THE RIGHT OF INDIGENOUS PEOPLES TO MEANINGFUL CONSENT IN EXTRACTIVE INDUSTRY PROJECTS
Symposium Introduction

A rights-based approach to development is one that explicitly ties development policies, objectives, projects and outputs to international human rights standards requiring, among others, that development be directed towards fulfilling human rights. Conversely, it is a proactive strategy for converting rights into development goals and standards.1

Margaret Satterthwaite and Deena Hurwitz

THE DRAFT WORLD BANK OPERATIONAL POLICY 4.10 ON INDIGENOUS PEOPLES: PROGRESS OR MORE OF THE SAME?
Fergus MacKay

[R]evision of the safeguard policy on indigenous peoples is a fundamental test of the World Bank’s commitment to poverty alleviation through sustainable development.” Since the early 1980s, the World Bank Group (WBG) has adopted a number of policies – referred to as safeguard policies – designed to mitigate harm to indigenous peoples in WBG-financed projects. In 1981, it published a study entitled Economic Development and Tribal Peoples: Human Ecologic Considerations, which sought to provide guidelines for Bank operations. It states that the Bank should avoid “unnecessary or avoidable encroachment onto territories used or occupied by tribal groups,” ruled out involvement with projects not agreed to by tribal peoples, requires guarantees from borrowers that they would implement safeguard measures, and advocates respect for indigenous peoples’ right to self-determination.

INDIGENOUS PEOPLES’ PARTICIPATORY RIGHTS IN RELATION TO DECISIONS ABOUT NATURAL RESOURCE EXTRACTION: THE MORE FUNDAMENTAL ISSUE OF WHAT RIGHTS INDIGENOUS PEOPLES HAVE IN LANDS AND RESOURCES
James Anaya

It has become a generally accepted principle in international law that indigenous peoples should be consulted as to any decision affecting them. This norm is reflected in articles 6 and 7 of I.L.O. Convention No. 169, and has been articulated by United Nations treaty supervision bodies in country reviews and in examinations of cases concerning resource extraction on indigenous lands. The existence of a duty to consult indigenous peoples is also generally accepted by states in their contributions to discussions surrounding the draft declarations on indigenous peoples’ rights, at both the United Nations and in the Inter-American system. This widespread acceptance of the norm of consultation demonstrates that it has become part of customary international law.

INDIGENOUS PEOPLES’ RIGHT TO FREE, PRIOR, INFORMED CONSENT: REFLECTIONS ON CONCEPTS AND PRACTICE
Joji Cariño

Talk delivered to AALS Annual Conference I. INTRODUCTION Our topic is one that is debated intensely in many indigenous and grassroots communities around the world, in countries that include the Philippines, Canada, Papua New Guinea, Peru, India, and Australia, in the board rooms of the biggest oil and mining corporations, the World Bank and the International Finance Corporation, and in many bodies of the United Nations. In January 2005, under the auspices of the UN Permanent Forum on Indigenous Issues, an inter-agency workshop of UN bodies met in New York to examine their current policies and practices related to “free, prior, informed consent” (“FPIC”). Meanwhile, the UN Working Group on Indigenous Populations, under its standard-setting mandate on the rights of indigenous peoples, is drafting a legal commentary and guidelines for its implementation. FPIC is on the agenda of several international organizations: the Convention on Biological Diversity, the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO) in relation to access and benefits-sharing of biological resources and associated traditional knowledge, the World Conservation Union in relation to the establishment of parks and protected areas, and other multilateral banks and development and financing agencies with respect to their resettlement policies and other projects affecting indigenous peoples.

THE INDIGENOUS RIGHTS OF PARTICIPATION AND INTERNATIONAL DEVELOPMENT POLICIES
Bartolomé Clavero

Under the current international regime, policies that affect indigenous peoples, including those of development assistance and cooperation, are illegitimate if they are negotiated without indigenous participation. Even though the traditional pattern or custom, which instead is one of indigenous exclusion, is still operative in form and substance. Indigenous peoples can see this matter as one of a legal entitlement that requires their prior consent and that is asserted in the development and deployment of policies that affect them. Others would rather see the test of legitimacy as one that simply requires informed, good faith consultation with the objective of achieving indigenous consent, but without requiring actual consent even when these policies displace resources belonging to indigenous territory.

THE RIGHTS OF INDIGENOUS PEOPLES AND THE INTER-AMERICAN HUMAN RIGHTS SYSTEM
Isabel Madariaga Cuneo

The protection and respect of the rights of indigenous peoples is an issue of special importance for the Inter-American Commission on Human Rights2 (“Inter-American Commission”) and the Inter-American Court of Human Rights (“Inter-American Court”), the main bodies of the Inter-American human rights system. In 1972, the Inter-American Commission held for historical reasons as well as moral and humanitarian principles, that states have a sacred responsibility to protect indigenous peoples. The Special Rapporteur on the Rights of Indigenous Peoples was created in 1990, with the goal of calling attention to indigenous peoples in the Americas who have been exposed to human rights violations, and to strengthen, promote and streamline the Inter-American Commission’s work toward the elimination of such violations.