Excessive trust on the borrower: The ADB way
An analysis of the ADB’s draft safeguards policy on indigenous peoples
Table
of contents
1. No reference to
borrower’s obligations under international law
2. No responsibility for
the ADB
3. No clarity about “trigger
timing” for applicability of the policy
4. Reject ADB’s “Country
Safeguard System”
III. Specific concerns with the “safeguard requirements
on indigenous peoples”
1. Consultation is not
consent
2. Screening of project
cannot be the “trigger timing”
3. No representation of
indigenous peoples for Social Assessment
4. Indigenous peoples
planning
10. Special considerations:
No land rights for indigenous peoples
I.
Introduction
On
27th November 2007, the Asian Development Bank (ADB) is scheduled to
hold “Indigenous Peoples' Consultation” on its draft safeguards policy on
indigenous peoples. Asian Indigenous
and Tribal Peoples Network (AITPN) studied the “Consultation Draft of Safeguard
Policy Statement” (October 2007 version as available in ADB’s website).
A cursory reading
of the “safeguard requirements for borrowers/clients on indigenous peoples”
(hereinafter referred as “Indigenous Peoples Safeguards”) shows that the ADB
places excessive trust on the borrowers to the point of rendering its revised
safeguards meaningless. In addition, the term “safeguards” involves neither
rights nor duties.
AITPN shares the
following concerns and recommendations:
II.
General concerns
1. No reference to borrower’s obligations
under international law
When the Asian
Development Bank adopted its policy on indigenous peoples in 1998, there were
very few legal standards on the rights of indigenous peoples. Since 1998, the
United Nations established specific mechanisms relating to indigenous peoples
such as the Permanent Forum on Indigenous Issues (2002), United Nations Special
Rapporteur on the situation of human rights and fundamental freedom of
indigenous peoples. These mechanisms have since made specific recommendations
on a range of issues covered in the ADB safeguards requirements for the
borrowers on indigenous peoples etc. The United Nations Treaty Bodies too
provided a number of comments in their Concluding Observations. Most
importantly, the United Nations General Assembly has adopted the
Declaration on the Rights of Indigenous Peoples.
One of the
requirements for the borrowers must be ensuring obligations under international
law. The ADB’s safeguard requirements on indigenous peoples fall far short of
the obligations undertaken by the borrower/States voluntarily and as directed
by the UN Treaty Bodies.
2. No
responsibility for the ADB
On the current roles and responsibilities, ADB states, “A basic
principle of the three safeguard policies is that implementation of the
provisions of each policy is the responsibility of the borrower or project
sponsor”. In principle, the ADB as the sponsors should have the equal
responsibility as the borrower/client.
The current draft policy states “61. If a borrower/client fails to comply
with legal agreements on safeguard requirements, including those described in
the safeguard plans and frameworks, ADB will seek corrective measures and work
with the borrower/client to bring it back into compliance. If the
borrower/client fails to reestablish compliance then ADB may exercise legal
remedies including suspension, cancellation, or acceleration of maturity, which
are available under the legal agreements. Resorting to legal remedies in the
event of noncompliance is not automatic or mandatory. Before resorting to such
measures, ADB uses available means to rectify the situation satisfactory to all
parties to the legal agreements, including initiating dialogue with the parties
concerned to achieve compliance with legal agreements”.
While this appears to be an improvement, it will
have little effect unless indigenous peoples are made “full or at least
proforma party” in the legal agreements between the Bank and the
borrower/client. It is necessary
that they be involved in all the
processes including access to all the information indispensable for free, prior
and informed consent and participates fully in the implementation of the
safeguards.
Recommendations: Indigenous peoples should be made
full or at least proforma parties to the legal agreements.
3.No clarity about “trigger timing” for
applicability of the policy
The ADB’s
Indigenous Peoples Safeguards fail to indicate 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 remain unclear.
In the past, the
ADB has been applying the policies and safeguards only after the agreement has
been signed. The ADB on its current dilemmas states there is a
frequent debate “as to whether the IR policy is triggered only by land
acquisition. There is a need to clarify that the policy is triggered by
involuntary acquisition of land and land-based assets, changes in land-use
patterns, and restricting access to common land and legally designated
protected areas.”
In its current draft, it fails to clarify the
trigger timing.
Recommendations: Safeguard requirements
shall 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.
4. Reject
ADB’s “Country Safeguard System”
The ADB lays strong emphasis, rather
over-emphasis, on the country safeguard systems (CSS) 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”.
Across Asia, the
legal and institutional frameworks of most of the countries can be described as
“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 CSS by the ADB does not meet
international obligations of the borrowers/clients.
Moreover,
the statement of the ADB, “If, however, the CSS is changed, and such change
adversely affects the achievement of the agreed objectives, ADB discusses with
the borrower/client, as part of ADB country dialogue, the implementation of
additional measures (beyond the project level) to meet those objectives” (para
18) is not serious. How can a borrower
(State) violate court orders unless it is run by dictatorial regimes!
Recommendations: The 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.
III.
Specific concerns with the “safeguard requirements on indigenous peoples”
AITPN has a number
of concerns with regard to the “safeguard requirements on indigenous peoples”
which is peppered with “where
possible”.
