Are current approaches to community rights recording really protecting anyone?


(Andrew Smith) #1

At the outset I need to stress that I am a big fan of the concept of community rights recording as a means to facilitate inclusive and responsible investment. The principles embodied in the VGGTs and PRAI invite meaningful dialogue by all stakeholders towards economic solutions capable of improving livelihoods, protecting tenure, improving yields, commercial profit and improved socio-economic growth in regions.

There is continuous discussion and debate on the approach towards identifying and recording community rights. Despite all of that debate I am struggling to see any meaningful outcomes for impacted communities. The documentation available either seems to offer a high level, aspirational approach to securing rights that are low on detail on the process of implementation or a travelogue from academics drawing cartoons of community boundaries that offer little credible chance of being accepted in to law.

Ultimately the expectation is, presumably, a means whereby community rights can be identified and protected in a legally defensible framework that can be incorporated in some way in a contractual framework between the community, the investor and government to mitigate risk for all parties. I confess that I had thought that database of land contracts published by the Columbia Center for Sustainable Investment (OpenCommunityContracts.org: A Database of Publicly Available Community-Investor Contracts - Columbia Center on Sustainable Investment) would provide all that would be needed to create a framework contract for an inclusive investment model I was working on for Nigeria. It didn’t! I struggled to find any contract within that library that offered meaningful support to community interests. In fact many of the contracts appears to serve to reinforce the power of the state or the investor rather than protect the locals.

The process of participative mapping is also much discussed. I have worked with some practitioners in this field over the years and have kept abreast of ongoing activity with a particular interest in approaches to Africa. I am confused as to what the ultimate goal of the process as the majority of articles seem to be little more than travelogues by personalities that come across as self-congratulating eternal students rather than experts seeking to guarantee more inclusive outcomes. It is all well and good to spend a few weeks ‘living among communities to help them to understand their rights and inviting them to advocate for change.’ They need so much more than that if they are going to gain the levels of protection that seem to be promised to them.

The various resources available from donors and NGOs thus appear, to me at least, to be repeating the same principles for engaging in the process of identifying and recording community rights with a view to creating a bigger voice when debates around investment and changing land use arise. Has that ever worked?

I would be particularly interested to hear from anyone that has supported a community to:

  • Identifying their rights through to a mechanism that has created a robust, legally defensible claim on those rights protected by local and national laws
  • Collaborated with an investor to incorporate these rights within contract frameworks that explicitly incorporate principles derived from the VGGTs or similar
  • Assisted government to understand the importance of legally recognising the value of community rights as a means to facilitate and attract investors on the calibre of the Interlaken Group etc.
  • Used the above to underpin an investment promotion policy or agency to attract FDI
  • Catalogue and demonstrate the genuine merits of community rights recording as a tool to empower the vulnerable, generate revenue and support new approaches to investment in developing countries.

If we aren’t doing those things then community rights recording will never gain credibility. It is not enough for consultants to persist in taking funds to ‘help people to advocate’ or to ‘support them in mapping their locations’ unless those processes can be demonstrated to have a place within legally defensible outcomes.

I appreciate that any such contract will only reflect the relevant local and national laws but that would be a good starting point to develop a framework model that could be developed for any location. The presumption must be, of course, that community and stakeholder engagement toward consensus followed the models outlined by Namati etc. but the subsequent steps taken to enshrine the conclusions in law and protect all parties’ interests in the key focus.

Please help me on this. I earnestly believe that huge opportunities exist to create opportunities for investors in SSA but the current processes centred on dialogue and advocacy offer very little help in the pursuit of meaningful improvements to livelihoods in the short term.



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