International Institute for Environment and Development - Land acquisitions and rights

US Supreme Court dims a light in corporate accountability

lorenzo.cotula@iied.org (Lorenzo Cotula) — Wed, 1 May 2013 12:11:16 +0100

A recent US judgment is a setback in efforts to improve corporate accountability, but promising developments elsewhere are creating new opportunities.

As the spread of economic globalisation continues to extend its reach, competing interests backed by unequal negotiating power are coming into contest. From the oilfields of Nigeria to the farmland of Laos through to the copper mines of Papua New Guinea, local villagers find their claims to land and resources squeezed by concessions for petroleum, mining, forestry or agricultural developments.

Legal recourse as a pathway to accountability

Local-to-global alliances of affected villagers, federations of producer organisations, activists, NGOs, diaspora associations and public interest lawyers are pursuing multiple strategies to hold governments and companies to account.

Legal recourse in national, international and transnational legal arenas provides opportunities for villagers to seek justice and accountability – as discussed in a recent IIED report exploring accountability in the global rush for Africa’s land, for example.

In recent years, communities who have felt wronged by large natural resource projects have brought their claims to national courts, to regional and global human rights bodies, and to grievance mechanisms that companies, lenders and multi-stakeholder bodies estalished to deal with complaints.

Transnational court litigation – that is, suing a company in its home country, or in a third country for the activities of its subsidiaries overseas – has also emerged as an important part of this wider set of legal strategies. But the contours of transnational court litigation are changing fast.

US courts shine a light

For the past three decades, the United States has provided a unique legal arena for efforts to hold companies to account through transnational litigation. The Alien Tort Statute, a statute adopted in 1789, gives US courts jurisdiction for violations of customary international law. This statute was mainly intended to fight piracy, and remained an obscure and little-used law for centuries.

But in 1980, successful litigation brought by a Paraguayan national against a Paraguayan government official for alleged human rights violations that took place in Paraguay changed the relevance of the statute, because US courts held that they had jurisdiction to hear cases involving conduct with no or minimal connection to US territory.

This case opened the door to a flurry of transnational litigation against companies accused of ‘aiding and abetting’ foreign governments in violating human rights overseas.

Transnational litigation based on this law has provided relief to victims of human rights violations in different parts of the world. There are many reasons why claimants may want to litigate in the United States, instead of their own country. Claimants may have little faith in the independence or effectiveness of their national courts. They may have inadequate legal support in their country, and they may be able to obtain higher damages and more easily enforceable judgements in the United States. There is also symbolic value in bringing a case against a parent company in a highly visible public arena.

The wind is changing

In recent years, however, US courts have taken an increasingly restrictive approach to interpreting the Alien Tort Statute. In 2010, an appeals court found that companies could not be sued under the statute, arguing that there is no clear norm of customary international law that makes companies responsible for human rights violations – though other judgements held otherwise.

On 17 April 2013, the Supreme Court issued a long-awaited judgement on a high-profile claim brought by Nigerian nationals against a European oil giant. Years ago, the African Commission on Human and Peoples’ Rights found that the Nigerian government had violated fundamental rights of the Ogoni people in the 1990s, when the Ogonis were struggling against the marginalisation and environmental degradation associated with oil developments in the Niger Delta.

In the US lawsuit, the claimants accused Shell of supporting the Nigerian government in its repression of Ogoni leaders. The Supreme Court dismissed the complaint unanimously, though judges differed in the reasoning.

The majority opinion held that laws should be presumed not to have extraterritorial application unless they explicitly state otherwise, and that there was no evidence that the Alien Tort Statute was intended to depart from this presumption. Because the alleged human rights violations occurred entirely outside US territory, and because the suit was brought against a company based outside the US, the court held that it had no jurisdiction to hear the case.

A fatal blow?

This change in interpretation is a major blow for human rights activists, and for victims of human rights abuses worldwide. Only a few years ago, the same oil company agreed to pay $15.5 million to settle a related claim brought under the Alien Tort Statute by relatives of other Ogoni leaders, who were killed in the 1990s as part of the Nigerian government’s crackdown on the Ogonis. The company denied any wrongdoing, but said it hoped the settlement would aid reconciliation.

Many pending cases filed under the Alien Tort Statute are now likely to be dismissed. The Supreme Court has already ordered that a ruling that affirmed US jurisdiction in a lawsuit against a UK-based mining company be reconsidered. The lawsuit was brought against the company for alleged human rights violations in Papua New Guinea.

But this is not the end of transnational litigation under the Alien Tort Statute.The statute could still be relied on in future lawsuits against US companies.The court held that claims must be connected to US territory ‘with sufficient force’, but it did not provide clear guidance on what level of connection might be required.

Human rights activists will no doubt work to push the boundaries of this opening. But it is equally possible that US companies will lobby harder against the use of legislation that now puts them at a disadvantage compared to their international competitors.

Also, depending on the jurisdiction, transnational litigation could be brought under the ordinary law of torts – the norms whereby any person who wrongfully harms others must bear responsibility for the actions. Those who suffer damage as a result of activities carried out by subsidiaries operating overseas may try to sue the parent company in its home state under these norms. There is experience with this type of litigation in some jurisdictions, for example in the United Kingdom, though there are also considerable legal and practical barriers.

Looking east

But the notion that transnational litigation can provide a legal arena for the pursuit of corporate accountability is spreading beyond western countries. In Thailand, the National Human Rights Commission has been prepared to hear complaints involving natural resource investments (such as the building of dams or agricultural plantations) made by Thai companies operating in Myanmar, Laos and Cambodia.

For example, in July 2012 the Thai human rights commission found that it had jurisdiction to examine a complaint filed by the Cambodia Legal Education Center, a Cambodian public interest law group, on behalf of villagers affected by a Thai-owned sugar cane plantation and processing facility in Cambodia. The lawsuit involved allegations of illegal confiscation of land from local people, the use of force, threats and intimidation in evicting villagers from their land and the killing of their livestock.

As the balance of global economic power and the source of investment flows are shifting east, new openings for transnational litigation in emerging economies are undoubtedly a positive development.

Read Accountability in Africa's land rush: what role for legal empowerment

Find out more about our Legal tools for citizen empowerment project

Niger: Tough questions posed by the Kandadji dam development

jamie.skinner@iied.org (Jamie Skinner) — Fri, 19 Apr 2013 13:29:20 +0100

A new dam in Niger could generate electricity, create thousands of hectares of irrigated land and guarantee water for domestic use and fisheries. But making sure the dam benefits everyone is a complicated business.

2700 people live in the village and hamlets of Kandadji in western Niger. They mostly get by farming millet and rice on land that their parents and grandparents have farmed for generations. Livestock rearing and fishing in the floodplains of the Niger River provide them with essential protein.

Kandadji is typical of the 240 settlements that will be flooded to create the Kandadji dam reservoir in Niger. 38,000 people are being displaced in the process, losing their houses, fields and grazing land to a dam intended to generate 565 GWh of electricity, irrigate 45,000 ha of land and control the flow of the Niger River, restoring downstream ecosystems and guaranteeing drinking water supply to the capital, Niamey.

IIED and IUCN have been working with the dam developer since 2008 through the Global Water Initiative, funded by the Howard G Buffett Foundation, to empower small holders, support the respect of their rights through secure land tenure arrangements and promote benefit sharing from the dam’s new resources and revenues.

What is ‘just’ compensation?

Niger Law requires everyone to receive ‘just’ compensation for their lost assets, but this is easier said than done. The government has decided to offer government-owned land that can be irrigated (referred to as ‘improved land’) in “like-for-like” compensation for the loss of privately-owned traditional land. While their existing land is much less productive than the improved land, it is privately owned, and they can rent, inherit, divide or simply leave it fallow if they wish.

The question is how best to create new livelihood opportunities for those affected by the dam. Resettled people will need to transform their production systems away from risk-averse, low-yielding subsistence farming into intensive cash-rich production methods on new irrigated land systems that have cost the state anything up to (US) $20,000/hectare to build. Such systems require cash for up front investments in seeds and fertiliser, as well as to pay an annual water management fee to fund the operation of pumps and the maintenance of canals.

The new irrigation schemes are legally on public land, while people have lost private assets – the traditional land they farmed for generations, and which they could essentially do with as they pleased, including renting or dividing the land to pass on to the next generation. How many of these intrinsic rights will be applicable on the public land? And what happens if someone can’t or doesn’t pay their water fees, which are essential to maintaining the irrigation system – should they lose their land? What if people prefer to grow maize or cash crops rather than the rice the government expects? Will they be free to do so?

