Sime Darby oil palm and rubber plantation 12 in Grand Cape Mount County,

Tom Lomax, Justin Kenrick and Alfred Brownell

Introduction Darby’s gross concession area. This case study, based on field research conducted Sime Darby’s oil palm and rubber in February 2012, assesses the nature concession in Grand Cape Mount county and extent of community involvement in in northwest Liberia has come under the acquisition of land for Sime Darby’s sharp national and international focus concession in Grand Cape Mount, in after a complaint was submitted under the particular with regard to whether the right RSPO New Plantings Procedure (NPP) in to Free, Prior and Informed Consent was November 2011. The complaint, submitted respected.1 See page 315 for Sime Darby’s by communities affected by the concession, own map of the new plantings area and claimed that their Free, Prior and Informed affected towns in Grand Cape Mount Consent (FPIC) had not been sought, and county. that the destruction of their farmlands by the company in order to plant Liberia is known to have the best remaining was leaving them destitute. Sime Darby’s examples of the ‘Upper Guinea’ forest.2 concession also includes land in the Grand Cape Mount and neighbouring neighbouring counties of Bomi, Gbarpolu Gbarpolu contain one of the two remaining and Bong – see opposite for map of Sime large forest areas in Liberia, and land in and around Sime Darby’s operations in Grand Cape Mount includes mixed shifting nn Remains of an abandoned house in Sime Darby’s cultivation and forest. Liberia’s natural palm oil plantation. A nearby well and remnants of resource governance, and in particular the sugar cane, banana plants and lime trees growing trades in diamonds and timber, played a between the young oil palm trees evidence previous significant role in maintaining the fourteen- community use and occupation / Tom Lomax year armed conflict in Liberia and the region,

302 Conflict or consent? The oil palm sector at a crossroads which led to the UN Security Council nn Map of Sime Darby Concession 311,187 Hectares placing sanctions on timber, diamonds and Located in Grand Cape Mount, Bomi, Bong & arms in 2003.3 Poor governance in relation Gbarpolu Counties / Government of Liberia’s Ministry to land and resources, including corruption of Agriculture and bias along ethnic lines, and government policy leading to a sudden rise in the price of food are seen as some of the key triggers war (including ex-combatants), as well as for fourteen years of civil conflict which economic migrants such as those seeking ended in 2003. The conflict caused over a employment from Sime Darby. quarter of a million deaths and led to more than 1.3 million people being displaced The largest settlements in the area are from their homes.4 known as towns, with a collection of towns making up a clan. The affected area comprises eighteen towns in the The communities and their historical who are all part of the relationship to the land and customary Vai ‘Manobah’ clan. Traditional land norms use practices and settlement patterns are dynamic and change over time. Some The principal ethnic group among the areas, for example, have been impacted by affected communities in the Grand Cape the development of the BF Goodrich rubber Mount is the ‘Vai’, one of the sixteen plantation in 1954, now incorporated into principal tribal groups in Liberia.5 These Sime Darby’s concession area. groups are distinct from the descendants of freed slaves from the United States of The affected towns and villages and America who settled in Liberia in the early adjacent communities engage in multiple nineteenth century under the initiative and overlapping land uses. As well as of colonisation societies set up for this shifting agriculture for subsistence food purpose. The affected communities also crops (eg cassava, rice, okra, ‘bitter ball’- include individuals from other parts of a kind of aubergine, peppers, maize etc.), Liberia and from other ethnic groups, families will often also grow cash crops (eg who have moved into the area as a result sugar cane, cocoa, rubber, oranges, mango, of internal displacement from the civil avocado, kola nut and native oil palm).

Sime Darby, Grand Cape Mount County, Liberia 303 Cash crops are planted by community Vai communities are generally tolerant of members to meet future cash needs, for incomers from other ethnic groups, who example as a kind of pension/ learn the Vai language, and over time come for when they are unable to do the more to be considered as members of the same heavy work of growing cassava etc., and/or community. In contrast, this was not the case as an inheritance that can benefit the next for incomers seeking employment at the generations (‘my grandfather planted the Sime Darby plantation. The perception was mango trees for me’). Communities use the that ‘outsiders’ made up a disproportionate cash earned from selling cash crops to pay number of permanent Sime Darby for school fees, health care and other items employees, and that local communities that need to be bought. were frequently only able to get casual ‘day labour’, and even then only for limited Hunting and gathering are also very periods. In addition, local community important for food, building materials members reported that Sime Darby were and fuel. Wet lands are used for fishing contracting truck drivers from the ethnic and for gathering crayfish, for growing Mandingo community (also known as seasonal crops of rice and maize, and for Mandinka) from outside the affected area.6 gathering rattan and roofing materials. It They also disliked the fact that senior was reported that before the clearing by Liberian Sime Darby staff commuted from Sime Darby, bush-meat from the forested Monrovia to and from the plantation area, areas was so plentiful that there was a and did not live amongst the community. surplus. Forested areas also provide poles for building houses, wild fruits, edible nuts and tubers, traditional medicines, and State institutions and customary wood for fuel and charcoal, the latter being governance in Grand Cape Mount used or sold. county

Particular forested areas are also set aside as The affected area is a mix of undeeded sacred forests, for ritual use by secret male customary land, concession areas and or female societies. In one town visited deeded land. It is understood that some of for this study, for example, a holy woman the towns or villages in the vicinity have referred to as a ‘zoe’ spoke of one such acquired tribal certificates for some of their sacred forest for women and girls where land, but that undeeded customary lands men were forbidden from entering. One make up the majority of the affected area. important use of this area was as a birthing The immediate day-to-day governance of place where women were assisted in their these areas is managed by the communities labours by the zoe. Sacred forests are also themselves. Customary governance occurs vital in passing on cultural knowledge such at various levels, ranging from the local as practical and social skills, including the village chief, to the Town Head, Clan Head Vai’s unique script. and then Paramount Chief. Paramount Chiefs preside over the chiefdom or district, While some of the land has some form of which are usually composed of at least two deed or tribal certificate, most does not and or more clans. There are six Paramount is instead under customary tenure. These Chiefs in Grand Cape Mount county. Two areas, including forest land, wetlands and Paramount Chief jurisdictional areas (the swamplands, are mostly owned and used districts of Garwula and Gola Konneh collectively by the local towns. Decisions respectively) lie within Sime Darby’s over land are referred to village chiefs operational areas. The Traditional Council and councils and in some cases involve is a body composed of chiefs and traditional consultations with the whole community. elders, as well as the holy women, zoes. The Adjacent to the affected area is the former leadership of the tribes is structured in such BF Goodrich/ rubber concession. a way that the chief is similar to a king but

304 Conflict or consent? The oil palm sector at a crossroads presides over a Council made of elders, zoes, not been formalised in some way, they are women, youths, and skilled individuals such considered ‘public land’, with communities as hunters, healers and lead farmers. holding only usufruct/possessory rights, but not proprietary rights.7 The government The non-customary, formal local authorities therefore concludes that this land is available operate at the district level, county level, for state allocation of long-leaseholds to and then at central government level. There third parties eg for large-scale agricultural are also local senators and legislators who concessions such as Sime Darby’s.8 represent the administrative sub-units, or counties. Each of the fifteen counties in The Public Lands Law does not define Liberia elects two Senators who represent ‘public lands’, but implicitly considers that county. There are two senators and public lands as being owned by the four representatives in the Grand Cape government, since the law is concerned Mount county. In terms of land, the highest with the mechanisms by which public land authority in the district is the District is acquired from the government.9 However, Land Commissioner, above whom lies the the Land Registration Law states that except County Land Commissioner and the County where otherwise provided, ‘all unclaimed Superintendent. In central government, the land shall be deemed to be public land until executive bodies and other government the contrary is proven’.10 Under the Land agencies responsible for matters relating Registration Law, land free from private to land include the Ministry of Lands, rights are to be recorded as public land, Mines and Energy (MLME), the Ministry and if the land is subject to ‘tribal reserves’ of Agriculture, the Ministry of Internal or ‘communal holdings’, these shall be Affairs, the Lands Commission, the Forestry recorded.11 This suggests that customary Development Authority (FDA) and the rights as expressed as ‘tribal reserves’ or President’s Office. ‘communal holdings’ will be considered possessory or usufruct titles on state-owned For the most part, the local and national land. authorities are only involved in undeeded customary land areas in the study area Given the unresolved legal position when communities or individuals apply to of customary communities’ under the formalise their land ownership (by applying Hinterlands Law/Aborigines Law, customary for a Public Land Sale Deed, having first land rights are highly vulnerable to being sought a Tribal Land Certificate), or where overridden as ‘public land’ and allocated to the government decides to grant forest, third parties by government. Communities mining or agricultural concessions to a can formalise their rights using the Public third party. Community land is perceived Lands Law’s procedure for obtaining by customary communities as belonging to a ‘Public Land Sale Deed’. However, them and subject to customary rules whether this procedure is lengthy, costly, and it is formally deeded or not. By contrast the bureaucratic, and therefore prohibitive for clear countervailing perception from most many rural communities.12 It also requires government bodies is that all undeeded land the applicant community to ‘pay a sum of is public land belonging to the government. money as token of his good intention to live peacefully with the tribesmen’, and for the District Land Commissioner to be satisfied The national legal framework on the that the land does not form part of the acquisition of customary lands and Tribal Reserve and is not otherwise owned resources or occupied. Clearly this procedure is ill- suited to a tribal community claiming a pre- As exemplified in this case study, the existing entitlement to the land, by virtue of dominant government perception of long-standing customary connection to the customary lands is that where they have land area.

