[Webinar] Transforming community-investor negotiations

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Namati and the Columbia Center on Sustainable Investment recently launched two guides that provide front line advocates and community members with concrete, practical strategies on how to support communities to understand and protect their land rights. The guides explore how basic legal support can help communities defend themselves against outright land grabs, negotiate equitable terms if they do choose to welcome investments, and seek enforcement if those terms are violated.

The guides, available below, were introduced and discussed in a webinar on 20 February, 2019. Here’s the link to the webinar recording: https://attendee.gotowebinar.com/register/7188452387912512269

Webinar on Community-Investor Negotiation Guides, Feb 20, 2018

1. Why did we write these guides?

TWO different rationale from Namati’s side for writing these Guides:

  1. National elites in Liberia approaching rural communities with crude, 1-3 page contracts:
  • So much attention is paid to international investors, but national elites are grabbing a great deal of land, in smaller plots. No one is tracking these transactions, and there is limited capacity to enforce international human rights standards in such situations.
  • In 2014, I was working in Liberia when our partner organization, SDI, shared two MOUs with me. One was between the community of Duah Clan and a Liberian palm oil company. The company had convinced the community leaders to grant them “a minimum of 20,000 hectares” of land—an area larger than the entire chiefdom. The MOU did not specify the terms of the investment, the land to be granted, or any concrete benefits that would be provided to the communities. Further, the MOU required that the signatories not disclose its content to “any third party unless required to do so by law” and to agree that the company would have “total exclusivity over the Land” for one year.
  • These contracts made a significant impression on me, and confirmed my suspicions that national elites were manipulating rural villagers into leasing or selling vast quantities of land to them on unjust terms, then getting them to “sign papers” to create a legal veneer over very shady transactions.
  1. Meanwhile: In December 2017 I led a three-country, 60 community study of the impacts of Namati’s community land protection work, 2+ years later (report forthcoming April 2019): what happened when communities who had been legally empowered, knew their rights, had strong rules for land governance and natural resources management, had agreed their boundaries and had maps of their lands were approached by external actors seeking land?
  • No consultations/sham consultations
  • Fear to say “no,” especially in presence of powerful government actors
  • Divide-and-conquer techniques/bribery of leaders
  • Communities eager for development, afraid to reject government infrastructure, demand compensation, or say no to outside investment that might bring prosperity
  • Not one community asked for protections against negative environmental or health impacts.

→ And these were the empowered, legally knowledgeable communities: others even more unaware of legal rights, protections and processes.

→ There is an URGENT need to arm communities with legal knowledge, support them to make informed decisions, and help them to advocate for their rights and interests.

CCSI’s perspective and experience

  • We closely reviewed over 40 agreements and have over 100 community contracts at OCC.org
  • We were shocked by their contents and how little they seemed to secure for communities.
  • The guides are our best effort to address that (also looking at financing solutions).
  • Structural challenges
    • ISCs - seem to be more prevalent or to be more supported by domestic laws and practices than community contracts. (Exceptions - Sierra Leone, Ghana, Mozambique, among others)
    • Need to consider broader legal framework - national and international laws, constitution, etc. before looking at contracts.
    • The lack of emphasis on communities being able to decide on whether or not their lands are used for investment is often tied to whether or not customary land rights are formally recognized, among other factors.
  • Power imbalances
    • Internal - chiefs vs community members - discussed by RK and SC
    • External - communities face different types of pressure
      • Pressure from governments who want to attract investment. Govt Minister may arrive and tell community it is time to sign a contract without proper consultation.
      • We have also seen violence and criminalization against community members and support providers who seek to assert their rights (e.g. Cambodia)
      • In some contexts, government may effectively ban communities having CS support, as occurs in parts of Laos.
    • Technical - “inequality of arms” where investors have lawyers and communities have no support.
      • Communities are often approached by investors and their lawyers but are not given opportunity to properly prepare and seek support. SC will discuss the need not only for lawyers but for other support, such as paralegals.
  • Bad content
    • Unenforceable - some explicitly say so. Others are negotiated in vague terms that arrive at same result. Others will call themselves MOUs or their obligations “CSR” to try and avoid enforceability.
      • This is important because communities may only agree to allow companies to use their land because they expect benefits like employment creation and rents.
    • Paltry benefits for communities - $2 per hectare rents (when government recommended floor was $12!), promises to build buildings with no specifications, few job creation guarantees. This won’t lead to development.
    • Inadequate checks on company activities.
      • May allow an agribusiness to use lands to grow certain crops or “for any other purpose,” for instance. This could allow the company to simply strip the land of trees, store toxic waste, or conduct a range of other harmful activities that were not contemplated by the community
  • These challenges are not easily addressed. Our efforts to develop guidance, among other things, are an attempt to help CSOs support communities to make more informed decisions and act more strategically when approached by an investor.