These are some of the issues that the Global Water Initiative and its partners are addressing at the request of the dam developer and will report back in June.

The meeting of the steering group for the project in early April showed there is still a diversity of views. Some feel that the government’s huge financial investment should create constraints for resettled smallholders who should be required to produce rice to satisfy national food security, as this is why the dam is being built. Others see resettled people as having exactly the same status as all people in Niger and undeserving of any particular special treatment.

Others see the defence of the smallholder farmer’s rights as key to long-term conflict-free development. The concern voiced is that these people will lose their traditional rights. If they become unable to pay the annual water fees and are thrown off the irrigation scheme as a result, they will be unable to support themselves and their families. Land is a major intergenerational capital asset that once lost is impossible to recover.

Loss of cultivation rights is exactly what happened to resettled people who were given intensive irrigated plots at Sélingué Dam in Mali in the early 1980s. The shift from rain fed millet to rice cultivation proved too challenging, yields were low, revenues generated did not cover the cultivation costs and water fees, and many lost their plots in consequence. Read this publication for more detail on this and other dam-building examples in Burkina Faso, Mali and Senegal.

The World Bank-led planners of Kandadji Dam have spent millions of dollars on all the feasibility studies and compensation and mitigation plans. Operational safeguards have been applied, thick documents and plans scrutinized to the last comma, nine donors and nine nation states of the Niger River have agreed the plans. The first wave of around 5,000 people who inhabit the dam construction site are currently being moved, and as of 31 March 2013 some 111 out of the 749 families concerned have already received compensation and rebuilt their houses in new sites.

A study undertaken by the Global Water Initiative in December 2012 showed that those people who had been resettled felt well informed about the project and most said that their physical assets (houses, granaries, latrines etc,) had been properly compensated for, and they awaited compensation proposals for land. Some 140 households refused the compensation package offered for housing and some went to court. But independent assessment of the compensation rates showed those offers to be generous and the judge recently ruled against increasing them.

Compensation for land, however, can only begin when the legal status of the new land is clearly defined. There are some key questions to be answered. Will farmers accept the proposal to replace 1 ha of less productive traditional rice field with around 0.3 ha of land that will be intensively irrigated?

Consultations have been undertaken in fixing these rates but it is unclear who “accepted” that proposal on behalf of the affected communities and to what degree individual farmers now feel bound by it. Government experts argue that the production potential of the irrigation scheme is much higher than traditional land, so they replace the area of lost land with an area that produces an equivalent yield. Is this the “just” compensation the law demands ?

Determining real market values for the land

Replacement value for a house is fairly easy to calculate and cost, but agricultural land is held in trust from generation to generation and only rarely ceded, so real “market” values are hard to determine.

Equally the government only knows what it costs to build new improved irrigation systems, not what the market is prepared to pay for them, as no such market exists. So agronomists calculate the area of improved land theoretically required to grow the same amount of food as on the traditional land. Communities will be offered compensation for their land over the coming months and only then will we know whether the compensation ratios offered are fully acceptable to them.

The Global Water Initiative is now focussed on drafting a legal act for each plot that will provide tenure security for resettled people on public land, codifying under modern law as many of their traditional rights as is required to ensure “just” compensation. When the land is finally allocated to people it will be the expropriating judge who will have to decide whether the amount of land offered, and the tenure terms of that agreement are indeed “just” in legal terms. Local people will be free to challenge this in court, as was the case mentioned above for financial compensation for housing.

Equally unknown is whether the irrigated land and the smallholder farmers’ productivity will indeed meet the agronomists’ predictions. To do so, farmers will have to raise 250,000-300,000 CFA ($500-$600) in cash to invest in a single hectare of intensive rice cultivation. Financial credit will be available, but resettled farmers will need to be very productive in their first few years to avoid falling into debt.

From the farmers’ perspective he or she needs to re-establish a livelihood after resettlement in order to feed and clothe his or her family. Resettlement is not an exact science, but the scale of displacement in Niger means a lot of very frustrated and impoverished people if land compensation proves insufficient, or if people can’t access and repay the financial credit they need to carry out intensive irrigation.

The Global Water Initiative is helping to ensure secure land tenure for those being resettled. But this is only one step in the transition to agricultural intensification in Niger. Nobody really knows whether the people of Kandadji will be able to make the transition to intensive farming, and whether those thick volumes of plans prove viable or not.

Read this briefing to find out more about IIED's work with the Global Water Initiative to improve the development outcomes for people affected by the construction of the Kandadji Dam.

Global land rush: Contract transparency is crucial, but not enough

lorenzo.cotula@iied.org (Lorenzo Cotula) — Wed, 17 Apr 2013 09:28:45 +0100

Greater transparency was a key theme at the World Bank land conference last week. Transparency is critical, but without greater accountability to local communities it is not enough.

The growing challenge of large-scale land acquisitions in developing countries has featured prominently in discussions over the past few years at the annual World Bank Conference on Land and Poverty. This year, transparency in contracting for land deals was an important theme at the conference, which attracted hundreds of development practitioners, government officials, activists and companies.

A representative from Global Witness articulated a powerful case for transparency, and discussed the “who”, the “what”, the “when” and the “how” of improved transparency in contracting processes. The head of the secretariat of the Liberia Extractive Industry Transparency Initiative shared Liberia's experience with publicly disclosing agribusiness contracts, alongside forestry and extractive industry concessions. The Land Matrix, an initiative that is shedding light on deals for which reliable information is hard to come by, was also discussed at the conference.

Much secrecy surrounds the negotiation of land deals, and improving transparency is an important battle worth fighting for. Transparency in contracting is a crucial precondition both for meaningful local deliberation and for public scrutiny of public and private sector action. Citizens have the right to know how governments manage resources on their behalf.

As I argued in this presentation scrutinising land contracts is particularly important because they reflect the ‘real deal’ beyond the promises of company and government officials. Greater transparency in the contracting process would send out a clear signal to investors and add pressure to secure fair terms for local communities.

Grounds for optimism

Mounting pressure for greater public scrutiny provides some grounds for optimism. Several international ‘good practice’ guidelines support disclosure of contract terms unless compelling reasons require otherwise, such as the recently revised International Finance Corporation’s performance standards and the UN Principles on Responsible Contracts. The UN Food and Agriculture Organisation’s Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests call for transparency in land allocations. A new, ambitious Open Contracting initiative promotes transparency in public contracting, including land concessions. Finally, a few governments have disclosed their land contracts, including Ethiopia, while in Liberia disclosure is a legal requirement.

Legislation in the investors’ home countries can help too. In the United States, the Dodd-Frank Act of 2010 requires disclosure of payments to governments made by extractive industry companies listed on US stock exchanges, and the EU adopted comparable legislation last week. Similar arrangements requiring companies listed in richer countries to disclose their land deals overseas would go a long way towards increasing transparency — though in today's difficult economic climate, there is little political appetite for this.

Looking beyond transparency

But greater transparency and even full contract disclosure are not enough. An investment contract comes after a decision-making and negotiation process. Public consultation is critical before the deal is made though effective community engagement in the early stages of project design. International best practice points to the principle of free, prior and informed consent. Different people have defined this principle in different ways. But a strict interpretation means that proposed investments can only go ahead if they secure the consent of local groups. It also means that such consent must be free of coercion and based on provision of adequate information. There are major challenges in making this principle work in practice, but also growing guidance and experience.

After the contract is signed, disclosure can only improve accountability if those who are affected by decisions, and the public at large, can get organised and use the information disclosed. Non-governmental or local producer organisations, parliamentarians and the media can play a particularly important role in scrutinising public action, including the contracts that a government is signing up to. Much depends on the political space, and local groups may need support when scrutinising often complex contractual arrangements.

Pathways to accountability from below

Transparency is only one piece in the complex mosaic of interventions needed to improve accountability. A recent IIED report exploring pathways to accountability in the rush for Africa's land found that, today, citizen efforts to hold governments and companies to account are undermined by:

centralised government control over land,
national investment policies that favour large- over small-scale investments,
unbalanced international norms and
shortcomings in participation and recourse mechanisms.

The report also found that people who feel wronged by large land deals are mobilising to seek justice through a wide range of strategies — from peaceful protest to court action, through to alliances with national and global players. It is this growing demand for accountability from below that holds greatest promise.