Sime Darby, Grand Cape Mount County, Liberia 305 In its provisions for the purchase of public dispossession.18 The Sime Darby lease is lands, the Public Lands Law perpetuates for a period of sixty-three years, renewable the anachronistic and discriminatory for a further thirty years, in apparent breach distinctions between immigrant and of this fifty year legal limit. aborigine and between citizens and aborigines who become civilised. This Customary rights derive some protection includes the ‘settler advantage’ conferred from both constitutional provisions on immigrants, who are entitled under the and international law. Liberia’s 1986 Public Lands Law to a specified amount Constitution sets out a number of relevant of land, in comparison to non-immigrant general principles that must be observed Liberians (‘aborigines’) who would have to by national law, policy and practice. purchase lands unless they were ‘aborigines These include injunctions for the State to who have become civilised’. Even the latter ‘preserve, protect and promote positive have disadvantageous terms relative to the Liberian culture, ensuring that traditional immigrant settler.13 values…are adopted and developed’, which would provide clear support for Customary communities are afforded the building on (and certainly not undermining) most protection under the national legal progressive customary rules and systems.19 framework relating to forest resources, in The Constitution also mandates national particular the Community Rights Law of courts to apply customary laws in addition 2009 with Respect to Forest Lands (CRL). to statutory laws.20 In its guiding principles, the CRL states that Furthermore, the Constitution directs that Any decision, agreement, or activity affecting the the Republic shall, ‘consistent with the status or use of community forest resources shall principles of individual freedoms and social not proceed without the prior, free, informed justice…, manage the national economy consent of said community’.14 Forest resources and the natural resources of Liberia in such are to be managed and developed to ensure a manner as shall ensure the maximum equitable distribution of benefits, and encourage feasible participation of Liberian citizens active participation of society.15 under conditions of equality as to advance the general welfare of the Liberian people’.21 Although elaborating a progressive series This could be used to argue for the Free, Prior of provisions and procedures in respect and Informed Consent from communities of community rights over forest lands, the in negotiations over natural resource implementation of the CRL has not lived management. It is also arguable that where up to expectations, not least because of the certain projects create a disproportionate cost lack of consistency with the national laws burden on a particular ethnic group (such relating to land and lack of progress in as the Vai) when compared with the wider clarifying land tenure.16 distribution of benefits, the constitutional principle of equality would also protect that To lease public land to foreigners or foreign group from discrimination of this nature. companies, there is no requirement to demonstrate that the land is not encumbered The Constitution also provides for the by, for example, being ‘tribal land’, so inalienable right to possessing and such leases can be ‘lawfully’ granted on protecting property.22 All persons have the tribal/customary lands on the President’s right to own property alone or in association authority when ratified by the Legislature.17 with others, however only Liberian citizens Although land containing ‘tribal land’ can have the right to own real property.23 There be leased to foreign companies, it cannot is nothing in the wording of these rights that be sold. This is an inadequate safeguard for precludes collective property rights over communities, since a lease for a renewable customary lands. The Constitution does term for a maximum of fifty years is de facto provide for expropriation of land on public

306 Conflict or consent? The oil palm sector at a crossroads purpose grounds (sometimes referred to as indigenous resource use in consultation ‘eminent domain’), however in such cases with indigenous authority, and ensuring appropriate procedural safeguards must be public participation in decision making observed: reasons must be given for the on the sustainable management of the expropriation; just compensation must be environment.27 promptly paid; expropriation may be freely challenged in the courts without penalty; Communities derive a number of substantive and the former owner has first refusal to re- and procedural rights from the national acquire the property if public use ceases.24 law relating to the EIA process. Liberia’s environmental laws have set forth a Implementation of the constitutional procedure for public participation and principles of community use of natural involvement in the approval or rejection resources is included in the national laws on of development projects. The Environment environmental protection. The Environmental Protection Act specifically highlights the Protection Agency Act (2002) provides that importance of public participation and ‘[e]very person in Liberia has the right to a seeks to encourage and ensure maximum clean and healthy environment and a duty to participation in the management and take all appropriate measures to protect and decision-making processes including enhance it’.25 The Environmental Protection exposure to agency information.28 Before Act (2002) also sets out a number of key a project commences, the project facilitator principles for environmental management.26 must submit an EIA to the EPA. The EIA The principles most relevant to the customary requirement is a multi-stage process. This rights of communities include: process is mandated in sections 6 to 30 of the Environment Protection Act. If carried §§ Ensuring compliance with international out correctly, the EIA process is capable of environmental treaties, which implies facilitating significant public participation. observance of the UN Convention on Biological Diversity (CBD) including Large-scale mono-crop projects such as Articles 8(j) and 10(c) under which the Sime Darby’s cannot commence without State of Liberia is obliged to respect having fulfilled the requirements of the EIA and protect traditional lifestyles and process, which if approved by the EPA result customary sustainable use of biological in award of an EIA license.29 The process resources by local and indigenous has numerous steps commencing with an communities; application to undertake an environmental §§ Ensuring respect for the cultural and impact assessment and publication by the spiritual; and, project proponent of a ‘notice of intent’ §§ ‘Encouraging and ensuring maximum containing sufficient information to allow a participation by the people of Liberia in stakeholder to identify their interest in the the management and decision making proposed project.30 processes of the environment and natural resources’, echoing Article 7 of For projects that will or are likely to have the Constitution (as outlined above). a significant impact, or for projects whose scope or size warrants public consultation, These principles are reflected in the key an ‘Environmental Impact Study’ is functions of the Environmental Protection required.31 Prior to carrying out this Study Agency (EPA) which is responsible for the project proponent is required to provide ensuring proper environmental management a Notice of Intent. The Notice of Intent and protection. These functions include is the first public action completed by a implementing the environmental impact project applicant and must be published. assessment (EIA) process; preserving The purpose of publishing the notice is for the historic, cultural and spiritual values the project applicant to make stakeholders of natural resource heritage; enhancing aware of the project. The Environment

Sime Darby, Grand Cape Mount County, Liberia 307 Protection Act explains that the content participation is sought by the EPA, which of the notice must ‘state in a concise or must publish a notice seeking comments, prescribed manner information that may disseminate the Statement to communities be necessary to stakeholder or interested via the County Environment Officers and party to identify its interest in the proposed the County and District Environment project or activity’.32 Committees, and hold public hearings for those most likely to be affected.37 Having The project proponent must then submit considered all comments received, the EPA a ‘project brief’.33 The project brief is decides whether to hold a formal public first submitted to the EPA by the project hearing.38 The summary report of the public proponent. The EPA will then transmit a hearing is considered by an EIA Committee copy of the project brief with comments which must include at least one person and questions to Line Ministry and make who is based in the area to be affected by copies of project brief available for public the activity, and a representative from the inspection and comments.34 project proponent.39 The opinion of the EIA Committee is subsequently considered, The next step is that the proponent must whereupon the EPA publishes its reasoned undertake a public consultation ‘scoping decision on whether the project has been exercise’ to inform the terms of reference of approved for an EIA license or not.40 the Environmental Impact Study and Impact Statement. Included in the stated purpose Although there is a right of appeal against of this public consultation is for the scoping an EPA decision to grant a license, the time- exercise to ‘identify, inform and receiving scales for appeal are short. In addition, input from the affected stakeholders and there are no arrangements for local interested parties’, ‘identify and define, communities to appeal in the vicinity of at an early stage of the EIA process, the their communities and in most cases must significant environmental issues, problems travel to Monrovia requiring long journeys and alternatives related to the different and poor road conditions and associated phases of the proposed project or activity’ expense, thus decreasing the accessibility to ‘ensure public participation early’ in the of the appeals process to rural communities. EIA process, including adequate measures Furthermore, the law does not disclose any ‘to seek the views of the people who may be mechanisms for ensuring that the EPA’s affected by the project during the study’.35 reasoned decision and other key documents This exercise must include the following such as the environmental mitigation plans steps relevant to community participation: are directly communicated to communities in a language and form that is appropriate §§ Publishing the intended project and its to those communities, further impeding anticipated effects in district media; access to information and the possibility of §§ Holding public meetings to consult appeal. Finally, although the environmental communities on their opinion the protection laws required the establishment project, via the County and District of an environmental appeal court, this is Environment Committees; yet to be set up since the environmental law §§ Incorporating the views of communities came into force in 2003. into the report of the study. Despite the limitations in the process On completion of the Environmental outlined above, the EIA procedures do Impact Study, the project proponent is provide a basis for information provision required to submit an ‘Environmental and consultation in the decision-making Impact Statement’ and an ‘Environmental processes surrounding the grant of an Mitigation Plan’ to the EPA.36 The EIA licence. Clearly these procedures Environmental Impact Statement is the when taken together would not guarantee principle document on which further public respect for the communities’ right to Free,

308 Conflict or consent? The oil palm sector at a crossroads Prior and Informed Consent. A complete Indigenous Peoples (UNDRIP) analysis of the application of the various §§ UN Declaration on the Right to stages required by the EIA process in the Development (UNDRD) case of Sime Darby’s concession in Grand §§ UN Convention on the Elimination of Cape Mount is beyond the scope of this Racial Discrimination (CERD) study. However it is clear from the findings §§ UN Convention on the Elimination of this case study, in particular from the of Discrimination against Women community feedback in Section 8, that (CEDAW) communities were not adequately informed or consulted either by the company or their In view of its international commitments, agents (such as the consultant who carried the government of Liberia is obliged to out the company’s impact assessment) or protect and promote a number of cross- via the official EIA process. This suggests cutting rights relevant to the process of that the current EIA procedures and/or granting concessions over land and natural their implementation were inadequate in resources traditionally used and occupied delivering a process of effective community by customary communities such as those information, participation and consultation. in Grand Cape Mount. These include the basic human rights to the following: property; adequate standards of living Summary of international legal (including adequate food, adequate housing framework and health); culture and religion; self- determination; and development. In terms of accessing rights from the international law framework, Liberia has a Crucially, it is settled law that traditional dualist system whereby international laws possession and use of customary land by need to be incorporated into domestic law tribal and indigenous peoples amounts to to be enforceable in the Liberian courts.41 a property right, in respect of which any However international laws ratified by Liberia activity that may compromise the physical remain binding on the state whether they or cultural survival of that people would have been incorporated into national law or require observance of the right to Free, not. Relevant international legal instruments Prior and Informed Consent.42 International formally incorporated into domestic law human rights law guarantees all customary include the following as confirmed at the time communities the right to meaningful of writing: participation and consultation in respect of decision-making that has implications for §§ African Charter on Human and Peoples their customary lands and natural resources. Rights (ACHPR) 43 This includes the requirement that §§ International Covenant on Economic, communities be provided with prior, full, Social & Cultural Rights (ICESCR) accurate and objective information, in a form §§ International Covenant on Civil & and language appropriate to all communities Political Rights and Optional Protocol concerned, including information on the (ICCPR) negative risks as well as the potential §§ UN Convention on the Rights of the benefits of the proposed activity. It is also Child (CRC) a requirement of International law in such cases that a prior and independent cultural, Liberia has also ratified or has otherwise social and environmental impact assessment committed to respecting the following be completed.44 In addition, communities international legal instruments: must receive a reasonable benefit and suitable compensation where they have §§ UN Convention on Biological Diversity been deprived of traditional property and (CBD) other rights in respect of customary land and §§ UN Declaration on the Rights of natural resources.45

