ASIAN DEVELOPMENT BANK (ADB)

Civil Society Input and Recommendations on the Stakeholder Engagement Plan

Transparent and meaningful consultation guided by international practice is a cornerstone of good governance and informed decision-making. It also embeds a sense of ownership into the development process. International Financial Institutions (IFIs) such as the Inter-American Development Bank (IDB), the World Bank, the International Finance Corporation (IFC), the European Bank for Reconstruction and Development (EBRD), and the Asian Infrastructure Investment Bank (AIIB) have developed frameworks to strengthen their stakeholder engagement in the recent years. Moreover, the World Bank and EBRD have developed standalone policies and requirements for what constitutes a meaningful stakeholder consultation and engagement.

 

It is imperative that the Asian Development Bank (ADB) strengthens its overall approach to ensure stakeholder engagement is inclusive, transparent and robust. Colleagues who had attended the virtual information sharing session on April 12 and 13 of 2021 organized by the SDCC Department of the ADB and the Consultation Team argued that the webinar formatting chosen had felt disempowering and disengaging. This is because the online format did not allow for full transparency on the participant list of the meeting and the relevant questions asked during the various sessions. This inaccessibility to the participant list is of major concern to stakeholder groups such as civil society organizations (CSOs) and human rights defenders who face a significant risk of retaliation under oppressive regimes.

 

We, as representatives of CSOs, trade unions, and communities around the world hold this review process with utmost importance and attentiveness. While the Bank’s Stakeholder Engagement Plan (SEP) presents promising reforms, we are disconcerted that the current approach outlined in the present draft has not reflected international good practice and remains amiss on a number of salient issues.

 

Collectively, we raise these points before the process leads to an SPS with tremendous substantial and procedural problems when the current demand is to reform toward international laws, standards, and norms. In pursuit of the shared objective of reforming the safeguard system, we forward our key recommendations:

1. Include a definition of Meaningful Consultation underpinned by duly established policy and practice. The SEP outlines that it is based on “firm principles of meaningful consultation…”(pg.3). Meaningful Consultation should not be organized in a pro forma manner to ‘check a box or to meet an internal requirement. It should be underpinned by a clear matrix that upholds the utmost importance of the Free, Prior and Informed Consent (FPIC) prerequisite criterion recognised in the United Nations (UN) Declaration on the Rights of Indigenous Peoples, and supported by genuine consideration for stakeholders’ views and concerns. We are requesting that the term ‘Meaningful Consultation’ in the SEP be asserted by a clear definition and matrix which draws on duly established policy and practice. A clear definition of Meaningful Consultation can be found in the Safeguards Policy Statement Glossary and states that it is “A process that (i) begins early in the project preparation stage and is carried out on an ongoing basis throughout the project cycle; (ii) provides timely disclosure of relevant and adequate information that is understandable and readily accessible to affected people; (iii) is undertaken in an atmosphere free of intimidation or coercion; (iv) is gender-inclusive and responsive, and tailored to the needs of disadvantaged and vulnerable groups; and (v) enables the incorporation of all relevant views of affected people and other stakeholders into decision makings, such as project design, mitigation measures, the sharing of development benefits and opportunities, and implementation issues.” This definition should underpin the Safeguards Policy Review and Update (SPRU) and the Stakeholder Engagement Plan (SEP).

2. Outline a clear, unambiguous plan on offline mechanisms for consultation. The current SEP Draft recognizes inaccessibility to online means of communication for many stakeholders and makes an effort to mention offline mechanisms for consultation. This is not supported by a clear plan of how these stakeholders groups will be reached for consultation, nor does the SEP make clear the schedule for the offline consultations, or the countries it would take place. Good practices of meaningful consultation warrant having an inclusive space for multi-stakeholder engagement. This includes ensuring that prior information is given to the stakeholder group (community or CSOs) in a clear, time-bound manner, and in a language that is easily understandable. To modernize the policy and make sure it upholds the highest social and environmental standards, efforts must be made to consult with Project Affected Persons (PAPs) through offline mechanisms. We urge the Bank to take this into consideration and clearly outline the list of countries it aims to hold offline consultation. Due diligence must be given specifically to projects which have gone into compliance review.