B. Overview of the Guides

Explanation of Overview of Guide 1: Preparing in advance for potential investors

  • Guide designed to help communities create a plan they can put into place when approached by investors. It is important to note that the goal of these guides is NOT AT ALL to encourage investment, but rather to allow communities to be empowered, legally knowledgeable, and prepared when investors come – because they WILL come.
  • Process set out in guide is IDEAL process, we recognize it is unlikely!
  1. Strengthening community unity:

  2. Visioning Community’s own vision for their prosperous, thriving future

  3. Valuation: understanding of the value of the natural resources to THEM

  4. By-laws drafting: whole community comes together and drafts bylaws to guide what will happen if and when an investor arrives; Cannot overstate the importance of having already decided on rules before a potential investor arrives. Rules should be agreed that address questions such as:

  • How will the community as a whole make decisions about allowing companies to use community lands? (It is strongly suggested that the community make a rule that says something like this: “at least [amount]% of all adult male and female community members must participate in and decisions to lease community land to investors. Any contracts with investors signed only by elders or leaders without the full participation and agreement of at least [X amount]% of the community shall be considered invalid.”)
  • Is the community willing to lease or sell part of its land?
  • If yes, what land can be shared, and what land should not be shared?
  • If leasing the land, how long of a lease would be allowed? (5 years? 10 years? 25 years?)
  • What types of companies are welcome, and what types are not welcome?
  • What kinds of benefits and rental payment would the community ask for?
  • What rules must any investors operating in the community follow to protect community health, safety, prosperity, livelihoods?
  • How will conflicts between community members about whether or not or how to negotiate with potential investors be resolved?

2. Understanding and demanding FPIC and a full consultation process:

  • Consultations are often characterized by very significant power imbalances: investors often arrive for the first time, accompanied by government officials who tell the community “that they are being consulted” and demand an immediate “yes.”
  • Communities may feel that they have no choice but to approve a project that has already been approved by the government.
  • Instead communities should:
    • Refuse to give immediate consent, and seek legal support; request at least two meetings, with time for the community to meet on its own in between.
    • Record every interaction with investors by video, audio or in writing
    • Identify relevant legal requirements for the consultation process, and demand they are followed
    • Do not let leaders approve deals without consulting the community
    • If a real consultation is not made, the community can use the media, approach trusted government officials, seek help from national and international allies, etc.
  1. Seeking and reviewing relevant legal and financial information about the proposed investment: business plan, permits and licenses, feasibility study, investor-government contract, impact assessments, who is funding the investment, etc.

  2. Ensuring full community participation in decision-making and addressing intra-community conflict/not falling prey to divide and conquer tactics

  3. Fully documenting the community’s decision to accept or reject the investor with video, in writing, and GETTING COPIES OF ALL DOCUMENTS!