There is a need to reform the national and international legal frameworks regulating land and investment in ways that increase local control and downward accountability, and to strengthen citizens’ capacity to influence policy processes, claim their legal rights and advocate alternative visions of development.

Greater transparency is a key part of making this happen, and a critical step in the right direction. But unless these wider challenges are properly addressed, the emancipatory potential of hard-fought advances in transparency is unlikely to go far enough to make a real difference to villagers living off the land.

Read Accountability in Africa's land rush: what role for legal empowerment

Gaining Ground? Report sheds light on demand for accountability amid resistance to land deals in Africa

mike.shanahan@iied.org (Mike Shanahan) — Fri, 5 Apr 2013 07:11:52 +0100

People who feel wronged by large scale land deals in Africa are taking a variety of steps to seek justice, according to new research that examines the accountability of public authorities that preside over such deals and asks whether legal empowerment offers citizens scope to expect fairer outcomes.

Dr Lorenzo Cotula of the International Institute for Environment and Development (IIED) will present the findings of the new report at a World Bank conference on large land deals in Washington DC on 8-11 April.

The research – published by IIED and the International Development Research Centre -- analyses legal frameworks in 12 African countries and reviews the cases of 16 large scale land deals.

Large scale land deals can bring benefits such as jobs, market access and infrastructure, but they can also dispossess people of land and other resources and can spark conflict over economic benefits. Part of the problem is that land deals are rarely transparent and that there is limited accountability on the part of the public authorities that decide them.

"We need to understand more about the accountability weaknesses in different contexts – such as the imbalances in legal frameworks and the ways in which political interests affect deals," says the report’s lead author Emily Polack of IIED. "We also need to understand what options citizens have to seek greater accountability – and how to strengthen the mechanisms they can use as well as their ability to use them."

The research assesses the effectiveness of different ways citizens respond when they perceive land deals to be unjust. These efforts include letter writing, requesting an audience with authorities, forming local associations to strengthen negotiating power, and using courts and other formal legal mechanisms. Demonstrations can follow if these routes fail.

The report shows too that few legal options are available to local groups and that there is an imbalance in the way laws protect investors, governments and communities. Meanwhile, many of the smaller land deals pass unnoticed, leaving even fewer options for redress.

"On one hand, international investment law is strong and offers great protection to investors who seek to acquire large areas of land," says co-author Lorenzo Cotula of IIED. "On the other, international human rights laws tend not to be very effective in protecting the rights of poor communities. Meanwhile, features of national laws provide the basis for rights and accountability but very often they legitimise abuses of power against the powerless."

The report explores ways that legal empowerment could improve public accountability through two complementary approaches – one that reforms national and international legal frameworks to increase local control and downward accountability, and one that increases citizens’ capacity to engage in policy processes, claim rights and advocate alternative visions of development.

"Improved public accountability is critical to democracy as it enables local people to voice their concerns about large scale land deals," says Adrian Di Giovanni of IDRC. "It discourages harmful investments and makes it more likely that everyone involved will gain from incoming investment."

IIED and IDRC will publish the report in both English and French. It will set out an agenda for future research on large land deals and accountability.

The report will be available online on 5 April 2013. For a copy of the report before then, email mike.shanahan@iied.org

Q&A with Fadzilah Majid-Cooke: land rights and agricultural investments in Southeast Asia

suzanne.fisher@iied.org (Suzanne Fisher) — Mon, 18 Mar 2013 12:30:44 +0000

A global land rush is occurring in southeast Asia driven by an increased expansion of large concessions and land-based agricultural investments. This is transforming the way land is used and is resulting in rapid changes in land ownership. Weak local land rights and a lack of transparency in land deals continue to drive dispossession and weak accountability between states and citizens.

While national and international legal developments strengthen protection for investors and investing economies, they afford far less protection for local communities. In this context, civil society groups are using various tools and strategies to give citizens and farmers a stronger voice in agricultural investment.

Some of these include innovative forms of legal aid and legal education, alongside campaigns for legal reforms and challenging investment laws and procedures on their constitutionality. These strategies and tools were also the topic of a recent public forum and civil society workshop meeting of groups from across Southeast Asia, which was hosted by IIED and Focus on the Global South.

IIED researcher Emily Polack spoke to Fadzilah Majid-Cooke, Associate Professor in Environmental Sociology at the School of Social Sciences, Universiti Malaysia Sabah (Sabah University of Malaysia), about her impressions from the meetings.

Would you say there were more differences or similarities between the contexts and types of legal strategies the different participants are engaged in?

The workshop brought together participants from Myanmar, Thailand, Laos, Cambodia, Vietnam, Indonesia, Malaysia and the Philippines. Surprisingly, after listening to the three days of discussion, there appear to be more similarities than differences within the Southeast Asia region with regard to the status of citizens’ land rights and the types of redress mechanisms that people have available to them. There are however some differences in the degrees of political control and freedoms that determine the relative space for, or size of, civil society, including access to media and the role of electoral politics.

In the forum you raised an interesting question about needing to generate alternative visions of ‘modernity’ and how, through this, we can respect and protect those producing our food?

Yes - similarities are also seen across the region in the model of development that tends to be more top down. The encouragement of farmers to exit agriculture or to move into wage labour on estates or plantations as a way out of poverty is reflective of a common view of ‘modernity’. The dominant industrial model leads to subsistence and smallholder agriculture still being perceived as holding back ‘modernity’. So modernity is not merely a transformation of the landscape but a particular type of development that is based on an ideological platform that large is best, or big is beautiful. This ideological position has stuck and is being reinforced through globalisation as production for the markets becomes more entrenched over the social aspects of agriculture which emphasise the cultural and social significance of production.

What did you personally find most interesting about the debates during these meetings?

I have learnt from this workshop that in Lao PDR there is limited understanding or provision for customary rights. So there is lots to be learnt between countries in Southeast Asia, especially from those that have some provisions in their legislation for the recognition of customary rights.

Having said that there is a common problem facing many countries in southeast Asia and that is the only partial recognition of local rights when customary law is superimposed by statutes. Under legal pluralism, statutory legal systems that are being applied locally, and customary laws are accompanied by a set of political and economic relations which often undermine recognition of customary rights to land, or at best partially acknowledge their existence. In many systems where there is legal pluralism, customary rights to the land are acknowledged by the state only when the lands are titled. Since a large proportion of lands are untitled then, they risk losing it.

This partial recognition faces further challenges in relation to the political space which determines the nature of the work of civil society. Limited political space in some countries means that engaging with government and building synergies may need to be approached with ‘cautious enthusiasm’.

We’ve heard about and discussed some very challenging contexts in which power imbalances mean that governments become beholden to investors as international investment agreement and contract enforcement powers on the part of companies are much stronger? What are some strategies going forwards to tackle this problem?

My feeling is that governments are often interested in trying new ideas and strategies, but are not necessarily getting the right kind of information at the right time. For governments who find themselves caught up in the complexities of global capital and natural resource exploitation, and its effects on the environment and livelihoods, the avenues to achieving greater social, political and economic stability may be unclear and difficult.

Dr Nirun of the Thai Human Rights Commission who was a speaker at the workshop drew attention to international human rights mechanisms, such as the United Nations Special Rapporteurs, who can provide important guidance. It would make policy implementation less conflictual and complicated if willing governments could also look into and support the work of civil society that is trying to establish how principles such as establishing Free Prior and Informed Consent can be implemented in practice.

Emily Polack spoke to Fadzilah following a one-day public forum with government representatives, private sector and civil society, students and professors from across Southeast Asia at Chulalongkorn University. This was followed by two more days at which civil society groups shared experiences of engaging with the law to strengthen the rights of farmers facing large land based investments in agriculture.

Dr. Fadzilah Majid Cooke is Associate Professor in Environmental Sociology at the School of Social Sciences, Universiti Malaysia Sabah (Sabah University of Malaysia). She has worked in the area of agricultural and forestry politics and development as well as in environmental change and customary land for close to 15 years. She is currently working on customary land issues in southern Thailand and in southern Philippines, through an Asian Public Intellectual Fellowship.

Uganda: Breaking the links between the land and the people

info@iied.org (Guest Author) — Mon, 11 Mar 2013 13:54:54 +0000

Where I come from, land means more than real estate. It isn’t just a slice of earth, which can be farmed, inherited, built on, sold or bought. In most of Uganda, land equates to history, heritage, identity, belonging, rights and relationships. It creates social security and helps define social, cultural, religious values and beliefs systems. However, when these collide with the idea of commoditising land, the people who live on and work the land suffer.

