The World Bank and indigenous peoples: The operational policy on indigenous peoples (O.P. 4.10.) between indigenous peoples' rights to traditional lands and to free, prior, and informed consent

International Journal on Minority and Group Rights

Volumn 13, Issue 4, 2006, Pages 367-390

  Errico, Stefania ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

FINANCIAL POLICY; INDIGENOUS POPULATION; LAND RIGHTS; WORLD BANK;

EID: 33847750782     PISSN: 13854879     EISSN: 15718115     Source Type: Journal    
DOI: 10.1163/157181106779848340     Document Type: Article

References (126)

1. See for example, the Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples'Rights in November 2003.
2. In this sense, United Nations Development Programme, Background paper for HDR 2004, Indigenous Peoples in Comparative Perspective- Problems and Policies by Rodolfo Stavenhagen.
3. The term 'World Bank' or 'Bank' is used here to encompass the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). However, it is worth noting that the 'World Bank Group' consists of five international organizations. In addition to those already mentioned, reference is to be made to the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID).
4. The so-called tribal peoples were regarded as those ethnic groups having stable, low-energy, sustained- yield economic systems and which further display a range of characteristics incorporated in OMS 2.34, para. 2.
5. It is generally referred to as Operational Manual Statement 2.34.
6. See Operational Manual Statement (OMS) 2.34.
7. See Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries, adopted on 27 June 1957. It now remains in force for 18 countries.
8. OMS 2.34, para.6.
9. OMS 2.34, para.7.
10. Office of Environmental and Scientific Affairs, A Five-Year Implementation Review of OMS 2.34 (1982-1986), World Bank, Projects Policy Department, June 1987. This was a review of 33 Bank-financed projects identified, appraised or implemented between 1981 and 1985, known to have produced effects on lands, resources, and cultures of Indigenous Peoples.
11. The World Bank issued a special policy statement on involuntary resettlement (OMS 2.33, Social Issues Associated with Involuntary Resettlement in Bank-financed Projects) prior to OMS 2.34 which was revised and reissued in 1990 as Operational Directive 4.30 (Involuntary Resettlement). In any case, see now OP 4.12 on Involuntary Resettlement, revised in April 2004.
12. See Operational Directive 4.20 on Indigenous Peoples, para. 5 which mentions: A close attachment to ancestral territories and to the natural resources in these areas; self-identification and identification by others as members of a distinct cultural group; an indigenous language, often different from the national language; presence of customary social and political institutions; and primarily subsistence-oriented production.
13. See OD 4.20 on Indigenous Peoples, para. 2.
14. See OD 4.20, para. 6.
15. See OD 4.20, para. 8.
16. See OD 4.20, para. 10.
17. For a description of the requisites to be possessed by such a development plan, see what is stated in OD 4.20 in paragraphs 14 and 15. now OP 4.12 on Involuntary Resettlement, revised in April 2004.
18. For a list of these consultations, both on regional and national levels, see annex A to the Summary of Consultations with External Stakeholders regarding the World Bank Draft Indigenous Peoples Policy (Draft OP/BP 4.10), 18 April 2002, updated 7 October 2002.
19. According to the wording of both OP and BP 4.10, these instruments apply to all projects for which a Project Concept Review takes place on or after 1 July 2005.
20. Indeed, the UN Working Group on Indigenous Populations in its Draft Declaration on the Rights of Indigenous Peoples, decided to forego any attempt at a definition since, as pointed out by its Chairperson-Rapporteur Mrs Erica-Irene A. Daes, the concept of indigenous is not capable of a precise, inclusive definition which can be applied in the same manner to all regions of the world. Similarly, the African Commission's Working Group of Experts on Indigenous Populations/Communities avoided giving any definition as did the Organization of American States. In this respect, see: Working Paper on the concept of Indigenous People, U.N. ESCOR, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 14th Sess., at 5, U.N. Doc. E/CN.4/Sub.2/Ac.4/1996/2 (1996);
21. Report of the African Commission's Working Group of Experts on Indigenous Populations/ Communities, supra note 1.
22. Results of the initial, second, third, fourth and fifth meetings of negotiations in the quest for points of consensus (Articles I to XXIII of the draft Declaration on the Rights of Indigenous Peoples), OEA/Ser.K/ XVI GT/DADIN/doc.211/05 rev. 2, 9 February 2005.
23. The former OD 4.20 contained different wording as it affirmed that no single definition can capture their diversity. See para. 5.
24. See Operational Policy (OP) 4.10 on Indigenous Peoples, adopted in May 2005 and effective since 1 July 2005, para. 4.
