10 June 2004
21 May 2004
Mr. David Freestone
World Bank
RE: Preliminary Comments
Dear Mr. Freestone,
Thank you for meeting with representatives of the Indigenous Caucus yesterday afternoon, May 19, 2004, to discuss the draft OP 4.10. As you are aware, most of us only received the draft a few hours before our meeting that you called in order to discuss specific language changes to the draft itself. It would be unfair, and malign the consultation process to characterize our meeting yesterday as anything but an informal meeting. It was not the legal roundtable we had been expecting. We do appreciate your taking this view into account in your report of this meeting.
We were also asked to submit specific language suggestions to the draft by 12:30 pm today. We also appreciate your understanding of the gross inadequacy of time for this task and trust that you will continue to advocate for a legal roundtable with Indigenous Peoples’ representatives along the lines we suggested to you in our communication of May 10.
We are encouraged by your statement to us that the CODE will not make any decision on the draft, but that the step is necessary to make the draft public, and to receive public comment. We would again, hope that a legal roundtable occur within the public comment period.
Upon our cursory review of the draft, there are broad areas where we believe the draft presented to us retrogresses from the previous standard (see, e.g. our comments on sections 16 and 17). We hope we will be able to give the WB a more detailed analysis at our anticipated legal roundtable.
Thank you for your kind consideration.
THESE ARE PRELIMINARY COMMENTS ONLY. FURTHER COMMENTS
WILL BE SUBMITTED AFTER WE HAVE HAD MORE TIME TO REVIEW THE OP AND ITS IMPLICATIONS.
- Throughout replace:
‘foster’ or ‘facilitate’ informed participation with ‘ensure meaningful and effective participation’;
meaningful and effective consultation [1]
- references to lands, territories and resources should use the following terminology: lands, territories and resources ‘traditionally owned or otherwise occupied and used’
- replace ‘gender and generational’ with ‘gender and inter-generational framework’
Para. 1. For indigenous peoples, the Bank’s mission of poverty reduction and sustainable development is best served by ensuring that the development process fosters full respect for their dignity, human rights, lands, economies and cultures.
Para. 2. The Bank recognises that Indigenous Peoples play a vital role in sustainable development and that the rights of Indigenous peoples are increasing addressed and guaranteed in domestic and international law.
Footnote 5:
“Collective attachment” means the various relationships that indigenous peoples maintain with the lands, territories and resources traditionally owned or otherwise occupied and used, including areas which hold special significance such as sacred and heritage sites or areas.
Footnote 6:
Remove: ‘occurring within the lifetimes [2]
Para. 5. If the borrower has a system (legal, policy, and institutional arrangements, including customary law) recognizes and protects the rights of Indigenous Peoples [delete] and, …
What if the borrower has no system at all?
Para. 16. This paragraph is narrowing the language used in OD 4.20 and needs strengthening and clarification. FtNt. 14 should read ‘Customary rights to lands and resources refers to patterns of long-standing community land and resource usage in accordance with indigenous peoples’ laws, values, customs and traditions, including seasonal or cyclical use, rather than necessarily formal legal titles issued by the state.
Para. 17 This paragraph should include [new (b)] extractive industries; delete existing (b) – under what circumstances should a project involve ‘acquisition’ of lands
Para. 18. c)… The indigenous peoples must agree to the commercial exploitation of their natural resources.
Para. 20. … In exceptional circumstances, when it is not feasible to avoid such relocation, the borrower prepares, with the meaningful and effective participation and approval [agreement] of the affected Indigenous Peoples, a resettlement plan compatible with the Indigenous Peoples’ cultural preferences and wishes, including a land-based resettlement strategy and, where possible, a right to return to their traditional lands and territories once the reasons for resettlement no longer pertain. Prior to project appraisal, the Bank satisfies itself, in direct consultation with the affected indigenous peoples, that the borrower … (b) has developed a resettlement plan with their informed participation and approval compatible with the Indigenous peoples’ cultural preferences and wishes ….
Para. 21. … For these reasons, involuntary restrictions on the access of indigenous peoples to legally designated parks and protected areas shall be avoided. In exceptional circumstances, where it is not possible to avoid involuntary restrictions the borrower prepares, with the meaningful and effective participation and approval of the affected indigenous peoples, a process framework in accordance with the provisions of OP 4.12. … Under the process framework priority shall be given to collaborative arrangements that enable the indigenous peoples to meaningfully and effectively participate in the design, implementation and monitoring of management regimes, to equitably share in benefits and to continue to use resources in an ecologically sustainable manner as the custodians of those resources. Involuntary restrictions shall not apply to areas designated by indigenous peoples as sacred or heritage sites.
Annex A 2(a) A review, on a scale appropriate to the project and in collaboration with indigenous peoples…. (c) … is an analysis of the vulnerability of and risks ….
These sentences weaken OD. 420
Footnote 6 reference to Urban areas
[1] ‘Effective’ means, produces the results for which it was intended or designed and introduces a potential measuring/evaluation tool; ‘meaningful’ incorporates good faith and other objective/subjective criteria including indigenous peoples’ perceptions of the process.
[2] ‘Traditionally owned or otherwise occupied and used’ constitutes the temporal limitation; ‘within the ‘lifetimes of the group’ is much too restrictive.