As Acholiland emerged from almost a quarter of a century of violent insurgency, created by incursions by the Lord’s Resistance Army (LRA) led by Joseph Kony and counter-attacks by the Ugandan army, the region has become wracked by land conflicts. Meanwhile, the introduction of new but chaotically-administered land tenure policies that encourage land sales and massive commercialised farming, are leading to land grabs and disputes, which are creating a profound and ubiquitous social crisis. The film, ‘Shoot Us All Down’, conveys the nature of the social crisis in Acholiland and how the changing tenure relations is contributing to it.

Through research, I have reached the conclusion that for the Acholi region, this transition period is not just about their return to the land. It also embodies the Acholi struggle for the legitimacy of their own ways and the attempt to define or redefine, express and uphold their communal land rights. This is not mere sentimentality – a return to the past. It also correlates with their desire to rebuild and recover from the ravages of war and grow wealth again but all within a culture and social system that remains anchored in the land.

In my study of the significance of land in Acholi sociology, I am investigating how the long insurgency in Northern Uganda has transformed land relations among the Acholi and how customary notions of tenure have changed. Professor J. P. Ocitti’s (1973) work, ‘African Indigenous Education as Practiced by the Acholi of Uganda’ explains that traditionally the Acholi had four main types of tenure relating to the uses of land: farmland, settlement, grazing and hunting. Each was governed by traditional laws within customary tenure. To me, these are the four key tenets that framed Acholi social practices and their philosophy of identity. They also defined their sense of spirituality, belonging, family and community relationships and their wider social relations; livelihood security, generational continuity through entrustment in land.

The Acholi is a decentralised society of about 54 major clans and several sub-clans; each clan is headed by a Rwot (Chief). Hierarchies of ownership and kinship links originate from the head of a family right through to the Rwot (Chief) at the top of the hierarchy. His position as chief makes him the custodian of the people’s collective land rights. Collectively, the 54 clans make up the Acholi Chiefdom, now headed by Rwot Achana II, (Paramount Chief). Each major clan and its sub-clans, occupy a particular geographical place in Acholiland from which they derive identity, kinship, belonging and communal land rights. Nevertheless, this social organisation is only important and real because it is inextricably linked to the land. Thus you hear of the Rwot of Patiko or son of Patiko, Rwot of Atiak or people of Atiak. Patiko and Atiak are places in Acholiland but they are also the clan names and clansmen’s identity.

However, this structure was destabilised by the forced removal of the Acholi from their customary lands at the peak of the Kony rebellion and their encampment as internally displaced peoples (IDPs). From about 1996 to 2007 nearly 90% of the Acholi population were forced off their land and dumped in displacement camps where they were fed and watered but left to rot in idleness. This removal from the land into displacement camps followed brutal attacks by the LRA and possibly by the Uganda army.

Removed from the land, the new generations could not learn the traditional cultural knowledge, practices and skills, especially awareness of the land, how it was divided, used and cared for. Not only was that relationship between people and land distorted but the knowledge about it could no longer be accurately handed down. With this, the scene was already set for a chaotic return to the land at the end of the war.

Now they have returned, but a pall of grim memories of death and displacement hangs over the whole society. Almost an entire generation of elders perished from the camps — and their traditional knowledge and practices with them. Consequently, the people find themselves lost between vague memories of the way things were done — and new laws and government structures that they have no access to and do not understand.

Easy opportunities for land grabbers

All this confusion created easy opportunities for land grabbers and illegal sales that threaten the land rights of tens of thousands of Acholi people. Unsurprisingly this phenomenon also created a new conflict that ostensibly set the Acholi against the state and proponents of a free market in land. In that light, I argue that the impact of a sudden and chaotic replacing of customary tenure by free market ideas in Acholi will be landlessness and a new class of impoverished or even unskilled landless labourers. Such a change would also destroy the system of social security which was provided by collective land rights or ownership.

Nevertheless, this is not just about land laws and land rights. What is happening now in Uganda is similar to what happened in England between the 14^th and 18^thcenturies when enclosures, a massive land grab by the ruling class, drove small farmers off land they had tilled for centuries and turned them into low-waged labourers on what was once their land. Not only did they lose their heritage and culture constructed around land, but their landlessness meant they were disposed to supply the cheap labour needed at the nascent stages of the industrial revolution. Do modern Ugandans want or need to go through the same process?

Similar issues have arisen in Latin America, Asia and the rest of Africa that mirror the Acholi situation. They are likely to become more frequent wherever the commoditisation of land has set the state, the people and business against each other.

Betty Okot is currently undertaking a PhD in sociology at Keele University. She has an MSc in Education for Sustainability from London South Bank University (LSBU) and is a sessional lecturer on the Education for Sustainability postgraduate Programme at LSBU. She was also a research assistant on the African Diaspora Policy Networking Project in London.

Is the tide turning for Africa’s investment treaties?

lorenzo.cotula@iied.org (Lorenzo Cotula) — Fri, 8 Mar 2013 10:26:41 +0000

In January, the president of Benin and the prime minister of Canada announced they had signed a new bilateral investment treaty (BIT). The treaty, which is now publicly available, is just the latest in a large number of BITs signed by African countries over the past 20 years.

Investment treaties, or preferential trade agreements that include chapters on investment, are international treaties that promote foreign investment flows through protecting investments by nationals of one country against adverse interference from the government of the other country. The United Nations estimates that some 3,000 investment treaties have been concluded worldwide.

How does the Benin-Canada investment treaty measure up?

In some ways, the Benin-Canada bilateral investmnet treatry (BIT) looks different from many other treaties currently in force in Africa: some of its rules are formulated more carefully to reconcile investment protection with a wider set of policy goals.

Take the legal requirement for the two governments to accord to each other’s investors “fair and equitable treatment”, which is found in virtually all BITs. Investors have relied on this standard of investment protection to challenge government measures all over the world – including, for example, in recent suits brought by a major tobacco company to challenge plain packaging legislation in Australia and Uruguay. Even if the company were to lose these cases, the governments may still face costly legal bills.

Few would argue that investors should be treated unfairly. But establishing what is “fair” or “equitable” is not always straightforward. Many arbitral tribunals called upon to adjudicate disputes between investors and governments have interpreted this standard very expansively, and have ordered governments to pay large compensation amounts to investors whose business prospects had been adversely affected by government action. And where governments were unwilling to pay up, companies have been able to seize assets that governments hold overseas.

Commentators have pointed out that these broad interpretations of a government’s obligations, coupled with effective enforcement mechanisms, can significantly constrain the ability of governments to protect their country’s environment or public health, or to improve labour standards, for example, where doing so adversely affects commercial investments. Poorer countries may have to pay steep bills if they wish to regulate in the public interest.

In line with some other recent BITs signed by Canada, the Benin-Canada treaty contains a more restrictive clause on fair and equitable treatment, and clarifies that this standard does not create new obligations beyond more narrowly interpreted customary law requirements.

Similarly, investment treaties typically establish rights, but not obligations for investors. Most treaties say little or nothing about the duty of investors to comply with environmental regulations, for example.

Again in line with some recent treaty practice, the Benin-Canada treaty includes a provision calling on the two governments to encourage their investors to comply with internationally recognised standards of corporate social responsibility.

Also, investment treaties commonly enable investors to bring disputes to international arbitration. Many investment disputes affect not only commercial interests, but also important public interests. For example, a dispute about contracts for a company to run water supply schemes raises important issues for people’s access to water.

The Benin-Canada treaty recognises that transparency and public scrutiny are critical for these wider interests to be properly considered in arbitration proceedings, and allows NGOs to file submissions with arbitral tribunals where specified criteria are met.

These positive developments raise two questions. First, what made them possible? Second, do they signal a genuine shift in investment treaty-making in Africa?

A changing global context

The global context of investment treaty-making today is very different compared to just ten years ago. Growing NGO scrutiny has increased pressure on governments to take fuller account of sustainable development considerations in investment treaties.

In addition, high-income countries like the United States and Canada are also important capital importers, even more so as global economic power is shifting east. These countries have now seen their own public action challenged by foreign investors relying on generous investment protection regimes. For example, last year the Canadian government was sued by a petroleum company for $250 million. The suit challenges a moratorium on fracking enacted by the provincial government of Quebec.

