Legal empowerment for local resource control

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“has no occupants” (article 13(3) of the Land Act; see also article 24 (1)(c) of
the same Act). If the area is not free, then landholding communities and
investors are expected to negotiate some form of benefit sharing to
compensate for loss of land access for the community (although the Land
Act itself does not explicitly state this; see below, section 3.3). As for forest
rights, the Forest Act simply requires “consultation with affected
communities” before forest concessions are issued (article 17(2)). Differently
to the Land Act, the Forest Act does not clarify the object and scope of the
consultation. However, here too the expectation is that communities and
investors would negotiate benefit-sharing agreements as part of the process
to obtain the approval of local communities to the grant of resource rights
to the investor.
Overall, the narrower the scope of the consultation process, the more
limited its potential for local empowerment. Even with regard to the
specific issue of resource access, local resource users may be under
considerable pressure to endorse the investor’s resource access once all the
other issues have already been resolved between the central state and the
investor. This may reduce the significance and impact of the consultation
exercise. Legal reform extending the scope of the consultation may give
local resource users more negotiating power and greater control over the
resources on which they depend.
Process: sequencing, timing and quality
Linked to the previous point, the timing of the local consultation and its
position in the broader process for the allocation of resource rights is also
key. Does the consultation take place when all options are still open, or
does it happen when the key decisions (e.g. on whether the investment
project should go ahead in the first place) have already been taken?
In general, the latter scenario is the most common. In Ghana, for instance,
evidence suggests that timber contracts are usually issued before
consultation with local resource users take place, and it is then up to the
contract holder to find an arrangement with local users. As in the case of
scope, the practical operation of this approach tends to undermine the
negotiating power of local resource users.
In Mozambique, local consultation is to take place before the issuance of
land and forest rights. But even in these cases, consultation still tends to