CAMPAIGNS

AIPNEE and CEMSOJ’s joint submission to the UN Working Group on Business and Human Rights for its forthcoming country visit to Japan

Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE) and Community Empowerment and Social Justice Network (CEMSOJ) made a joint submission to the UN Working Group on Business and Human Rights on Monday for its forthcoming official country visit to Japan. The submission particularly focuses on the roles of Japanese institutions in providing assistance or financing projects that harm Indigenous Peoples in countries across Asia and the lack of accountability of those institutions to remedy such harms. It is based on our experiences of working with Indigenous communities that have faced or are facing human rights impacts due to energy and other projects reportedly or being (co-)financed by the Japan International Cooperation Agency (JICA)¹ and the Japan Bank for International Cooperation (JBIC)².

The submission details the challenges that are faced in seeking accountability of these mechanisms and accordingly provides recommendations.

Information disclosure

The first challenge that we and the communities face in seeking accountability of Japanese institutions for harms caused by the projects with their assistance/financing is the lack of public or easily accessible information about such assistance/financing. For example, the JICA website in Nepal does not provide any information about its assistance for the Tanahu Hydropower Project, which impacts Indigenous Magar and other local communities in western Nepal. The impacted communities have been engaged in dispute resolution processes with the Project facilitated by the accountability mechanisms of other co-financiers of the Project – the Asian Development Bank and the European Investment Bank. In lack of public information about JICA’s involvement in the project, including on its website, the communities are unaware if the JICA has taken any action in consideration to the concerns they have raised in relation to the project.

Often, governmental, news and other reports suggest assistance of Japanese institutions such as JICA/JBIC in contentious projects. But comprehensive information about the projects is difficult to find on their websites (particularly for JBIC financed projects³) or even in communications with the institutions (for example, in the case of JICA loan for improvement of electricity distribution in Kathmandu, which has been raised concerns among communities⁴).

Hence, JICA and JBIC should improve their information disclosure to provide comprehensive information, such as environmental and social impact assessments, impact management plans, monitoring reports, etc., about the projects that they are involved in publicly, including on their websites – categorized by country and each project in line with or building on the information provided by international financial institutions such as the World Bank and the Asian Development Bank.

Safeguards and Accountability Mechanisms

It is welcome that JBIC and JICA have their Guidelines for Environmental and Social Considerations⁵ and their accountability mechanisms, namely the JBIC’s Office of Examiner for Environmental Guidelines (OEEG)⁶ and the JICA’s Secretariat of the Examiner for the Guidelines⁷. However, the almost identical Guidelines of JBIC and JICA and their accountability mechanisms are not well known. The Guidelines are very generic although they refer to the requirements and standards to comparable standards such as that of the World Bank. The guidelines and the accountability mechanisms can be considered very weak – even in comparison to the standards of international financial institutions. This is evident in the fact that there have not been many complaints to the mechanisms.

JBIC and JICA should thus significantly increase their outreach about their Guidelines and accountability mechanisms, including in collaboration with relevant civil society organizations and other stakeholders such as the accountability mechanisms of international financial institutions. Further, they should strengthen their Safeguards (the Guidelines) that apply to the projects they finance as per the international human rights standards as well as their accountability mechanisms in line with the good practices among such mechanisms of international financial institutions the iso as to encourage the communities impacted by those projects to engage with them.

Other matters

Further, Japan’s National Action Plan on Human Rights (2020-2025)⁸ launched in October 2020 and the subsequent Guidelines on Respecting Human Rights in Responsible Supply Chains⁹ (September 2022) have significant rooms of improvement although they represent strong steps in the right direction. For example, the National Action Plan and the Guidelines recognize Indigenous Peoples as one of the vulnerable groups/stakeholders that require particular attention – the latter even notes the need to obtain Free, Prior and Informed Consent of Indigenous Peoples for their relocation. However, both the National Action Plan and the Guidelines lack mandatory measures to address the rights of Indigenous Peoples, among other human rights, in business contexts.

Thus, in line with the advancements in other parts of the world (particularly Europe and the European Union) as well as the global level with the proposed treaty on business and human rights, the Government of Japan and other authorities should move towards mandatory human rights due diligence requirements on Japanese businesses and financial institutions such as JICA and JBIC so that communities if impacted by business or other operations with involvement of those Japanese entities can seek accountability within Japanese legal and judicial systems.

