The Right of Indigenous Peoples to Participate in Development Projects

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The Right of Indigenous Peoples to Participate in Development Projects

in Human Rights in Development Online


' The Charter, in its Preamble, Article 1 and Chapter IX, commits the UN and its Member States to international cooperation in promoting economic and social rights. Furthermore, Article 55 of Chapter IX of the UN Charter, on International Economic and Social Co-operation, states: "With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

2 In the late 1980s the United Nations Development Programme (UNDP) published the first of a series of reports on Human Development, introducing the notion of "human development". These reports defined development as "a process of enlarging people's choices". According to the idea of human development, development is by the people, not only for the people. See on the UNDP and human development in Koen De Feyter, World Development Law: Sharing Responsibility for Development (Antwerpen 2001: Intersentia), p. 4ff 3 An Agenda for Development, Report by the Secretary-General, UN doc. A/51/45 (1994). 4 Margot E. Salomon and Arjun Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples (London: Minority Rights Group International 2003), p. 6ff

' Salomon and Sengupta, supra (note 4), pp. 4-5. 6 Ibid.., p. 8. 7 under UN General Assembly resolution A/RES/48/141, the responsibilities ofthe High Commissioner include promoting and protecting the realisation of the right to development and enhancing support from relevant bodies ofthe United Nation system for that purpose. See on the core elements ofthe human rights-based approach to development at:

8 georgie Pring and Susan Y. Noe, "The Emerging International Law of Public Participation", in Donald N. Zillman, Alastair R. Lucas and Georg (Rock) Pring (eds.), Human Rights in Natural Resources Development: Public Participation in the Sustainable Development ofMining and Energy Resources (Oxford: Oxford University Press, 2002), pp. 11-77, at pp. 60, 61. 1. ' See, e.g., the World Commission on Dams, Dams and Development: A New Framework for Decision- Making, The Report of the World Commission on Dams (The World Commission for Dams, 2000), available at: On the impact of large-scale or major development projects on the human rights and fundamental freedoms of indigenous communities, see also Rudolfo Stavenhagen, Human rights and indigenous issues, Report ofthe Special Rapporteur on the situation ofhuman rights and fundamental freedoms ofindigenous people, UN doc. E/CN.4/2003/90, 21 January 2003. '° See Strategies and Procedures on Socioculturallssues as related to the Environment, Inter-American Development Bank, Environmental Committee, Washington, D.C., June 1990, pp. 1-2.

" Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and study on special problems which the developing countries face in their effort to achieve these human rights, including: popular participation in its various forms as an important factor in development and in the full realization of human rights, Study by the Secretary-General, UN doc. E/CN. 4/1995/10, 31 December 1985. '2 UN doc. E/ECA/CM.16/11, 1990. Addis Ababa, LJN Economic Commission for Africa. " See, e.g., Y. F. 0 Masakhalia, "The African Charter for Popular Participation in Development and Transformation", in Catarina Krause and Allan Rosas (eds.), DevelopmentCo-Operation and Processes Towards Democracy (Helsinki: FINNIDA, 1991), pp. 51-63. For a more recent analysis of the Charter, see Kofi Oteng Kufuor, "The African Charter for Popular Participation in Development and Transformation", Netherlands Quarterly of Human Rights, Vol. 18, No. 1 (2000), pp. 7-22.

'° Pring and Nod, supra (note 8), p. 15. 'S Aarhus, Denmark, 25 June 1998. Entered into force 30 October 2001, in accordance with Article 20(1) and definitively 30 October 2001, in accordance with Article 20. 16 Kofi Annan, "Foreword to Economic Commission for Europe", in The Aarhus Convention: An Implementation Guide (The Economic Commission for Europe, 2000). "Public Participation in Making Local Environmental Decisions: The Aarhus Convention, Newcastle Workshop, Good Practice Handbook (London: Crown Department of the Environment, Transport and the Regions, 2000).

"This Convention was opened for signature at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, and entered into force 29 December 1993. " See Pring and Nod, supra (note 8), p. 15. 2° Barry Barton, "Underlying Concepts and Theoretical Issues in Public Participation in Resources Development", in Donald N. Zillman, Alastair R. Lucas and Georg (Rock) Pring (eds.), Human Rights in Natural Resources Development: Public Participation in the Sustainable Development ofMining and Energy Resources (Oxford: Oxford University Press, 2002), pp. 77-123, at p. 81. 1. 21 Pring and Nod, supra (note 8), pp. 22-26.

22 Pring and Noe, supra (note 8), p. 26. See also the literature indicated in note 94 of the article. 2J Inter-American Strategy for the Promotion of Public Participation in Decision Making for Sustainable Development. Organization ofAmerican States, Inter-American Council for Integral Development, OEA/Ser. W/ IIS.CDI/doc. 25/00, 20 April 2000, p. 2. �" Olga Navia and Jorge Landivar (eds.), Inter-American Development Bank: Resource Book on Participation (Washington D.C: IADB Strategic Planning and Operations Department, Social Progams and Sustainable Development, and Staff Development Section, January 1997).

