Community Controlled Impact Assessment and Impact and Benefit Agreements:

1. Community Controlled Impact Assessment and Impact and Benefit Agreements: Briefing Paper for Bank Information Center Professor Ciaran O’Faircheallaigh Griffith University, Brisbane Public Presentation at Oxfam America Office, Washington DC, 21 November 2013

2. Impact Assessment Today Impact Assessment conducted by borrowers, private sector investors and their consultants; Often fail to focus on Indigenous issues and impacts; Biased towards positive findings; IEG Review of World Bank Safeguards (2010): ‘… the majority of policy violations related to safeguards policies in World Bank projects originated in unresolved issues, stemming from inadequate assessment of environmental and community impacts and inadequate consultation with affected people’.

3. Response: Community Controlled Impact Assessment Developed in Australia and Canada in the 1990s; Initially applied to private sector extractive projects, recently applied to major State Government project in Western Australia and to infrastructure; Flexible, often used as input into statutory (public) Impact Assessment processes; Key principle is that the community of affected people drive the impact assessment processes, findings and recommendations;

4. CCIA: Key Features Affected Community: Develops ToR, and so decides scope and focus of IA; Selects IA consultants to provide specialist input; Determines information dissemination and consultation methodology: Iterative, rather then ‘one shot’, information provision and documentation of community aspirations and concerns; Identifies community priorities for project benefits, effective mitigation strategies; Reviews draft reports and approves final reports. Independent peer review to ensure studies are rigorous and credible to other parties.

5. CCIA: Benefits Mobilises local knowledge and understandings of impact; More robust and reliable method of establishing likely impacts on community; Mitigation and benefit maximising strategies more likely to be effective; Powerful mechanism to address the ‘informed’ component of Free, Prior Informed Consent; Reduces the likelihood that feelings of marginalisation in affected communities will result in conflict and project delays.

6. Other Issues … Major problems in ensuring implementation of IA findings on mitigation and benefit maximisation; Implementation failure in relation to conditions attached to loans and project approvals; Absence of ongoing monitoring to establish whether expected impacts and opportunities actually materialise; Often results in growing community frustration and conflict; IEG Review of World Bank Safeguards revealed ‘vital gaps in managing environmental risks induced by Bank-financed projects, in that implementation and follow-up were deficient even in projects for which the environmental assessment ad identified serious risks to nearly natural habitats and biodiversity’.

7. Response: Impact ad Benefit Agreements Legally binding agreements negotiated between Indigenous communities and State Authorities or private sector developers; Include community consent, typically to the granting of interests in land that will allow infrastructure or extractive activities to proceed; Contain provisions to ensure that community shares in project benefits and that negative impacts are avoided or mitigated; Typically cover entire life of project, including closure and rehabilitation; Routine in Australia and Canada (100+ in Australia in 2012 alone), growing quickly in developing countries (e.g. PNG, New Caledonia), moving beyond extractives, e.g. agriculture, infrastructure, urban redevelopment (‘community development agreement’s). Adaptable mechanism that can be shaped to specific context (e.g. mineral exploration v extraction).

8. Impact and Benefit Agreements (Indigenous): Typical Features Recognition of Indigenous rights in land; Consent to project activities; Indigenous employment, training and business development; Revenue sharing; Cultural heritage: management and impact minimisation; Environmental management and mitigation; Implementation mechanisms; Ongoing monitoring, adjustment and review.

9. Impact and Benefit Agreements: Advantages Places community in a position to negotiate benefits and impact mitigation, not just to be ‘consulted’ or to ‘participate’; Mechanism for establishing community consent, and so central to implementation of principle of Free Prior and Informed Consent and of World Bank concept of ‘broad community support’; Cover life of project, so that impacts can continue to be addressed and benefits continue to be maximisied, reducing likelihood of conflict; Contain within themselves mechanisms and resources for ongoing monitoring, review and adjustment; increasingly these mechanisms seek to ensure ‘automatic’ responses to implementation failure, rather than to rely e.g. on recourse to the Courts.