Click here for the PDF version of the submission.

Indigenous Peoples’ Organizations submit joint commentary on ADB’s draft Environmental and Social Framework

Indigenous Peoples Rights International (IPRI), Right Energy Partnership with Indigenous Peoples (REP), and Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE) have collectively submitted a comprehensive commentary on the proposed Environmental and Social Framework (ESF) of the Asian Development Bank (ADB), focusing on the draft Environmental and Social Standard 7 (ESS7) concerning Indigenous Peoples. The commentary, while centred on the ESS7, addresses broader issues of compliance, process, and accessibility, aiming to ensure effective implementation and respect for the rights of Indigenous Peoples.

Compliance, Process, and Accessibility: The commentary emphasizes the need for accessible language and forms in the ESF, considering that English is not the primary language for most Indigenous Peoples in the region. It underscores the importance of not just the wording but also the effective implementation, monitoring, and enforcement of the ESF, citing concerns raised in the Independent Evaluation Department’s (IED) 2020 report.

Text of the ESS7: The commentary welcomes the recognition of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the draft ESS7 but calls for greater coherence with international standards. It stresses the need for alignment with the rights of Indigenous Peoples and effective implementation.

Identification and Impact Assessment: Issues with the identification of Indigenous Peoples and impact assessment methodologies are highlighted, pointing out flaws identified by the IED review and calling for robust assessments aligned with international standards.

Meaningful Consultation: The commentary underscores the importance of meaningful consultation, stressing adherence to Indigenous Peoples’ customs and traditions. It advocates for free, prior, and informed consent (FPIC) and emphasizes Indigenous Peoples’ right to self-determination over their lands, territories, and resources.

Indigenous Peoples Plan (IPP) and Voluntary Isolation: Concerns regarding the implementation and enforcement of IPP, budget allocation, and FPIC requirements are raised. Additionally, the commentary questions the handling of voluntary isolation, advocating for a clearer and more respectful approach.

Special Requirements and FPIC: Specific recommendations are made regarding legal recognition of Indigenous lands, compensation, and sustainable development opportunities, all centered around the principle of FPIC.

The joint commentary serves as a comprehensive evaluation of the ADB’s draft ESF, offering detailed feedback and recommendations to ensure the effective protection of Indigenous Peoples’ rights. It calls for meaningful dialogue, alignment with international standards, and robust mechanisms for implementation and enforcement. As the ADB moves forward with its safeguard policy review, the voices and concerns of Indigenous Peoples must be given utmost consideration to achieve sustainable and equitable development in the region.

Download the full commentary here.

Indigenous Groups Slam ICMM’s Draft Mining Position Statement

June 19, 2024– Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE) and Right Energy Partnership with Indigenous Peoples (REP) have voiced strong objections to the draft of the Indigenous Peoples & Mining Position Statement of the International Council on Mining and Metals (ICMM). The Indigenous Peoples’ organizations claim that the ICMM’s draft Position Statement falls short of protecting the rights of Indigenous Peoples and lacks meaningful consultation with their representatives.

In a joint commentary submitted to the ICCM, AIPNEE and REP criticized the ICMM for not conducting adequate consultations with Indigenous Peoples’ representatives worldwide. They argue that the ICMM has neglected repeated requests to: hold targeted consultations at regional, national, and local levels with necessary language interpretation; and implement a transparent, time-bound review process, detailing how Indigenous Peoples and other stakeholders can participate at various stages.

The commentary further urged the ICMM to carry out a transparent review process that includes meaningful consultations with Indigenous Peoples and other stakeholders. The organizations called on the ICMM and its members to engage in in-person dialogue with Indigenous representatives to address their concerns before the Position Statement is finalized.

AIPNEE and REP’s primary concern is that the draft Position Statement fails to fully recognize the right to Free, Prior and Informed Consent (FPIC), a fundamental principle ensuring Indigenous Peoples’ self-determination and land and resource rights. The draft Statement, particularly under Commitment 4, does not adhere to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Additionally, Commitment 5 allows for mining projects to proceed without FPIC if authorized by the State, which the organizations say contradicts international human rights laws and standards set by the International Finance Corporation (IFC) and the World Bank.

