Legal empowerment for local resource control

First, each of the legal tools analysed here may be used to challenge
asymmetries in power and in law between local resource users, the host
state and foreign investors. They may be used to redefine the negotiation
arena – in other words, to open up new spaces for negotiation. For
example, new legal requirements for mandatory consultation can transform
the decision-making process from “closed/uninvited” to “invited” (in the
sense described in section 2.1.1). They may also provide entitlements that
can be used as a source of negotiating power. If they are not vested with
secure resource rights, local groups would have little to bargain with in their
negotiations with foreign investors and the central state. On the other hand,
secure resource rights may give them an asset to be used in those
negotiations. In this, detail is key. With regard to land takings, for instance,
what matters to the negotiating power of local resource users is not only the
general principle that compensation be paid; but also the detailed rules on
what types of rights and interferences be compensated, who is to determine
the amount of compensation, and according to what standards and
processes.
Secondly, different legal tools may be used in a mutually reinforcing way.
Where several of these tools are available, their cumulative effect on power
relations is likely to be more than the sum of that ascribable to each
individual tool. For instance, requirements for the negotiation of benefitsharing
arrangements are likely to be more effective where complemented
by tools vesting clear and secure rights with local resource users (as more
secure rights tend to strengthen the negotiating power of local users); and
by tools ensuring adequate compensation standards and processes (as the
threat of uncompensated expropriation if a deal is not reached would
undermine the negotiating power of local resource users). In other words,
although the three sets of tools are conceptually sequential (see Figure 3), a
sequentially successive tool (e.g. concerning compensation for land takings)
may influence the practical operation and outcome of a sequentially earlier
tool (e.g. negotiation of benefit-sharing agreements; see Figure 4).
Legal empowerment also relates to power relations between legal services
organisations and their clients/beneficiaries (“power in the law”, according
to the classification developed by Tuori, 1997; see above, section 2.1.2).
Some have argued that legal processes are inherently disempowering
because they remove control from the beneficiaries to the professionals
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