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FPIC at the UNPFII: Consultation or Consent?

The United Nations Permanent Forum on Indigenous Issues (UNPFII) provides a space for indigenous delegates to offer their expertise and recommendations to governments, UN agencies, the private sector, and other relevant bodies. Certainly, the establishment of such a body in 2002 demarcated a shift in indigenous clout on the international stage. But how much of this progress remains confined to political tokenism? This year, the World Bank sent a delegate to the UNPFII to discuss policy changes that could potentially protect the consultation rights of Indigenous Peoples.  But can perfunctory discussions bring change to a history of human rights violations?

A Forum of Opportunity

The greater part of the Permanent Forum sessions amounted to a murky soup of shallow diplomacy and washed out buzzwords—intercultural dialogue, traditional knowledge, recognition, and so forth. But the fifth day of the Forum marked a swing from a typically dry and uninterested UN discourse towards a solemn, heavy and deeply invested exchange. Hitting the halfway mark in its two-year process of policy updates, the Bank attended the UNPFII to provide stakeholders with an opportunity to participate in the restructuring of its policy. Indigenous leaders arrived with a mandate to ensure that the revised policies would protect their communities’ consultation rights.

Luis Felipe Duchicela—senior advisor on indigenous peoples to the World Bank—rolled up to the UNPFII sporting a colourful, indigenous-friendly poncho. His goal was pleasing and placating his fellow delegates. But his traditional garb did little to lift the moods of the many indigenous leaders who, historically, have had a far from positive experience with the World Bank.

Development for Whom?

Since the 1960s, large-scale World Bank-financed developmental, infrastructural, extractive and industrial projects have been the source of “adverse impacts on indigenous peoples in Latin America, Asia, and Africa,” bearing the main source of tension between indigenous communities and the financial institution. Deepening indigenous resentment, the World Bank proceeded to impose unwelcomed adjustment and austerity plans, exacerbating poverty and increasing “commercial pressures on indigenous territories.”

In 1982, the World Bank financed the Chixoy Hydroelectric Dam in Guatemala, catalyzing a massive forced relocation of communities whose upshot was the massacre of 369 displaced people. Following these deaths, the Bank authorized a second loan to fund the project in 1986. Such incidents are not uncommon. Funded by the World Bank, a Brazilian Amazonian development plan concluded in land invasion and skyrocketing mortality rates set off by introduced diseases. In states like the Philippines, anti-infrastructural protest is met with oppression and violence.

A History of Consultation

Reacting to international criticism, the World Bank adopted its Operational Manual Statement 2.34 (OMS 2.34) in 1982—its first “tribal” policy. While the policy set out safeguards aiming to protect health, culture, participation and land rights, the standards did little in practice. Continuing top-down implementations, the World Bank rarely allowed any consultation regarding the projects. Only by 1987 did indigenous leaders first meet with the World Bank president, but the face-to-face failed to produce any substantive commitments.

Under pressure from indigenous organizations, the Bank adopted a revised policy on Indigenous Peoples in 1991. Operational Directive (OD 4.20), however, failed to elaborate a participatory protocol for indigenous communities and overlooked the right of Free, Prior and Informed Consent. Since 1994, OD 4.20 and other protective policies have been subject to revision processes, symbolically guided by indigenous consultation.

All the same, stakeholder demands always came home to the same issues: free prior and informed consent, and policy alignment with international indigenous rights standards. New drafts—such as the renamed OP/BP 4.10, were adopted—but leaders continued to feel ignored. During a 2002 negotiation at the Bank HQ, an Ecuadorian representative stressed that “It is not a question of how many consultation meetings the Bank has carried out. It is a question of whether or not indigenous peoples … consider that their concerns are being addressed in the revised policy.”

In 2004, the World Bank released a revised draft of OP 4.10 for 90 days of public consultation. Despite complaints that the document failed to incorporate explicit commitment to FPIC, instead resorting to Free Prior and Informed Consultation. Consultation had previously been rejected by indigenous communities, as, in practice, it only requires informing communities of new projects, and “does not constitute a veto right.” In 2005, the Bank’s Board of Directors approved OP4.10 with few changes made to the initial draft.

As a Collective Statement on Multilateral Development Banks at the Fourth Session of the UNFPII stated, “merely requiring the World Bank to verify that the borrower has gained the ‘broad support from representatives of major sections of the community’ – with no guarantees as to what information will be disclosed and when, how such verification will be conducted and by who, and how the collective decision-making processes and structures of the affected indigenous people will be recognized and respected – the free prior and informed consultation process stands to reduce indigenous peoples rights to a mere technical procedure.”

UNPFII 2013: Consultation, or Consent?

With Duchicela present, indigenous leaders hoped to push for a change from consultation to consent. Substantiated by international instruments such as ILO No. 169, the Convention on Biological Diversity, and most importantly, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), arguments for FPIC at the UNPFII were inexhaustible. Delegates—from bodies such as the Indigenous Peoples’ Forum and the Pacific Caucus, and from countries such as Chile and Canada—made explicit reference to FPIC while demanding that the Bank respect indigenous rights.

After much diplomatic white-knuckling, Duchicela defensively reminded delegates that the Bank’s policy had last been revised in 2005, before the passing of the UNDRIP. He went on to read from OP 4.10, suggesting that “this policy fully respects the dignity of human rights… of indigenous peoples.” He then insisted that the consideration of the UNDRIP in the policy review process would make the Bank’s policy “consistent, or more consistent with UNDRIP.”

Yet the Special Rapporteur on the Rights of Indigenous Peoples cut in: “I wont let you off the hook so easily.” Emphasizing that the World Bank is the last to hold out on FPIC, the Special Rapporteur urged the Bank to align its policy to international human rights instruments.

A Never Ending Process

The World Bank representative acknowledged the Bank’s “issues of implementation,” but continued to redirect the conversation towards issues of policy and process. In response to Duchicela’s announcement that the Bank would establish an Indigenous Peoples Advisory Council to “improve communication and coordination between the Bank and indigenous peoples and ensure implementation of policies and strategies,” the Chair of the Forum lashed back by pointing out that there are already three existing institutions on Indigenous Peoples within the UN body.

With one million people affected by resettlements incurred by Bank-funded projects, consultation proves tokenistic and useless. The World Bank does not need more “meaningful dialogue.” What it does need, is to respect indigenous consent—and especially the lack thereof.

(Article Photos: Attribution M. Polar)



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