AIPNEE and REP recommend that the ICMM ensure that no project proceeds without obtaining FPIC from affected Indigenous Peoples and all concerns are fully addressed. Decision making with regards to the project should not be afforded to States where FPIC is not acquired. Further, ICMM should ensure that Indigenous women, youth, and persons with disabilities are involved in decision making processes and not just in the design and/or implementation of socio-economic development and social investment projects.

Under Commitment 9 of the draft Statement, AIPNEE and REP urged ICMM members to set up grievance mechanisms that are accessible, culturally appropriate, and gender-sensitive, and aligned with Indigenous customary laws. They also called on the ICMM to identify no-go areas for mining particularly areas inhabited by Indigenous Peoples in voluntary isolation, burial grounds, sacred sites, key biodiversity areas, and conflict-affected regions.

Lastly, the group pointed out that the draft Statement avoids using established terms like FPIC and Human Rights Due Diligence, potentially leading to confusion and implementation issues. The organizations recommend that the ICMM use established terminologies to clearly commit to FPIC and human rights due diligence and ensure these commitments are explicitly stated in the Position Statement. In the joint commentary, AIPNEE and REP expect the ICMM will amend the draft Position Statement to align with international human rights laws and standards. They emphasized that the current draft is unacceptable unless commitments related to FPIC and other key issues are revised. They called on the ICMM to strive to achieve the highest standards to respect human rights and the rights of Indigenous Peoples in this review process.

Click on the link to read the full commentary.

Indigenous Peoples’ Rights at Risk: ICMM’s Position Statement Falls Short on Free, Prior, and Informed Consent

Public statement on the adoption of the Indigenous Peoples & Mining Position Statement of the International Council on Mining and Metals (ICMM)

Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE) and Right Energy Partnership with Indigenous Peoples (REP) strongly denounce the Indigenous Peoples and Mining Position Statement of the International Council on Mining and Metals (ICMM) adopted on 8 August 2024.

AIPNEE and REP, along with other Indigenous Peoples’ Organizations and representatives, had engaged in the review of the Position Statement in good faith and submitted comments, including revisions in the text of the draft Position Statement itself, to the ICMM. That is despite our serious concerns that we consistently raised with the ICMM about lack of meaningful engagement and wider consultations with Indigenous Peoples and other stakeholders in a transparent and timebound manner for the review.

Our foremost and gravest concern is that the Policy Statement fails to commit the ICMM members to respect the non-negotiable principle of Free, Prior and Informed Consent (FPIC) of Indigenous Peoples for their mining and mining-related projects. FPIC is not merely a procedural requirement; it is a human rights norm grounded on the fundamental rights of Indigenous Peoples to self-determination and their lands, territories and resources, among other rights, as guaranteed in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and other international human rights law.

The Position Statement deliberately avoids using the established terminology of FPIC, instead opting to use vague language. It merely states ICMM members’ intention to obtain agreement for impacts from their activities on Indigenous Peoples’ rights setting out equitable terms by which impacts may occur and be mitigated. While Commitment 4 provides that agreement should be achieved in accordance with the principles of FPIC, it significantly falls short of international human rights laws such as the UNDRIP, and jurisprudence of regional courts such as the Inter-American Court for Human Rights (IACHR), as well as the environmental and social standards of the multilateral institutions such as the International Finance Corporation (IFC) and the World Bank. The deviation of the Position Statement fails to meet these frameworks, which mandate projects to obtain FPIC without exception when the project 1) impacts on lands and natural resources subject to their traditional ownership or under customary use, 2) causes their relocation from such lands and natural resources, and 3) impacts their critical cultural heritage, among other things, and that that the project cannot proceed with unless FPIC has been obtained.

Even more concerning, the Position Statement acknowledges that there may be circumstances where agreement is not obtained and sets out the process that ICMM members will take in this instance. Under Commitment 5, it simply provides that ICMM members will develop a policy or approach outlining the steps they have taken to fulfil these commitments where agreement is not obtained. Thus, the Position Statement continues to infer that the FPIC of Indigenous Peoples can be overridden by a company for a project authorized by a State (as maintained in the Explanatory note). This not only violates Indigenous Peoples’ rights but also has far reaching consequences, including social unrest, environmental degradation, irreversible loss of cultural heritage, among others. History has shown that ignoring FPIC leads to long-lasting harm to Indigenous communities and exacerbates division among them, making it imperative that this principle be upheld without compromise.