1. Consultation
is not consent
In its General
Requirements, ADB refers to Free, Prior and Informed Consultation and Broad
Community Support”. “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 same has been reiterated by the United Nations Committee on the
Elimination of Racial Discrimination (CERD Committee) on its General Comment on
Indigenous Peoples
[1]
.
The
CERD Committee has asserted the same in its Concluding Observations on a number
of countries including Indonesia, India, Laos etc.
On the Laos’
policy of resettling members of ethnic groups from the mountains and highland
plateaux to the plains, the CERD Committee on 18 April 2005 recommend that the
government of Laos “study all possible
alternatives with a view to avoiding displacement; that it ensure that the
persons concerned are made fully aware of the reasons for and modalities of
their displacement and of the measures taken for compensation and resettlement;
that it endeavour to obtain the free and
informed consent of the persons and groups concerned; and that it make
remedies available to them”.
[2]
On
the construction of dams in the North East India, some of which are reportedly
financed by the ADB, the CERD Committee recommended to the government of India
on 5 May 2007 to “seek the prior informed consent of communities
affected by the construction of dams in the Northeast or similar projects on
their traditional lands in any decision-making processes related to such
projects, and provide adequate compensation and alternative land and housing to
those communities.”
[3]
With regard to the oil palm plantations in
Kalimantan as part of the Kalimantan Border Oil Palm Mega-project, the CERD
Committee, among others, recommended that Indonesia “review its laws, in particular Law No. 18 of 2004 on
Plantations, as well as the way they are interpreted and implemented in
practice, to ensure that they respect the rights of indigenous peoples to
possess, develop, control and use their communal lands. …. ensure that
meaningful consultations are undertaken with the concerned communities, with a
view to obtaining their consent and participation in the Plan.
[4]
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.
Recommendations: The
right to free, prior and informed “consent” of the indigenous peoples must be
recognized.
2. Screening
of project cannot be the “trigger timing”
The screening is
the proposed trigger timing of the applicability of the safeguard requirements.
As stated above, the ADB must make the safeguard requirements on indigenous
peoples clear to the borrower from the time dialogue on a possible project
starts.
Moreover,
screening will be conducted by the borrower with the help of qualified experts.
However, if the borrower does not recognize existence of indigenous peoples
what will be the implications?
Recommendations: The ADB should conduct the screening with the help
of indigenous experts.
3. No representation of indigenous peoples
for Social 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 in conjunction with the
feasibility study”.
The Social Impact Assessment (SIA) is too crucial
to be left alone to the borrower/client.
In fact, the ADB takes no responsibility for
adverse impacts.
Nor the stakeholders, i.e. indigenous peoples,
are provided the opportunity to be included in the social assessment. This is
almost racist considering that there are many indigenous experts who can
conduct the Social Impact Assessment.
There is also no reference for making the
findings of the SIA public.
Recommendations: The ADB must be equally responsible for the Social Assessment and
indigenous peoples must be mandatorily included in the social assessment team.
The SIA study must be made public.
4. Indigenous peoples planning
Similar to the Social
Impact Assessment, the preparation of Indigenous Peoples Plan (IPP) is too
crucial to be left to the borrower alone.
In addition, the
draft refers to the “measures to minimize, mitigate and compensate” where the
avoidance of adverse impact is unfeasible. The draft requirements do not
provide threshold under what circumstances a project can be rejected at the
initial stage of the project. The requirements time and again assert
unequivocally that a project must continue whatever be the adverse
impact. This is quite frightening considering that the ADB does not include
projects which “promotes racism” in its prohibited investment activities.
Moreover, there is
no mechanism for inclusion of indigenous peoples’ representatives in the
preparation of the IPP.
Recommendations: The
ADB and indigenous peoples must have equal involvement in the preparation of
Indigenous Peoples Plan. In addition, the planning document must be made
public.
5. 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.
Recommendations: 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.
6. Grievance mechanism
The present draft
on Indigenous Peoples Safeguards provide 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.
Recommendation: The ADB should establish its own
grievance mechanism consistent with internationally accepted principles on
independence and impartiality on any grievance mechanism.
7. Monitoring
and reporting
In another case of
assigning the borrower to be the judge and jury, the Draft Indigenous Peoples
Safeguards provide 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. It is the initiative of the ADB.
Recommendations: The ADB should develop independent
monitoring mechanism for implementation of the IPP with the full participation
of indigenous peoples’ experts.
8. Unanticipated
impact
Once again, the
draft Indigenous Peoples Safeguards authorizes the borrower to undertake SIA in
case of unanticipated impacts.
Recommendations: The ADB should
be fully involved while conducting such studies.
9. 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.
In fact, it is the
ABD which must conduct the study itself, among others, for the lessons learnt
for future operations involving indigenous peoples.
At least, in this
process, the ADB, borrower and the stakeholders must be involved to learn from
the best practices and to avoid the adverse impacts.
10. 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.
[1] General Recommendation No. 23: Indigenous Peoples of 18 August 1997
[2] . CERD/C/LAO/CO/15 of 18 April 2005
[3] . CERD/C/IND/CO/19 of 5 May 2007
[4] . CERD/C/IDN/CO/3 of 15 August 2007.