  4. Protecting the community from violence and coercion if the community chooses to reject the investor.

  5. Preparing for negotiations if the community chooses to accept the investment:

  • A decision to say “yes” is not the same as an agreement – communities should push for a two-part process: 1) yes and 2) contract setting out all terms and agreements
  • forming a negotiating team, making a negotiation plan (deciding on the time, location and language of negotiations etc.), getting clear on protections for the community’s health and environment, and benefits and payments that will lead to authentic prosperity

Explanation of Guide 2: Negotiating Contracts with Investors

  • Guide 2 is relevant if the community decides to negotiate with the potential investor.
  • Focus: ag and forestry investments, also relevant to other types of investments
  • Types of agreements
    • BAs and leases. Not outgrowers or joint venture agreements.
  • The type of wording to include and avoid when drafting an agreement
    • Focus on clear and enforceable language. Avoid weasle words like “the company will endeavor to do X”
  • Basic contract provisions on parties, intention to create a binding contract, duration, project description, identifying the land in question.
  • Provisions regarding information sharing and monitoring (profits, operations, social and environmental impacts).
  • Access rights for the community.
  • What the company will give the community in exchange for using community lands and resources (including rental payments and profit sharing, job creation, training, and social infrastructure),
  • Processes and obligations to protect against environmental and social damage
  • Dispute resolution and grievance mechanisms.
  • Renegotiation
  • Termination and remedies for breaches of the agreement, what happens to land and assets after end of contract, assignment of rights.
  • The structure of each section has:
    • Summary
    • Explanation of what to include
    • “Caution! Red flag” clauses
    • Example wording
    • Get legal advice
    • “Answer the questions” for internal community discussion

C. Sonkita Conteh: Negotiating land lease agreements

Lessons from Sierra Leone

  1. “You need more than just a lawyer to ensure fair investment contracts” – community paralegals are crucial in this process.
  2. Be prepared to address divergent views and interests – communities are not homogeneous.
  3. Communities require information for effective decision-making – importance of visioning and valuation exercises and access to information.

D. Group brainstorm

Questions

  1. How to reach communities before negotiations start, to connect them with the support they need?

  2. How to empower communities to advocate for community-investor contracts that ensure local wellbeing and prosperity? How to protect communities’ rights when investors are national elites with full impunity and state force behind them?

  3. How to protect communities’ rights when investors are national elites with full impunity and state force behind them?

  4. How to educate and engage government actors to support better community-investor interactions, actual FPIC consultations, and contracts that ensure community wellness and prosperity?

  5. How to make sure investors understand the benefits of meaningful negotiations with a well-prepared and supported community?

Notes

  • Kenya – Unregistered community land – large project to run through five nomadic communities – the land is used rangeland, but government says it is “empty land.” Communities feel everyone “wants to steal their land.” Her organization talks to the communities in intimate, smaller groups – “if this happens, then what? What is your plan? How will you respond?” Smaller groups allow for more nuanced, thoughtful discussions that help people understand how much power they do have, what their rights are.
  • Sierra Leone – mining sector, forest sector: initial contract was 75 year contract over agricultural land, with hope to extend the contract further. How to support communities to address the duration of a project. → The 50 year term is a statutory period – “up to 50 years” is what the law allows, it does not mandate that contracts MUST be for 50 years. Communities can demand a shorter duration; they have the power to limit the duration.
  • Uganda – Communities do not always have the power to control what happens on their land – people in political power make the decisions, and end up selling community land, rather than leasing it. How to make the people in political power to be on the side of the weak, rather on the side of the powerful?
  • Mexico – working with Indigenous and non-Indigenous communities in the context of infrastructure activities. We conduct HRIAs and ESIAs regarding the business projects of international investors. Involve communities right from the beginning, and do the IA’s that are LED by the communities, that gives them real ownership of the assessment process. Have found that when it then comes to negotiations, the community understands the whole process and is in a much stronger position when it comes to negotiations. When investment issues get to courts, courts are not in favor of the community’s rights so we rely on a communications team, use the media very strategically.
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Hello everyone! This webinar is taking place as scheduled, and we are looking forward to a lively discussion facilitated by @rachaelknight and with @sonkitaconteh and @sam_szoke_burke. If you have not yet registered, here’s the link again: https://attendee.gotowebinar.com/register/7188452387912512269

Interest in this webinar is high! People have registered coming from many countries in Africa, Latin America and other parts of the world. Here are some answers to commonly asked logistical questions:

  • This is a free online event. To participate, use your computer and Internet connection.
  • Instructions for joining the online event will be provided in an email as soon as you register.
  • A recording of the event will be made available online. This forum topic will be updated with a summary and link to the recording.
  • The language for this event is english. If you would like to help organize online events in other languages, let us know!
    • (Note that this forum provides inline translation into spanish, french and many other languages - to use it, look for the translate button below each post (looks like a :globe_with_meridians:). You can also write in your own language.)
  • You can learn more about and download the guides this webinar is about at: Namati and CCSI Launch New Resource: Community-Investor Negotiation Guides

We received many very interesting comments and questions from registrants! A selection is below. We won’t be able to get to all of them during the webinar but we will do the best we can. Of course we can discuss them here. Feel free to add your reply below to join the conversation.