We reiterate our demand that the ICMM, under the Position Statement, must commit its members to obtain FPIC of Indigenous Peoples affected by their mining and mining-related projects. ICMM members must not proceed with a project if FPIC of the affected Indigenous Peoples’ communities have not been obtained.

For existing projects, ICMM members must establish FPIC through a new agreement if the impacts to Indigenous Peoples’ rights are ongoing, including when new significant impacts are identified or occur. When obtained, FPIC must be well-documented in a written agreement validated with the entire community and the agreement should be earnestly implemented with provision of adequate resources.

Further, we are dismayed that our other concerns in relation to emphasis on the meaningful engagement of Indigenous women, youth, persons with disabilities, and other marginalized groups in the community in the FPIC, equitable benefit sharing, establishment of culturally appropriate and gender sensitive grievance mechanisms, and identification of no go zones such as areas inhabited by Indigenous Peoples in voluntary isolation and critical cultural heritage and biodiversity sites have also been completely ignored.

We deplore that the ICMM missed the opportunity of the review to achieve the highest standards in the Position Statement to fulfil its responsibility to respect human rights and the rights of Indigenous Peoples. The implications of ICMM’s Position Statement extend far beyond its membership. By adopting a policy that weakens the commitment to FPIC, ICMM risks setting a dangerous precedent that could embolden other industries and governments to undermine the rights of Indigenous Peoples. Such a stance not only threatens the survival of Indigenous Peoples but also undermines the global movement towards greater corporate responsibility and ethical governance.

We demand that ICMM and its members take immediate steps to revise the Position Statement, incorporating a full and unequivocal commitment to FPIC. This revision process must be conducted in a transparent, inclusive manner, with direct involvement from Indigenous Peoples, to demonstrate ICMM’s genuine commitment to upholding human rights. Anything less would be a failure of ICMM’s responsibility to respect the rights of Indigenous Peoples.

Download full public statement here.

Open letter to the Government of Indonesia, Perusuhaan Listrik Nasional (PT PLN), and KfW Development Bank

Urgent Concern regarding Human Rights Violations of the Pocoleok Indigenous Community for expansion of Ulumbu Geothermal Power Plant

We, the undersigned organizations – Aliansi Masyarakat Adat Nusantara (AMAN), and Perhimpunan Pembela Masyarakat Adat Nusantara (PPMAN), Barisan Pemuda Adat Nusantara (BPAN), PEREMPUAN AMAN, the Right Energy Partnership with Indigenous Peoples (REP), and the Asia Indigenous Peoples Network on Extractive Industries and Energy (AIPNEE), along with other Indigenous Peoples Organizations, Civil Society Organizations and individuals – are writing to express our urgent concern about the ongoing human rights violations against the Pocoleok Indigenous Community related to the expansion of the Ulumbu Geothermal Power Plant by PT. PLN (National Electricity Company). The expansion is being financed under a loan from the German state-owned KfW Development Bank.

On October 2, 2024, security forces, including members of the Indonesian military, Police and Pol PP, accompanied by PLN and government officials forcibly entered the lands of the Pocoleok community in Manggarai regency in East Nusa Tenggara province of Indonesia to carry out a road survey. This happened despite the community’s explicit rejection of the project’s expansion and ongoing investigations by the National Human Rights Commission of Indonesia (KOMNAS HAM) and an independent team commissioned by the KfW Development Bank. Komnas HAM has reported violation of human rights of the community in the expansion of the power plant in response to the complaint of AMAN and PPMAN on the matter. An independent fact-finding commissioned by the KfW, triggered by another complaint of the community members, has not yet delivered results, and the community has received no response regarding the investigation. The expansion violates the right to Free, Prior, and Informed Consent (FPIC), a fundamental right for Indigenous Peoples, which has not been respected throughout this process.

As a result of this forced entry, several human rights violations occurred:

Ponsianus Lewang, a resident of Lungar village, was severely injured by security forces and lost consciousness after being kicked in the ribs.
Four residents were arrested and held for two days before being released. During their arrest and detention, they endured considerable emotional and psychological trauma.
Security forces actively prevented community members from documenting the incident by blocking photos and videos of the violent actions.