While in the past these countries promoted robust standards of investment protection, they have now developed model investment treaties that better balance investment protection with a continued ability of governments to regulate in the public interest. Australia recently announced that it would not include arbitration clauses in future investment treaties.

Some Latin American countries have been very vocal in challenging investment protection regimes. Bolivia, Ecuador and Venezuela have terminated BITs or withdrawn from the International Centre for Settlement of Investment Disputes (ICSID), an important arbitration system.

In addition to these changes in political attitudes, there is now much better international guidance on how to strike a better balance between investment protection and other public-interest goals. This includes:

the Investment Policy Framework for Sustainable Development elaborated by the United Nations Conference on Trade and Development, and
the Model International Agreement on Investment for Sustainable Development prepared by the International Institute for Sustainable Development.

Balancing up investor rights and obligations

This changing context is facilitating the emergence of a new generation of investment treaties. While Africa has so far been at the margins of these shifts, this trends is now affecting African countries as well.

But is having different wording on a treaty enough? Important concerns remain. For example, the reference to corporate social responsibility standards in the Benin-Canada treaty falls short of creating enforceable obligations for investors to meet.

In legal terms, saying that governments “should encourage” companies to comply with voluntary standards means very little.

This asymmetry between investor rights and obligations under the treaty compounds wider imbalances in international law. Treaties provide effective protection for foreign investment, but not for the rights of people who may be affected by investment flows – as I have argued both here and here.

Also, like many other Canadian BITs the Benin-Canada treaty creates obligations for states in relation to the admission of foreign investment. Outside a few excluded sectors, the government of Benin could only regulate the admission of a Canadian investment within its territory through terms not less favourable than those applicable to investments made by its own nationals – an obligation that has far-reaching implications for national sovereignty, and that can help open up Benin’s resources to Canadian companies.

More fundamentally, the treaty is still based on a model developed by a capital exporting country. Benin has effectively signed up to the Canadian model investment treaty. Treaty negotiations only lasted a few months. One wonders how much democratic debate and public scrutiny there has been in Benin before and during the negotiation. These important aspects of investment treaty-making have not changed.

A genuine shift in treaty-making would require African countries themselves to seek a better deal, based on democratic deliberation and an inclusive vision of national development. Greater interest in Africa’s natural resources should strengthen the continent’s negotiating power vis-à-vis the outside world.

Some governments are becoming more assertive in investment treaty-making. Last year, South Africa terminated a BIT and announced more cancellations. Concerted action by organisations representing a region or sub-region’s interests, such as the Southern African Development Community (SADC), can help address asymmetries in negotiating power. For example, SADC has developed a model investment treaty that more carefully balances investment protection with other policy goals.

Push for change

And it is not just about what governments can do. National civil society can play a crucial role in increasing pressure on their government.

For example, Free Trade Agreement Watch (FTA Watch) Thailand, an NGO coalition in Thailand, has driven public scrutiny on the preferential trade agreement being negotiated between the European Union and Thailand. FTA Watch warned the government that it would violate provisions of the Thai constitution that require public consultation and parliamentary scrutiny if the negotiations for major economic treaties continued without following constitutional procedures.

FTA Watch’s experiences were shared last week at a civil society workshop on ‘Legal Tools for Accountability in Agricultural Investments in Southeast Asia’, organised by IIED and Focus on the Global South as part of IIED’s Legal Tools for Citizen Empowerment initiative.

Similar strategies may enable African civil society to push harder for treaty-making to reflect the values and aspirations of citizens.

For the tide to really turn, the push for change must come from within Africa.

As global agri-investment increases, policies must put local people centre stage

lorenzo.cotula@iied.org (Lorenzo Cotula) — Thu, 6 Dec 2012 00:00:00 +0000

Corporate interest in agricultural investment is up, but a new report shows that policies are skewed against inclusive investments. We need to reshape them so investments meet local people's needs and aspirations.

Earlier this week, agribusiness companies, financiers, commodity traders and consultancy firms gathered in central London for the latest in a series of corporate events on global agricultural investment. If corporate ‘bashes’ are a good indicator of private sector interest, then interest in farming is clearly growing fast. After years of neglect, commercial investments in developing country agriculture are on the rise.

This renewed interest is a positive development, but not all investment is good. As companies set up large plantations there are real concerns that the deals will dispossess farmers, herders and foragers, marginalise small-scale producers and deliver few economic benefits. It is a particular risk where governance is weak and local residents don’t have much say. This week’s conference in London rekindled civil society mobilisation against 'land grabbing'.

So can commercial investments in agriculture respond to local farmers’ aspirations? Research and experience both say yes, but first we have to tackle the policy problem.

Problems with policy

A new report published today by Oxfam and IIED shows that, despite very diverse contexts, public policy tends to promote non-inclusive deals.

In many African countries, for example, centralised government control over land facilitates large-scale land acquisitions and undermines local rights. Many governments do not charge much for the land, and that fuels speculative acquisitions. Measures designed to promote agricultural investment — including investment protection, facilitation and incentives — are mainly designed for large-scale commercial operators. That’s despite the fact that small-scale farmers account for the bulk of agricultural investment many in low income countries.

Good intentions but poor implementation

There are policy innovations that work to include local farmers and communities. Strengthening local control over land and natural resources, for example through legal requirements for free, prior, and informed consent; regulating commercial investments effectively; and government action that promotes the equitable inclusion of small-scale producers in value chains can all drive more inclusive investment in agriculture. Equally, public investment in infrastructure and capacity building can improve smallholders' 'investment-readiness' and promote business models that support small-scale producers.

Yet there is typically a big gap between good policy intentions and what happens on the ground. It is not enough to design well-meaning policy — you also need to invest in implementing it. And vibrant local-to-global organisations that represent the interests of rural producers are indispensable. They can help rebalance power relations that might otherwise constrain implementation.

Put people first

For host countries and communities, promoting investment should not be an end in itself, but a means to an end — improving people’s livelihoods. So people should be at the centre of investment processes. The main question should move beyond how best to tweak prevailing investment paradigms so as to ensure that local people participate in the benefits, and ask instead how investment can be oriented so that it responds to the needs and aspirations of those people — as well as producing a financial return for the investor. Reshaping the policies that regulate land and investment is an important part of promoting this change.

Read Tipping the Balance: Policies to shape agricultural investments and markets in favour of small-scale farmers

African land solutions: making the resource blessing a reality

emily.polack@iied.org (Emily Polack) — Thu, 1 Nov 2012 08:37:03 +0000

Lessons need to be learned to transform Africa's ‘resource curse’ into a ‘resource blessing’ and to mitigate against the negative impacts of large land-based investments. Ways forward, which include addressing land tenure and bringing about sustainable development, point to the need for African solutions to the problem, supported by continent-wide ‘frameworks.’

While the recent rush for land is global in scope, continent-wide frameworks, and well-resourced and respected initiatives to ensure their implementation, have a strong role to play in this transformation as long as they are implemented in a way that reflects local realities and are ‘owned’ by national citizens and governments. These were some of the messages I took away from the 8^th African Development Forum held in Addis Ababa last week.

Carlos Lopes, UN Under-Secretary and Executive Secretary of the United Nations Economic Commission for Africa (UNECA), reported that Africa is home to seven out of the ten fastest growing economies in the world, yet simultaneously home to six out of the ten most unequal societies in the world. This growth in inequality and persistent poverty is of growing concern.

Too many companies and non-African economies and government elites have got rich at the expense of rural citizens in resource-rich countries. Reversing this trend once and for all and transforming these riches into a ‘resource blessing’ is an urgent task. Sierra Leone's GDP growth forecast for 2012 is 21% due to commencing iron-ore extraction (compared to non-iron-ore growth of 6.3%) – imagine what a difference harnessing some of that wealth to develop health and education services could make.

While several mining initiatives have made progress (Extractive Industries Transparency Initiative, The Africa Peer Review Mechanism, The Africa Mining Vision), it is now well recognised that transparency alone will never be enough. Countries need a wider set of approaches to securing local resource rights and benefit sharing and engaging a wider number of stakeholders.

Speakers and delegates agreed that “Harnessing and governing natural resources for Africa’s development” (the forum’s official title) requires seriously tackling the bottlenecks that limit African governments maximising revenues from resource extraction, and ensuring their equitable distribution, and addressing both social and environmental issues in an integrated manner. They’re all lofty goals: sadly, setting goals is easier than implementing them.

