are awarded to the borrowers/clients. The draft policy states that the ADB shall take legal remedies including suspension or cancellation of the project if “a borrower/client fails to comply with legal agreements on safeguard requirements”.

 

The problem is that the indigenous peoples have no say in the implementation of the projects. The indigenous peoples should be made “full or at least proforma party” in the legal agreements between the Bank and the borrower/client so that the Asian Development Bank is directly responsible for the safeguards of the interests of the indigenous peoples and the indigenous peoples as stakeholders can exercise their powers to act in the event of failure on the part of the borrower/client to comply with ADB’s policy.

 

c. No clarity about the timing for applicability of the policy

 

The ADB’s Indigenous Peoples Safeguards fail to clarify the trigger timing. Specifically, whether the applicability of the “safeguard requirements” shall start prior to or after the signing of the agreement with the borrower/client remains unclear. AITPN suggested that the safeguard requirements should apply from the moment dialogue with the borrower is held (i.e. prior to the screening of a project) and the responsibility to ensure compliance shall form part of the MOU or Contract.

 

d. Reject ADB’s “Country Safeguard System”

 

The ADB lays strong emphasis, rather over-emphasis, on the Country Safeguard Systems  which is defined as a “mean a country’s legal and institutional framework, consisting of its national, sub-national, or sectoral implementing institutions and relevant laws, regulations, rules, and procedures, which pertain to the policy areas of environmental and social safeguards”. It is well known that across Asia , the legal and institutional frameworks of most of the countries are “anti-indigenous peoples”. In a few countries like India and the Philippines the rights of indigenous peoples recognized under the law have been systematically undermined by the judiciary especially with regard to “land for land compensation” in case of forced evictions and the right to free, prior and informed consent. The yardsticks provided by the ADB for determination for “equivalence and acceptability” of the Country Safeguard System by the ADB does not meet international obligations of the borrowers/clients.

In this regard, AITPN suggested that Country Safeguard System should be done away with and ADB should develop its own system based on international obligations of the borrowers/ the State parties.

 

II. Specific concerns with the “safeguard requirements on indigenous peoples”

 

a. Consultation is not consent

 

The ADB only recognizes “Free, Prior and Informed Consultation and Broad Community Support”. But “consultation” is not “consent” and this is an attempt to undermine established international law. Article 10 of the UN Declaration on the Rights of Indigenous Peoples recognizes the “the right to free, prior and informed consent”.

 

The non-recognition of the right to “consent” denies the right to say “no” to any project which adversely affects indigenous peoples. Therefore, the draft safeguard requirements do not provide any provision for abandonment/cancellation of any project before its commencement.

 

Under Section 11, the ADB states, “When the borrower/client and the affected Indigenous Peoples have serious differences and disagreements on the project, its components, or IPP, the borrower/ client should adopt good faith negotiations for them to resolve such differences and disagreements”. Therefore, the intention is clear: by hook or crook, continue with the project. This is indeed contrary to the ADB’s proposed accountability mechanism which states “ADB may exercise legal remedies including suspension, cancellation, or acceleration of maturity” for failure of compliance. If the project is opposed from the beginning by indigenous peoples why would the ADB wait till it has to resort to extreme measures? Or is it a case the ADB believes that accountability shall be an exception.

 

b. Screening of project: Borrower the judge and jury

 

The screening of the project will be conducted by the borrower/client with the help of qualified experts. Many countries still do not recognize the indigenous peoples in their  countries. Hence, without any guidelines in place as to how to choose the qualified experts, the socalled experts will simply act as cronies to the borrower. In order to prevent the borrower from becoming both the judge and the jury, the ADB should conduct the screening with the help of indigenous experts.

 

c. No representation of indigenous peoples for Social Impact Assessment

 

The present draft provides that “When screening confirms likely impacts on Indigenous Peoples, the borrower/client will retain qualified and experienced expert(s) to carry out a full social impact assessment, and if adverse impacts on Indigenous Peoples are identified, prepare an IPP [Indigenous Peoples Planning] in conjunction with the feasibility study”.

 

But the indigenous peoples have been totally left out of the Social Impact Assessment study, which is so crucial if the factual adverse impacts of the project on the indigenous peoples are to be presented. While indigenous experts must be mandatorily included in the SIA team, it is also essential that the ADB must be equally responsible for the Social Assessment. The SIA study must be made public.

