There is a movement at hand to reform land governance and increase transparency in large-scale land acquisition and resource extraction.
The movement to date has largely focused on international mechanisms, such as the Extractive Industries Transparency Initiative and the Voluntary Guidelines for Land Governance, that intend to create standards by which national governments and multinational companies abide. Their creation and enforcement rely on political pressure, international coordination, input from stakeholders and voluntary goodwill.
These initiatives are an important, sincere effort by the international community that should be championed loudly. They are, however, an incomplete solution. The premise they rely on is that improving transparency is critical to improving land rights and resource governance. In fact, it is the other way around. Strong land rights improve transparency.
Land rights and local ownership of land and resources are the bedrock for effective institutions, government transparency and democracy. This point is rarely understood to its full extent by the international community which largely prefer to operate at the international framework and treaty level to create headlines and flashy new initiatives, neglecting the roots and harsh local reality of the problem.
To understand how land impacts transparency, you need to consider how governments work.
Governance, in its purest form, is a social contract with the people to provide services. In return, the people submit to taxation to generate the funds necessary for this service delivery. If service is below expectations, governments are forced to change, reduce taxes, or be voted out. This tax and spend dynamic and the social contract that frames it is the essence of democratic governance and creates the incentives for government transparency.
In developing countries around the world, this social contract has never adequately formed. Why? Because land and resource rights are not in the hands of citizens.
Upon independence, national governments inherited legal ownership from colonial powers over large swaths of land, and, in most cases, over all natural resources. This colonial vestige has never been rectified, despite the fact that people have been and continue to live on the land that legally is not theirs. This is particularly true for natural resources such as minerals and timber, where state ownership and access is supreme to the surface use rights of local inhabitants. The state’s social contract is with with its resources, not its citizens.
This basic legal framework has far-reaching effects on transparency and good governance. Because local land and resource ownership is weak or nonexistent, there is no dynamic between taxation, government revenue, and service to its citizens. Most government revenue comes directly from natural resource extraction and concessions with multinational companies. This independent, unmonitored revenue stream dwarfs all others in many developing countries and destroys the fundamental incentives for governments to be transparent and responsive to citizens, causing the infamous “resource curse”.
This dynamic, however, is coming to light amid a groundswell of support to community land rights.
I spent the last week at an international meeting on community land rights of local organizations and their international partners. A coalition is being formed, composed of local efforts to legalize the devolution of land rights to individuals and local communities. Indigenous communities in the Philippines, villages in Tanzania, and communities across the Amazon basin are titling their land and demanding that their ownership extend to the resources on and below.
Their efforts are increasingly being supported by the international development and donor community and, as was evident in the conference, by private sector companies such as Nestle, Unilever and Rio Tinto that desire a more transparent, humane way of investing in developing countries. This is not a radical agenda. It is a collective declaration that healthy democracies, transparent and effective governance, economic development, food security, environmental conservation, and peace depend on land rights.
THaki and our network partners are advancing this agenda and strengthening local land rights to promote transparency at the national and international level. Locally we advocate for greater openness in the titling of land and its management and provide dispute resolution mechanisms that ensure that local communities have access to the legal tools they need to challenge corrupt or nontransparent land titling and land use decisions. We are also supporting the transparent administration of land cadaster data, strengthening courts that deal with land disputes, and increasing access to information for citizens.
Internationally, regional human rights bodies, such as the African Commission on Human and Peoples’ Rights and the Inter-American Court of Human Rights, and national supreme courts are re-examining prior cases of disposition of land and resource rights and returning them to the rightful community and individual owners. In Kenya, for example, ACHPR ruled in favor of immediate retribution to the indigenous Endorois who had been displaced from their ancestral lands more than 40 years ago. In India, the Supreme Court recently ruled in favor of local landholders that their ownership extends to the subsurface and that they are entitled to direct benefits from mineral extraction.
While international efforts have increased in recent years, we are still far away from the legal and political recognition that is needed to place local land rights squarely on the development agenda. Major multilateral institutions still undermine transparency by bypassing local land rights in favor of lending to national governments; diplomacy and development are not united in an approach to local land and resource ownership; and principles are voluntary without effective means of domestic enforcement.
With increasing land displacement due to industrial agriculture and biofuel schemes and the coming resource boom in many developing countries, now is a critical time to re-examine and strengthen policies and programs that emphasize transparency through local control.