National laws are too often contradictory, and investments can often undermine strategies in another. In a presentation on large-scale land acquisitions in Cameroon, Samuel Nguiffo of the Centre for Environment and Development showed a map of an Oil Palm Concession that overlapped with a mining concession and several major protected forest areas, illustrating the potential for agricultural concessions to undermine biodiversity objectives. He calculated that the forest resources in the protected areas to be lost to the oil palm concession could generate a potential 18 billion Central African CFA francs in carbon credits, while the oil palm concession rents would only generate 900 million CFA (although the time scale for the calculations or the basis of the carbon credits calculations wasn’t revealed). This showed, he said, that there was a financial rationale for a more integrated resource management approach. Furthermore, the state was potentially exposing itself to reputational risk and costly arbitration proceedings with investors. He called for a clear development vision so that the development of land resources was based on bottom-up land use planning rather than investors taking the lead in driving negotiations to meet their needs.

The roundtable on large-scale land based investments was organised by the Land Policy Initiative (LPI), which was set up to build African solutions to challenges such as these. The initiative aims to support governments in implementing the Framework and Guidelines on Land Policy in Africa. Under this initiative a Nairobi Plan of Action was developed to address the questions and controversy around large-scale land-based investments, including regional assessments and capacity development support to governments, traditional authorities and civil society on managing land-related investments. The LPI is seeking to make the African Union commitment to ensuring equitable access to land and related resources among all land users, including young people and other landless and vulnerable groups, such as displaced persons and women, a reality.

A challenge, of course, is the time it takes to bring about legal and policy reforms, in a context of rapid change and investor interest. This is one reason why a number of civil society actors have called for moratoria on large land acquisitions until the necessary regulatory frameworks are in place.

In the meantime, the LPI team have mobilised a strong network of partners and collaborators to realise the vision of strong land governance in Africa. Now, when African governments realise they need land reform and they need help in designing and implementing it and with managing investments in the interests of local citizens, they know who to look to for guidance.

Such initiatives are critical for promoting broad-based engagement in designing and implementing national land policies with complex political and technical dimensions, and ensuring regional frameworks are implemented in a way which reflects local realities.

Read our latest blogs and news stories on land rights and land acquisitions

The knowns and unknowns of the global land rush

lorenzo.cotula@iied.org (Lorenzo Cotula) — Wed, 24 Oct 2012 11:28:55 +0100

Researchers studying land acquisitions in the global south face many challenges, including trying to measure the exact scale of the problem. Developing rigorous methods to assess how the rush for land is exacerbating land scarcity and affecting people locally is perhaps the most promising way to measure what the scale of the land rush means for recipient countries and the people who live in them, says Lorenzo Cotula.

Four years since the media spotlight turned to the global land rush, more and better research has provided more robust evidence and sophisticated analyses of the deeper social transformations underway. Yet there is still much that we don’t know, and much questioning to be done about what we think we do know.

The challenges of researching land grabs was one of the subjects of debate at the Land Deals Politics Initiative (LDPI)’s second international conference on ‘Global Land Grabbing’. A roundtable on the methodological challenges of researching the land rush interrogated the quality of the evidence base, and the multiple and not always converging purposes of data collection – from improving understanding, to promoting accountability.

Marc Edelman and Carlos Oya articulated some of the reasons why global datasets must be taken with a healthy pinch of salt. A few reasons were also outlined in an IIED briefing note published earlier this year.

Take discussions about the scale of the land rush. Since the deals started unfolding, there has been much debate about how much land has been acquired, where and by whom. Today, there is evidence that media reports have over-estimated the importance of some deals and players. For example, Deborah Brautigam’s work over the years has shown that media reports about land acquisitions by China in Africa are vastly over-blown. A paper presented at the conference challenged the perception that South Korea has been an important land acquirer, particularly in Africa.

But it’s also increasingly clear that other aspects of the land rush have remained below the public radar. A conference paper suggested that Japan has had a “low profile” in the overall reporting on global land grabs, although it is also possible that Japan is pursuing different options for securing its much-needed agricultural commodity supplies.

Global datasets are likely to greatly underestimate land acquisition by nationals and to overstate those by transnational corporations. While land acquisitions by transnational corporations have dominated the headlines, many villagers are feeling the squeeze because of the growing concentration of land holdings in the hands of fewer wealthy national individuals or companies.

Politicians, army generals, former liberation fighters, high-level government officials and business people are the recurring faces driving the land rush within countries. And sustained economic growth and rapid urbanisation in many poorer countries have led to the emergence of growing middle classes interested in rural land as a means to store value and generate complementary income. The individual size of these deals may be smaller than the international deals, but their aggregate land area can be much larger – as documented by a World Bank study last year. And the involvement of national elites in the land rush is perhaps the single most important reason for the pervasive lack of transparency in the deals.

So, how do we define the scale of the global land rush? Do we do this as an aggregate, absolute number or through more qualitative indicators of how the deals are increasing pressures on the land?

As the research agenda becomes more ambitious and sophisticated, an excessive focus on pinning down the exact quantity of land that is being transacted is unlikely to pay off; some inconsistencies in datasets are rooted in conceptual and methodological problems that are difficult to overcome. For example, a single land deal may involve various areas of land over different time scales: a contract may lease a plot to an investor but also give the investor the right to expand the plantation beyond that plot. For example, a land deal may involve, say, 20,000 ha of land, but the company is provided with the option to take an additional 17,000 ha within 15 years. In that case, is the deal for 20,000 ha or 37,000 ha?

The speed of change also creates challenges. Presenting at the roundtable on methodology, Ward Anseeuw, a researcher at the Agricultural Research Centre for International Development (CIRAD) involved with the Land Matrix, pointed out that the land rush is a fluid, fast-evolving arena where deals are signed, abandoned or transferred at a speed that makes it difficult for inventory exercises to keep track of.

Because of these conceptual and methodological challenges, there will never be a single, ‘true’ figure for how much land has been acquired globally or even in a given country. The scale of land acquisitions can at best be expressed as a range between bottom and top-end figures.

But does this really matter? Surely figures about scale can only be understood by analysing the local context. Although it’s important to measure the aggregate scale of the land acquired as accurately as possible, it’s perhaps even more important to analyse how the deals are exacerbating competition for land in a given context. Where land pressures are increasing as a result of demographic growth, extractive industry developments and the growing commercialisation of local agriculture, acquiring even a small land area can significantly disrupt local livelihoods.

Developing rigorous methods to assess how the rush for land is exacerbating land scarcity in a given location, whatever the size of land acquired in absolute terms, is perhaps the most promising way to measure what the scale of the land rush means for recipient countries and the people who live in them. Who is willing to take up the challenge?

Read the many papers presented at the conference on the multiple facets of the global land rush covering players, governance and local resistance.

Tanzania: Moving beyond ‘land grab’ rhetoric to finding solutions

info@iied.org (Guest Author) — Thu, 5 Apr 2012 16:50:41 +0100

Thirty kilometers east of Serengeti National Park, a cluster of people draped in red ‘shuka’ (the iconic red checkered cloths often worn by the Maasai) dots the golden acacia woodlands and short grass plains. It’s a community meeting, with everyone gathered to discuss issues related to the ongoing land conflicts between the local Maasai residents and outsiders who have acquired land parcels for commercial ventures. A young man shares his opinion with the crowd, “We’ve become slaves in our own country while foreigners enjoy it to the fullest.”

This is not an unusual story in Tanzania. Newspapers are being filled with “land grab” headlines. Stories about displacement and dodgy land deals are becoming normal street-side conversation. But strategies for mitigating or resolving such conflicts and challenges over land and land-based investments have yet to be realized, and, as a result, tensions are only intensifying.

Land laws in Tanzania are cumbersome, complex and even contradictory, resulting in conflicts and disputes. In the case of the Serengeti, local residents want to graze their livestock and have access to important natural resources in the area, while investors want to take advantage of the picturesque landscape and wildlife hotspots to develop photographic tourism and hunting businesses. And, despite years of conflict, the situation remains unresolved due to disputes over land titles, and conflicting land policies and land laws that do not support village tenure. While investors and community members struggle to claim ownership and rights, their stakes in the land remain uncertain.

