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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
by Fergus MacKay*

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 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.
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


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