25. OP 4.10, para. 4 focuses on four factors to be met by indigenous groups in varying degrees. Firstly, it requires self-identification as members of a distinct indigenous cultural group and recognition of this identity by others. Secondly, it refers to collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories. As to the meaning of 'collective attachment', the policy requires the group to have had for generations economic ties and a physical presence in lands and territories traditionally used or occupied. Furthermore, as clari- fied by the instrument itself, it also covers the attachment of transhumant/nomadic groups to the territory they use on a seasonal or cyclical basis. However, it is then specified that a group which has lost this 'collective attachment' because of forced severance remains eligible for coverage under this policy. Reference is thus made to conflicts, government resettlement programs, dispossession, natural calamities or incorporation of territories into an urban area when occurring within the concerned group members' lifetime. Thirdly, it mentions customary cultural, economic, social, or political institutions that are separate from those of the dominant society and culture. Finally, it makes reference to an indigenous language, often different from the official language of the country or region.
26. See Operational Policy (OP) on Indigenous Peoples 4.10, para. 1.
27. For a more detailed description of what the borrower is required to do with regard to consultation, see OP 4.10, para. 10.
28. In this sense, see the memorandum submitted to the Indigenous Peoples Coordinator (World Bank) by the President of the American Anthropological Association, Elisabeth Brumfiel, on 28 February 2005.
29. We will reserve any consideration of international law regarding the issue for the next paragraph.
30. See Staff Response to Public Comments - Revised draft policy on Indigenous Peoples (OP 4.10) of December 1, 2004, 6 April 2005, p. 14. This document is available at www.worldbank.org/indigenous.
31. See OP 4.10, para. 16.
32. The provision also encompasses the case of a project entailing activities which are contingent on establishing legally recognized rights to lands and territories that indigenous peoples have traditionally owned or customarily used or occupied (such as land titling projects). In this sense, see OP 4.10, para. 17.
33. This is an initiative set in motion in 2001 by the former President of the World Bank Group, James Wolfensohn, in response to public pressure calling on the institution to cease funding for oil, gas and mining sector investments. Its aim was to focus on the World Bank Group's engagement in the extractive sector.
34. EIR report at para. 41.
35. See José R. Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations: Vol. V, Conclusions, Proposals and Recommendations, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4. Such considerations have also been recalled in a recent U.N. study entirely focused on the issue of indigenous peoples and land. (See Erica-Irene Daes, Indigenous Peoples and Their Relationship to Land - Final Working Paper Prepared by the Special Rapporteur, Sub-Commission for the Promotion and Protection of Human Rights, U.N. Doc., E/CN.4/Sub.2/2001/ 21, 2001). This special relationship is also referred to in Article 13 of ILO Convention no. 169. Similarly, the Draft UN Declaration on the Rights of Indigenous Peoples recognizes this particular aspect in Article 25 (See Draft UN Declaration, E/CN.4/Sub.2/1994/56); an analogous acknowledgement appears in the preamble of the Draft American Declaration on the Rights of Indigenous Peoples. (See the Consolidated text of the draft Declaration prepared by the Chair of the Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVIGT/DADIN/doc.139/03, 17 June 2003, preamble).
36. International Labour Organization Convention (no. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989. With specific regard to the right to land, see Article 14. As far as the draft UN Declaration on the Rights of Indigenous Peoples as well as the proposed American Declaration are concerned, see, respectively, Articles 26 and XXIV. As to the latter, we make reference to the consolidated text, see supra note 33.
37. See Universal Declaration of Human Rights, G.A. Res. 217 A (III), 10 December 1948, Article 17.
38. See American Convention on Human Rights, 22 November 1969, G.A.S. Treaty ser. No. 26, 1144 U.N.T.S. 123, Article 21.
39. See American Declaration on the Rights and Duties of Man, adopted by the 9th International Conference of American States (30 March - 2 May 1948), O.A.S. Res. 30, O.A.S. Doc. OENSer.UV/I.4, rev. (1965), Article XXIII.
40. See African Charter on Human and Peoples' Rights, adopted by the OAU Assembly of the Heads of State and Government in Nairobi on 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 14.
41. See Protocol no.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, Europ. T.S. no. 9, Article 1.
42. Case of Yatama v. Nicaragua, Inter-American Court of Human Rights, Ser. C no.127, judgement on merits and reparations of 23 June 2005, para. 184.
