Legal empowerment for local resource control

Another aspect of “who to consult” concerns whether mandatory
consultation requirements relate to individuals, to groups or to both. Under
Ghana’s Timber Resources Management Act, both seem possible. In
Mozambique, on the other hand, consultation requirements are established
with specific regard to “local communities” (on which see above, chapter
3.1).
Where consultations are held with groups (“communities”), there is a need
to clarify who represents the community in consultation exercises
(particularly given the large size of many communities – see above, chapter
3.1); and which accountability mechanisms can be established between the
representatives and the represented. Evidence from Mozambique suggests
that, in many cases, consultation processes for the allocation of land rights
and/or forest rights to investors only involve few community members,
usually customary chiefs and local elites; that women are rarely involved;
and that there is little internal discussion between community
representatives and their constituents (Norfolk, 2004; Durang and Tanner,
2004; Tanner and Baleira, 2006).
Object and scope of the consultation
Another key variable of mandatory consultation processes concerns their
object and scope. What are local resource users consulted about? Is the
object of consultation the very desirability of the investment project in the
land area they use, or the terms and conditions of such project? Or is it the
more specific issue of its impact on local resource rights (the other more
fundamental issues being reserved to determination by the central
government without much consultation)?
The last scenario is the most common one: even where consultation is
legally required, its scope is limited to obtaining the consent of local
resource users for granting resource rights within their land area to the
investor. For local resource users, the most that can come out of it is (not a
reshaping of key decisions concerning the investment project but) some
degree of benefit sharing. This is the case in Ghana and Mozambique.
In Mozambique, the consultation process is conceived slightly differently for
land and forest rights. In the case of land rights, community consultation is
required before land use rights are allocated to investors; the specific object
of this consultation concerns ascertaining that the land area is “free” and
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