Legal empowerment for local resource control

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analysed the legal tools that have been used in some African countries to
increase local resource control and strengthen the negotiating power of
local resource users. More empirical research is needed better to
understand how these tools work in practice, and what difference they
make to local resource users. This need is being addressed by the in-country
research activities underway within the context of the “Legal tools” project
(see Box 1 above and section 4.3 below).
At this stage, a hypothesis can be formulated, to be revisited in the light of
the findings of in-country research: that the legal tools examined in this
study, combined with appropriate para-legal tools, can help local resource
users have greater control over decisions and processes affecting their lives
– particularly with regard to incoming investment projects. At a conceptual
level, this hypothesis is supported by the following analysis.
In the absence of these legal tools, the state would be legally empowered to
withdraw precarious use rights from local resource users without (adequate)
compensation, and to allocate resources to foreign investors. Where these
tools are enshrined in the law, local resource users would enjoy legally
protected rights, and foreign investors would have to negotiate with local
users access to resources and benefit sharing.
It is well-known that the law is often not complied with, particularly where
major power asymmetries exist between those who stand to benefit and
those who stand to lose from it; and that differences in negotiating power
(originating from differences in wealth, political influence, skills, etc.) skew
the outcome of negotiations induced by the law (see above, chapter 2.2.1
and Table 3).
Yet, while the law must come to terms with existing power relations, legally
defined rights and adequate capacity to enforce them can themselves be a
source of power. In particular, the legal tools analysed here present
significant “empowering” potential. Within the conceptual framework
visualised in Figure 1 above, they aim to address asymmetries in legal
entitlements, including both their substantive protection and available
remedies/procedures; and are to be accompanied by para-legal tools that
strengthen local resource users’ “capacity to claim” those entitlements. This
empowering potential has two dimensions.