Legal empowerment for local resource control

usually not formalised in the way required for them to have validity in
court (Tanner and Baleira, 2006); that they tend to be vaguely worded (for
instance embodying generic promises to create employment) and not to
have any measurable indicators and timeframes for delivery (which makes
enforcement difficult; Tanner and Baleira, 2006); and that noncompliance
with the benefit-sharing agreement is quite common and is
not treated as a justification for sanctions concerning the forest concession
(Johnstone et al, 2004; Durang and Tanner, 2004). These factors
undermine the legal value of benefit-sharing agreements. 46
The extent to which the benefit-sharing arrangement is established as an
ongoing process rather than as a one-off exercise. Resource right
allocations to investors are usually for rather long terms, possibly
spanning several decades. On the other hand, in both Ghana and
Mozambique, the negotiation of benefit-sharing agreements is regulated
as a one-off exercise. No mechanisms for systematically monitoring and
reviewing benefits and benefit-sharing is established. In many cases, this
problem is exacerbated by the content of the benefit-sharing agreements
themselves – which often emphasise one-off compensation and small
amounts of money rather than long-term revenue flows pegged to the
income generated by the investment project. For instance, two reviews of
benefit-sharing agreements in Mozambique found that many of these
emphasise elements like financial compensation and the construction of
schools and clinics (Norfolk, 2004; Tanner and Baleira, 2006).
The extent to which there exist monitoring institutions with the legal
authority and the capacity to monitor compliance and to sanction noncompliance.
Both Mozambican and Ghanaian legislation are silent on this
issue.
Besides these legal issues, extra-legal aspects importantly affect the
outcome of benefit-sharing negotiations and arrangements. By their very
nature, these outcomes are shaped by differences in negotiating power,
46. This issue is illustrated by the unreported Cameroonian case Chief S.B. Oben and Others v. Mukete
Plantations LTD (1994), summarised in Egbe (2001a). The case involves non-compliance by a logging
company with the terms of a benefit-sharing agreement signed in 1979 with a local community. The
agreement provided for the construction of infrastructure like health centres and roads. Based on this
agreement, the company obtained a concession from the government. However, ten years after the
conclusion of the agreement, implementation had not yet started. The community sued the company, and
was awarded a small amount of damages (equivalent to some 1,500 GBP).
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