2S UN doc. A/6316 (1966). 999 UNTS 171. Entered into force 23 March 1976. 26 See Concluding observations on Canada, UN doc. CCPR/C/79/Add. 105 (1999), para. 8 and on Mexico, UN doc. CCPR/C/79Add.123 (2000), para. 14.

27 ChiefBernard Ominayak v. Canada, Communication No. 167/1984, Views adopted 26 March 1990, Report of the Human Rights Committee, Vol. II, lJN doc. A/45/40, pp. 1-30. 28 Ibid., para. 32.2. 2 Communication No. 511/1992, Views adopted 26 October 1994, Report of the Human Rights Committee, Vol. II, UN doc. A/50/40, pp. 66-76. '° See also the case of Mahuika et al. v. New Zealand, Communication No. 547/1993, Views adopted 27 October 2000, Report of the Human Rights Committee, Vol. II, UN doc. A/56/40, pp. 11-29.

" Report of the Human Rights Committee, Vol. I, UN doc. A/49/40, pp. 107-110. 12 See the cases ofJouni Ldnsman et al. v. Finland, Communication No. 671/1995, Views adopted 30 October 1996, Report of the Human Rights Committee, Vol. II, UN doc. A/52/40, pp. 191-204; and Ilmari Lansman et al. v. Finland, supra (note 29). " See, e.g., Concluding observations on Sweden, UN doc. CCPR/CO/74/SWE (2000), para. 15, Venezuela, UN doc. CCPR/CO/71NEN (2001), para. 28 and Mexico, UN doc. CCPR/C/79/Add.123 (2000), para. 14. " OAS Treaty Series No. 36, 1144 UNTS 123. Entered into force 18 July 1978. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/I.82 Doc.6 rev.l at 25 (1992).

" The Inter-American Court of Human Rights, The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, judgment of 21 August 2001. I. 16 oat doc. CAB/LEG/67/3 rev. 5. The Charter entered into force 21 October 1986. " For an interpretation of the right to political participation in Article 13(1) and the right to self determination in Article 20( 1) of the African Charter, see the African Commission on Human and Peoples' Rights, Katangese Peoples' Congress v. Zaire (1995), Communication No. 75/92.

18 African Commission on Human and Peoples' Rights, Communication No. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, ACHPR/ COMM/A044/1, 27 May 2002.

" 660 UNTS 195. Entered into force 4 January 1969. "° UN doc. CERD/C/304/Add. 191, para. 8.

" General Recommendation XXIII on the rights of indigenous peoples (Fifty-first session, 1997), UN doc. A/52/18, pp. 122-123, para. 4.

" 72 ILO Official Bull. 59. Entered into force 5 September 1991. I.

" See M. Tomei and L. Swepston, Indigenous and Tribal Peoples: A Guide to Convention No. 169 (Geneva: ILO and the International Centre for Human Rights and Democratic Development, 1996). " When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present

needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. Persons thus relocated shall be fully compensated for any resulting loss or injury. as While many United Nations instruments use the term indigenous "peoples", the documents of the Rio Conference use the term indigenous "people".

46 The Johannesburg Declaration is annexed to the Report of the World Summit on Sustainable Development, UN doc. A/CONF.199/20.

"7 Asbj0rn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN doc. E/CN.4/Sub.2/AC.5/2001/2.

18 See Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group, Permanent Council ofthe Organization ofAmerican States, Committee on Juridical and Political Affairs, Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Peoples, OEA/Ser. K/XVI. GT/DADIN/doc.129/02, 17 June 2003.

'9 The Bank's Eighth Replenishment, AB-1704 (1994). This is the broad policy framework forthe Bank action.

so Norman Schwartz and Anne Deruyttere, Community Consultation, Sustainable Development and the Inter-American Development Bank: A Concept Paper (Washington, D.C., March 26, 1996 No. rND-1 0 ), pp. 3-4. It should be noted that this paper presents a framework for a discussion on community consultation in the context of the Inter-American Development Bank's projects. It is not intended as a manual or guideline, but rather as a stepping stone in the process of preparing sound guidelines and procedures for Bank staff, borrower agencies and stakeholders. 51 Involuntary Resettlement: Operational Policy and Background Paper (Washington, D.C., October 1998 -No. IND-103).

sz A guidebook for Bank staff in implementing the Bank's Indigenous Peoples Policy is under preparation. Sections will be dedicated to special issues arising in each of the Bank's operational regions as well as the major sectors where projects affecting indigenous peoples can also be found. Specific guidelines for Bank staff in implementing the policy at different stages of the project cycle will also be provided.

" Implementation of Operational Directive 4.20 on Indigenous Peoples: An Evaluation of Results, Report No. 25754 (The World Bank, 10 April 2003. Country Evaluation and Regional Relations, Operations Evaluation Department). Also available at:

sa See in general the World Bank's consultations with civil society organisations in Consultations With Civil Society: ASourcebook(available at: ConsultationsSourcebook.pdf) and Consultations with C'rvilSociety Organizations: General Guidelinesfor World BankStaff(The World Bank, 2000. Also available at: civicengagement/ consultations/generalguidelines.pdf). ss Summary of Consultations with External Stakeholders regarding the World Bank Draft Indigenous Peoples Policy (Draft OPIBP 4.10) (The World Bank, 18 April 2002). Also available at: http://lnwebl8.

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