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4 Sustainable Dev. L. & Pol'y 43 (2004)
Indigenous Peoples' Rights to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review

handle is hein.journals/sdlp4 and id is 104 raw text is: INDIGENOUS PEOPLES' RIGHT TO FREE, PRIOR AND INFORMED CONSENT AND THE WORLD BANK'S EXTRACTIVE INDUSTRIES REVIEW by Fergus MacKay* INTRODUCTION ndigenous peoples' right to free, prior and informed consent (FPIC) is gaining increasing currency in international law, particularly in the jurisprudence of international human rights bodies and pursuant to the Convention on Biological Diversity. In some areas, such as use of traditional knowledge, resettlement and certain development-related activities affecting indigenous peoples' traditional lands, the law is clear: indige- nous peoples have the right to give or withhold their consent. FPIC has also been recognized and accepted by a number of intergovernmental organizations and international bodies (see Box 1) and increasingly in domestic laws and jurisprudence. The World Bank Group (WBG) is a notable exception despite two major reviews, both commissioned by the WBG, which recommend incorporation of FPIC into WBG policy and practice with special reference to indigenous peoples. The first was the World Commission on Dams, which made detailed rec- ommendations in relation to FPIC,1 all of which were rejected by the WBG.2 The second, and focus of this article, the World Bank's Extractive Industries Review (EIR), is presently under consideration by WBG management prior to submission to the Board of Directors.3 In a leaked January 2004 WBG manage- ment response to the EIR's Final Report, the WBG again reject- ed FPIC. The WBG has also stated its opposition to FPIC on a number occasions in the past eight years in response to indige- nous peoples' long standing demands that FPIC must be a fun- damental component of WBG safeguard policies. This short article provides an overview of the EIR and its implications for the WBG, and takes a closer look at FPIC, its components and its bases in international law. THE EXTRACTIVE INDUSTRIES REVIEW The EIR was commissioned in 2001 by the President of the WBG, James Wolfensohn, to examine what role, if any, the WBG has in the oil, gas, and mining sectors, generically known as extractive industries (El). This was done largely in response to a concerted campaign by non-governmental organi- zations, Friends of the Earth in particular, who rallied around the slogan World Bank Get Your Ass out of Oil and Gas. President Wolfensohn appointed Dr. Emil Salim, former Indonesian minister for the environment, as the Eminent Person charged with conducting the EIR in July 2001. The EIR comprised a two year-long process of regional stakeholder meetings, project site visits, commissioned research on particular issues, consideration of two internal WBG evaluations relating to extractive industries,4 and dia- logue with World Bank staff.5 The EIR's Final Report, present- ed to the WBG in January 2004, was authored by Dr. Salim and contains a number of potentially far reaching recommendations about how the WBG conducts business and how human rights, including indigenous peoples' rights and FPIC, should be accounted for and respected in WBG policies and operations.6 While restricted to El, these recommendations affect a wide range of WBG operations in other sectors as well as cross-cut- ting policy issues. THE EIR's RECOMMENDATIONS Poverty Alleviation and Sustainable Development The WBG's professed mission and mandate is poverty alle- viation through sustainable development.7 The EIR assessed WBG involvement in El primarily along these lines: can El projects be compatible with the WBG's goals of sustainable development and poverty reduction? The Final Report defines poverty from a human rights perspective, adopting the views of the UN Committee on Economic, Social and Cultural Rights,8 and centres sustainable development on human beings, commu- nities, and societies rather than on purely economic grounds (various forms of capital).9 It also recognizes that for indige- nous peoples, poverty alleviation and sustainable development may have additional or nuanced interpretations and require- ments and must include effective guarantees for territorial rights and the right to self-determination.10 Noting that EI projects do not necessarily contribute to poverty alleviation,11 the Final Report recommends that the WBG should not increase its involvement in El projects without addressing a series of prior conditions.12 These conditions relate both to borrower and corporate governance as well as institutional reforms within the WBG. The three main enabling conditions for El to contribute to poverty alleviation are defined as: 1) pro-poor public and corporate governance, including proactive planning and management to maximize poverty alleviation through sustainable development; 2) respect for human rights; and 3) much more effective WBG social and environmental policies.13 *Fergus MacKay is Coordinator of the Legal and Human Rights Programme at Forest Peoples Programme (fergus@euronet.nl). He was also a member of the Eminent Person's Advisory Panel, which advised on the contents of the EIR Report. SUSTAINABLE DEVELOPMENT LAW & POLICY

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