Legal empowerment for local resource control

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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). 83
84 which are in turn rooted in differences in resources, skills and influence. Negotiations between foreign investors and local resource users tend to be affected by the important power asymmetries between the two negotiating parties (see Table 3 above). This is even more problematic where government officials facilitating the negotiation side with the investor, as a result of government policy or individual attitude (see above). To sum up, negotiated benefit-sharing arrangements can provide a tool to enable local resource users to benefit from investment projects implemented on lands in which they have an interest – but their operation is affected by both legal and extra-legal factors. As for legal factors, reform to tighten legal requirements making benefit-sharing arrangements a condition for the allocation of resource rights to foreign investors, and to strengthen the legal value of benefit-sharing agreements and related monitoring and sanctioning mechanisms can increase the empowering potential of this tool.
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Legal empowerment for local resourc
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LEGAL EMPOWERMENT FOR LOCAL RESOURC
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ABOUT THE AUTHOR Lorenzo Cotula (lo
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ICSID International Centre for the
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viii
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x III. LEGAL TOOLS TO SECURE LOCAL
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2 Legal empowerment can increase lo
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4 and implementing para-legal tools
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6 1.1. OVERVIEW 1.1.1. The issue Ac
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8 local levels. Overall, the law te
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10 1.2. DEFINITIONS, SCOPE AND RATI
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12 generally, the range of strategi
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14 CHART 2. FDI STOCK IN SELECTED A
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16 the Middle East, to sub-Saharan
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18 2.1. POWER AND LEGAL EMPOWERMENT
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20 where short timeframes would pre
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22 provisions embodied in the const
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24 2.2. FOREIGN INVESTMENT PROJECTS
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26 country power structures through
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28 investor to access a specific lo
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30 compensation), 11 and those on t
Page 43 and 44: 32 that characterised the Cold War,
Page 45 and 46: 34 As a result, the international l
Page 47 and 48: 36 have also created government age
Page 49 and 50: 38 In Africa, very little land has
Page 51 and 52: 40 When conflicts between local and
Page 53 and 54: 42 FIGURE 1. LAW AND POWER IN FOREI
Page 55 and 56: 44 2.3. TOOLS FOR LEGAL EMPOWERMENT
Page 57 and 58: 46 citizens at large use them. The
Page 59 and 60: 48 2.3.2. Para-legal tools The fact
Page 61 and 62: 50 emphasise helping clients themse
Page 64 and 65: III. LEGAL TOOLS TO SECURE LOCAL RE
Page 66 and 67: institutional arrangements, or wher
Page 68 and 69: In Cameroon, efforts to vest strong
Page 70 and 71: Group rights and individual rights
Page 72 and 73: BOX 4. TOOLS FOR LOCAL GOVERNMENT A
Page 74 and 75: (section 1 of the Land Act and sect
Page 76 and 77: BOX 5. LOCAL CONVENTIONS Where stro
Page 78 and 79: and is meant to shift the balance o
Page 80 and 81: ights on the ground, which usually
Page 82 and 83: Denise Malauene Community land regi
Page 84 and 85: addressed. Reform to strengthen the
Page 86 and 87: state, local resource users can “
Page 88 and 89: Another aspect of “who to consult
Page 90 and 91: occur at a relatively late stage in
Page 92 and 93: To sum up Mandatory consultation pr
Page 96 and 97: 3.3. TOOLS TO MINIMISE AND COMPENSA
Page 98 and 99: In some cases, these EIA provisions
Page 100 and 101: Tighter legal requirements on SIAs
Page 102 and 103: First, legislation typically requir
Page 104 and 105: under the Village Land Act, “cust
Page 106 and 107: prohibits “arbitrary” deprivati
Page 108 and 109: the implementation of micro-project
Page 110 and 111: BOX 7. THE SAN OF BOTSWANA: COMBINI
Page 112 and 113: aise issues about the project’s s
Page 114 and 115: Tight rules on statutes of limitati
Page 116 and 117: to hold the parent company responsi
Page 118 and 119: IV. CONCLUSION 107
Page 120 and 121: Part III of the study analysed rece
Page 122 and 123: FIGURE 3. LEGAL TOOLS - CONCEPTUAL
Page 124 and 125: 4.2. FROM LEGAL TOOLS TO LEGAL EMPO
Page 126 and 127: First, each of the legal tools anal
Page 128 and 129: account is shaped by power relation
Page 130 and 131: 4.3. WHAT NEXT? This study has deve
Page 132 and 133: V. ANNEXES 121
Page 134 and 135: years or periodic tenancy, usually
Page 136 and 137: 5.2. REFERENCES 5.2.1. Literature A
Page 138 and 139: Egbe, S.E., 2001b, “The Law, Comm
Page 140 and 141: Platteau, J.P., 2000, “Does Afric
Page 142 and 143: BACONGO v. Department of the Enviro
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Legal empowerment for local resourc
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Legal empowerment for local resource control

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