Sime Darby, Grand Cape Mount County, Liberia 309 International legal best practice is echoed of Experts has noted the critical problems in the RSPO Principles & Criteria, which associated with the lack of clarification of place a duty on member companies to land ownership, including land conflict.50 respect customary rights to land and only This applies to both new allocations use land with the Free, Prior and Informed of concessions and extensions of pre- Consent of all community members, existing concessions, such as Sime Darby’s through processes and agreements that are extension of the original BF Goodrich/ well-documented and transparent.46 For Guthrie rubber plantation.51 As such the example Criterion 2.3 requires that ‘[u] Panel has recommended a moratorium se of land for oil palm does not diminish on allocating further natural resource the legal rights or customary rights, of concessions pending the completion other users, without their free prior and of the Land Commission’s land tenure informed consent’. The Principles & clarification process.52 The Panel also Criteria also require that a comprehensive notes with concern the general apparent and participatory social and environmental lack of compliance with the competitive impact assessment (SEIA) be undertaken bidding processes required by the Public by an accredited independent expert.47 In Procurement and Concessions Commission addition, RSPO-certified palm oil growers and associated procurement law.53 are prohibited from using land containing primary forest, or High Conservation In terms of the agriculture sector in Values (HCVs).48 Identifying these areas particular, the Panel observes that it has yet must be integrated into the SEIA process. to undergo similar reforms despite suffering Importantly for communities, HCV areas from the same governance weaknesses also include forest areas fundamental to as other sectors.54 The current conflict at meeting basic needs of local communities Grand Cape Mount can thus be seen as a (eg subsistence, health etc.); and forest continuation of existing problems in this areas critical to local communities’ sector, including violence and human rights traditional cultural identity (areas of abuses at the former Guthrie plantation cultural, ecological, economic or religious as identified in the Panel’s report. The significance identified in cooperation governance weaknesses referred to by the with local communities). Finally, local Panel include a lack of transparency of communities must be compensated in even basic information on agricultural land accordance with agreements reached planning and contracts.55 The Panel notes during negotiations that adhere to the right the challenges even it faced in locating to FPIC.49 This should also be integrated copies of concession contracts. If the UN into the SEIA process. Panel of Experts operating under a Security Council mandate had such difficulties, rural Since the end of the conflict and the communities are even less likely to be able sanctions placed on Liberia, the UN to gain access to such basic information. Security Council has continued to mandate a Panel of Experts to investigate and report Further key problems with agricultural back to the Security Council on issues concession allocation processes and relevant to maintaining peace, security corresponding recommendations for and development in the country, including addressing these, as identified by the Panel, natural resource governance. This has led include the following: to a number of important findings and recommendations relevant to large-scale §§ Consultation and participation: land acquisition such as the Sime Darby oil There are ‘no specific legal requirement palm concession. for multi-stakeholder participation or community consultation with regard In terms of the problems associated with to landownership or ex ante social concession allocation in general, the Panel agreements’.56 As stated by the Panel,

310 Conflict or consent? The oil palm sector at a crossroads public participation and consultation Furthermore, the Panel notes that Sime of communities and other stakeholders Darby’s concession contract only vaguely will help bring to light pre-existing land defines the land area concerned, deferring claims or disputes, and prevent land demarcation until after the concession has disputes and associated conflict. been ratified by the Liberian legislature.62 However, as a result of this ratification, the §§ Benefit sharing: Despite various contract enters into Liberian law and the benefits being promised (for schools, full range of contractual provisions comes health care and housing etc.) there is immediately into force without the need a lack of consistency in the benefits for a further contract. In its 2010 report the promised; benefits are poorly defined Panel notes the potential for tensions to arise in the contracts in terms of time during concession expansion in the context frame and standards; and they apply where there is insufficient land for the only to employees as opposed to the concession due to pre-existing land use and whole affected community.57 As the titles (as was noted by the company itself). Panel notes, long-term stability and development objectives depend on the This is born out in the Panel’s 2011 report population benefiting at the community, which notes that ‘land disputes stemming regional and national levels.58 from a lack of community consultation have long plagued many of the rubber §§ Monitoring: Negotiation and plantations, and have flared up, in particular compliance with contracts and social in connection with the new expansions of agreements is not currently overseen the Guthrie plantation by the Malaysian by any government ministry, leaving multinational firm Sime Darby’.63 The them subject to the goodwill of the Panel notes that Sime Darby admit to 40% company and the negotiating position of of the land being subject to overlapping communities (which is comparatively claims, and on informing the government weak) and the unions.59 The Panel asserts of this, was told to ‘sort it out themselves’. that the ‘ability to monitor concessions is This suggests a surprising complacency crucial on a number of fronts, including on behalf of the government of Liberia, ensuring that contracts are allocated particularly given the history of conflict and negotiated to the benefit of Liberia in the area. The government appears to be and its citizens; that required payments relying entirely on Sime Darby to sort out are made by companies; that social, complex problems that require far more health, education and employment sensitivity and attention by a number of provisions of contracts are met; and that stakeholders, being based on deep-rooted environmental terms and conditions are issues such as the lack of clarity on land met’.60 ownership and the weak security of tenure position of customary communities. As the §§ Regulating private security Panel states, ‘natural resources can only arrangements: Finally, given the help strengthen the post-war economy and history of land conflict and potential for contribute to economic recovery if they violence, the Panel notes with concern are managed well and in an accountable, the implications of private security transparent and sustainable manner’.64 arrangements and a lack of transparency in those arrangements. They recommend A number of other key observations and vetting procedures to exclude individuals recommendations have emerged from from combatant chains of command and/ international jurisprudence specifically in or involved in past human rights abuses, relation to Liberia. These include concluding and recommend establishing internal observations and recommendations of codes of conduct relating to rules of the UN treaty bodies (such as the UN engagement and human rights training.61 Committee on the Rights of the Child), UN

Sime Darby, Grand Cape Mount County, Liberia 311 special mechanisms (ie the independent rights perspective, a large proportion of the expert on technical cooperation and population is unable to enjoy its right to advisory services in Liberia), and food.’74 Food security is further highlighted reports developed under the auspices of in her 2008 report, where she adds that ‘[t] the Human Rights Council, including he current situation is being exacerbated by pursuant to Liberia’s Universal Periodic the global food security crisis and the rise Review.65 The principal observations and in fuel prices.’75 recommendations from this international jurisprudence as relevant to customary §§ address the human rights problems land and natural resource rights include such as housing, pay and sanitation observations and recommendations that the conditions associated with rubber government of Liberia should: plantations (including at the Guthrie plantation), and prioritise human rights §§ take steps, including legislation to as well as other factors such as basic ensure non-discrimination with regards services for workers when negotiating to vulnerable groups, including rural these and other concession contracts;76 children;66 rural women, including employment conditions of women The independent expert makes particular working on rubber plantations67 and reference to human rights violations on the needs of rural women to participate rubber plantations, in particular at Guthrie in decision-making processes and rubber plantation in Bomi (part of the site development planning;68 now included in the Sime Darby concession §§ address the risks of ethnic polarisation, area), and the Cavalla rubber plantation, conflict and racial discrimination, including housing, pay and sanitation including with respect to land and natural conditions.77 She reports that ‘concession resources such as inter-communal agreements do not systematically include boundary and ownership disputes;69 the provision of minimum standards of §§ take necessary steps, including land basic services for workers’.78 reform, in relation to land rights and land-related conflict;70 including in §§ domesticate international and regional relation to returning refugees and human rights instruments and ensure internally displaced persons;71 that domestic laws are harmonised with §§ The independent expert on technical the international human rights treaties it cooperation and advisory services in has ratified;79 and to consider amending Liberia notes the recent occurrence the constitution to give immediate effect of land/property related violence and to international law.80 killings, referring to it as a ‘worrisome trend’ and ‘a conflict resolution area deserving of attention’.72 Sime Darby corporate background §§ address the problem of food security; Sime Darby is registered in and The independent expert reports that while owns a large number of subsidiary companies, agricultural production for export is including Liberian-registered ‘Sime Darby developed, production for food for domestic Plantations (Liberia) Incorporated’.81 consumption is undeveloped. Referring Although engaged in a range of industries, its to the October 2006 FAO Comprehensive plantations division accounts for more than Food Security and Nutrition Survey,73 she half of its profits.82 This includes production states that ‘[s]tunting affects 39 per cent of of crude palm oil, and derivative products, children under 5 years of age, 11 per cent including .83 Sime Darby’s principal of survey household are considered food buyers of palm oil include Nestlé and insecure and 40 per cent highly vulnerable . As of mid-2009, its land bank in to food insecurity. Seen from a human Malaysia and Indonesia amounted to 631,762

312 Conflict or consent? The oil palm sector at a crossroads ha, the vast majority of it being planted suspending operations due to the security with oil palm.84 Sime Darby has now added situation in Liberia, whereupon government 220,000 ha of land in Liberia to its plantation officials provided interim management. estate via the 2009 concession agreement Sime Darby Berhad acquired KGB in with the Republic of Liberia.85 It is also November 2007.90 understood that the Republic of Cameroon has made a commitment to providing Sime Sime Darby states that its operation in Darby with 430,000 ha of land in Cameroon Grand Cape Mount currently amounts to for palm oil and rubber, of which 40,000 ha around 12,514 ha. This includes 7,785 ha has been allocated.86 of the former Guthrie/BF Goodrich rubber plantation. Sime Darby has embarked on The principal shareholder of Sime Darby (at clearing and planting 10,000 ha of land the end of September 2009) is Permodalan adjacent to the existing rubber plantation Nasional Berhad (Malaysia’s national in Grand Cape Mount and Bomi counties, investment and Employees Provident of which at least 4,000 ha have now Fund).87 Other shareholders include/have been cleared for planting. Clearing was included investors from Malaysia, Singapore, ongoing during the fieldwork for this study the United States and the United Kingdom.88 in February 2012. Sime Darby’s gross Sime Darby has received finance from the concession area in Grand Cape Mount following banks: OCBC (Singapore), CIMB amounts to 39,010 ha, which is around 13% (Malaysia), HSBC (UK), and Bank of Tokyo- of its total gross concession area of 311,817 Mitsubishi UFJ (Japan).89 ha in Liberia. Of this gross concession area, 159,827 ha (51%) is planned in , 57,008 ha (18%) in , Legal status of Sime Darby’s rights to the and 55,342 ha (18%) in . concession land Although a comprehensive summary of Sime Darby’s current Liberian concession the contract and its limitations is beyond agreement was entered into on 30th April the scope of this study, a number of key 2009, and provides a lease of land for 63 years, terms that are present in the contract, as renewable for a further 30 years. Signed by well as many important omissions, render the acting Minister of Agriculture (Borkai it fundamentally inconsistent with the Sirleaf), the Minister of Finance (Augustine international commitments of both the Ngafuan) and attested to by the Minister of government of Liberia and Sime Darby. In Justice, the concession agreement provides the case of the government, these include for land totalling 220,000 ha. This 2009 the international treaty commitments concession is referred to as an ‘Amended and related jurisprudence (as set out in and Restated Concession Agreement’ as it section (5) above) which entail protection incorporates 120,000 ha of land that was the of a number of cross-cutting human subject of a previous concession agreement rights relevant to community rights over dated 9th July 1954 with B.F. Goodrich. customary lands and resources. In the case The 1954 concession was subsequently of Sime Darby these commitments include transferred to Guthrie Ltd UK, and then to its corporate responsibility to respect the Guthrie Kumpulan Sendirian Berhad (parent human rights protected under international company of Guthrie Ltd UK), subsequently law91 and its obligations as member of the known as Kumpulan Guthrie Berhad RSPO. (KGB). The 1954 concession agreement was amended on 22nd November 1985 to A central problem is that the provisions reflect assignment of concession rights. clearly imply that the government of The area planted with rubber amounted to Liberia considers that the concession area around 20,000 acres. On 30th October 2001, is in its gift. The contract clearly neglects KGB gave notice that it was temporarily to accord due respect to the rights of