3. Avoid reliance on demand-driven consultation. Demand-driven consultation plans will prove to be problematic as various key thematic dialogues may not be held unless civil society groups themselves proactively reach out to the ADB SDCC and the Consultation Team. The first question which arises is whether the ADB SDCC will be able to conduct a comprehensive outreach on the SEP at the national and global level to ensure that thematic and remote groups across various cultures, languages, and political contexts are aware of the ‘demand driven’ stipulations? In the current context of the pandemic, this seems very unlikely.

4. Without a prescribed list of thematic consultations announced for each country and region, the chances of getting specialized groups to organize dialogue with ADB SDCC on their own volition without compromising their exposure to risk and scrutiny will also be a deterrent for them stepping forward. We strongly recommend the removal of the ‘demand driven’ approach as it potentially passes the burden of convening the consultation solely on the stakeholder and not on the ADB SDCC, the department responsible for convening and managing this update process.

5. There is also a need for wider outreach on direct engagements via different communication formats, including traditional media in case of offline events. Heavy reliance on online means of communication such as social media and websites to advertise for consultation risks losing the critical voices of PAPs and communities living in remote areas. We urge the Bank to make active and reasonable efforts to include traditional means of media such as newspapers and national television advertisements in their communication plan.

6. Meaningfully engage with young people in the consultation process. Consultations with children and young people are important about their experiences, and therefore need to be set up in a child-friendly manner that promotes the rights and respect of the child in a sensitive manner. There should be age-appropriate targeting in terms of setup, information, and messaging as well as promoting participation and inclusivity. For best practices see the Save the Children Child Consultation Toolkit.

7. Include the Private Sector Operations Department in its internal consultation process. The ADB has announced, in its Strategy 2030, an expansion of its private sector portfolio to reach one-third of total Bank operations by 2024. Private sector operations are riddled with noncompliance, transparency, and lack of information disclosure. We have witnessed the death of 6 workers in the PSOD-led project, Nam Ngiep 1, in Laos due to failures in labor safeguarding. Similarly, the Tata Mundra Coal Project led by PSOD had critically endangered marine ecosystems and displaced thousands of local fishermen in 2014. It is imperative that ADB SDCC takes a critical look at ensuring consultations between CSOs and PSOD staff and their respective borrowing clients and subcontractors in the course of this SEP and SPRU. The OHCHR Guiding Principles on Business and Human Rights should lie at the heart of this dialogue between the Bank, private sector, and CSOs.

8. Publicize ALL consultation comments and extend the timeline for commenting to 60 days. The SEP mentions that a summary of consultation comments will be disclosed on the SPRU webpage for two weeks. In the absence of a clear matrix on how summaries are prepared, We as CSOs are concerned that this will obscure some of the salient comments and recommendations received during the consultation process. Access to full consultation comments should be made available in addition to the summary of consultation comments to ensure full transparency. We are also requesting that the timeline for commenting is extended to 60 days to make sure that relevant stakeholders groups with minimal comprehension of the English language are able to translate the documents and submit their comments.

9. Extend the timeline for commenting on the draft W-paper and the R-paper and subsequent revisions to a period of two months/ 60 days respectively. Good practices on meaningful consultation stipulate that stakeholders should be given sufficient time to review the information across regions and countries before being asked to express their views.

10. Meaningful inclusion of more urgent safeguards issues supported by coherent analytical studies. We welcome the broadening of the themes to include labor, climate change, and sexual abuse and harassment in the list of analytical studies as a response to the progressing international laws, standards and norms. We urge the Bank to avoid the reliance on the blanket term of ‘vulnerability’ and misuse of terminologies such as ‘crosscutting’ to assess the varying risks affecting different groups such as peoples with disabilities, sexual and gender diverse groups, and children. Due diligence must be given to:

    • Risk of reprisals. The silencing of critical voices through reprisals and retaliations - or the fear thereof - seriously calls into question the possibilities for a consultation to be meaningful: when these critical voices are coming from the ground and would be communicating operational risks, a climate of fear puts operations at risk, too. Similar to the World Bank, the Inter-American Development Bank, and the Asian Infrastructure Investment Bank, the ADB needs to have a clear zero tolerance position against reprisals, either as part of the SEP or as a more general statement that the SEP is bound by. In order to operationalise this zero tolerance position, the SEP needs to go beyond just alluding to it in reference to PAPs. It needs to commit to (1) carrying out contextual risks assessments, for all the different contexts in which consultations will be taking place with people deemed to potentially be at risk, looking particularly at reprisal risks, (2) devising measures to mitigate risks identified and finally it needs to include a (3) reprisal response protocol that seeks to use the leverage the bank has to address any reprisal that may occur.

