Although the current revised draft policy has improved in terms of integrating some previous recommendations made by indigenous peoples, says UK NGO Forest Peoples Programme (FPP), it remains riddled with legal loopholes and ambiguous definitions.The previous draft policy on indigenous peoples failed to meet expectations of indigenous peoples and NGOs involved in the process. It was scrapped in 2002 (see Update 37). A number of key issues are not addressed, or dealt with only partially. Moreover the draft fails to incorporate key recommendations of the extractive industries review (EIR), and to directly address indigenous peoples’ recommendations relating to international human rights law, free prior and informed consent and territorial rights.

FPP highlights a number of points not included in the draft that were part of indigenous peoples’ submissions to the Bank. The organisation states that any credible and effective safeguard policy must contain mandatory provisions that:

• are consistent with protections under existing international human rights standards

• prohibit Bank funding of projects that risk contravening a borrower’s obligations under international human rights and environmental agreements

• prohibit forced relocation

• recognise the right of indigenous peoples to free prior and informed consent;

• recognise and protect indigenous peoples’ ownership and property rights over lands, territories and resources in accordance with their customary law, values, usage and customs

• apply the principle of self-identification as a fundamental element in determining the scope and coverage of the policy;

FPP suggests that in order to achieve this the policy should:

fails to directly address recommendations relating to free prior and informed consent

• incorporate key recommendations of the EIR

• use international law as a guide to standard-setting and for a more action-oriented, rights-based policy.

• acknowledge consent as being broad support from indigenous peoples and not “communities” (this negates the principles of territoriality and self-identification of indigenous peoples).

• give rights to indigenous peoples to take action on issues of land rights rather than leaving this up to the borrower

• establish safeguards for the protection of indigenous rights through the Bank’s system before proposing to use national laws and institutions in their place; and

• encourage further face-to-face meetings with Bank staff to discuss the shortcomings in the draft policy, instead of relying solely on written communication.

The revised draft has been available for public comment since December 2004 and will be open until 28 February. It has been developed over the last six years and has involved consultations with indigenous peoples’ leaders, civil society and borrower governments.