Sime Darby, Grand Cape Mount County, Liberia 313 customary communities over their land and the corresponding standards required by the resources in the concession area or assumes RSPO Principles & Criteria. Essentially there that these rights can be inevitably defeated is no incorporation or mention of compliance by the government. This is implied by a with the key aspects of international human number of provisions, including inter alia rights law and the RSPO Principles & Criteria the following terms: in terms of the treatment of customary rights. For example, the contractual terms regarding §§ assuming the government’s right to resettlement are utterly at odds with the fact grant a leasehold over the concession that involuntary resettlement is considered a area to Sime Darby (Section 20) serious violation of international law except §§ reserving ownership for the government in the most exceptional circumstances.93 of non-moveable assets on expiry or termination of the contract (Sections 3.3 As detailed in Section 5, environmental and 27.1); and social impact assessments are a key §§ allowing government to repossess requirement of international law and the unused land (Sections 8.5 and 8.6); RSPO Principles & Criteria in relation to §§ providing government warrantees to acquisition of community land. It is also provide land free of encumbrances, a crucial stage in any legitimate process and warrantee the companies’ title to, through which a community’s right to FPIC possession and quiet enjoyment of the is to be respected. Via a consulting company, concession area (Sections 4.1(c) and 5.6); Sime Darby completed an Environmental §§ granting Sime Darby a right to request and Social Impact Assessment Report (ESIA) resettlement of existing communities, in 2010 for the 10,000 ha area of oil palm if it can demonstrate that they would planned for Grand Cape and Bomi counties.94 ‘impede development’ of the concession The ESIA classifies the existing land use as and ‘interfere with the activities’ of the ‘subsistence agriculture’, and notes that ‘[a] companies (Section 4.3); and, griculture accounts for more than 90% of the §§ permitting local communities to farm labour force within the project area’95 as well on land within the concession providing as hunting and ‘petty trade’. they seek the consent of the company, and even then only for non-commercial Accordingly, it notes as potential socio- uses (Section 8.10). economic impacts of the project as the following: displacement of people and At the same time the contract fails to provide communities, loss of land and crops, and adequate social safeguards. There is no change in lifestyle and living conditions. requirement that this ‘government contract’ The suggested mitigating steps include be subject to an obligatory FPIC process a resettlement framework policy, FPIC, that would lead to a ‘social contract’ with and defining ‘affected people centered the communities in the concession area, and resettlement criteria and compensation no requirements for adequate compensation consistent with Liberian laws’.96 The report and benefit-sharing. There are no provisions states that for the purposes of the current requiring participatory mapping of existing development of 10,000 ha at Bomi and Grand customary lands areas, identification of land Cape Mount counties, ‘[c]onsidering [the] size essential to community needs and sacred of the current project and the small number of or otherwise culturally important.92 In the villages within the project area, Sime Darby absence of such guarantees for meaningful will not be implementing resettlement actions participation in the proposed development immediately’ but that ‘considering the need projects, the contract constitutes a failure for resettlement in future areas of the land… on the part of the government to adequately the company has indicated its commitment protect the local communities’ human rights, to upholding international requirements with and a failure on the part of the company to respect to the development of a Resettlement observe those same international laws and Action Plan’.97

314 Conflict or consent? The oil palm sector at a crossroads The report also notes water resource degra- nn Sime Darby map of towns within the Grand Cape dations and siltation as a possible socio-eco- Mount county concession. The nursery is the small nomic impact, and identifies mitigation steps block in red above the central housing - the latter is the including good site development (conserva- HQ on the ground which is also the location of Sime tion of riparian zones and soil erosion mini- Darby’s offices. misation) and cooperation ‘with communities and local authorities on solving water supply issue on the directly affected communities’.98 for lost crops would be paid according to The report also notes that if plantation opera- government defined rates, and highlights tional activities are not well managed in rela- that ‘[b]ased on the loss of agriculture land, tion to water resource degradation and silta- the impact of the project on agriculture is tion, this could cause ‘frequent outbreaks of considered to be significant within the local skin disease and diarrhoea’. context, especially when farmers would have to identify new areas for farming. Mitigation The ESIA also notes that ‘people and the measures are required’.100 The High state are at odds as to who owns the forests’, Conservation Values Assessment (HCVA) and that the lack of established mechanisms notes the presence of forested areas essential linking customary and statutory structures to community needs (HCV 5), and forest making ‘local communities potential targets areas critical to traditional culture, including for land and resource grabbing’.99 The burial sites (HCV 6)101, and notes the need report goes on to report that compensation for participatory mapping of boundaries.102

Sime Darby, Grand Cape Mount County, Liberia 315 Sime Darby also sought and obtained land rights or provide provisions for the necessary EIA licence from the EPA, respecting the communities’ rights to FPIC. allowing it to proceed with the planned development.103 The permit was granted Sime Darby in Monrovia outlined the despite being disputed by community process through which they had informed members in a joint letter dated 18th August the communities, and it seems clear from 2011, claiming inter alia that the project their account that this process does not would amount to eviction due to the loss of satisfy the requirements for FPIC as set out crop land; that the ESIA consultants failed to in the RSPO Principles & Criteria, and as give sufficient weight to community concerns described by international human rights in its conclusions; and that the government law and jurisprudence. The Sime Darby failed to consult the communities before powerpoint outlining the FPIC process, granting the concession. referred to the second step in this process as ‘Conduct Propaganda Campaign on the In a letter dated 29th August 2011, the Ground’. In addition, Sime Darby’s Liberian EPA contacted Sime Darby accusing it of manager responsible for FPIC described a ‘willful violation of the Environment the process as telling communities that: (1) Protection and Management Law of land will be developed, (2) a portion of land Liberia’, highlighting the lack of a will be left for agriculture, and (3) there monitoring report as instructed in the EPA will be an ‘out-growers’ scheme and agro- permit conditions, and a lack of engagement forestry for the communities.105 Sime Darby with the other permit conditions. In a informed communities that their farmland subsequent letter dated 5th October 2011, would be left: ‘The land in question is not the EPA imposed a fine of $50,000 USD being taken away by Sime Darby forcibly on Sime Darby for violations specified in but the farming activities you have carried the 29th August 2011 letter that had not out will continue to be carried out’, and been addressed.104 The EPA letter followed that the improvement will be in ‘everyone’s complaints sent by Green Advocates to the living standards: there will be schools, safe EPA that Sime Darby was in violation of drinking water’. the environmental law and the EIA licence requirements. From Sime Darby’s explanation it was clear that communities were given the impression that their farm land would The right to free, prior and informed remain, and that Sime Darby would be consent: a compliance analysis of Sime developing land further away from them Darby and the government of Liberia while also giving them an opportunity to benefit from employment and from taking part in the out-growers scheme. What has either the government or the company done or not done, to allow Sime Darby explained to the researchers recognition of communities’ rights to their they avoided deeded land, and also that customary land and/or to give or withhold ‘nobody claims they have customary their FPIC? land’. When asked whether there had been any mapping exercise to find out if there were any customary land claims Sime Darby (as recommended in the company’s own ESIA), Sime Darby explained: As evident from the concession contract as discussed above, the company’s negotiations No, we’ll do that next. The land commissioner will led to a contract that is inconsistent with address this. We will ask the Land Commission to international law and RSPO standards, do the mapping with Sime Darby and communities including a failure to recognise community next time. We planted on swamps before, not now.

316 Conflict or consent? The oil palm sector at a crossroads We realised that swamp needs to be left. We can to the land acquisition is that undeeded land always improve. Sime Darby is waiting for the belongs to the state and is unencumbered by government to tell us what land to give over. third party customary rights, such that the state is legally entitled (under the terms of the In other words the company on the one hand concession agreement) to grant the company acted as though the land they cleared was the power to use the land, without needing neither deeded nor held under customary the consent of customary communities or land, and on the other hand acknowledged negotiating fair compensation for loss of that they did not carry out the necessary customary lands and resources. In so doing, research and consultations to find out whether the company is adhering to the government that was the case, and are clear that they have of Liberia’s interpretation of national law, made mistakes which they are waiting for the and in clear breach of international human government to resolve. Once the land had rights law and RSPO standards. From the been cleared without communities’ consent summary above it is clear that Liberia’s (see below) and communities had appealed national law is inchoate, discriminatory and to the RSPO – through their lawyer at Green anachronistic at the very least, as well as Advocates and through the Forest Peoples being in breach of international human rights Programme – to impose a moratorium, there standards to which Liberia is committed was then a recognition higher up in Sime to implementing. Indeed, as highlighted Darby that there were indeed serious issues above, the company’s own ESIA noted the to be addressed. deficiencies in the national legal framework in relation to customary rights when stating A bilateral meeting between the community that ‘people and the state are at odds as to representatives and the company on 17th who owns the forests’, and that the lack of December 2011 sought to find ways of established mechanisms linking customary resolving these conflicts. By entering into and statutory structures render ‘local this process the company demonstrated communities potential targets for land and good faith and a wish to resolve the issues in resource grabbing’. Despite these findings line with RSPO requirements, arising from in the ESIA, Sime Darby has failed to take what the communities had experienced as a appropriate steps to address and mitigate land grab that had not observed their right these known deficiencies in response to to FPIC. The presence of senior Sime Darby these findings.106 staff from Malaysia was critical to making this meeting productive. At the meeting, It is clear that Sime Darby prefer the Sime Darby officials agreed to resolve the government’s interpretation of national land conflict in line with RSPO Principles law over international law and RSPO & Criteria, carry out an independent audit voluntary standards. In another example of the extent to which FPIC was respected of this the company uses the government and recognise the communities’ own freely compensation rates for loss of crops, chosen representatives as interlocutors for rather than establishing fair compensation resolving the dispute. The meeting resulted through a process of fully participatory in a scheduled and urgent programme community negotiations. The table of meetings and other activities between outlining government compensation rates is community representatives, Green appended to the Environmental and Social Advocates and Sime Darby to take concrete Impact Assessment Report (ESIA).107 steps towards compliance with RSPO During the course of this study community standards, as well as emergency measures members showed receipts confirming that to mitigate the negative impacts of the crop compensation was paid at these rates, development so far. eg $6 USD compensation for a mature orange or rubber tree, which could earn its In practice it is therefore apparent that the owner much more than this over the course basis of the company’s attitude and approach of its productive life-span.

