MEMORANDUM

DATE: February 28, 2005

TO: Indigenous Peoples Coordinator, World Bank.

FROM: Elizabeth Brumfiel, President
American Anthropological Association (AAA)

Anthony Oliver-Smith, Chair
AAA Commission on the Status of Indigenous Peoples of South America

SUBJECT: Commentary on the Draft of OP 4.10 Indigenous Peoples

1. After review of the Draft document, the American Anthropological Association Commission on the Status of Indigenous Peoples considers that the draft of OP 4.10 Indigenous Peoples constitutes an advance over previous drafts and policies in some areas, but there are a number of elements that continue to cause concern. The advances are found in the areas of culturally appropriate information, avoidance of resettlement, the requirement of free, prior and informed consultation and the requirement of "broad community support" for projects before implementation. While these constitute advances, in some cases their effectiveness may be vitiated by equivocal language within the text (see below). Most importantly, the draft document does not adequately address indigenous recommendations and international documents relating to international human rights law and indigenous rights law, informed consent and territorial rights. Addressing the concerns of indigenous people is therefore critical to any effort to ensure socially and environmentally responsible development. Policies that do not effectively address the rights and welfare of indigenous peoples call into question the democratic character of the development process.

2. The first issue that requires further attention is the determination or screening of indigenous identity (para 8). The determination of indigenous identity has become an increasingly contested feature of national and international politics. While consulting the technical judgment of qualified social scientists is a positive step, the final determination of indigenous identity must lie with the people themselves. Given the multiple assaults on indigenous life underway in many areas for centuries, indigenous identity may have been suppressed or hidden for survival purposes. Today, in the changing climate of international and national human rights legislation, indigenous peoples are reclaiming their identities publicly. This reclamation process must be reflected in the Indigenous Peoples policy screening process by recognition of a right to define one's own identity. Given the frequently contested relationships between the state and indigenous peoples, reliance on the borrower's framework for identification of indigenous peoples may be of doubtful utility.

3. The frequently cited process of free, prior and informed consultation is also cause for concern. The language and application of this process are ambiguous. The use of the terms "free, prior and informed" suggests more than it actually means. Usually associated with the right to "free, prior and informed consent" before any action is taken that will affect people, these words lose a great deal of their import when applied to the term consultation. Free, prior and informed consultation is defined in a footnote (#4) in the draft, as "a culturally appropriate and collective decision-making process subsequent to meaningful good faith consultation and informed participation regarding the preparation and implementation of the project." This process is further stipulated as not constituting a veto right for individuals or groups. Under these conditions, free, prior and informed consultation is fundamentally a negotiating process in which the only option that indigenous peoples have is to work to improve the conditions of a project involving their land and resources, a project that they have no power to stop. In paragraph 11 the draft states that the bank will not proceed with project processing if it is unable to ascertain that broad community support exists for a project, but it is not clear how that support is determined. It is clear that the borrower, who is far from being a disinterested party, will be both the source of the social analysis and the determination of community support. Nor is the difference clear between the "community," which theoretically can withhold support, and thus stop the bank from further project processing, basically a veto power, and the "group" which is denied veto power.

4. The lack of oversight of performance of functions assigned to the borrower is also an issue of considerable concern. Many of the studies, plans, planning processes and consultation outcome assessments required by the bank are assigned to the borrower, who may be significantly less than impartial in terms of the findings of studies and the design of plans. For example, the definition and determination of "collective attachment," itself a fairly ambiguous term, should be assessed both by indigenous peoples themselves as well as impartial review. Particularly in light of the fact that all final decisions are basically in the hands of the borrower and the bank itself, it seems clear that impartial assessment and oversight are seriously lacking in the process. There definitely needs to be a third party review of the Social Assessment (para 9), IPP (para 12), IPPF (para 13), PAD (para 12) and other important areas of information and practice before project approval, continued planning and implementation can proceed. The participation and approval of the affected peoples during drafts and final submission of these documents are also not stipulated in the policy, but should be.

5. Regarding resettlement, the statement in paragraph 20 that in exceptional conditions, where it is not possible to avoid it, the borrower will not carry out any resettlement without obtaining the broad support for it from the affected peoples. How are exceptional circumstances determined? What criteria are used to determine these exceptional circumstances? It seems that "exceptional circumstances" is a term that is vulnerable to significant manipulation to suit the purposes of those whose interests will be furthered by resettlement. Also the issue of broad support is left undefined in terms of its extent. The borrower, once again, is the source of information on the consultation and the determination of the level of support.

6. Similar concerns to those expressed in # 5 emerge in paragraph 21 regarding parks and restricted areas. Resettlement or restrictions on use are to be avoided, except in exceptional circumstances, which are left undefined. What is most worrying here is that the term "exceptional circumstances" is open to a wide interpretation that could include assigning sole responsibility for environmental degradation to long-term indigenous residents. There is significant debate about the role of resident populations in national parks and restricted areas. Co-management (ICDP) projects have produced uneven results, prompting environmental preservationists to call for the displacement and resettlement of long-term residents of protected regions. Such a position ignores the well-documented fact that human beings have been integral parts and active shapers of "nature" throughout time in virtually all terrestrial environments. Barring outright displacement, preservationists have called for radically limiting local usages and practices in protected areas. Such restrictions constitute a form of structural displacement in that while people have not been geographically moved, the norms and practices with which they have engaged the environment in the process of social reproduction become so altered as to effectively change their environment from one that is known to one that must be newly encountered with new norms and new practices if social reproduction is to continue.

7. There is a concern that much of the language of the draft is left fairly loose and vague. Directives are couched in terms of avoidance rather than prohibition, to give priority to rather than to ensure, to pay attention to rather than adhere to, etc. For example, in para. 16, where steps should be indicated as mandatory, as in the need for the Social Assessment and the IPP to address customary land and territorial rights or natural resource management practices, the borrower is only directed to "pay(s) particular attention to." The language seems designed to allow the bank and the borrower loopholes through which the intent of the policy can be elided.

8. The schedule for public consultation (90 days) seems relatively short for significant participation by indigenous groups whose access to communications technologies may be limited.

Submitted by:

_____________________
Elizabeth Brumfiel
President
American Anthropological Association

______________________
Anthony Oliver-Smith
Chair
AAA Commission on the Status of Indigenous Peoples of South America

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