Repression of indigenous peoples by - Asian Indigenous and Tribal ...

Indigenous Rights Quarterly ARTICLEVol. II : No. 4 • Oct-Dec 2007 15A critical analysis of“Consultation Draft of the Safeguard Policy Statement”of Asian Development BankIn October 2007, Asian DevelopmentBank released its “ConsultationDraft of the Safeguard PolicyStatement” and held “IndigenousPeoples’ Consultation” in Manila,Philippines on 27 November 2007.ADB’s Consultation Draft of theSafeguard Policy Statement ingeneral and its “SafeguardRequirements for Borrowers/Clientson Indigenous Peoples” (hereinafterreferred as “Indigenous PeoplesSafeguards”) in particular aredeeply flawed. A cursory reading ofthe Indigenous Peoples Safeguardsshows that the ADB places excessivetrust on the borrowers/clients at thecost of the fundamental rights of theindigenous peoples.I. General concernsa. Lack of borrower’s obligationsunder international lawThe Asian Development Bank hasvirtually kept the borrowers/clientsoutside the purview of theinternational laws. They do not haveany obligation under internationallaw. The ADB has overlookedvarious mechanisms and polices onindigenous peoples approved by theUnited Nations including theDeclaration on the Rights ofIndigenous Peoples.b. No responsibility for the ADBThe ADB has also shunned itsresponsibilities under internationallaw towards the indigenous peoplesonce the projects are awarded to theborrowers/clients. The draft policystates that the ADB shall take legalremedies including suspension orcancellation of the project if “aborrower/client fails to comply withlegal agreements on safeguardrequirements”.The problem is that the indigenouspeoples have no say in theimplementation of the projects. Theindigenous peoples should be made“full or at least proforma party” inthe legal agreements between theBank and the borrower/client sothat the Asian Development Bank isdirectly responsible for thesafeguards of the interests of theindigenous peoples and theindigenous peoples as stakeholderscan exercise their powers to act inthe event of failure on the part of theborrower/client to comply withADB’s policy.c. No clarity about the timing forapplicability of the policyThe ADB’s Indigenous PeoplesSafeguards fail to clarify the triggertiming. Specifically, whether theapplicability of the “safeguardrequirements” shall start prior to orafter the signing of the agreementwith the borrower/client remainsunclear. AITPN suggested that thesafeguard requirements shouldapply from the moment dialoguewith the borrower is held (i.e. priorto the screening of a project) and theresponsibility to ensure complianceshall form part of the MOU orContract.d. Reject ADB’s “CountrySafeguard System”The ADB lays strong emphasis,rather over-emphasis, on theCountry Safeguard Systems whichis defined as a “mean a country’slegal and institutional framework,consisting of its national, subnational,or sectoral implementinginstitutions and relevant laws,regulations, rules, and procedures,which pertain to the policy areas ofenvironmental and socialsafeguards”. It is well known thatacross Asia, the legal andinstitutional frameworks of most ofthe countries are “anti-indigenouspeoples”. In a few countries likeIndia and the Philippines the rightsof indigenous peoples recognizedunder the law have beensystematically undermined by thejudiciary especially with regard to“land for land compensation” incase of forced evictions and the rightto free, prior and informed consent.The yardsticks provided by the ADBfor determination for “equivalenceand acceptability” of the CountrySafeguard System by the ADB doesnot meet international obligations ofthe borrowers/clients.In this regard, AITPN suggested thatCountry Safeguard System shouldbe done away with and ADB shoulddevelop its own system based oninternational obligations of theborrowers/ the State parties.II. Specific concerns with the“safeguard requirements onindigenous peoples”a. Consultation is not consentThe ADB only recognizes “Free,Prior and Informed Consultationand Broad Community Support”.But “consultation” is not “consent”and this is an attempt to undermineestablished international law. Article10 of the UN Declaration on theRights of Indigenous Peoples