Whether its agriculture, mining or tourism, land-based investments in Tanzania are not working. Due to unclear and complex land tenure laws and acquisition processes, communities are vulnerable to having their land ‘taken’ for investment purposes, which often results in unequal benefit sharing arrangements and ongoing disputes. At the same time, investors also face challenges due to a general lack of information about how much land is really ‘available’ for investment, as well as clear and transparent investment procedures for properly acquiring land.

In an effort to dig deeper and identify avenues for addressing this issue, the Tanzania Natural Resource Forum (TNRF), IIED and Research on Poverty Alleviation (REPOA), carried out a scoping study and a national workshop to gauge stakeholder interest and develop strategies for moving forward. It was agreed during the workshop that any dialogue and government land-related policies must focus on the following:

securing land tenure for local villages and communities;
strengthening governance over land, natural resources and approaches to foreign investment; and
seeking out quality foreign investments that contribute to the growth and development of Tanzania and its citizens.

A short film was made describing the results of the workshop and an information brief was published to pull out the key messages of the scoping report. It also sets out the different types of land tenure and administrative rights that currently exist within Tanzania.

Consultations and discussions at the workshop reveal that stakeholder views on the challenges related to land-based investments vary. But they do share one common, and powerful, sentiment — there is an urgent need to understand, address and find solutions to these challenges. Based on results from the workshop, TNRF, IIED and REPOA are developing a proposal for a multi-stakeholder dialogue to seek solutions to issues related to land and land-based investments in Tanzania. Let the dialogue begin…

Jessie Davie is Head of Communications at TNRF

BBC African land grabs debate

suzanne.fisher@iied.org (Suzanne Fisher) — Tue, 28 Feb 2012 00:45:19 +0000

Land acquisitions in Africa have often been portrayed as a development opportunity or as land grabbing. What follows are tweets before, during and after a heated debate on whether land grabs are good for Africa, broadcast live by the BBC World Service from Sierra Leone.

#bbcafricadebate was electric.
— emmanuel mwisa (@Red_AlertMe) February 25, 2012

@Alex_Jakana Great debate on land in Sierra Leone. African land stories tend to have tragic endings. Elsewhere too.
— Calestous Juma (@Calestous) February 24, 2012

Glad #bbcafricadebatewas so rich tonight. Proud of my colleague Lorenzo Cotula's research on this topic. Google his name + @IIED for more
— Mike Shanahan (@shanahanmike) February 24, 2012

The tweets below reflected similar sentiments to those expressed by the public at the debate, who broadly questioned whether the government was always working in the best interest of Sierra Leone's citizens and called for greater transparency when deals were being negotiated. An individual called Chief Moba said "things are very very opaque ...locals are not benefiting at all." Another man, called Lansanah Hasan Sona, alleged that "there was no free, prior informed consent from the community" in Makeni when the company ADDAX Bioenergy Sierra Leone Limited secured land in the country's fourth largest city for growing sugarcane and cassava for ethanol. He said that four communities had lost out on access to water sources as a result of the deal. According to the BBC: "The government describes the project as Sierra Leone's flagship agricultural investment." The company didn't take part in the debate.

No foreign investor can grab land from the poor without the support of the country's government, they are the problem #bbcafricadebate
— Kwesi Asiamah Acquah (@kwesiacquah) February 24, 2012

@Alex_Jakana corrupt chiefs who are happy grabbing the cash at the expense of the future of the community. Landgrab is an election tool
— osabutey anny (@OsabuANNY) February 24, 2012

@Alex_Jakana in the western region of Ghana, some youths are unhappy with their chiefs for the reckless manner lands are sold to expats.#oil
— osabutey anny (@OsabuANNY) February 24, 2012

A woman at the debate called Harriet pointed out that women, who are the key subsistence farmers in the country, are excluded from community negotiations during land deals and often have to resort to "backyard farming," as this is the only agricultural land they have access to. "Women aren't considered in the negotiations – only the men – we are sitting in the houses, we are sitting at the backyard waiting for them," she said.

@idahorner we need to get rid of cultural imperialism that women cannot own or inherit land. Nonsense! @bbcafricadebate
— Maureen Agena (@maureenagena) February 24, 2012

RT @hellenotii: Female speaker on #BBCAfricaDebate "We are sitting in the houses while they [men] are negotiating the deals" #Landgrabs
— HUE (@hueglobal) February 24, 2012

Woman farmer says "no, I am not getting or seeing any benefits from #land grabs. We are sitting at the back, waiting." #bbcafricadebate
— Jess Mack (@fleetwoodjmack) February 24, 2012

One of the questions posed was whether the new wave of land grabs was "just a form of neo-colonialism".

RT @alex_jakana: #bbcafricadebate if these land deals are #landgrabs, & #neocolonialism then what is the alternative?
— BBCAfricaHaveYourSay (@BBCAfricaHYS) February 24, 2012

@Alex_Jakana Neo-colonialism is an understatement #bbcafricadebate
— Mr Ransome (@globalpos1) February 24, 2012

Ruth Aine sees the land acquisitions as "opportunities".

I think we spend too much time whining about #landgrabs in Africa and less on taking advantage of these opportunities. #bbcafricadebate
— TMS Ruge (@tmsruge) February 24, 2012

Dr. Kolleh Bangura, Director of the Sierra Leone Environmental Protection Agency agreed. He said that in Makeni "lives have been transformed," referring to the indirect benefits that the investment brought to the community: "petrol stations are full, guest houses are full", he said.

But Anuradha Mittal, Executive Director of the Oakland Institute, continually pressed the government for concrete figures on the benefits brought to the country. "I think there's debate ...that this kind of investment will lead to food security, will create jobs," she said. "I would love to hear concrete numbers – how many jobs have been created. ...Our research shows that in Sierra Leone till January last year (just in agriculture) over 500, 000 hectares of land were leased. I would love to know what kind of revenue has been contributed to the national budget and where that money is being used." No figures were provided by the government during the debate.

A blog written by IIED researcher Lorenzo Cotula on land grabs published by the BBC helped set up some of the key issues prior to the debate. Read the full blog.

Impact of #land #grabs in #Africa by @IIED - investment in #farmers is way forward bbc.in/wTOYw0 What do u think? #bbcafricadebate
— IIED (@IIED) February 22, 2012

Are #land acquisitions good for #Africa? Opportunity for development/ disaster? Read this bit.ly/ABibLV then debate #BBCAfricadebate
— Maurice Sallah (@United4Africa) February 24, 2012

#currentlyreading Analysis: Land grab or development opportunity? bbc.in/w6XGaN #LandGrabs #bbcafricadebate
— A. Marie (@ArriannaMarie) February 24, 2012

If this has piqued your interest, listen to the whole debate. Then please let me know what you think - leave a comment. Thanks

Find out more. Read IIED's briefing: Farms and funds: investment funds in the global land rush

Invest in farmers, not in farmland

lorenzo.cotula@iied.org (Lorenzo Cotula) — Wed, 22 Feb 2012 09:31:44 +0000

With land central to the livelihoods of millions of people in Africa, Lorenzo Cotula examines the impact of large-scale land acquisitions on the continent's farmers and says that promoting agricultural development in Africa and addressing the world's food security challenges requires investing in farmers - not in farmland.

"Land grabs" are now one of the biggest issues in Africa.

Over the past few years, companies and foreign governments have been leasing large areas of land in some of Africa's poorest countries.

Many commentators have raised concerns that poor villagers will be forced off their land and agribusiness will marginalise family farming.

Others say that foreign investment can help African countries create jobs, increase export earnings and use more advanced technologies.

Three years since media reports started raising public awareness on this issue, evidence has been growing on the scale, geography, players, features and impacts of the land rush. The emerging picture provides ground for concern.

Last year the World Bank documented media reports of land deals over the period between 2008 and 2009.

The deals were for nearly 60 million hectares worldwide, roughly the size of a country like Ukraine - and two-thirds of the land acquired was in Africa.

While new figures continue to emerge, all evidence points to a phenomenon of unprecedented scale.

Also, some individual deals are for very large areas. For example, Liberia recently signed a concession for 220,000 hectares.

Money to be made

Media attention has focused on investments by Middle Eastern and Asian government-backed operators but Western companies have also been heavily involved.

Companies acquire land because they expect world food and commodity prices to increase - so there is money to be made in agriculture.

Some governments have also promoted land acquisitions abroad as a way to secure affordable food for their people.

In many African countries, agriculture has suffered from years of neglect - and investment is needed to improve productivity and market access.

But not all investment is good - and growing evidence strongly indicates that large land deals are not the way to go.

