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

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16 Indigenous Rights Quarterly ARTICLEVol. II : No. 4 • Oct-Dec 2007recognizes 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 adverselyaffects indigenous peoples.Therefore, the draft safeguardrequirements do not provide anyprovisionforabandonment/cancellation of anyproject before its commencement.Under Section 11, the ADB states,“When the borrower/client and theaffected Indigenous Peoples haveserious differences anddisagreements on the project, itscomponents, or IPP, the borrower/client should adopt good faithnegotiations for them to resolve suchdifferences and disagreements”.Therefore, the intention is clear: byhook or crook, continue with theproject. This is indeed contrary tothe ADB’s proposed accountabilitymechanism which states “ADB mayexercise legal remedies includingsuspension, cancellation, oracceleration of maturity” for failureof compliance. If the project isopposed from the beginning byindigenous peoples why would theADB wait till it has to resort toextreme measures? Or is it a case theADB believes that accountabilityshall be an exception.b. Screening of project: Borrowerthe judge and juryThe screening of the project will beconducted by the borrower/clientwith the help of qualified experts.Many countries still do notrecognize the indigenous peoples intheir countries. Hence, without anyguidelines in place as to how tochoose the qualified experts, thesocalled experts will simply act ascronies to the borrower. In order toprevent the borrower frombecoming both the judge and thejury, the ADB should conduct theA cursory reading of theADB’s Draft Safeguard PolicyStatement in general andits “Safeguard Requirementsfor Borrowers/Clients onIndigenous Peoples” in particularshows that the ADBplaces excessive trust on theborrowers/clients at the costof the fundamental rights ofthe indigenous peoples.There is something wrongwhen the ADB seeks to shirkits responsibility to the borrowers.screening with the help ofindigenous experts.c. No representation of indigenouspeoples for Social ImpactAssessmentThe present draft provides that“When screening confirms likelyimpacts on Indigenous Peoples, theborrower/client will retain qualifiedand experienced expert(s) to carryout a full social impact assessment,and if adverse impacts onIndigenous Peoples are identified,prepare an IPP [Indigenous PeoplesPlanning] in conjunction with thefeasibility study”.But the indigenous peoples havebeen totally left out of the SocialImpact Assessment study, which isso crucial if the factual adverseimpacts of the project on theindigenous peoples are to bepresented. While indigenous expertsmust be mandatorily included in theSIA team, it is also essential that theADB must be equally responsible forthe Social Assessment. The SIAstudy must be made public.d. Indigenous Peoples PlanningThe preparation of the IndigenousPeoples Plan is as crucial as theSocial Impact Assessment and hencethe inclusion of the indigenouspeoples must be made mandatorywhich is not the case at present.Another matter of serious concern isthat the draft requirements do notprovide answers as to under whatcircumstances a project can berejected at any stage. Therequirements assert unequivocallythat a project must continuewhatever be the adverse impacts onthe indigenous peoples. This is quitefrightening considering that theADB does not include projectswhich “promotes racism” in its listof prohibited investment activities.e. Information disclosureThis provision also providesexcessive control to the borrowerrelating to indigenous peoples. Infact, it provides that “(i) draftIPP/Indigenous Peoples PlanningFramework (IPPF) endorsed by theborrower/client, before appraisal.”Since the borrower under the currenttext is mandated to conduct the SIAand prepare Indigenous PeoplesPlan, the suggestion that the draftIPP too will be endorsed by theborrower is ridiculous and selfserving.In an age of the right toinformation, the procedure forinformation disclosure is quiteoutdated.Instead of the borrower, the ADBshould take the responsibility todisclose all the information to thepublic and disclosing all informationin all stages must form a part of theagreement signed with theborrower.f. Grievance mechanismThe present draft on IndigenousPeoples Safeguards provides for thecreation of a grievance mechanismby the borrower against itself. In away, the borrower is being asked to
