Issue No. 24, July 2014
By: Atma Khalsa
Land Tenure and Property Rights - Where Legal Compliance May Not Be Enough
Land tenure and property rights are among the most challenging issues companies have to manage - this is particularly true when host country legislation does not protect the rights of its citizens. In these cases, obtaining legal compliance can be insufficient to meeting international expectations of corporations (i.e. Guiding Principles on Business and Human Rights) and mismanagement can pose significant operational, legal, and reputational risks.
Land is the keystone to many fundamental human rights, particularly in developing countries where people depend more on land and the resources on or beneath it to provide shelter, food, and sources of livelihood.
Land tenure and property rights pose many challenges to business, including:
- Legal systems and laws vary from place to place, and are often based on implicit, rather than clearly stated principles.
- The meanings of common terms such as ‘property’ ‘estate’ or ‘domain’, vary according to the person and context concerned, and this can distort our view of the reality on the ground. Further, the meanings of these words are not easy to translate into different languages and fully capture their respective meanings. This often leads to misunderstandings, sometimes with very serious consequences.
- Land rights are recognized differently in international, national, customary and local systems, and often these rules contradict.
- Many regions of the world have poor and/or non-existent records of ownership, which leads to conflicting land claims.
- Land “ownership” has many components that require consideration, i.e. customary rights. For example, one may not own the land, but may have been utilizing it (i.e. for pasture, farmland, and/or) for generations, either personally or communally.
- Governments can often have conflicts of interest for decisions made regarding land, and their actions may be out of the company’s control (yet the company often needs to manage the negative repercussions).
- Promise of jobs from large developments can attract populations migrating in search of employment. As a result of this population in-flux company operations can lead to many indirect social impacts.
- When necessary, companies may need to conduct resettlement to develop projects. Conducting resettlement fairly and transparently requires significant consultation and due process to gain community consent. Without clarity on land tenure and property rights, accurate and fair compensation of lost assets and land can be compromised.
To manage risks related to land tenure and property rights, companies should:
- Define the legal context in advance of activities, including the role of government and the role of the company in addressing land tenure
- Determine if existing legal context is sufficient to meet international norms for human rights
- Understand traditional systems of land governance
- Develop an early and detailed baseline of local populations, and their distribution
- Consider supporting tenure clarification, titling and registration initiatives
- Identify the sources of tension and potential impacts on project activities
- Develop robust grievance mechanism and management processes
- Understand how project activities may affect livelihoods and support alternative employment and livelihood opportunities
- Coordinate closely with national, regional and local governments, and within the traditional systems
- Utilize a participatory approach to gain necessary consents
- Land Tenure and Property Rights Country Portal - USAID
- Land and Conflict Toolkit - USAID
- Human Rights Compliance Assessment ‘Quick Check’ Tool - Danish Institute for Business and Human Rights
- Do No Harm in Land Tenure and Property Rights: Designing and Implementing Conflict Sensitive Land Programs - CDA Collaborative
- Key Questions in Managing Social Issues in Oil and Gas Projects - IPIECA
- Indigenous People and the Oil and Gas Industry - IPIECA
- IFC Guidance Notes: Performance Standards on Environmental and Social Sustainability - IFC
- Projects and People: A Handbook for Addressing Project-Induced In-Migration - IFC
- Guiding Principles on Business and Human Rights - United Nations
- Land Tenure and Conflict Management - FAO
- Voluntary Guidelines on the Governance of Tenure of Land, Fisheries and Forest - FAO
- Sharing Power: Learning by Doing in Co-Management Throughout the World - IUCN
Working with external actors to strengthen land tenure systems can build credibility of the land acquisition process and minimize reliance on government. For example, USAID engages in land tenure strengthening and has a contracting mechanism in place to support such initiatives.
Acorn Ideas is a series of periodic papers to share ideas regarding EHSS and sustainability management for international industry.
Issue 27 - Equator Principles: Drivers of Sustainability in the Oil and Gas Industry?
Issue 26 - The Transparency Tightrope: Examining UNEP’s New Access to Information Policy
Issue 25 - July 2014: Bouston
Issue 24 - July 2014: Land Tanure and Property Rights - Where Legal Compliance May Not Be Enough
Issue 23 - May 2014: 3 Things I Learned in Mexico - Non-technical Risks in the Oil Industry
Issue 22 - April 2014: Capacity Building on Stakeholder Engagement
Issue 21 - March 2014: Above-ground Facilities and Stakeholder Engagement: Deploying the 'CAC'
Issue 20 - March 2014: A Starting Point for Shared Equity
Issue 19 - March 2014: What It Takes to Run a Great Consulting Firm
Issue 18 - February 2014: Considering Human Rights - Trends and Lessons in Oil and Gas Impact Assessments
Issue 17 - June 2013: Managing Environmental Health in International Development Projects
Issue 16 - January 2013: Integrating Environmental and Social Performance throughout the Project Lifecycle
Issue 15 - January 2013: The State of Shale Play in 2013
Issue 14 - August 2012: Building Environmental and Social Governance in Host Countries
Issue 13 - May 2012: Human Rights and Business: A New Era
Issue 12 - February 2012: Extractive Industries Confront Pressure for Greater Transparency
Issue 11 - January 2012: Key Updates to the IFC Sustainability Policy and Performance Standards
Issue 10 - June 2011: Oil & Gas and NGOs: New Rules of Engagement?
Issue 9 - February 2010: Annual Study of Sustainable Development Priorities
Issue 8 - January 2009: Annual Study of Sustainable Development Priorities
Issue 7 - May 2008: Top Ten Lessons Learned About Health Impact Assessment
Issue 6 - January 2008: Annual Study of Sustainable Development Priorities
Issue 5 - September 2007: Results of web forum with our International Partners
Issue 4 - January 2007: Annual Study of Sustainable Development Priorities
Issue 3 - May 2006: Suggestions and tips for safe international travel
Issue 2 - January 2006: Annual Study of Sustainable Development Priorities
Issue 1 - November 2005: The Top 10 “unspoken" criteria for determining the success of EIAs