Legal empowerment for local resource control

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addressed. Reform to strengthen the content of local resource rights (from precarious rights to unconditioned, long-term use rights through to ownership), to link strengthening of land rights to greater control over valuable resources, to establish accessible processes for documenting local resource rights, and to protect resource rights irrespective of documentation can sharpen the effectiveness of these tools. These issues need to be addressed in a systematic way – documenting local resource rights would do little to strengthen these rights if their nature and content remain weak and unclear. 73
74 3.2. CONSULTATION AND BENEFIT-SHARING TOOLS 3.2.1. Introduction A second set of tools concerns legal requirements for investors to consult local resource users and to negotiate with them benefit-sharing arrangements. Broadly speaking, these tools seek to address the mismatch that large-scale investment projects may produce, whereby much of the benefit accrues to the government and/or the country as a whole (e.g. in terms of taxation and royalties, and of contribution to the national GDP) while costs are mainly borne by local resource users (e.g. in terms of loss or damage to property). These tools seek to reduce this mismatch by enabling local resource users to participate in the benefits generated by the investment project. For instance, Ghana and Mozambique have adopted legislation that specifically regulates consultation and/or benefit-sharing arrangements in investment projects. Relevant provisions are also included in the legislation of the other focus countries (e.g. Tanzania). Consultation and benefit-sharing tools present some degree of overlap with other tools examined here. For instance, local consultation may be required not only as a stand-alone process but also as part of broader social impact assessment processes (see below, section 3.3.2). Benefit sharing is conceptually distinct from compensation, as it aims to go beyond reparation for loss or damage suffered and is a continuing rather than a one-off mechanism; but, in some cases, the border line between compensation and benefit-sharing is in practice blurred (on this, see below, section 3.3.3.) 3.2.2. Mandatory consultation processes A first type of tool is for the law to require the government and/or the investor to “consult” local resource users as part of the process to approve a proposed investment project and/or to allocate resource rights to foreign investors. Consultation requirements may be embodied in sectoral legislation – such as mining and forestry legislation. As a result, the application of such requirements may vary not only across countries but also across sectors within the same country. In Tanzania, for instance, when the president decides to transfer part of village-held land to “general land” under the direct control of the central
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Legal empowerment for local resourc
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LEGAL EMPOWERMENT FOR LOCAL RESOURC
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ABOUT THE AUTHOR Lorenzo Cotula (lo
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ICSID International Centre for the
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viii
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x III. LEGAL TOOLS TO SECURE LOCAL
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2 Legal empowerment can increase lo
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4 and implementing para-legal tools
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6 1.1. OVERVIEW 1.1.1. The issue Ac
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8 local levels. Overall, the law te
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10 1.2. DEFINITIONS, SCOPE AND RATI
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12 generally, the range of strategi
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14 CHART 2. FDI STOCK IN SELECTED A
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16 the Middle East, to sub-Saharan
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18 2.1. POWER AND LEGAL EMPOWERMENT
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20 where short timeframes would pre
Page 33 and 34: 22 provisions embodied in the const
Page 35 and 36: 24 2.2. FOREIGN INVESTMENT PROJECTS
Page 37 and 38: 26 country power structures through
Page 39 and 40: 28 investor to access a specific lo
Page 41 and 42: 30 compensation), 11 and those on t
Page 43 and 44: 32 that characterised the Cold War,
Page 45 and 46: 34 As a result, the international l
Page 47 and 48: 36 have also created government age
Page 49 and 50: 38 In Africa, very little land has
Page 51 and 52: 40 When conflicts between local and
Page 53 and 54: 42 FIGURE 1. LAW AND POWER IN FOREI
Page 55 and 56: 44 2.3. TOOLS FOR LEGAL EMPOWERMENT
Page 57 and 58: 46 citizens at large use them. The
Page 59 and 60: 48 2.3.2. Para-legal tools The fact
Page 61 and 62: 50 emphasise helping clients themse
Page 64 and 65: III. LEGAL TOOLS TO SECURE LOCAL RE
Page 66 and 67: institutional arrangements, or wher
Page 68 and 69: In Cameroon, efforts to vest strong
Page 70 and 71: Group rights and individual rights
Page 72 and 73: BOX 4. TOOLS FOR LOCAL GOVERNMENT A
Page 74 and 75: (section 1 of the Land Act and sect
Page 76 and 77: BOX 5. LOCAL CONVENTIONS Where stro
Page 78 and 79: and is meant to shift the balance o
Page 80 and 81: ights on the ground, which usually
Page 82 and 83: Denise Malauene Community land regi
Page 86 and 87: state, local resource users can “
Page 88 and 89: Another aspect of “who to consult
Page 90 and 91: occur at a relatively late stage in
Page 92 and 93: To sum up Mandatory consultation pr
Page 94 and 95: usually not formalised in the way r
Page 96 and 97: 3.3. TOOLS TO MINIMISE AND COMPENSA
Page 98 and 99: In some cases, these EIA provisions
Page 100 and 101: Tighter legal requirements on SIAs
Page 102 and 103: First, legislation typically requir
Page 104 and 105: under the Village Land Act, “cust
Page 106 and 107: prohibits “arbitrary” deprivati
Page 108 and 109: the implementation of micro-project
Page 110 and 111: BOX 7. THE SAN OF BOTSWANA: COMBINI
Page 112 and 113: aise issues about the project’s s
Page 114 and 115: Tight rules on statutes of limitati
Page 116 and 117: to hold the parent company responsi
Page 118 and 119: IV. CONCLUSION 107
Page 120 and 121: Part III of the study analysed rece
Page 122 and 123: FIGURE 3. LEGAL TOOLS - CONCEPTUAL
Page 124 and 125: 4.2. FROM LEGAL TOOLS TO LEGAL EMPO
Page 126 and 127: First, each of the legal tools anal
Page 128 and 129: account is shaped by power relation
Page 130 and 131: 4.3. WHAT NEXT? This study has deve
Page 132 and 133: V. ANNEXES 121
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years or periodic tenancy, usually
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5.2. REFERENCES 5.2.1. Literature A
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Egbe, S.E., 2001b, “The Law, Comm
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Platteau, J.P., 2000, “Does Afric
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BACONGO v. Department of the Enviro
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Legal empowerment for local resourc
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Legal empowerment for local resource control

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