 

d. Indigenous Peoples Planning

 

The preparation of the Indigenous Peoples Plan is as crucial as the Social Impact Assessment and hence the inclusion of the indigenous peoples must be made mandatory which is not the case at present. Another matter of serious concern is that the draft requirements do not provide answers as to under what circumstances a project can be rejected at any stage. The requirements assert unequivocally that a project must continue whatever be the adverse impacts on the indigenous peoples. This is quite frightening considering that the ADB does not include projects which “promotes racism” in its list of prohibited investment activities.

 

e. Information disclosure 

 

This provision also provides excessive control to the borrower relating to indigenous peoples. In fact, it provides that “(i) draft IPP/Indigenous Peoples Planning Framework (IPPF) endorsed by the borrower/client, before appraisal.”

Since the borrower under the current text is mandated to conduct the SIA and prepare Indigenous Peoples Plan, the suggestion that the draft IPP too will be endorsed by the borrower is ridiculous and self-serving. In an age of the right to information, the procedure for information disclosure is quite outdated.

 

Instead of the borrower, the ADB should take the responsibility to disclose all the information to the public and disclosing all information in all stages must form a part of the agreement signed with the borrower.

 

f. Grievance mechanism

 

The present draft on Indigenous Peoples Safeguards provides for the creation of a grievance mechanism by the borrower against itself. In a way, the borrower is being asked to act as judge and jury on itself! It is a case of too much “good faith on the borrower/client”. It violates internationally accepted principles on independence and impartiality on any grievance mechanism.

 

In this regard, AITPN recommended that the ADB should establish its own grievance mechanism consistent with internationally accepted principles on independence and impartiality on any grievance mechanism.

 

g. Monitoring and reporting

 

The draft Indigenous Peoples Safeguards provides that monitoring and reporting on the implementation of the IPP is to be done by the borrower. It also suggests that borrower hire external experts. It is clear that borrowers are not interested in developing safeguard policies on indigenous peoples. The ADB should develop independent monitoring mechanism for implementation of the IPP with the full participation of indigenous peoples’ experts.

 

h. Project completion

 

It is strange that borrower is also given the responsibility to conduct assessment of implementation of the IPP and the degree of compliance with indigenous peoples related loan covenants. The ABD must conduct the study itself, among others, for the lessons learnt for future operations involving indigenous peoples.

 

i. Special considerations: No land rights for indigenous peoples

 

The Asian Development Bank uses the ancestral domains, land and related natural resources to mislead. The critical issue is not ADB’s promises to take measures to recognize land rights as provided under para 45 and para 46 under Special Considerations. These provisions assume that indigenous peoples do not have any land rights.

 

The critical issue is where indigenous peoples have their land rights recognized under normal laws or specific laws such as the 5th and 6th Schedules of the Constitution of India which guarantee land for land as compensation. Even in these cases, the ADB under para 47 proposes “resettlement” of the indigenous peoples without making any reference as to how indigenous peoples’ lands will be acquired. Obviously, the land acquisition laws shall be applied, and the ADB support acquisition of the lands of indigenous peoples irrespective of the legal and constitutional guarantees through the creation of socalled “culturally appropriate livelihood restoration measures” which are just jargons, never used by any borrower or Bank. The United Nations Committee on Economic, Social and Cultural Rights under its General Comments No. 7 relating to “the right to adequate housing: forced evictions” concluded that forced evictions are prima facie incompatible with the requirements of the Covenant (ICESCR) and laid the legal guidelines that must be respected by the borrower and the ADB.

 

The ADB also does not use rights based approaches with regard to commercial development of natural and cultural resources (para 48 and 49) as provided under International Covenant on Civil and Political Rights, UN Convention on Biological Diversity etc.

 

In fact, under Para 50 relating to physical relocation of indigenous peoples, the ADB gives the discretion to the borrower either to explore alternate project designs or carry out physical relocation of indigenous peoples without recognizing the rights of the indigenous peoples under national law or obligation of the borrowers under international law. The use of the terms “where possible” is nothing but providing the license to “relocate”. Moreover, the word “relocate” denotes the necessity to resort to such a measure which in reality is forced and therefore involves “arbitrariness and of illegality”.

 

It is not the borrower but the lender i.e. the ADB which must ensure that there is no force involved.

 

Even under para 51 relating to restriction of access to protected areas and natural resources, there is no reference to the safeguards relating to indigenous peoples as provided under the declaration of the World Parks Congress (Durban 2004) and article 28 of the United Nations Declaration on the Rights of Indigenous Peoples.

 

Most surprisingly, the prohibited investment activity of Asian Development Bank does not include project or investment activities, which are prima facie racist or involve violations of the right to life. In fact, any violation of the right to life in the conflicts involving the ADB supported projects must be the threshold for the “suspension and cancellation” of the projects.