Sime Darby, Grand Cape Mount County, Liberia 317 The company have failed to make the of customary land claims overlapping the argument to the government that to adhere concession area. with industry international standards and RSPO processes, the government needed After the RSPO complaint had been to adopt improved standards of procedure submitted, there was huge and persistent and compensation to those specified in government pressure on communities and national law, which is the very point of Green Advocates to drop their complaint voluntary standards such as the RSPO. prior to the bilateral meeting, and to stop Clearly it would be in the company’s and the bilateral from occurring. This allegedly the government’s best interests to agree a included direct and veiled threats to a number framework that facilitates compliance with of individual civil society members involved; these norms, since RSPO accreditation is visits to communities by an inter-ministerial crucial to the companies market access, delegation of nine 4x4 vehicles the day and is therefore good for business. If the before the bilateral meeting; and formal government of Liberia facilitates this, then letters from the government to Sime Darby the image it will give is of a country that is to stop the meeting. The fact that the meeting correspondingly good for business. Liberia went ahead anyway, and that a process was would then be best equipped to gain from agreed to resolve the issues, demonstrated the benefits that flow from enjoying more not only the commitment of senior Sime progressive/less exploitative investment Darby staff to comply with the voluntary practices; avoiding reputational risks of RSPO standards, but also the strong desire being found to be in breach of international of communities to engage the company human rights law; and avoiding the risk of directly, rather than being subjected to what further civil conflict. they experienced as the manipulation and intransigence of the government of Liberia with respect to the application of FPIC over The government of Liberia developments of this nature.

By negotiating the concession contract, the Subsequently, however, government government failed to respect and protect pressure led to the bilateral negotiations the human rights of the communities in process breaking down. The government accordance with its international legal told Sime Darby not to continue the obligations, as well as the RSPO commitments bilateral discussions, and that the of the company such as the duty to observe government would deal directly with the right to FPIC. Community rights over the communities. The planned follow up the land and resources were disregarded by meeting on the 22nd December did not the government in agreeing the concession happen due to government intervention, contract, as were the communities’ and subsequently on January 2nd 2012 procedural rights, including, inter alia, their the President and Ministers came to rights to full information about the proposed meet communities to tell them it was development, meaningful participation in their duty to not obstruct Sime Darby; decisions concerning their customary land to not be ‘misled’ by civil society; and and resources, and adequate compensation that they were duty bound to adhere to and benefit-sharing. After the contract was any agreements which the government signed, the government took no further action entered into on behalf of the people of to protect these rights until a heightened Liberia. The President did however listen state of conflict precipitated a community to the fourteen issues the community complaint to the RSPO. According to the presented which they wanted resolved and Panel of Experts report, the government their lawyer – Green Advocates’ Alfred deferred entirely to the company by refusing Brownell – explained the situation to the to be drawn into problems the company President who replied that the government was experiencing associated with the extent had not signed up to people having all

318 Conflict or consent? The oil palm sector at a crossroads their land cleared. The President then set up an inter-ministerial committee headed by the Ministry for Internal Affairs which was mandated to resolve the issues through three sub-committees addressing compensation, water and land respectively. The government insisted that it, rather than Sime Darby, would talk with the communities.

Subsequently a letter (purportedly coming from Sekou Belloe, one of the original signatories of the communities’ complaint to the RSPO) withdrawing the communities’ complaint against Sime Darby was sent to the RSPO. It is understood that the letter had been a result of pressure on Sekou Belloe from the Ministry of Internal Affairs, and had been sent despite Sekou Belloe no longer being recognised as one of the communities’ representatives, precisely nn Sekou Belloe (left), traditional leader and one of because he was seen as acceding to the original signatories of the communities’ complaint government pressure to drop their demand to the RSPO, with local community member / Justin that their rights be recognised. Kenrick

Encouragingly, in February 2012, the government apparently decided to change environment for company compliance with its approach, revising the composition those international laws and norms. of the Inter-Ministerial Committee and apparently agreeing that it was necessary for the company to adhere to the RSPO How do the communities see the FPIC standards and procedures. process or lack of it?

Reflecting on the disjunction between In the communities visited for this study the national law and the government’s researchers were shown former agricultural interpretation of it, as outlined above in fields. In many cases they had been terms of the treatment of customary land and completely destroyed against the wishes of government compensation rates, as well as the villagers and in exchange for inadequate in preventing the company from negotiating or no compensation. Furthermore, although a directly with communities, it is clear that number of local people had been employed by the prevailing law and its application by the company as temporary casual labourers, the government is contrary to international few were employed on a permanent basis. standards and RSPO standards. Initially, the This was very different from the ‘propaganda’ government failed to mitigate this both in the presented by Sime Darby at the outset, most practices it adopted during the concession notably in the following ways: contract negotiation, allocation, plantation planning and development, and in managing The information they were given was the land dispute and RSPO complaint. Not inadequate: only does national law and practice need to be brought in line with these international Local people were clear that they had been laws and best practices, but government informed it was the existing rubber plantation should also be providing an enabling and areas far from the towns that were going

Sime Darby, Grand Cape Mount County, Liberia 319 nn Customary land cleared and planted with young nothing and just watching as their land oil palm trees without the free, prior and informed was completely cleared. Others spoke of consent of the community. As well as land used for food receiving no compensation at all for their and building materials, to the right of the photograph land and instead watching as people from land has been cleared and planted on a village burial outside the community were photographed ground, and to the left (outside of frame), a substantial accepting compensation for what was part of a sacred women’s forest was also cleared and actually their land. People from the company planted / Tom Lomax would arrive in large numbers to clear the land and there was no opportunity to say ‘no’ in view of this obviously coercive approach. to be cleared, not their own farmland, forest land and swamp land. They had not been One community member stated that: informed that the creeks they relied on for water and fish were going to be blocked, They didn’t ask permission to take the land. diverted or drained in the process of clearing They were only paying money per acre for the land and building roads, a process that people who had deeds for their land [ie they did made the water undrinkable. not compensate for loss of undeeded customary land]…Sime Darby said that ‘the government One community leader stated that: has given us the power to do this’. If we had the power to resist we would not let them take People would have tolerated Sime Darby clearing the land. We had to pay them bribes to get them [the old BF Goodrich/Guthrie] rubber plantations, to survey the crops [so that any compensation but not fields, graves and sacred sites. would be reduced by the amount paid as a bribe].

Another community member stated: The time they were given to consider their response was non-existent, they were not They [Sime Darby] said the government had given the opportunity to say ‘no’, and were given them the land, so whether you agree or not given inadequate or no compensation: we will take the land.

Many community members told us that they Another community member stated that: were given a stark choice between agreeing to accept compensation, or receiving They pushed everything in the water, cleared too

320 Conflict or consent? The oil palm sector at a crossroads close to the river, so sediment gets washed in, for Internal Affairs, who had threatened they do this to clear people out. communities with forced resettlement if they did not agree to the plantation, has One woman said: since been dismissed. Encouragingly, the new Minister of Internal Affairs and the Everything was destroyed. They did not count Chairman of the Land Commission, who the crop. They broke the house down. They are now taking lead roles in negotiating destroyed everything. They asked me to bribe with communities, both recognise that the them to count the crops, but I had no money to communities have real grievances that need bribe them. They took photos of other people to be resolved. from outside, and claimed it was theirs. However, the prevailing government Another highlighted that: position appears to be to seek some form of compensation that the company can Where Sime Darby cleared, it was where we used undertake, including returning small areas of to farm cassava to get the money to call someone land to communities, so that conflict over land to teach the children but we can’t do that anymore is addressed in ways acceptable to the RSPO, so there is no school for the children anymore. while supporting the company to continue its operations. This leaves a question-mark over whether the government will now address What actions has the government of the underlying issues: the need to recognise Liberia taken to facilitate or allow Sime communities’ rights to their land and their Darby to comply with international laws right to withhold their consent to their land and best practice standards? being taken. Furthermore, the government must provide urgent and immediate assistance The government signed the concession to those suffering severely reduced life agreement with Sime Darby which, chances as a consequence of the company’s as outlined above, is in violation of international law, and prevents the company from being able to meet its nn Balah shows what was formerly a running creek RSPO commitments. The government used by her and her village for fresh-water and fishing. subsequently obstructed the bilateral Due to clearing, draining and in-filling by Sime Darby, process set up in response to the RSPO the creek now lies stagnant, risking the spread of water- complaint lodged by the communities. borne diseases. Balah’s family farm land has also been Government ministers have changed in lost to Sime Darby’s plantation without their free, prior response to recent elections and public and informed consent, and she now has to walk many pressure. For example, the Deputy Minister hours to find land on which to grow food / Tom Lomax

Sime Darby, Grand Cape Mount County, Liberia 321 activities, including water-borne diseases obstacles for FPIC, as well as other cross- from creeks that now lie stagnant, hunger cutting rights relating to land and resources. from loss of fields and livelihoods, loss of This is primarily because the government cultural and sacred sites, loss of income appears to see FPIC as encroaching on and corresponding difficulties accessing government sovereignty, on their right to education and health-care. These impacts are establish concession contracts and speak clearly inconsistent with the governments’ for their people. A further problem is that international law obligations to achieve the undeeded customary land is treated as a progressive realisation of protected social, state asset to be used as it sees fit. As noted economic and cultural rights such as the above, the President initially made it very rights to food, housing, education, health and clear to the company that it should not culture. negotiate directly with the communities to resolve the situation, and had made it clear More recently (March 2012) it was reported to communities that they had no right to that the Environmental Protection Agency refuse any company activities which the is calling for new hearings in support of government had authorised. additional permit requests by Sime Darby for new planting areas, before the company However the new Minister of Internal has implemented the approved mitigation Affairs, Blamoh Nelson, said he recognises plans to restore the environment and that the government will have to work hard address the damages caused in Grand Cape to regain the trust of Liberians in general, Mount County. as well as communities in this particular context:

In practice, how do Liberia’s laws or Previously the government has not worked in policies assist or create obstacles for a way that encourages good governance. The protecting the right to FPIC? government is encouraging an aggressive civil society. ‘Government says this, communities say Sections 4 and 5 provide a full analysis of that’ creates a dichotomy. . . . We fought a civil national and international law as regards war so that people would be respected. land acquisition and the rights of customary communities over land and resources. In In reference to any agreements communities summary, although some progress has been may have entered into with Sime Darby, he made in reforms relating to forests, a lack added: ‘These are sovereign people who of reform of land laws and the agriculture are signing a sovereign agreement.’ There sector in particular, leaves customary is therefore hope that the government communities vulnerable to ‘land grab’ is moving away from poor governance in violation of the international laws and practices, and will work towards shaping best practice highlighted in Section 5. a new governance and rural development In its requirement for maximum feasible paradigm based on a fundamental respect participation by Liberian citizens in the for community rights over customary lands management of the national economy and and resources. natural resources, the Constitution provides a national law foundation for advancing the right to FPIC. This is complemented In practice what are the main obstacles by environmental protection laws, which for local communities to securing their provide a degree of procedural protection lands and exercising their right to FPIC? to communities in terms of information provision and consultation. The principal obstacles for securing community land rights their right to FPIC However, as outlined above State laws and stem from problems in the existing land law policies and their implementation create coupled with poor practices of government

322 Conflict or consent? The oil palm sector at a crossroads and investor companies such as Sime Darby in concession allocation, management and oversight. As a result, there is a failure to implement and ensure compliance with international law and best practice. Customary communities are not recognised as having the right to FPIC because they are not seen as owning their land. The government perception exemplified by the Sime Darby case is that all land that is not deeded is state land. This perception does not recognise pre-existing customary rights over that land and resources and the right to FPIC. The government therefore believes it has the right to dispense with these undeeded lands and resources as they wish. Sime Darby has acted in a way that accepts this status quo.

The government has leased customary communities’ farm-land to Sime Darby for as little as $1.25 USD per hectare per nn Amita described having had everything she needed year. The government’s compensation for feeding her family from her village in the forest. The system used by the company means that village including the houses was broken down and lost farmers receive compensation far below a to the plantation without compensation. Now, she and fair estimate of the productive value of the her family rely on her daughter providing food bought land, for example compensation of $6 USD in Monrovia / Tom Lomax is received for each of their orange, rubber or avocado trees that are cut down, and $80 USD per hectare of cassava. Clearly neither rights and rights to FPIC, the development the government nor the company appreciates and human rights commitments of the the value of that land to the communities government as well as the commercial and who have used it for generations.. Instead reputational objectives of private investors. of going above and beyond the current national law and governance practices As a starting point, there appear to be to the extent necessary to meet its RSPO different views on the way forward within commitments such as observing the right the company and within the government. to FPIC – which is the very purpose of Sime Darby Liberia appeared to accept the voluntary certification systems such as the government’s earlier expressed position RSPO – Sime Darby has instead proceeded of rejecting what it sees as international on the same basis as the government. interference in the form of the RSPO grievance process (despite the fact that it accepts international interference in Recommendations the form of Sime Darby’s activities in Liberia) which requires the company to Resolving the conflict at Grand Cape Mount negotiate with communities and respect could, if managed well, be an opportunity their right to FPIC. On the other hand, to generate good practices and lessons internationally, senior staff at Sime Darby that could be applied to positive effect in Malaysia recognise the importance of the throughout Liberia, and thereby find a way RSPO standards and of adhering to FPIC, forward that meets both the objectives of and key individuals in government (for communities keen to secure their land example, Dr Brandy, the Chairman of the

Sime Darby, Grand Cape Mount County, Liberia 323 Land Commission, and Blamoh Nelson, between the company and the communities the Minister of Internal Affairs) recognise to resume and to resolve the issues that have the need to listen to and negotiate with the been identified. If the government were to communities. seek to facilitate a process of negotiation between the company and communities Communities see an urgent review by based on FPIC, then the situation could be an independent assessment of the FPIC resolved to the benefit of all parties in the process as critical to ensuring that their following ways: right to FPIC is observed; that their rights to their land are recognised; and to ensure Communities could receive their land that compensation is made and that land back (or a portion of their land, if they is returned wherever requested. Senior consent to development proceeding) plus international staff in Sime Darby see this compensation and/or restoration for the as critical to their commitment to adhere severe damage that has taken place to date to international norms and the RSPO in accordance with community wishes. principles and to retaining market share by maintaining their RSPO membership. Sime The company could retain its hard won Darby Liberia also needs to understand that (and easily lost) reputation for being this is a critical next step. environmentally and socially aware and so retain its RSPO accreditation and its market On the other hand, the government share. It is also clear that other communities position to date has been that it is they, where Sime Darby hope to expand their not the company, that should negotiate operations have seen the damage they have with communities. The government sees caused and the lack of FPIC in the land this as potentially involving making some acquisition process, and are considering compensation but it is as yet unclear whether refusing the company’s activities if they seek they will recognise the right to FPIC, since to proceed without having first resolved the currently their view appears to be that fundamental issues in Grand Cape Mount. such companies should seek consent from government not from communities. The The government would avoid generating company (or at least Sime Darby Liberia) the potentially very serious security has acceded to this view to date, and given situation which is likely to worsen if people way to the government’s insistence that it experience their livelihoods being taken should settle the disputes. The government from them and become – in the words of needs to recognise that FPIC is crucial, one local person – ‘squatters on our own and in so doing, respect customary rights lands’. The government would also avoid as being proprietary rights of equal legal the risk of losing those international standing to private land ownership. The investors concerned to help create an government must recognise that local environment that is secure over the long communities have customary rights to term, and instead encourage those who their land, that they have the right to refuse are simply seeking to take what they can, developments on their land, and have the in exchange for as little as they can. This right – should they agree to developments would be to the benefit of the international on their land – to compensation and benefit- reputation of the government of Liberia in sharing that reflects the real losses they terms of human rights, good governance suffer when land, crops, trees, wet-lands and stability, as well as being better aligned and water courses are taken from them or with key development priorities such as otherwise interfered with. improving food security.

The key to facilitating secure land rights Finally, the government and company and FPIC is to ensure that all parties adhere need to support the appointment of to and allow the bilateral negotiations an independent assessor to undertake

324 Conflict or consent? The oil palm sector at a crossroads an immediate assessment of the land Liberia’s 2008 Poverty Reduction Strategy acquisition and FPIC process and to provide identifies mismanagement of natural the impartial facts on the basis of which the resources, inequitable growth and land- communities and company can negotiate to related tensions as some of the key factors rectify the situation. Sime Darby needs to in causing and perpetuating Liberia’s civil ensure that the damage resulting from the conflict. By providing livelihoods for the activities they have already undertaken in majority of the Liberian people, agriculture Grand Cape Mount are speedily resolved is recognised by the Strategy as the ‘bedrock before they seek to continue operations in of the economy’ and is identified as having that area or proceed to work in other areas. a key role in ensuring poverty reduction, food security and progress towards Liberia’s Millennium Development Goals. Conclusion Echoing the UN Security Council Panel of Experts recognition of the lack of reform Liberia is a country rich in natural in the agriculture sector, despite exhibiting resources, yet rural communities have similar governance weaknesses to other yet to be the primary beneficiaries of natural resource sectors, the Strategy also this wealth. The issue of human rights claims that ‘[t]he secretive, special deals is closely intertwined with the issues of of the past that benefitted a few to the natural resource extraction, environmental detriment of the majority will be replaced degradation, and land ownership. For years, by transparent agreements with fairer profits from ‘conflict timber’ and ‘blood terms and stronger mechanisms to ensure diamonds’ have been used to consolidate the proper distribution and spending of elite power and fund brutal armed conflicts. funds…’. Unfortunately the findings of Though Liberia is currently at peace and this case study and the ongoing land- has conducted two democratic elections, conflict at Grand Cape Mount created by the extraction of natural resources remains the Sime Darby concession indicate that a source of human rights abuses with the these governance weaknesses have yet to potential to reignite serious conflict. be properly addressed, both in terms of the mind-set and practises of institutions Communities in resource-rich areas have and the laws and policies concerning how been and are being displaced from their decision-making takes place in respect of lands – sometimes violently – to make way large-scale concession agriculture. for oil palm and rubber tapping, while timber and mining operations continue to destroy Prompted by the community conflict the natural resources on which rural people and the formal complaint to the RSPO depend for their livelihoods. In the process, submitted by the affected communities, resource extraction operations very often negotiations with communities currently pollute the rivers and watersheds on which involving Sime Darby and the government communities depend for their survival. are a positive sign. From the perspectives Currently, there is no extensive national of communities at Grand Cape Mount it environment-monitoring plan for Liberia. is imperative that both the company and Furthermore, as noted in the final 2010 UN the government respect the full range of Panel of Experts report, the Panel state that relevant cross-cutting human rights of the Ministry of Agriculture should have communities, including their property an important role in monitoring company rights to customary lands and resources. activities relating to agricultural concessions, Good faith negotiations must proceed on however the Ministry itself reported to the this premise for there to be a lasting solution Panel that they did not have the capacity.108 that protects the human rights of the local As such, any check on government and communities, and yield concrete, timely capital investment projects has to be carried and visible results. The same approach is out by communities and civil society. going to be necessary for the government to

Sime Darby, Grand Cape Mount County, Liberia 325 meet its sustainable development ambitions Decision the African Commission on Human – including via legislative reform of land Peoples Rights in the case of the Endorois Welfare Council v Kenya (276/2003). and resource sectors – in a way that maintains compliance with its international Environmental Protection Agency Act 2002. law commitments, and for Sime Darby to maintain their RSPO membership and be Final report of the Panel of Experts on Liberia seen to meet their corporate responsibility submitted pursuant to paragraph 9 of Security Council resolution 1903. 17th December 2010, UN to respect and protect human rights. Doc. S/2010/609.

Final report of the UN Panel of Experts on Liberia submitted pursuant to paragraph 6(f) of Security Council resolution 1961. 7th December 2011, UN Doc. S/2011/757.

