Respecting legitimate land rights means that a company needs the explicit consent of the groups and individuals affected to access and use their land access their land, and that fair and open negotiations with the specific rights holders affected are needed.
The LEGEND pilots included cases where large scale concessions were agreed by governments and traditional leaders without consulting the actual land users or establishing proper contractual arrangements for land access or benefit sharing, leading to grievances, conflict and resentment as projects were established on community lands. The companies concerned came to recognise that in practice the free prior informed consent of specific landowning families and land users, including both women and men, is an essential condition for both legal and social license to operate:
Consultation with chiefs, traditional leaders and authority figures is not enough, even if they have assumed powers to control the allocation of community land, and if governments say that no more is required.
The Free Prior & Informed Consent (FPIC) of indigenous groups to land acquisitions is an accepted principle of international law. FPIC is widely recognized as consistent with good business practice for all communities, even if they are not considered to be indigenous: to succeed, all land-based investments require consensual solutions negotiated with host communities and land rights holders.
Landesa “Free, Prior and Informed Consent” (FPIC) Primer
This guide developed by Landesa is directed at companies seeking information on implementing FPIC principles in their operations to safeguard the land rights of project-affected communities. Explore this primer here.
Guidance document: “Respecting Free, Prior and Informed Consent”
Explore this guidance document developed by the Food and Agriculture Organization (FAO) of the United Nations in 2014 on Respecting Free, Prior and Informed consent.
UNIDROIT-FAO-IFAD Legal guide on agricultural land investment contracts
Provides guidance on interpretation of FPIC, and other legal dimensions of agri-investment and the implications for good practice. Read more here.
To address problems and risks resulting from inadequate community consultations, pilot projects held in-depth consultations in all villages and with all stakeholder groups affected, combined with land rights mapping, to identify the rights holders who should be involved in company consultations and negotiation meetings:
Grantees devoted large proportions of pilot project budgets typically around 3.6 million Euros. Companies need to be prepared to invest at similar levels to ensure proper consultation.
Separate meetings with women, youth, tenant farmers and other groups may be needed to understand how their rights may be affected.
Care needs to be taken to identify the relevant local village leaders and heads of land holding families in areas with communities and lands affected by investment proposals but also and ensure that consultation takes place within extended families and engages the actual land users.
Multi stakeholder platforms (MSPs) have proved effective in addressing complex disputes, by bringing together all those affected by large scale investmentsensuring that all voices are heard and all groups can participate in negotiations. See brochure for an account of the MSP process for an oil palm investment in Sierra Leone.