Legal empowerment for local resource control

Following Scott (2001), this study takes these two ways of conceptualising
power as complementary rather than as mutually exclusive. In the real world,
“concrete patterns of power combine [coercive] and persuasive influence in
various ways, forming both stable and enduring structures of domination and
more fluid structures of interpersonal power” (Scott, 2001:12-13). On the one
hand, coercion remains an important factor in power relations. On the other,
power may unfold through influence over mind frames rather than through
intentional commands, and usually involves (not dichotomised relations
between the “powerful” and the “powerless” but) complex interactions among
multiple interests with varying degrees of influence over one another.
Within the broad concept of power, particularly relevant here is the notion of
“negotiating power”. This refers to power relations within the context of
negotiations among two or more different actors – for instance, negotiations
among foreign investors, the host state and local resource users on the terms
and conditions for an investment project and for the sharing of the costs and
benefits generated by it.
Differences in power relations within society shape differences in the
negotiating power of different actors. Negotiating power is also influenced by
the scope and the terms and conditions of the negotiation – who and what
issues are included, excluded, and/or can be added to the negotiation through
negotiation; how groups involved in the negotiation define their interests,
priorities and negotiation strategies; which process and timeframe are to be
followed; and who decides over these issues. These elements together define
the “negotiation arena” (on this concept, see Vermeulen, 2005).
In this regard, Gaventa (2007) shows how negotiation arenas may be
“closed/uninvited”, where decision-makers (e.g. bureaucrats or elected
representatives) negotiate decisions among themselves without involving
affected stakeholders; “invited”, where decision-makers invite affected
stakeholders to negotiate decisions, with varying scope (one, more or all
aspects of a decision) and voice (mere consultation to full negotiation); and
“claimed/created”, where space for negotiation is created through the
mobilisation of uninvited actors. The nature of the negotiation arena has
implications for the negotiating power of invited and uninvited actors.
Process and timeframe can also affect negotiating power. This is particularly
so in contexts characterised by strong imbalances in capacity and resources,
19