References Gelder JW & P Spaargaren 2010 Profile of Sime Darby: A research paper prepared for the Palm Alden Wily L 2007 So who owns the forest: An Oil Monitoring Initiative (POMI). Profundo, investigation into forest ownership and customary Amsterdam. land rights in Liberia. Sustainable Development Institute & FERN. Global Witness 2002 Logging Off: How the Liberian Timber Industry Fuels Liberia’s Humanitarian Amended and Restated Concession Agreement Disaster and Threatens . Global between the Republic of Liberia and Sime Darby Witness Ltd, London. Plantations (Liberia) Incorporated. 30th April 2009. Global Witness 2008 The Sinews of War. Global CEDAW Committee Concluding Observations. 44th Witness Publishing. Washington, D.C. session, 7th August 2009. UN Doc. CEDAW /C/ LBR/CO/6. Greencoms Inc 2010 Sime Darby ESIA for 10,000 ha at Grand Cape Mount and Bomi Counties. CERD Committee concerns and recommendations from the report of its Fifty-ninth session. 30th July – Hinterlands Law/Aborigines Law. 17th August 2001. UN Doc. A/56/18. International Monetary Fund 2008 Liberia’s Poverty Commission on Human Rights resolution 1993/77, Reduction Strategy Paper. Washington, D.C. UN Doc. E/C.4/RES/1993/77. International Tropical Timber Organisation ITTO Commission on Human Rights Resolution 2004/28, 2005 Achieving the ITTO Objective 2000 and UN Doc. E/C.4/RES/2004/28 (2004). Sustainable Forest Management in Liberia.

Committee on Economic, Social and Cultural Land Registration Law. Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, Liberian Code of Law 1956-1958. 1997), para. 14, UN. Doc. E/1998/22. MINADER (nd) Tableau synoptique de lots de Community Rights Law of 2009 with Respect to terres a sécuriser par le MINDAF au titre du bip de Forest Lands. l’exercice budgétaire 2012, mis a la disposition au MINADER au profit des grands projets agricoles. Constitution of the Republic of Liberia. OHCHR 2009 Technical Assistance and Capacity CRC Committee Concluding Observations. 36th Building, Report of the Office of the United Nations Session, 1st July 2004. UN Doc. CRC/C/15/ High Commissioner for Human Rights on the Add.236). progress made in the situation of human rights in Liberia and activities undertaken in the country, 27th de Schutter O 2009 Large-scale land acquisitions August 2009. UN Doc. A/HRC/12/42. and leases: A set of core principles and measures to address the human rights challenge. OHCHR compilation of reports on Liberia, 20th August 2010. de Schutter O 2010 ‘The emerging right to land’ in International Community Law Review, Vol. 12, OHCHR Summary of stakeholder submissions to No.3. the first UPR, 15th July 2010.

326 Conflict or consent? The oil palm sector at a crossroads Public Lands Law. the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Registered Land Law 1974. Human Rights – Situation of Human Rights and Fundamental Freedoms in Liberia. UN doc, E/ Report of the independent expert on technical CN.4/2004/5. cooperation and advisory services in Liberia, Charlotte Abaka. 14th February 2008. UN Doc. A/ UN Committee on Economic, Social and Cultural HRC/7/67. Rights 1991 General Comment 4, The right to adequate housing (Sixth session, 1991), para. 18. Report of the independent expert on technical UN Doc. E/1992/23. cooperation and advisory services in Liberia, Charlotte Abaka. 6th February 2006. UN Doc. E/ UN Security Council Panel of Experts on Liberia CN.4/2006/114. 2010 Final Report, 17th December 2010, UN doc. S/2010/609. Report of the independent expert on technical cooperation and advisory services in Liberia, Verschuren J 1983 Conservation of Tropical Charlotte Abaka. 15th August 2008. UN Doc. A/ Rainforest in Liberia, Recommendations for Wildlife HRC/9/15. Conservation and National Parks. IUCN/WWF, Gland. Report of the independent expert on technical cooperation and advisory services in Liberia, Charlotte Abaka. 28th February 2007. UN Doc. A/ Endnotes HRC/4/6. 1. This field-work included meetings with as Report of the Special Representative of the many of the stakeholders as possible. This Secretary-General on the issue of human rights included the communities themselves, their and transnational corporations and other business legal representatives Green Advocates, enterprises, John Ruggie, ‘Guiding Principles on Government Ministry representatives, the Business and human Rights: Implementing the Land Commission, other civil society groups, United Nation’s ‘Protect, Respect and Remedy’ and Sime Darby in Liberia. A first draft of this Framework’, Human Rights Council, 21st March case study was provided at a workshop held in 2011. UN Doc. A/HRC/17/31. March 2012 in Douala, Cameroon, during which representatives from Liberian civil society, the Report of the Special Representative of the Land Commission and Sime Darby were invited Secretary-General on the issue of human rights to give feedback on the initial draft. and transnational corporations and other business 2. International Tropical Timber Organisation enterprises, John Ruggie. Promotion and Protection 2005; Verschuren 1983. of all Human Rights, Civil, Political, Economic, 3. See for example the UN Security Council Social and Cultural Rights, including the Right Panel of Experts on Liberia 2010, UN doc. to Development, ‘Protect, Respect and Remedy: S/2010/609; Global Witness 2002, Global a Framework for Business and Human Rights’, Witness 2006. See also the analysis in the Human Rights Council, 7th April 2009. UN Doc. A/ Liberia’s Poverty Reduction Strategy Paper, HRC/8/5. Section 2.1 (July 2008). 4. UN Commission on Human Rights 2003. UN Report of the Working Group on the Universal doc. E/CN.4/2004/5. Periodic Review (UPR), 4th January 2011. 5. The other ethnic groups in Liberia are the following: Bassa, Belle, Dahn (Gio), Dei, Revised Laws and Regulations of the Hinterland Gbandi, Gola, Grebo, Kissi, Kpelle, Krahn, 1949. Krao (Kru), Lorma, Mandingo, Mahn (Mano) and Mende. RSPO 2007 RSPO Principles & Criteria for 6. The stigma attached to the Mandingo Sustainable Palm Oil Production. community is an issue of controversy in Liberia. Although there is no scope here for The Akwé: Kon voluntary guidelines for the conduct a full discussion of this issue in any detail, of cultural, environmental and social impact Mandingo’s are frequently seen as ‘foreigners’ assessments regarding developments proposed to in Liberia, as they are an ethnicity living take place on, or which are likely to Impact on, throughout the region, often working as migrant sacred sites and on lands and waters traditionally traders, with populations also living in Guinea, occupied or used by indigenous and local Senegal, Mali, The Gambia, Niger and Nigeria. communities. 7. Formalised here refers to the land being held in the form of any of the following individual or UN Commission on Human Rights 2003 Report of collective land titles: Land Deed in fee simple;

Sime Darby, Grand Cape Mount County, Liberia 327 Warranty Deed; Aborigines Land Deed; a Public 37. Ibid: section 16. Land Sale Deed; or Leasehold. 38. Ibid: section 18. 8. In fact, the legal position of customary lands 39. Ibid: section 20. is less clear-cut. The 1949 Hinterlands Law, 40. Ibid: sections 22 and 23. provided for property rights to tribal lands, 41. Article 2 of the Constitution of Liberia irrespective of whether they had an official deed, highlights the supremacy of the Constitution with the tribes interest held on trust by the chief over all other sources of law, including as trustee. (Revised Laws and Regulations of the international law. International laws Hinterland 1949, Article 66) The Aborigines (convention, treaty etc.), negotiate, signed and Law, reproduced much of the wording of the ratified or acceded to by the president or his Hinterlands Law, but crucially replaced ‘right agent, must therefore be separately approved and title’, with rights to use and possession, with by an act of the legislature (the Senate and an option to having this land delimited. (Chapter the House of Representatives), ie made part 11, Title 1 of the Liberian Code of Law, 1956- of domestic law, for them to be become 1958) The legal effect of this change of wording enforceable in national courts. is significant: tribal land becomes state-owned, 42. See inter alia the decision the African Commis- unless formalised by way of a deed. However, sion on Human Peoples Rights in the case of the there is confusion about whether the Aborigines Endorois Welfare Council v Kenya (276/2003) Law has lapsed and/or whether the Hinterlands – the ‘Endorois Case’ – at para 209, in particular Law retains some legal force in a reissued form. with regard to the ACHPR rights to property (Art. The precise legal status of customary rights to 14) and to development (Art. 22). See also the land therefore remains unclear. See Alden Wily UN Declaration on the Rights of Indigenous Peo- 2007 for further details. ples, Article 19 (indigenous peoples’ right to be 9. Alden Wily 2007: note 8; Public Lands Law, consulted through their own representative insti- Title 34, Liberian Code of Laws Revised. tutions and to obtain FPIC before taking adminis- 10. Chapter 8 of the Property Law (Registered Land trative measures affecting them), plus associated Law 1974). Also provides the legal framework Articles 8, 10, 19, 28 and 32; and as well as other inter alia for land registration and adverse jurisprudence established by the UN treaty bodies possession, Sub-section 8.53. associated with the ICESCR, ICCPR and ICERD. 11. Ibid, sub-section 8.52(d). NB. For customary groups who are neither tribal 12. See Alden Wily 2007:135 for details of this nor indigenous peoples, nothing in the wording of procedure. Art. 14 ACHPR precludes reliance on this right 13. See Alden Wily 2007:138-139 for more details. to secure their collective property rights over cus- 14. Community Rights Law of 2009 with Respect to tomary lands and resources. Forest Lands, section 2.2(c). 43. This requirement is based on the interrelated 15. Ibid, section 2.2.(g). human rights relating to land and natural 16. See for example the analysis of the UN Security resources protected by international law, Council Panel of Experts on Liberia 2010 Final including the rights to property, development Report, supra, at note 3. and food. See for example the Special 17. Public Lands Law, supra at note 9, section 70. Rapporteur on Food, de Schutter 2009:12 and 18. Ibid. 2010:319. 19. Constitution of the Republic of Liberia 1986, 44. See for example the Endorois Case (paras 227 article 5(b). and 228). See also the Convention on Biological 20. Ibid, article 65. Diversity, Articles 8(j) and 10(c), including The 21. Ibid, article 7 (author’s emphasis). Akwé: Kon Guidelines on impact assessments at 22. Ibid, article 11. www.cbd.int/doc/publications/akwe-brochure- 23. Ibid, article 22(a). en.pdf and the Recommendations from CBD 24. Ibid, article 24. Decision VI/10 of COP 6 for the conduct of 25. Environmental Protection Agency Act 2002 cultural, environmental and social impact (EPAA), section 32(1). assessment regarding developments proposed 26. Environmental Protection Act 2002 (EPA), to take place on, or which are likely to impact section 12. on, sacred sites and on lands and waters 27. EPAA, section 6. traditionally occupied or used by indigenous 28. EPA, section 4. and local communities. Furthermore, such a 29. EPAA, section 37; EPL, section 6 and annex I. procedural step is necessary to ensure respect 30. EPA, section 7. for the interrelated human rights relevant 31. Ibid. to impacts on customary land and natural 32. Ibid: section 7. resources such as the right to property (Art. 33. Ibid: section 8. 14 of the African Convention on Human & 34. This rarely happens in practice. Peoples Rights – ‘ACHPR’), as well as the 35. Ibid: section 11. right to development (Art. 22 ACHPR) and the 36. Ibid: sections 14 and 15. provisions of the UNDRD.

