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Dealing with Disclosure: Improving Transparency in Decision-Making Over Large-Scale Land Acquisitions, Allocations and Investments

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Dealing with Disclosure: Improving Transparency in Decision-Making Over Large-Scale Land Acquisitions, Allocations and Investments DEALING WITH DISCLOSURE: IMPROVING TRANSPARENCY IN DECISION-MAKING OVER LARGE-SCALE LAND ACQUISITIONS, ALLOCATIONS AND INVESTMENTS APRIL 2012 DEALING WITH DISCLOSURE: IMPROVING TRANSPARENCY IN DECISION-MAKING OVER LARGE- SCALE LAND ACQUISITIONS, ALLOCATIONS AND INVESTMENTS April 2012 ACKNOWLEDGEMENTS This report was researched and written by Global Witness with substantial input from the International Land Coalition and the Oakland Institute. The authors would like to thank the following individuals for their suggestions: Emily Alpert, Senior Policy Advisor, ONE; Vincent Basserie, Land policies expert, Le Hub Rural, Senegal; Christian Häberli, Senior Research Fellow, World Trade Institute; Ibrahima Hathie, Director of research, Initiative Prospective Agricole et Rurale, Senegal; Manfred Kaufmann, Programme Manager, Swiss Agency for Development and Cooperation; Rebeca Leonard, Researcher, Focus on the Global South; Anne Perrault, Senior Attorney, Centre for International Environmental Law; and M. Mercedes Stickler, Associate, People and Ecosystems Program, World Resources Institute. In addition, the draft findings were presented and discussed at a civil society workshop in Dakar Senegal, on 7th and 8th February 2012, attended by 29 participants from 17 countries, which was co-hosted by CICODEV, Global Witness, the International Land Coalition and the Oakland Institute. The outcomes of this workshop are incorporated into the final text of this report. The research was financed by the Oakland Institute and the Swiss Agency for Development and Cooperation (SDC). The opinions expressed in this report can in no way be taken to reflect the official views of SDC. Design: amymade graphic design, [email protected], amymade.com Photograph Credits: Global Witness, Oakland Institute and Cicodev Cover photo design: Tin Geber, International Land Coalition Publishers: Global Witness is a UK-based non-governmental organisation which investigates the role of natural resources in funding conflict and corruption around the world. The Oakland Institute is a policy think tank dedicated to advancing public participation and fair debate on critical social, economic, and environmental issues. The International Land Coalition is a global alliance of civil society and intergovernmental organisations working to promote secure and equitable access to land for poor women and men. Copyright © 2012 by Global Witness / Oakland Institute / International Land Coalition The text may be used free of charge for the purposes of advocacy, campaigning, education, and research, provided that the source is acknowledged in full. Global Witness The Oakland Institute International Land Coalition Secretariat 6th Floor, Buchanan House, PO Box 18978 Via Paolo Di Dono, 44 30 Holborn, Oakland, CA 94619, USA Rome 00142, Italy London, EC1N 2HS www.oaklandinstitute.org www.landcoalition.org www.globalwitness.org TABLE OF CONTENTS LIST OF BOXES, TABLES AND DIAGRAMS ....................................................................................................................1 LIST OF ACRONYMS ....................................................................................................................................................... 2 EXECUTIVE SUMMARY ................................................................................................................................................... 3 1. INTRODUCTION ...........................................................................................................................................................5 1.1 Background and rationale for the study ............................................................................................................................5 1.2 A word on terminology ..................................................................................................................................................... 7 1.3 Limitations of the study .................................................................................................................................................... 7 1.4 Why information disclosure and transparency improve accountability ......................................................................... 7 2. ANALYSIS OF TRANSPARENCY AND DISCLOSURE OPTIONS FROM THE LITERATURE ................................... 11 2.1 Safeguards for transparency and information disclosure relevant to all decision-making stages ...............................12 2.1.1 Overview of the international instruments reviewed ................................................................................................12 2.1.2 International binding instruments ............................................................................................................................12 2.1.3 International voluntary agreements or declarations ................................................................................................12 2.1.4 Project-level policies ..................................................................................................................................................12 2.1.5 Voluntary corporate social responsibility commitments ..........................................................................................12 2.1.6 Voluntary market-based Initiatives and commodity agreements ............................................................................13 2.1.7 High level principles relating to human rights .........................................................................................................16 2.1.8 High level provisions relating to public participation, consultation, and consent .................................................16 2.1.9 High level principals relating to transparency and information disclosure ............................................................18 2.1.10 Summary .................................................................................................................................................................19 2.2 Stage 1: Recognising existing land and resource rights through spatial planning and policy frameworks ................20 2.2.1 International guidance on land and natural resource use planning and policy frameworks ................................20 2.2.2 Intermediary planning to address existing disputes................................................................................................23 2.2.3 Proactive community-based protocols .................................................................................................................... 24 2.3 Stage 2: Assessing impacts and negotiating the terms and conditions under which rights could be allocated to large-scale land investors ......................................................................................................................25 2.3.1 Assessing the impact of proposed projects ............................................................................................................ 27 2.3.2 Safeguarding meaningful consultation during negotiation processes .................................................................. 28 2.3.3 Who should be required to disclose information during the negotiation phase? ................................................. 29 2.3.4 What kind of information should be disclosed in the contracts? ........................................................................... 30 2.3.5 Additional information relevant to negotiations ......................................................................................................33 2.3.6 Allocating land through competitive bidding.......................................................................................................... 34 2.4 Stage 3: Monitoring investment project implementation .............................................................................................35 2.5 Stage 4: End and post-project transparency and information disclosure .................................................................... 39 3. ANALYSIS OF THE FINDINGS ..................................................................................................................................41 3.1 Prioritised entry points for improving transparency and information disclosure .........................................................41 3.1.1 Transparent land and natural resource planning ..................................................................................................... 42 3.1.2 Free, prior and “informed” consent ......................................................................................................................... 43 3.1.3 Public disclosure of all “contracts” .......................................................................................................................... 44 3.1.4 Independent CSO monitoring and oversight of project implementation ...............................................................45 3.2 Broader opportunities for improving transparency and information disclosure for further consideration ............... 48 4. CONCLUSIONS ..........................................................................................................................................................51 Annex 1: Parties to relevant international legally binding instruments ...............................................................................53 Annex 2: Land concession contracts reviewed for commercial confidentiality clauses .....................................................54
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