Short-lived jobs

A synthesis of over 30 reports worldwide found that many investments have failed due to insufficient soil fertility, financing difficulties or over-ambitious business plans. For example, in Mozambique and Tanzania, some large biofuels projects have now been abandoned.

Even where investments are profitable, it is often difficult to see how they contribute to poverty reduction. The jobs created are few, short-lived and low-paid - and public revenues are limited by tax exemptions.

A report published last year raised serious questions about the terms of the contracts that governments are signing up to.

Some of the world's poorest people are losing the land, water and natural resources that have supported their livelihoods for generations. In Uganda, for example, 20,000 people claim to have been evicted from their land and a legal case is pending before courts.

Not every deal is a "land grab" - much depends on local context, the investor's track-record, the terms of the lease, and whether these reflect the free, prior and informed consent of local landholders.

But for local people, the context in which the deals are being concluded tends to make negative outcomes more likely.

Best intentions

There are huge power imbalances among international companies, government and local landholders. Many land deals are being negotiated without transparency and local consultation.

In many parts of Africa, local farmers, herders and gatherers only have insecure legal rights to the land they see as theirs. Most have no written documents for their land. Much land is owned by the state, which can allocate it to outside investors even against local opposition.

And while international law provides relatively effective protection for foreign investment, international human rights law remains inaccessible and ineffective for people losing land.

So even when investors come with the best intentions, this means local groups are exposed to the risk of dispossession - and investors to legal disputes.

Family farmers have long provided the backbone of African agriculture - and, when given a chance, they have been able to compete on global markets.

Family farming

In Ghana, for example, a co-operative of 60,000 cocoa farmers has run a successful business for nearly 20 years and owns 45% of a UK company that manufactures and distributes chocolate.

The global demand for food and agricultural commodities creates new opportunities for African farmers.

Public policies and infrastructure to support family farming are needed today more than ever.

Evidence also shows that private investments to improve productivity or market access can be structured in ways that support local farmers.

Many companies successfully source agricultural produce from family farmers, and have invested in other activities along the production line - in ways that secure their supplies and improve local livelihoods.

In Mali and Zambia, some farmer associations own shares in the company they collaborate with, which gives them monetary benefits and a greater say.

Co-operatives or intermediaries can reduce the costs linked to working with large numbers of farmers. Public policy plays a key role in promoting fairer investment models.

The perception that large plantations are needed to "modernise" agriculture in poorer countries is dominant in many government circles.

But evidence shows that this perception is misplaced.

Promoting agricultural development in Africa and addressing the world's food security challenges requires investing in farmers - not in farmland.

Lorenzo Cotula leads the Land Rights Team at the UK-based research body the International Institute for Environment and Development.

This was first posted on the BBC website.

Want to find out more? Read IIED's briefing: Farms and funds: investment funds in the global land rush

Biggest study of large land deals to date warns of threats to poor

webmaster@iied.org (drupmaster) — Wed, 14 Dec 2011 00:01:01 +0000

Four key failures of governance harm the rural poor in developing nations

The most comprehensive study of large land acquisitions in developing countries to date — published online on 14 December by the International Land Coalition (ILC) — has found more evidence of harm than benefits.

More than 40 organisations collaborated on the Global Commercial Pressures on Land Research Project, which synthesised 28 case studies, thematic studies and regional overviews.

The report also includes the latest data from the ongoing Land Matrix project to monitor large-scale land transactions, and covers a full decade of land deals from 2000-2010. Those deals amount to more than 200 million hectares of land – or eight times the size of the United Kingdom.

The research revealed some trends that have not been widely reported in the recent surge of media coverage of land deals. First, national elites play a much larger role in land acquisitions than has been noted to date by media reports that have focused on foreign investors.

Second, food is not the main focus of the land deals. Out of the 71 million hectares in deals that the authors could cross-reference, 22% was for mining, tourism, industry and forestry and three-quarters of the remaining 78% for agricultural production was for biofuels.

The researchers found that while large land deals can create opportunities, they are more likely to cause problems for the poorest members of society, who often lose access to land and resources that are essential to their livelihoods. “Under current conditions, large-scale land deals threaten the rights and livelihoods of poor rural communities and especially women,” says report lead author Ward Anseeuw of the French Agricultural Research Centre for International Development, CIRAD.

In addition, promised jobs have not yet materialised, and in their rush to attract investments, governments miss out on long-term tax and lease revenues that better negotiated deals could provide.

“The competition for land is becoming increasingly global and increasingly unequal. Weak governance, corruption and a lack of transparency in decision-making, which are key features of the typical environment in which large-scale land acquisitions take place, mean that the poor gain few benefits from these deals but pay high costs,” says Dr Madiodio Niasse, Secretariat Director of the International Land Coalition, whose members include UN agencies, International Financial Institutions, research institutes, and civil society and farmers’ organisations.

Weak land rights are another problem. “As governments own the land it is easy for them to lease large areas to investors, but the benefits for local communities or national treasuries are often minimal,” says co-author, Dr Lorenzo Cotula of the International Institute for Environment and Development. “This highlights the need for poor communities to have stronger rights over the land they have lived on for generations.”

“There is little in our findings to suggest that the term ‘land grabbing’ is not widely deserved,” says Dr Michael Taylor, ILC Secretariat’s Programme Manager, Global Policy and Africa, who coordinated the study process and co-authored the synthesis report.

In addition, economic governance is failing the rural poor. The international trade regimes provide robust legal protection to international investors, while fewer and less effective international arrangements have been established to protect the rights of the rural poor or to ensure that greater trade and investment translate into inclusive sustainable development and poverty reduction.

Part of the problem is also that many policymakers think small-scale farming has no future and that large scale, intensive agriculture is the best way to achieve food security and support national development.

The dispossession and marginalisation of the rural poor is nothing new. Rather, the current land rush represents an acceleration of ongoing processes, and one that appears set to continue. This report thus concludes that we are at a crossroads as regards the future of rural societies, land-based production and ecosystems in many areas of the South.

The report recommends that governments and investors:

recognise and respect the customary land and resource rights of rural people.
put smallholder production at the centre of strategies for agricultural development.
make international human rights law work for the poor.
make decision-making over land transparent, inclusive and accountable.
ensure environmental sustainability in decisions over land and water-based acquisitions and investments.

The report strongly urges models of investment that do not involve large-scale land acquisitions, but rather work together with local land users, respecting their land rights and the ability of small-scale farmers themselves to play a key role in investing to meet the food and resource demands of the future.

For a PDF of the report "Land Rights and the Rush for Land: Findings of the Global Commercial Pressures on Land Research Project" – see http://www.landcoalition.org/cplstudies

African governments signing away water rights for decades

webmaster@iied.org (drupmaster) — Thu, 24 Nov 2011 00:01:30 +0000

A paper published today by IIED warns that African governments are signing away water rights for decades with insufficient regard for how this will affect millions of local users, including fishing, farming and pastoralist communities.

The water rights often feature in the growing number of large land deals that governments are signing with investors (see First detailed study of large land acquisitions in Africa warns of impacts on poor rural people) as many of these areas require irrigation to be viable.

Such deals have already raised concerns for being rushed, secretive and one-sided. Many fail to deliver real benefits and can even create new social and environmental problems (see Report shows how secret land deals can fail to benefit African nations – and how to make them better).

Now, researchers at IIED warn that governments risk signing away water rights in ways that harm the future prospects of their citizens, especially fishermen and pastoralists, who rely on the same water as the investors. Some investors in Mali and Sudan have been given unrestricted access to as much water as they need.

"Companies that acquire land for irrigated farming will want secure water rights, but long-term contractual commitments can jeopardise water access for local farmers," says co-author Lorenzo Cotula. "This affects not only the people who have customarily used the land that is being leased, but also distant downstream users who can be hundreds of kilometres away and even across an international border."

The Gibe III dam in Ethiopia will enable irrigation on 150,000 of land the Ethiopian government has allocated to investors, but studies suggest this project would lower the level of Kenya’s Lake Turkana – on which half a million Kenyans depend -- by eight metres by 2024.

"The 'global water crisis' is a crisis of water management, not of water quantity," says the paper’s lead author Jamie Skinner, a principal researcher at the International Institute for Environment and Development. "Good water management in the face of climate change is only possible if it is clear who the water belongs to, who holds rights to its use and when allocations to all users are made in a transparent way."

Download the paper