Indigenous Peoples Safeguards A Planning and Implementation Good Practice Sourcebook Draft Working Document Revised June 2013 Asian Development Bank This working document was prepared by staff of Asian Development Bank. It is not an exhaustive nor definitive treatment of the issues. The interpretations and contents herein do not necessarily reflect the views of the ADB's Board of Governors nor the governments they represent. The Asian Development Bank does not guarantee the accuracy of the data included in this work and accepts no responsibility for any consequences of their use. Use of the term "country" does not imply any judgment by the Asian Development Bank as to the legal or other status of any territorial entity. i ABBREVIATIONS ADB - Asian Development Bank ASI - Assessment of Social Impacts BCS - Broad Community Support CSO - Civil Society Organization DMC - Developing Member Country ESMS - Environmental and Social Management System FI - Financial Intermediary GFN - Good Faith Negotiation GRM - Grievance Redress Mechanism ILO - International Labour Organization IP - Indigenous Peoples IPO - Indigenous Peoples Organization IPP - Indigenous Peoples Plan IPPF - Indigenous Peoples Planning Framework IPSA - Initial Poverty and Social Analysis M&E - Monitoring and Evaluation MFF - Multitranche Financing Facility MRM - Management Review Meeting PMU - Project Management Unit PPMS - Project Performance Management System PRA - Participatory Rural Appraisal SIA - Social Impact Assessment SPRSS - Summary Poverty Reduction and Social Strategy SPS - Safeguard Policy Statement 2009 SR1 - Safeguard Requirements 1: Environment SR2 - Safeguard Requirements 2: Involuntary Resettlement SR3 - Safeguard Requirements 3: Indigenous Peoples TA - Technical Assistance UNDRIP - United Nations Declaration on the Rights of Indigenous Peoples ii CONTENTS I. INTRODUCTION 1 A. The Purpose of This Sourcebook 1 B. How the Sourcebook is Organized 1 II. OBJECTIVES, TRIGGERS, SCOPE, AND PRINCIPLES OF ADB POLICY 2 A. Policy Objectives—Safeguard Policy Statement 2009 2 B. Policy Triggers and Scope 2 C. Policy Principles of Indigenous Peoples Safeguards 3 D. Roles and Responsibilities 5 E. Indigenous Peoples Safeguards in the ADB Project Cycle 6 III. IDENTIFICATION OF INDIGENOUS PEOPLES 9 A. Identifying Indigenous Peoples under the SPS 9 B. Determining Distinctiveness of Indigenous Peoples 9 C. Identifying Vulnerability 12 D. Recognizing Indigenous Peoples Under National Law 13 IV. SCREENING AND CATEGORIZATION OF IMPACT 16 A. Performing Screening 16 B. Determining Categorization of Impact 17 C. Is Broad Community Support Required? 18 V. CONSULTATION, PARTICIPATION, INFORMATION DISCLOSURE, AND GRIEVANCE REDRESS 19 A. What is Meaningful Consultation? 19 B. Indigenous Peoples Representatives 24 C. Good Faith Negotiations 24 D. Disclosing Information to Affected Indigenous Peoples 26 E. Public Disclosure of IPP and Relevant Documents 26 F. Project Grievance Redress Mechanisms 27 G. Good Practice Principles for a Grievance Redress Mechanism 27 H. ADB’s Accountability Mechanism 30 VI. ASSESSMENT OF SOCIAL IMPACTS 32 A. Assessment of Social Impacts 32 B. Project Area and Project Impact Zone 33 C. Types and Nature of Impacts on Indigenous Peoples 34 D. Elements of the Assessment of Social Impacts 36 E. Data Collection and Analysis 38 F. Reporting on the Results of the Assessment of Social Impacts 40 G. Expertise Requirements for Conducting the Assessment of Social Impacts 40 VII. INDIGENOUS PEOPLES PLANNING 42 A. Planning Requirements for Different Lending Modalities 42 B. Indigenous Peoples Plan 42 C. Indigenous Peoples Planning Framework 51 D. Environmental and Social Management System 52 E. Social Safeguard Audit 53 F. Matrix of Social Impacts 53 iii VIII. IPP IMPLEMENTATION ISSUES 57 A. Updating the IPP during Implementation 57 B. Addressing Unanticipated Impacts 57 C. Capacity Development 57 IX. IPP IMPLEMENTATION SUPERVISION AND MONITORING 60 A. IPP Implementation Monitoring by the Borrower/Client 60 B. Reporting 64 C. Assessment and Evaluation 64 D. IPP Implementation Supervision by ADB 64 X. CONSENT OF AFFECTED INDIGENOUS PEOPLES COMMUNITIES AND BROAD COMMUNITY SUPPORT 65 A. Consent and Broad Community Support 65 B. The Borrower/Client and Broad Community Support 69 C. ADB’s Responsibility for Ascertaining Broad Community Support 72 D. Implications of the Absence of Broad Community Support 73 APPENDIXES 1. ADB Prohibited Investment Activities List 2. Overview of Indigenous Peoples in the Country Context 3. Regional Resources: List and Links 4. Indigenous Peoples Impact Categorization 5. Indigenous Peoples Safeguards Instrument in Different Lending Modalities 6. Outline of an Indigenous Peoples Plan 7. Checklists to Assess the Adequacy of an