We urge the Government of Indonesia to take immediate action to prevent further escalation of violence and uphold the rights of Indigenous Peoples. In particular, we recommend the government of Indonesia to:

Immediately suspend the Ulumbu Geothermal Project expansion until the independent investigation results are publicly released and concerns of the affected community fully addressed including reported violations to the right to FPIC of the Pocoleok Indigenous Peoples, and allegations of violations including sexual harassment by state forces during community protests;
Drop any charges that may have been filed against members of the community in relation to the incident on 2 October 2024.
Investigate and hold accountable the security forces involved in the violence against the Indigenous Peoples of Pocoleok.
Ensure the full implementation of FPIC in all project developments affecting Indigenous Peoples.

Further, we call on the National Electric Company (PT PLN), to:

Respect the rights of the Indigenous Pocoleok community, including to FPIC, for the expansion of the Ulumbu Geothermal Power Plant – in line with their corporate responsibility under the UN Guiding Principles on Business and Human Rights.
Immediately suspend any activities in relation to the Ulumbu Geothermal Power Project and cooperate in the investigation of violations reported by the affected community;
Establish an accessible, culturally appropriate, and gender responsive grievance mechanism to ensure that violations against individuals and the community as a whole are effectively and timely addressed;

We also urge the German Development Bank Kreditanstalt für Wiederaufbau (KfW) to:

Suspend financing for the expansion of the Ulumbu Geothermal Power Plant until FPIC of the Indigenous Pocoleok community is obtained. If FPIC of the community cannot be ascertained, the project must not be processed further. Until then, KfW must use its leverage to ensure security of the community, including during its independent fact-finding.
Ensure that mandatory human rights due diligence are conducted as a prerequisite to any funding for projects and take accountability for any violations as a result of any funding provided.

We await your prompt response and action on this critical matter.

See the Indigenous Peoples Organizations, Civil Society Organizations, and Individuals list here.

Originally published on the Right Energy Partnership’s website

Photo courtesy: Floresa Documentation

Indigenous Peoples voice concerns on the revised Environmental and Social Framework of the Asian Development Bank

“Without strong safeguards, ADB-financed projects will continue to adversely impact Indigenous Peoples lands, livelihoods, and ways of life”

The Indigenous Peoples Advisory Group (IPAG) issued a statement urging the Asian Development Bank (ADB) to strengthen protections for Indigenous Peoples in the recently released revised ADB Environmental and Social Framework, now open for public consultation. Although IPAG welcomed certain improvements, including the integration of Free, Prior, and Informed Consent (FPIC) in certain ADB-financed projects and a separate section on Cultural Heritage, the group argues that the revisions fall short of adequately safeguarding Indigenous Peoples rights.

IPAG’s key demands include ensuring that ESS7 protections apply regardless of whether a host country legally recognizes Indigenous Peoples and that identification of Indigenous Peoples by others should only refer to other Indigenous Peoples not the society at large. IPAG highlighted that many Asian countries have not formally acknowledged Indigenous Peoples as distinct peoples with collective rights in alignment with international human rights standards, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the ILO Convention 169. They called for explicit provisions in the ESF to protect Indigenous Peoples rights even in jurisdictions where they are not recognized, urging ADB to ensure that the framework is not limited by national laws.

The group also called for a broader application of FPIC, which it says should be an ongoing requirement throughout a project’s life cycle, not only when certain impacts arise. They emphasized that Indigenous Peoples must have the right to give or withhold their consent at any project stage and, if necessary, to withdraw consent if impacts on their lands and livelihoods change significantly. According to IPAG, these provisions align with Indigenous Peoples’ right to self-determination and their ability to control their development priorities.

Furthermore, IPAG recommended that ADB mandate separate and comprehensive Social Impact Assessments (SIAs) for projects impacting Indigenous communities. These SIAs, they said, should address cultural, spiritual, and economic impacts unique to Indigenous Peoples, particularly Indigenous women, youth, and persons with disabilities among others, whose specific needs and priorities are often overlooked in general assessments. The group pointed to safeguards by other development banks, such as the European Investment Bank (EIB) and the Inter-American Development Bank (IDB), which have implemented similar policies on FPIC and social impact assessments.

The IPAG is an informal platform of Indigenous Peoples organizations who have been engaging in the review of the ADB Environmental and Social Safeguards.

Read the full statement here: IPAG STATEMENT

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