43. See CERD General Recommendation XXIII: Indigenous Peoples, U.N. Doc. CERD/C/51/misc 13/Rev., (1997) para. 3.
44. In this sense, see S. James Anaya, 'International Human Rights and Indigenous Peoples: The Move toward the Multicultural State', 21 Ariz. J. Int'l & Comp. L. (2004) p. 13;
45. see by the same author Indigenous Peoples in International Law (2nd ed, Oxford University Press, Oxford, 2004).
46. Further, see S. James Anaya and R. A. Williams Jr., 'The Protection of Indigenous Peoples' Rights over Lands and Natural Resources Under the Inter-American Human Rights System', 14 Harvard Human Rights Journal (2001) p. 33.
47. See CERD General Recommendation XXIII, supra note 41, para. 5. The Convention on the Elimination of All Forms of Racial Discrimination refers to the right to property in Article 5.
48. Case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights, Ser. C no. 79, judgement on merits and reparations of 31 August 2001
49. Mary and Carrie Dann v. United States, Case 11.140, Inter-American Commission on Human Rights, Report no. 75/02 (merits decision of 27 December 2002), para. 130.
50. Maya Indigenous Communities of the Toledo District - Belize, Case 12.053, Inter-American Commission on Human Rights, Report no. 40/04 (merits decision of 12 October 2004).
51. See case of Comunidad Indigena Yakye Axa v. Paraguay, Inter-American Court of Human Rights, Ser. C no. 125, judgement on merits and reparations of 17 June 2005;
52. case of Comunidad Moiwana v. Suriname, Inter-American Court of Human Rights, Ser. C no. 124, judgement on merits and reparations of 15 June 2005. In particular, the former has also focused on the hypothesis of conflict between indigenous and private or State interests over land. In this regard, see the Court's statement at paras. 146-149. It is evident that the Court in its rulings does not fail to consider the special relationship between land and indigenous peoples. Indeed, such consideration has led the Court to declare violations of the right to life (Article 4(1) American Convention) and the right to personal integrity (Article 5(1) American Convention) to the detriment of members of indigenous communities along with the violation of the right to property, respectively in the case of the Comunidad Indigena Yakye Axa and in the case of the Comunidad Moiwana.
53. Mabo and others v. Queensland, (No.2) 1992, 175 CLR 1 F.C. 92/014, High Court of Australia, 3 June 1992.
54. Subsequent decisions have dealt with questions regarding native titles. See for example, Wik Peoples v. Queensland (1996) or Wilson v. Anderson (2002).
55. Advisory Opinion on Western Sahara, (62), 1975, ICJR.
56. Alexkor Ltd and the Republic of South Africa v. The Richtersveld Community and Others, Constitutional Court of South Africa, CCT 19/03, 14 October 2003, paras. 50 and 51.
57. Delgamuukw v. British Columbia, 1997, 3 S.C.R. 1010.
58. In this regard, see R. Bulan, Native Title as a Proprietary Right under the Constitution in Peninsula Malaysia: A Step in the Right Direction?', 9 Asia Pacific Law Review (2001) p. 83.
59. See Anaya and Williams, supra note 42, p. 47..
60. See S. Wiessner, Rights and Status of Indigenous Peoples: A global Comparative and International Legal Analysis, 12 Harvard Human Rights Journal (1999) p. 111.
61. See for example, the Selbu case and the Svartskogen case, both decided in 2001. They are reported in a document entitled What Defines an Indigenous People? by the Resource Centre for the Rights of Indigenous Peoples, available at www.galdu.org.
62. See supra note 33.
63. See supra note 1.
64. U.N. Human Rights Committee, General Comment No. 23 (50) (Article 27), CCPR/C/21/Rev. 1/ Add.5, 8 April 1994, para. 7.
65. Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication 167/1984, views adopted on 26 March 1990, Report of the Human Rights Committee, A/45/40.
66. See the present work at para. 3.1.
67. See O.P. 4.10, footnote 17.
68. See Legal Note on Indigenous Peoples, dated 8 April 2005 and submitted to the Board of Executive Directors on 10 May 2005. The document is available at , last visited on 22 September 2005.
69. Here we refer mainly to S. James Anaya. See supra note 42.
70. See Final Arguments of the Inter-American Commission in the Awas Tingni case, supra note 44. See also Mary and Carrie Dann v. United States, supra note 45.
71. In the international context, prior informed consent has been worked out with regard to the regulation of transboundary movement of hazardous wastes. It first appeared in the Basel Convention (1989), but has since been extended to other international conventions such as the Rotterdam Convention on Prior Informed Consent (1998). Beyond the area of movement of hazardous wastes, the Convention on Biological Diversity which has extended this principle to the sector of access to genetic resources and biosafety deserves to be mentioned.
