Legal empowerment for local resource control

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Strength of “voice”: from consultation to consent
The final key issue concerning mandatory consultation processes relates to
the extent to which the views of local resource users have to be taken into
account. Scenarios vary from rather vague obligations to consult to more
stringent requirements to obtain the consent of local resource users.
In Mozambique, for instance, while investors are required to consult “local
communities”, they are not legally required to obtain their consent.
Ultimately, even if the community opposes the project, the state can still
decide to allocate resource rights (e.g. forest concession) to a foreign
investor (under the Forest and Wildlife Act 1999). Similarly, in Tanzania,
local resource users can “make representations” to the Land Commissioner
on transfers of land from villages to the central state. The Land
Commissioner must “take [these representations] into account” but is not
bound to follow them (section 4(5) of the Village Land Act 1999).
In relation to indigenous peoples, international law requires their
consultation on the allocation of resource rights in their lands, and “free
and informed consent” for their relocation (articles 15 and 16 of ILO
Convention 169). These provisions are reflected in the domestic law
provisions of some countries (for instance, outside the African context,
under section 16 of the Philippine’s Mining Act 1995, which requires the
“prior consent” of indigenous communities for mining operations in their
ancestral lands). No such provisions exist in the legislation of the African
countries on which this study focuses.
This issue has very major implications for the quality of the consultation
process (which may become a mere “box-ticking” exercise if appropriate
safeguards are not provided) and for the negotiating power of the parties
involved in it. Everything else being equal, a “veto” power gives local
resource users substantially greater negotiating power, and is likely to
enable them to extract more advantageous benefit-sharing conditions than
would otherwise be possible. On the other hand, an absolute veto power
may be difficult to operate, as it would offer local resource users the basis
for “holding out” and it may prevent the implementation of projects that
would be in the public interest. This calls for combining tight consultation
requirements with robust safeguards in compulsory takings of local
resource rights (see chapter 3.3).