Bridging the Information Gap: How Access to Land Contracts Can Serve Community Rights

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Veuillez noter : nous publierons également une version française bientôt. Merci pour votre patience.

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.

Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and OpenLandContracts.org to help communities to:

  • Understand company and government obligations related to a company project
  • Monitor whether those obligations are being fulfilled
  • Hold companies and the government to account for bad contracts or for failing to deliver on commitments that are important to communities

Organizations can also use OpenLandContracts.org to raise broader public awareness about government contracting practices, and to campaign for contract transparency.

Download the briefing note here.

Here’s what representatives from local organizations have to say about land contract transparency and OpenLandContracts.org:

Having open access to contracts has the potential to ‘level the playing field’ and address imbalances in knowledge. Knowledge is power! – Justine Sylvester, Village Focus International, Laos

Sometimes people support concessions based on the assumption that they will benefit. However, once they understand the contract, they realize many of the benefits are uncertain. People learn how to ask better questions and demand a seat at the table. – Francis Colee, Green Advocates, Liberia

We use OpenLandContracts.org to review land contracts across the African continent in order to assess provisions that governments have included in their contracts, and to provide guidance on the types of provisions governments in this region should and should not include. It is incredibly useful to have all the contract information in the same place. – Samuel Nguiffo , Centre Pour l’Environnement et le Développement, Cameroon

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Can you please share a model land contract that incorporates the essential requirements of responsible and inclusive land investment. I have gone through the resource OpenLandContracts.org but am struggling to find an example that truly incorporates social and environmental protection mechanisms within a legally defined, defensible framework that binds all stakeholders and so de-risks the business environment. Given the enormous amount of support of that is being offered by experts, and shared through this forum, I have no doubt that such a model contract must exist which could be adapted to other locations. Please help me find it!

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Hi Andrew,

We have refrained from presenting a model contract, as each context will present different challenges, agendas and legal frameworks, which all must be closely incorporated when determining how any land-based investments should be regulated. We also note on OpenLandContracts.org that identifying the quality of any deal is a complex task.

Host government representatives have also expressed dissatisfaction with model contracts generated for them by experts who might not be adequately familiar with the local context. See our report on Legal Support Gaps for governments for a discussion of how governments use model contracts.

Here are some resources on investor-state contracts that might be of assistance:

And some guidance on community-investor agreements:

Finally, we have a draft discussion paper that raises the prospect of tripartite contracts between governments, companies and communities. This might be an approach that gets closer to a contract that, in your words, “truly incorporates social and environmental protection mechanisms within a legally defined, defensible framework that binds all stakeholders and so de-risks the business environment.”

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Thank you for replying Sam.

I have spent some time reviewing the material you have highlighted and note your observations on the difficulty surrounding ‘model contracts’ and respect, of course, the fact that all situations will require a tailored approach and so there can be no “one size fits all” solution.

My background is in land administration reform and I have spent quite some time sitting across the table from investors, government and community stakeholders (in Nigeria Primarily) trying to unpick the issues around large scale contracts. Typically the investor has engaged directly with government to identify and acquire a site. The government actors have scant knowledge of the ‘rules’ surrounding land acquisition, environmental impact and social concerns and so propose a site to the investor. The investor, who also typically demonstrate no knowledge of local laws etc. take up the land on the basis of reassurances offered by the government.

At some point along that journey communities, or community leaders, will be engaged and some version of the vision of the impact of the investment will be made. That engagement is typically brief, simplistic and, perhaps, downright wrong. And maybe a few $$s change hands.

So the investment starts, communities resist, the investment fails and all we end with is a land grab, displaced people, unrest and an eventual change to a new set of politicians that repeat the system year on year.

So I offer a simplistic interpretation of the approach offered re the OpenContracts resource on offer.

Actor A wants a car (or a land investment). What is currently available is the opportunity to look at a lot of other cars by scrutinising a lot of the details of other cars to learn how other cars are made. After wading through a million and one descriptions of other cars the expectation is that Actor A will be well placed to build their own car on the assumption that all of that reading will have (a) educated them in what a good car should be, (b) how to manage and run that car and © enjoy all of the peripheral infrastructure required to use that car.

So I want to draft an investment contract?? Is the expectation that all stakeholders go through all of the contracts available to distil an optimal contract from all of the prior examples? In my experience it is very unlikely that the actors will have the necessary skills (or preparedness) to pursue such a course.

Which brings me back to my original conundrum. Obviously a ‘perfect’ skeleton or model contract is not possible but surely it is possible to create a check list or an algorithm for these contracts. Not all investors or governments (or communities) may want to follow such a route but more far-sighted, ethically minded stakeholders would value such a resource. Even the big international investors, and I’ll name no names, send teams to negotiate deals that have no knowledge of the sort of issues raised on this site but they would welcome any assistance possible to ensure more responsible and inclusive outcomes. As things stand they rely on fudged deals with local players that know no better because of capacity gaps more than any spirit of corruption but most aspire to a higher standard.

So.

The resources you linked to in your reply highlight the fact that there are some fundamental questions to be asked in evaluating any contract. This isn’t the place to go through everything but:

  • Can we align the contract to VGGT/IFC/PRAI/AU guidelines etc etc and if so which?
  • Having identified the guidelines what processes need to be factored in to contract negotiation?
  • How can safeguards be secured through existing laws?
  • Do new laws need to be passed?
  • What redress mechanisms are available when parties renege?
  • How will the land be acquired fairly?
  • Are all legal mechanisms timebound?
  • Are legal processes transparent?

The lawyers on here will howl at the over simplification but ultimately it is the local legislation and judiciary that are key to enforcement and they need to be accountable.

In my experience the pursuit, and alleged attainment, of the FPIC so often recommended in investment rarely engages with all of the necessary stakeholders. The most fundamental checklist box to be ticked in pursuit of investment is “have you identified and engaged with everyone relevant and do they all demonstrate a thorough knowledge of the implications of the deal?” rather than " have you had a cosy chat with the investor and the state?"

Most people wanting to buy a car read a few brochures or visit a showroom and choose the model that best suits their needs. Very few people have the capacity to read a lot of technical manuals and then craft every component into a Rolls Royce.

In closing I agree that the resource is great and many valuable insights are available from the docs therein. The ground reality is, however, that local actors in developing countries won’t necessarily know that the resource exists and, if they do, may be unlikely to generate an optimal solution by analysing the examples therein. The other resources offer great technical insights and observations but again place significant demands on the reader to attain meaningful insight.

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