72. See OP 4.10, paras. 1 e 11.
73. See Legal Note on Indigenous Peoples, supra note 63.
74. Ibid, para. 28.
75. See Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples. The Workshop was convened in accordance with Economic and Social Council decision 2004/287 of 22 July 2004, following a recommendation of the Permanent Forum on Indigenous Issues at its third session and was held from 17 to 19 January 2005 According to it, the term 'free' should imply no coercion, intimidation or manipulation; 'prior' should imply that consent has been sought sufficiently in advance of any authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes; 'informed', for its part, should imply that information is provided that covers a number of aspects ranging from nature, size, reversibility and scope of the proposed project to assessment of the likely economic, social, cultural and environmental impact; finally, 'consent'. In this latter respect, consultation and participation are held to be crucial components of the consent process. Moreover, it is specified that this process may well include the option of withholding consent.
76. See also Engaging Indigenous Peoples in governance processes: International legal and policy frameworks for engagement, UN workshop on Engaging the Marginalized: Partnerships between Indigenous Peoples, governments and civil society, Background paper prepared by the Secretariat of the UN Permanent Forum on Indigenous Issues, Division for Social Policy and Development/UN Department of Economic and Social Affairs, International Conference on Engaging Communities, Brisbane, Australia, 15 August 2005, paras. 3-4. The latter expressly states that a humanrights based approach to development is now policy in the United Nations System.
77. Ibid.
78. See UNDP and Indigenous Peoples: A Policy of Engagement (2001), paras. 27-30.
79. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Botswana, UN doc A/57/18, paras. 292-314, 1 November 2002, para. 304, specifically concerning the San people, an indigenous people from Botswana.
80. In this sense, see Poverty and the International Covenant on Economic, Social and Cultural Rights, statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, E/C.12/2001/10, para. 8.
81. Working for a World Free of Poverty, World Bank, 2003, available at
82. See supra note 46.
83. See Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/ II.96, Doc. 10 rev. 1, 1997.
84. The Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria, Communication No. 155/96, 2001, paras. 58 and 69.
85. See UN Doc. A/CONF.157/23, 25 June 1993, para. 10.
86. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Suriname, CERD/C/64/CO/9, 12 March 2004, paras. 13-15.
87. On this topic, see P. Aikio and M. Scheinin, Operationalizing the Right of Indigenous Peoples to Self- Determination (Institute for Human Rights, Abo Akademy University, Turku, 2000).
88. See also, M. Clech Lâm, At the Edge of the State: Indigenous Peoples and Self-Determination (Transnational Publishers, U.S., 2000).
89. In this last respect, it is worth noting that the recent adoption by the Heads of State and Government of the document resulting from the 2005 World Summit has consolidated the recognition of the term indigenous peoples. (See 2005 World Summit, Outcome Document, 24 October 2005.
90. See further International workshop on the draft United Nations Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacαn, Mexico, 26-30 September 2005, E/CN.4/2005/WG.15/CRP.1, 29 November 2005). Furthermore, note that the Supreme Court of Canada, in the Quebec Secession case, decided in 1998, stated, inter alia, that it is clear that a 'people' may include only a portion of the population of an existing state... the reference to "people"does not necessarily mean the entirety of a state's population. In the same sense, but with specific regard to indigenous peoples, stand the concluding observations of the UN Committee on Human Rights with respect to Norway and Australia, respectively, in CCPR/C/79/Add.112, paras. 10, 17 and A/55/ 40, paras. 498-528, as well as the decision by the African Commission in the Ogoni case cited above. Additionally, please consider that the right to self-determination, as incorporated in common Article 1 of the International Covenants, has been applied to Indigenous Peoples by both the UN Committee on Human Rights and the Committee on Economic, Social and Cultural rights.
91. See Concluding Observations of the Human Rights Committee: Canada. UN Doc. CCPR/C/79/ Add.105, 7 April 1999.
92. See Concluding Observations of the Human Rights Committee: Australia, UN Doc. A/55/40, 24 July 2002, para. 506-508.
93. See supra note 44.
94. Reference is made to both the case of Mary and Carrie Dann v. United States (see supra note 45) and Maya Indigenous Communities of the Toledo District -Belize (see supra note 46).
