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3.7.2. Mitigation and Development Benefits
152. The client will seek to identify, through the process of FPIC of the affected communities of
Indigenous Peoples, mitigation measures that are in line with the mitigation hierarchy as described in the Principle 1 as well as opportunities for culturally appropriate and sustainable development
benefits. Such opportunities should be commensurate with the degree of project impacts, with the aim of improving their standard of living and livelihoods in a culturally appropriate manner, and to
fostering the long-term sustainability of the natural resource on which they depend. The client will document identified mitigation and development benefits and deliver them in a timely and equitable
manner to the Affected Communities of Indigenous People.
153. Laws, institutions and customs of the Affected Communities of Indigenous Peoples will be
taken into account for the determination, delivery and distribution of compensation and other benefit sharing measures. Compensation eligibility can occur on a collective or individual basis or a
combination of both. Where control of resources, assets and decision making are predominantly collective in nature, the client will make efforts to ensure that, where possible, benefits and
compensation are collective, and take account of intergenerational differences and needs.
154. Some factors can be used by the client to determine how the Affected Communities of
Indigenous Peoples should benefit from the project. These factors include, but not limited to, the nature of the project, project context and the vulnerability of the communities. The client should
develop opportunities that aim to meet the goals and preferences of the Indigenous Peoples including to improve their living and livelihood standard in a culturally appropriate manner. The client should
also foster the long-term sustainability of the natural resources on which the Indigenous Peoples depend.
3.7.3. Special Requirements
155. Because Indigenous Peoples may be particularly vulnerable to the project circumstances
described below, the following requirements will also apply, in the circumstances indicated, in addition to the General Requirements above. When any of these Special Requirements apply, the client will
retain qualified and experienced external experts to assist in conducting the Assessment.
3.7.3.1 Impacts on Traditional or Customary Lands under Use
156. Indigenous Peoples are often closely tied to their traditional or customary lands and natural
resources on these lands. While these lands may not be under legal ownership pursuant to national law, use of these lands, including seasonal or cyclical use, by communities of Indigenous Peoples for
their livelihoods, or cultural, ceremonial, or spiritual purposes that define their identity and community, can often be substantiated and documented.
157. If the client proposes to locate the project on, or commercially develop natural resources
located within, traditional or customary lands under use, and adverse impacts
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can be expected on the livelihoods, or cultural, ceremonial, or spiritual use that define the identity and community of the
Indigenous Peoples, the client will respect their use by taking the following steps:
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Such adverse impacts may include impacts from loss of access to assets or resources, or restrictions on land use, resulting from project activities.
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The client will document its efforts to avoid or at least minimize the size of land proposed for the project;
The client will document its efforts to avoid or at least minimize the impacts on natural resources and natural areas of importance e.g. loss of access to assets or resources or
restrictions on land use resulting from the client’s project to the Indigenous People; The client will identify and review all property interests and traditional resource uses prior to
land purchase and lease; The Indigenous Peoples’ resource use will be documented by experts in collaboration with the
affected communities of Indigenous Peoples without prejudicing a ny Indigenous Peoples’ land
claim
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. The asses sment should be gender inclusive and specifically consider women’s role
in the management and use of these resources; The affected communities of Indigenous People will be informed of their rights with respect to
these lands under national laws, including any national law recognizing customary rights or use
The client will offer affected communities of Indigenous Peoples at least compensation and due process in the case of commercial development of their land and natural resources, along
with culturally appropriate sustainable development opportunities, including: o
The client will provide land-based compensation or compensation-in-kind in lieu of cash compensation
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; o
When the project results in loss of access to and loss of natural resources independent of project land acquisition, the client will ensure the affected
communities of Indigenous People will have continued access to natural resources, identify the equivalent replacement resources for them or, provide compensation and
alternative livelihoods;
o When the project will utilise resources that are central to the identity and livelihood of
the Affected Communities of Indigenous Peoples, the client will ensure fair and equitable share of benefits associated with that use of resources;
o The client will provide the Affected Communities of Indigenous Peoples access,
usage and transit on land it is developing and subject to health, safety and security considerations.
The client will enter into good faith negotiation with the affected communities of Indigenous Peoples, and document their informed participation and the successful outcome of the
negotiation.
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While this Principle requires substantiation and documentation of the use of such land, clients should also be aware that the land may already be under alternative use, as designated by the host government.
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If, under some circumstances, the client is not able to provide suitable land replacement, the client will provide such verification. In this case, the client will provide non land based income-earning opportunities over and above cash
compensation to the affected communities of Indigenous Peoples.
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3.7.3.2 Relocation of Indigenous Peoples from Lands and Natural Resources Subject to
Traditional Ownership or Customary Use 158.
The client will consider feasible alternative project designs to avoid the relocation of Indigenous Peoples from their communally held
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traditional or customary lands and natural resources. If such relocation is unavoidable, the client will not proceed with the project unless FPIC
has been reached as described above. Any relocation of Indigenous Peoples will be consistent with the Resettlement Planning and Implementation requirements of Principle 5. Where feasible, the
relocated Indigenous Peoples should be able to return to their traditional or customary lands, should the reason for their relocation cease to exist.
3.7.3.3 Critical Cultural Heritage
159. The client will put as a priority, the avoidance of project impacts on to critical cultural
heritage
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that is essential to the identity andor cultural, ceremonial and spiritual aspects of Indigenous Peoples. When this avoidance cannot be achieved, the client will obtain the FPIC of the
Affected Communities of Indigenous Peoples. 160.
Where a project proposes to use the cultural heritage such as knowledge, innovations, or practices of Indigenous Peoples for commercial purposes, the client will inform the Affected
Communities of Indigenous Peoples of: i their rights under national law; ii the scope and nature of the proposed commercial development; iii the potential consequences of such development and iv
obtain their FPIC. The client will also ensure that fair and equitable share of benefits are achieved from the commercialisation of such cultural resources.
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Where members of the affected communities of Indigenous Peoples individually hold legal title, or where the relevant national law recognizes customary rights for individuals, the requirements of Principle 5 will apply, rather than the
requirements under this heading.
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Critical Cultural Heritage includes natural areas with cultural andor spiritual value such as sacred groves, sacred bodies of water and waterways, sacred trees and rocks.
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3.8. PRINCIPLE 8: CULTURAL PROPERTY AND HERITAGE
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