Legal empowerment for local resource control

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The extent to which the conclusion of benefit-sharing arrangements is
required by legislation. Requirements embodied in legislation are usually
vague. Ghana’s Timber Resources Management Act 1997 requires investors
applying for a Timber Utilisation Contract to make “proposals to assist in
addressing social needs of the communities who have interest in the
applicant’s proposed area of operations” (section 3(3)(e)); although
implementing regulations require that such proposals be based on an
agreement negotiated with local stakeholders (section 13). Similarly, in
Mozambique, legislation is silent about benefit-sharing agreements: the
Land Act 1997 and the Forest and Wildlife Act 1999 require consultation
with local communities (section 13(3) and 17(2), respectively), which
suggests that some form of agreement is reached at the end of the
consultation process; but no provision is made on the nature and legal
value of this agreement.
Who concludes the benefit-sharing agreement on behalf of local resource
users. This is key to preventing capture of benefits by local elites. In
Mozambique, “local communities” are established as legal entities by the
Land Act (see above, chapter 3.1). The implementing regulations of the
Land Act require community consultation reports to be signed by at least
three and up to nine representatives (article 27). In some cases, these nine
representatives have de facto evolved into a sort of standing committee
responsible for land management decisions (CTC Consulting, 2003). This
has no basis in the law, under which the nine representatives are merely
responsible for signing documents on behalf of all community members,
not for taking decisions (CTC Consulting, 2003). This (mis-)application of
the law may pave the way to abuse and elite capture.
The legal value of the benefit-sharing agreement, including its
relationship with the natural resource concession to which it relates.
Although benefit-sharing agreements (or proposals based on them, in the
case of Ghana) are to be annexed to the investor’s application for the
allocation of natural resource rights, their legal value is unclear in both
Ghana and Mozambique. In particular, it is not clear whether the
investor’s non-compliance with the benefit-sharing agreement can be
sanctioned by the host state with interference with the investor’s resource
exploitation rights (suspending or even terminating them). In
Mozambique, evidence suggests that benefit-sharing agreements are