Need to learn from other how registration of land title deeds is done for local farmers in communities

Land is the most precious element for the surviving of the human being. So for the proper distribution of land, we need to increase more awareness about the imports of proper distribution. Otherwise human development will interrupt in no time.

I am an Advocate of the High Court of Tanzania from the other matter am also dealing with Land matters/cases

I am so interested in Reading that kind of articles about Land policies and governance I wish to receive more and more. Thank you very much for sharing this

It’s being more and more important that communities make part of decision processes that affect their own lives. It’s time to bring them into the discussion forums for them to decide consciously about what is best for them. Communities empowerment now!

Seminars of this nature are of at most important to the fact that most grassroots justice defenders are either intimidated or killed by people against change. I would like to see many grassroots defenders attend such seminars.

“How do you manage the balance of power between such communities and the investors. How do you reconcile this with the state having the power of trust to negotiate on behalf of the people.”

What can communities do when their governments in turn impose or assess the cost of the square meter of the land below the real price?

How to implement community legal service in bangladesh for unregistered rohingya.

Which current projects will be discussed on the webinar? Is it possible for me as a Canadian Law Clerk with Masters of Law degree from Bulgaria to participate? Thank you very much, Alexandar

Comment: In Zambia we have two cagories of land; 1. State land and 2. Traditional land. This is where investors most target and i greatly welcome this program.

Focus on understanding what kind of community structures can respond legally and equitably in such matters in an inclusive manner that does not jeopardise sustainability goals.

THE PRIVATE COMPANIES HAVE GRABBED PARCELS OF LAND OF THE COMMUNITY IN THE NAME OF INVESTMENT WITHOUT THEIR PRIOR PARTICIPATION ENSHRINED IN THE KENYAN CONSTITUTION ARTICLE 96.

At what stage does the community have right to decide on land compensation?

Community land rights have been given little attention. revenue from the community land resources tend to always benefit the government at the expense of the community members leaving such communities under developed. There are need for more advocacy.

Is there recourse in international law against private entities like companies apart from commercial arbitration?

Bearing in mind that land use is mostly regulated by the national legal systems and politics I believe engaging legal tactics such negotiation is best in resolving violations of land rights.

The protection of landowners is especially relevant in Ukraine, as our country is preparing for the opening of the land market. Also, the process of decentralization continues in the country; accordingly, the question of effective land use is relevant

Hi! This will be very pertinent to advisory services I am offering to a Maasai community in relation to grabbing of their cultural / community owned land by investors and / or government interests. Thanks

How best can governments support local communities to handle their own issues related to land

There is only a finite amount of land, and it is difficult to believe that usable land is not already been utilised. Yet most governments support providing land for efficient commercial businesses. How can this be done without displacing people?

What is the procedure when communities fail to negotiate before Investments. In one case, the farming communities believed the investors that they would give the benefits as per Rehabilitation and Resettlement package but do not give?

How did you address the cultural believes in land right in relation to Governments DEVELOPMENT agenda in a modern way where the modernization supersede the cultural rights where Government in a worst case scenario will decide on compensation route.

As a human rights advocate that trains grass roots paralegals, I wish to learn from others what has been the driving force behind their success, what were their greatest challenges and how they overcame those challenges.

How can the local people benefiting from the mines that are mining on their land? The people of South Africa does not benefiting from the mining activities that take place on their land instate the mines are causing division among the people.

Am interested in the discussions because my community need more knowledge on land use and management. Thank you.

I’d very much like to participate in this discussion so as to appreciate how I can effectively support communities in their pursuit to protect and promote their land rights.

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