95. See Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/ II.102 Doc. 9 rev. 1, 26 February 1999. Further, in the Report on the Human Rights Situation in Peru (OEA/Ser.L/V/II.106 Doc. 59 rev., 2 June 2000) the Commission stated that all projects to build infrastructure or exploit natural resources in indigenous lands or projects affecting their environment and culture should be decided on with the participation of and in consultation with the peoples interested, with a view to obtaining their consent.
96. See CERD General Recommendation XXIII, supra note 41, paras. 4 d) and 5. Such statements were reiterated in 2000, in the concluding observations on Australia's report.
97. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ecuador, CERD/C/62/CO/2, 21 March 2003, para.16.
98. See Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/AUS/CO/14, 14 April 2005, paras. 11 and 16.
99. See also the concluding observations on Bolivia and United States of America, respectively in CERD/C/63/CO/2, 10 December 2003 and in A/56/ 18, paras. 380-407, 14 August 2001.
100. See Concluding observations of the Committee on Economic, Social and Cultural Rights: Colombia, E/C.12/Add.1/74, 30 November 2001.
101. Commentary on the Norms on the Responsabilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/38/Rev.2, para. 10 c).
102. In this respect, see also European Union, Second Northern Dimension Action Plan 2004-06, 18 October 2003, available at .
103. For further reference, see the Legal Commentary on the Concept of Free, Prior and Informed Consent, E/CN.4/Sub.2/AC.4/2005/WP.1, 14 July 2005.
104. See Delgamuukw v. British Columbia, supra note 52, as well as Taku River Tlingit First Nation v. British Columbia, 2004, SCC 74, and Haida Nation v. British Columbia, 2004, SCC 73.
105. See Constitutional Court, Ruling SU-039/97.
106. See supra note 34.
107. See supra note 33. See also Article 27 according to which indigenous peoples are entitled to the restitution of their traditional lands, territories and resources which have been confiscated, occupied, used or damaged without their free and informed consent.
108. See supra note 33, Article XX and Article XXIV 4).
109. See supra note 31.
110. The World Commission on Dams was called to review large dam projects. Its report was published in 2000 and provided guidelines for sustainable dam development fully recognizing indigenous peoples' right to free, prior, and informed consent.
111. See Implementation of Operational Directive 4.20 on Indigenous Peoples: an independent desk review Country Evaluation and Regional Relations (OEDCR), OED Report No. 25332, World Bank, 10 January 2003 and Implementation of Operational Directive 4.20 on Indigenous Peoples: An Evaluation of Results. OED Report No. 25754, World Bank, 10 April 2003
112. In this sense, see also F. MacKay, 'Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review', 4 Sustainable Dev. L. & Pol'y (2004) p. 43.
113. Specifically, we refer to the following policies on: Environmental Assessment, Natural Habitats, Pest Management, Involuntary Resettlement, Indigenous Peoples, Forests, Safety of Dams, Projects on International Waterways, Projects in Disputed Areas, and, finally, on Management of Cultural Property in Bank-Financed Projects.
114. See H. Uriz, 'The Application of the World Bank standards to the Oil Industry: Can the World Bank Group Promote Corporate Responsability?', 28 Brook. J. Int'l L. (2002) p. 85.
115. See IBRD, Articles of Agreement of the International Bank for Reconstruction and Development, Article III, sec. 5, b).
116. Similarly, see IDA, Articles of Agreement, Article V, sec. 1, g); Article V, sec. 6.
117. ICJ, Case concerning the Gabcoikovo-Nagymaros Project (Hungary/ Slovakia), para.140.
118. See Agenda 21, charter 33, para. 16, a), UN doc. A/CONF.151/26 (1992).
119. World Bank Operational Manual, Definitions, available at: .
120. See IBRD, res. 93-10 and IDA, res. 93-6. Further, the 1996 clarification of certain aspects of the resolution and the 1999 clarification of the Board's second review of the Inspection Panel.
121. See sec. 6.02, IBRD General Conditions, IDA General Conditions, SCL General Conditions e sec. 7.01 f), g), IBRD General Conditions and SCL General Conditions.
122. For an outline of the different proposals put forward during the phase of discussions on the institution of a control mechanism, see Bradlow, 'International Organizations and Private Complaints: The Case of the World Bank Inspection Panel', 34 Va. J. Int'l L. (1993-4) p. 565.
123. Res. IBRD 93-10 and Res. IDA 93-6, para. 4.
124. Therefore, the request for investigation must be presented by an organization, an association, a society or another grouping of individuals.
125. See OP 4.01 on Environmental Assessment, adopted in 1999 and revised in August 2004, para. 3.
126. See OP 4.36 on Forests, adopted in 2002 and revised in August 2004, para. 6.