IPP 8. Outline of an Indigenous Peoples Planning Framework 9. Checklists to Assess the Adequacy of an IPPF 10. Outline of an Environmental and Social Management System 11. Sample Terms of Reference for External Experts for Verifying Monitoring Information of Indigenous Peoples Plan Implementation 12. Example of Monitoring Indicators 13. Approaches for Obtaining and Reviewing Broad Community Support 14. Indigenous Peoples in the ADB Project Cycle BIBLIOGRAPHY AND REFERENCES I. INTRODUCTION A. The Purpose of This Sourcebook 1. On 20 July 2009, the Board of Directors of the Asian Development Bank (ADB) approved the Safeguard Policy Statement (SPS) 1 that governs environmental and social safeguards applicable to ADB’s operations in developing member countries (DMCs). The SPS became effective on 20 January 2010. It builds on the three previous ADB safeguard policies2 on the environment, involuntary resettlement, and Indigenous Peoples (IP), and brings them into one consolidated safeguard policy framework to enhance relevance and effectiveness. 2. This Sourcebook focuses on the SPS requirements pertaining to IP as well as some good practices. It does not change or establish policy. Instead, it aims to increase the likelihood that ADB-supported projects will achieve the objectives of IP safeguards set out in the SPS, by adding clarity, providing further technical guidance, and recommending good practices in implementing the SPS. The Sourcebook is based on ADB’s own experience in effectively planning and implementing IP safeguards and in international good practices adopted by multilateral development banks. It does not seek to be definitive and exclusive. 3. The Sourcebook is for use of ADB staff and consultants; borrowers/clients and executing agencies; and private sector clients and development practitioners, including nongovernment organizations (NGOs) and Indigenous Peoples Organizations (IPOs). It should be considered a working document that will be updated periodically in light of lessons learned in applying the SPS. B. How the Sourcebook is Organized 4. The Sourcebook has 10 sections. The next section, Section II, discusses policy objectives, triggers, and scope as well as policy principles for addressing IP safeguards in ADB operations. Sections III–X examine step by step the technical aspects of IP planning and implementation, including clarification of concepts, requirements, tasks, processes, and good practices that need to be considered or addressed. Section III discusses the identification of groups that could be considered IP under the SPS—the most challenging operational issue. Section IV presents the steps to screen and categorize project impacts on IP and clarifies the particular importance of looking at impacts on customary lands and natural resources. Section V explains the consultation and participation requirements for IP, elaborating the concept of meaningful consultation and good faith negotiations, and clarifies the requirements for information disclosure and the mechanism for redressing grievances. Section VI discusses the key attributes and methodology for assessing the social impacts on IP. Section VII focuses on the preparation of an Indigenous Peoples Plan (IPP) and clarifies IP planning requirements for different lending modalities. Section VIII presents the issues of IPP implementation. Section IX clarifies the requirements for IPP implementation supervision and monitoring, and Section X provides guidance on when and how to apply the requirements for consent of affected IP communities. 1 ADB. 2009. Safeguard Policy Statement. Manila. 2 ADB. 1995. Involuntary Resettlement Policy; Manila; ADB. 1998. Policy on Indigenous Peoples. Manila; and ADB. 2002. Environment Policy. Manila. 2 II. OBJECTIVES, TRIGGERS, SCOPE, AND PRINCIPLES OF ADB POLICY A. Policy Objectives—Safeguard Policy Statement 2009 5. The objectives of the IP safeguards as set out in the SPS 2009 are to ensure that projects are designed and implemented in a way that fosters full respect for IP identity, dignity, human rights, livelihood systems, and cultural uniqueness as they define them. This is so that IP: receive culturally appropriate social and economic benefits, do not suffer adverse impacts as a result of projects, and can participate actively in projects that affect them. 6. The need for IP safeguards is an explicit acknowledgment of the special historical circumstances of IP as related to the development process. Due to a history of discrimination and exclusion that has often left IP on the margins of the larger societies in which they live, they frequently face difficulties in directing the course of their own development and well-being. They are therefore disproportionately affected by poverty and exclusion. In recent