    • Human rights. Despite the IED evaluation recommendation that “the modernized SPS should also clarify the safeguard components of other key ADB objectives, which have increased in importance since the SPS, such as climate risk mitigation and adaptation, disaster risk management, the needs of disabled people, human rights, and supply chains” as well as the increasing human rights challenges and risks in the region, the SEP makes no mention of addressing anything related to human rights. We recommend a dedicated analytical study as well as consultations on the safeguard components of human rights.In 2011, the UN Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights as a set of guidelines for States and companies to prevent, address and remedy human rights abuses committed in business operations. In 2020, the United Nations Global Compact announced support for mandatory human rights due diligence. The same year, the IGWG developed the second draft of an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. Currently, hundreds of large businesses, associations & investors in the EU have supported mandatory human rights due diligence legislation. It demonstrates an increasing demand to address human rights in development projects, which the ADB can not ignore.

    • Risk Categorization. The current SEP list of thematic issues for analytical studies should include an evaluation on ADBs Risk Categorization decision making and implementation practice. As per the IEDs findings the ADBs current categorization process lacks a comprehensive risk-based approach. This leads to arbitrary risk assignment. Unless Quality at Entry documentation of a project such as EIA,IEE, SIA, IPSA have gone through layers of independent checks, arbitrary risk assessment and consequent categorization will remain a structural flaw. We urge the Bank to review the Effectiveness of the 2009 Safeguard Policy Statement for an understanding of the historic and systemic flaws plaguing Risk categorisation at the project level.

    • A need for clear distinction between financing modalities and special issues. As outlined before, MDBs such as the ADB have cited their increased focus on promoting transparency in development financing. However, decades of CSO monitoring of private sector & FI Operations by CSOs have shown a lack of transparency. The current scope and objectives of the ‘Financing modalities and special issues’ study does not clearly define what aspects of financing modalities are being assessed adequately. Project implementation in fragile and conflict affected situations (FCAS) and small island developing states (SIDS) is an important issue which should be given due consideration and therefore we urge the Bank to make a clear distinction in its engagement and analytical approach.

 

11.  Maintain resolute consistency with Human Rights Principles. Meaningful stakeholder consultation is enshrined in the international human rights architecture and elucidated across various conventions, resolutions, and declarations. ILO Convention 169 (1989) which deals exclusively with Indigenuous Peoples states that “they shall participate in the formulation, implementation and evaluation of plans and programs… which may affect them directly.” These principles were affirmed in the UN Declaration on the Rights of Indigenous People (UNDRIP 2007) which upholds and emphasizes on the Free, Prior, and Informed Consent (FPIC) prerequisite criterion. Similar principles were also outlined for other groups including The 1989 Convention on the Rights of the Child which elucidates that “The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds”.

 

ADB should ensure that the financed projects don’t contribute to human rights abuses violations, assaults on local communities and human rights defenders, and shrinking civil society space. The Bank should incorporate in their SEP a clear strategy on Human Rights to protect communities, Indigenous Peoples, and human rights defenders, and enhance public participation. This strategy should detail how human rights risks and impacts are considered, prevented and mitigated at all stages of the project-cycle, with special attention given to fragile and conflict-affected settings. The strategy should clearly spell out how the Bank will promote and implement a human rights-based approach among its stakeholders, clients and counterparts. In order to achieve that, ADB should employ sound human rights due diligence at project level, undertake Human Rights assessments, quick response mechanisms and numerous already available Human Rights tools. The Bank should consult with relevant stakeholders on best approaches to make the requirements for HR protection part of the client’s obligation under the new Safeguards Policy.

 

12. Ensure safe and free from retaliation space for the stakeholders to raise their concerns under the consultations process. Comprehensive risk assessment and mitigation plan should be developed for every online and offline event of stakeholder engagement, considering the national and/or group-specific context. The participants, in particular, the affected persons and communities should be properly informed about any potential risks and mitigation measures developed by the ADB to ensure their security.