328 Conflict or consent? The oil palm sector at a crossroads 45. See the Endorois Case, paras 227 & 228, 294- international peer-review process convened 298 and the UN Declaration on the Right to by the UN HRC whereby the human rights Development Article 1 (right of peoples to performance of every state is reviewed every enjoyment of development), Art. 2 & 8 (right four years, principally by a troika of selected to active, free and meaningful participation peer states. The process is designed to in distribution of the benefits resulting from periodically help states think through progress development). See also the UN Declaration on in human rights, and ways in which this could the Rights of Indigenous Peoples, including be improved through institutional or policy among others, Art. 10 which includes the reform etc. requirement for FPIC and ‘just and fair 66. CRC Committee Concluding Observations, 36th compensation and, where possible, with the Session, 1st July 2004 (CRC/C/15/Add.236), option of return’ in cases of forcible relocation para 23 & 24. from their lands or territories. 67. CEDAW Committee Concluding Observations, 46. RSPO 2007 in particular Criteria 2.2, 2.3, 7.5 44th session, 7th August 2009 (CEDAW /C/LBR/ and 7.6 and associated Guidance Document. CO/6), para 34. See also paras 32/33 and 36/37 See http://www.rspo.org/files/resource_centre/ regarding education and health of rural women RSPO%20Principles%20&%20Criteria%20 respectively. Document.pdf 68. Ibid: para 39: ‘The Committee urges the State 47. RSPO Principles & Criteria, in particular party to pay special attention to the needs of Criterion 7.1 as well as criteria 7.5 and 7.6, plus rural women and ensure that they participate associated Guidance and Indicators at pages in decision-making processes, including 37-39 of the Guidance Document on the RSPO community decision-making processes and Principles and Criteria for Sustainable Palm Oil development planning’. Production. 69. CERD Committee concerns and 48. RSPO Principles & Criteria, Criterion 7.3, plus recommendations from the report of its pages 40 & 41 of the 2006 Guidance Document. Fifty-ninth session, 30th July – 17th August 49. RSPO Principles & Criteria, in particular 2001 (A/56/18), para 434-436; OHCHR, Criterion 7.6. Technical Assistance and Capacity Building, 50. Final report of the UN Panel of Experts on Report of the Office of the United Nations Liberia submitted pursuant to paragraph 6(f) of High Commissioner for Human Rights on Security Council resolution 1961, 7th December the progress made in the situation of human 2011 (UN Doc. S/2011/757) & Final report rights in Liberia and activities undertaken in of the Panel of Experts on Liberia submitted the country, 27th August 2009 (A/HRC/12/42), pursuant to paragraph 9 of Security Council para 4; Report of the independent expert on resolution 1903, 17th December 2010 (UN Doc. technical cooperation and advisory services in S/2010/609). Liberia, Charlotte Abaka, 14th February 2008 51. See Panel of Experts 2010 supra at note 46, (A/HRC/7/67), para 7; and as observed in the para 130, where the Panel notes the dispute OHCHR compilation of reports on Liberia, 20th and protest precipitated by expanding existing August 2010, paras 20, 21, 41, 47. concessions, as well as Panel of Experts 2011 70. Report of the Working Group on the Universal supra at note 46, para 222, for details of the Periodic Review (UPR), 4th January 2011, para problematic history relating to the Guthrie/BF 32: Liberia stating that ‘In all cases in which Goodrich plantation itself which now forms part alleged land disputes had led to social unrest, of the wider Sime Darby concession. Liberia was encouraging social dialogue to 52. Panel of Experts 2011:251, plus see also 172 to resolve issues; was conducting widespread 174. public awareness campaigns on land rights; and 53. Panel of Experts 2010: paras 99 and 100; Panel was addressing broader, unresolved underlying of Experts 2011: para 215. Concerns are raised factors, such as authority and legitimacy, that by the panel in respect of both the Sime Darby had fuelled land and property disputes’. and Golden Veroleum palm concessions. 71. Report of the independent expert on technical 54. Panel of Experts 2011. cooperation and advisory services in Liberia, 55. Ibid: para 215. Charlotte Abaka, 6th February 2006 (E/ 56. Ibid: para 216. CN.4/2006/114); para 23 57. Ibid. 72. Report of the independent expert on technical 58. Panel of Experts 2010: para 119. cooperation and advisory services in Liberia, 59. Panel of Experts 2011: para 216. Charlotte Abaka, 15th August 2008 (A/ 60. Panel of Experts 2010: para 129. HRC/9/15), para 3. Endorsed by Human Rights 61. Panel of Experts 2011: paras 224 & 71. Council Resolution 9/16. 62. Panel of Experts 2010: para 126. 73. Available at www.fao.org/SPFS/pdf/CFSNS_ 63. Panel of Experts 2011: para 217. report_final.pdf. 64. Panel of Experts 2010: para 59. 74. Abaka 2008, supra at note 42, para 47. 65. The Universal Periodic Review (UPR) is an 75. Report of the independent expert on technical

Sime Darby, Grand Cape Mount County, Liberia 329 cooperation and advisory services in Liberia, Plantations (Liberia) Incorporated’, 30th April Charlotte Abaka, 15th August 2008 (A/ 2009, p. 1 & 2. HRC/9/15), para 38. Endorsed by Human Rights 91. This is stated as being ‘a global standard Council Resolution 9/16. of expected conduct for all business 76. Abaka 2008, supra at note 49; Abaka 2008, enterprises wherever they operate’ that ‘exists supra, paras 28-32; Abaka 2006, supra at note independently of States’ abilities and/or 45, para 28, and 29: ‘The major human rights willingness to fulfil their own human rights concern in the plantation is the blurred line obligations’ – see Founational Principles between State and corporate responsibility and on page 13 of the Report of the Special the consequent reluctance of either side to take Representative of the Secretary-General on the initiative to protect human rights’; OHCHR the issue of human rights and transnational Summary of stakeholder submissions to the corporations and other business enterprises, first UPR, 15th July 2010, para 41; Report of the John Ruggie, ‘Guiding Principles on Business independent expert on technical cooperation and and human Rights: Implementing the United advisory services in Liberia, Charlotte Abaka, Nation’s ‘Protect, Respect and Remedy’ 28th February 2007 (A/HRC/4/6), para 2, 19 and Framework’. See also See Report of the Special 20. Representative of the Secretary-General on 77. Abaka 2008, supra, paras 28-32. the issue of human rights and transnational 78. Ibid. corporations and other business enterprises, 79. CERD Committee 2001, supra at note 42, para John Ruggie. Promotion and Protection of all 433; CRC 2004, supra at note 39, paras 9 & 10; Human Rights, Civil, Political, Economic, Abaka 2008, supra, at para. 75; Abaka 2008, Social and Cultural Rights, including the Right supra, para 55(g); UPR Working Group 2011 to Development, ‘Protect, Respect and Remedy: supra at note 44, (recommendations 77.4, 77.10, a Framework for Business and Human Rights’. 78.10); a number of observations are included 92. Section 4.1(c) sets out the process of identifying in OHCHR (August 2010) supra (see paras 4 and mapping concession land. and 21 – including reference to the ‘archaic and 93. Forced eviction/involuntary resettlement is discriminatory’ Aborigines Law and the revised deemed unlawful under international law Hinterland Rules and Regulations, and other except in the most exceptional circumstances. conflicting laws) as drafted for the st1 UPR of See UN Committee on Economic, Social and Liberia held on 1st November 2010 under the Cultural Rights, General Comment 4, The aegis of the UN Human Rights Committee. right to adequate housing (Sixth session, Liberia’s national report to the UPR stated that 1991), para. 18, UN. Doc. E/1992/23, annex ‘Liberia is currently engaged in researching III at 114 (1991); Commission on Human and compiling all regional and international Rights resolution 1993/77, UN Doc. E/C.4/ human rights instruments to which the country RES/1993/77 (1993); Commission on Human is a party with a view of revising the country’s Rights Resolution 2004/28, UN Doc. E/C.4/ statutory laws to better comply with regional RES/2004/28 (2004); Committee on Economic, and international obligations’ (para 33). Social and Cultural Rights, General Comment 80. Abaka 2007 supra, para 47. 7, Forced evictions, and the right to adequate 81. For ease of reference, unless stated otherwise, housing (Sixteenth session, 1997), para. 14, Sime Darby in this study refers to both the UN. Doc. E/1998/22, annex IV at 113 (1998); company registered in Malaysia and its Liberian and See also paragraph 200 of the African subsidiary. Commission on Human Peoples Rights decision 82. Gelder & Spaargaren 2010:2, and citing Sime in the Endorois Welfare Council v Kenya Darby’s Annual Report from October 2009. (276/2003) – the ‘Endorois Case’. 83. Ibid:2 & 3. 94. Sime Darby ESIA for 10,000 ha at Grand Cape 84. Ibid:3, citing Sime Darby’s Annual Report dated Mount and Bomi Counties, prepared for Sime October 2009. Darby by Greencoms Inc., February 2010. 85. ‘Amended and Restated Concession Agreement 95. Ibid, summarised at Sections 1.4.7 and 1.4.8, between the Republic of Liberia and Sime Darby with further details at pages 56-57. Plantations (Liberia) Incorporated’, 30th April 96. Ibid: 12. 2009. 97. Ibid: 121. 86. Land allocated in Yabbasi, Department of 98. Ibid: 13. Nkam, Littoral Region, MINADER (nd):3. 99. Ibid: 29. 87. Gelder & Spaargaren, supra at note 56:6, citing 100. Ibid: 72. Thomson One Database ‘Share ownership’ as at 101. Ibid: 100-103. August 2010. 102. Ibid: 106. 88. Ibid. 103. EPA permit number: EPA/EC/ESIA/001-0410, 89. Ibid. issued on 21st April 2011 and valid until 20th 90. ‘Amended and Restated Concession Agreement April 2012. between the Republic of Liberia and Sime Darby 104. Sime Darby reported to the authors that this fine

330 Conflict or consent? The oil palm sector at a crossroads was subsequently reduced from $50,000 USD to $10,000 USD, and was mainly in response to failures by the company to submit monthly progress reports on the mitigation action plan on time. The authors were unable to confirm this information independently. 105. The ‘out-growers’ scheme is a plan to provide 40,000 ha of land planted with palm oil for small-holders to own. The details of the scheme have yet to be developed. 106. Ibid:29. 107. Sime Darby ESIA 2010 supra at note 90. The table is at the penultimate page of the report. 108. Panel of Experts 2010: para 108.

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