Indigenous Rights Quarterly ARTICLEVol. II : No. 4 • Oct-Dec 2007 17act as judge and jury on itself! It is acase of too much “good faith on theborrower/client”. It violatesinternationally accepted principleson independence and impartialityon any grievance mechanism.In this regard, AITPN recommendedthat the ADB should establish itsown grievance mechanismconsistent with internationallyaccepted principles onindependence and impartiality onany grievance mechanism.g. Monitoring and reportingThe draft Indigenous PeoplesSafeguards provides that monitoringand reporting on theimplementation of the IPP is to bedone by the borrower. It alsosuggests that borrower hire externalexperts. It is clear that borrowers arenot interested in developingsafeguard policies on indigenouspeoples. The ADB should developindependent monitoring mechanismfor implementation of the IPP withthe full participation of indigenouspeoples’ experts.h. Project completionIt is strange that borrower is alsogiven the responsibility to conductassessment of implementation of theIPP and the degree of compliancewith indigenous peoples relatedloan covenants. The ABD mustconduct the study itself, amongothers, for the lessons learnt forfuture operations involvingindigenous peoples.i. Special considerations: No landrights for indigenous peoplesThe Asian Development Bank usesthe ancestral domains, land andrelated natural resources to mislead.The critical issue is not ADB’spromises to take measures torecognize land rights as providedunder para 45 and para 46 underSpecial Considerations. Theseprovisions assume that indigenouspeoples do not have any land rights.The critical issue is whereindigenous peoples have their landrights recognized under normallaws or specific laws such as the 5thand 6th Schedules of theConstitution of India whichguarantee land for land ascompensation. Even in these cases,the ADB under para 47 proposes“resettlement” of the indigenouspeoples without making anyreference as to how indigenouspeoples’ lands will be acquired.Obviously, the land acquisition lawsshall be applied, and the ADBsupport acquisition of the lands ofindigenous peoples irrespective ofthe legal and constitutionalguarantees through the creation ofsocalled “culturally appropriatelivelihood restoration measures”which are just jargons, never used byany borrower or Bank. The UnitedNations Committee on Economic,Social and Cultural Rights under itsGeneral Comments No. 7 relating to“the right to adequate housing:forced evictions” concluded thatforced evictions are prima facieincompatible with the requirementsof the Covenant (ICESCR) and laidthe legal guidelines that must berespected by the borrower and theADB.The ADB also does not use rightsbased approaches with regard tocommercial development of naturaland cultural resources (para 48 and49) as provided under InternationalCovenant on Civil and PoliticalRights, UN Convention onBiological Diversity etc.In fact, under Para 50 relating tophysical relocation of indigenouspeoples, the ADB gives thediscretion to the borrower either toexplore alternate project designs orThe ADB does not use rightsbased approaches with regardto commercial developmentof natural and culturalresources as provided underInternational Covenant onCivil and Political Rights,UN Convention on BiologicalDiversity etc.carry out physical relocation ofindigenous peoples withoutrecognizing the rights of theindigenous peoples under nationallaw or obligation of the borrowersunder international law. The use ofthe terms “where possible” isnothing but providing the license to“relocate”. Moreover, the word“relocate” denotes the necessity toresort to such a measure which inreality is forced and thereforeinvolves “arbitrariness and ofillegality”.It is not the borrower but the lenderi.e. the ADB which must ensure thatthere is no force involved.Even under para 51 relating torestriction of access to protectedareas and natural resources, there isno reference to the safeguardsrelating to indigenous peoples asprovided under the declaration ofthe World Parks Congress (Durban2004) and article 28 of the UnitedNations Declaration on the Rights ofIndigenous Peoples.Most surprisingly, the prohibitedinvestment activity of AsianDevelopment Bank does not includeproject or investment activities,which are prima facie racist orinvolve violations of the right to life.In fact, any violation of the right tolife in the conflicts involving theADB supported projects must be thethreshold for the “suspension andcancellation” of the projects. •
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