Practical Application of the CFS
Voluntary Guidelines on Governance
of Tenure (VGGT) of Land, Fisheries
and Forests
A Guidance Note for Private Sector and Civil Society Actors
Work in Progress for discussion October 2014
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Objectives
To guide private sector (corporates and investors) and civil society
to a common understanding of private sector responsibility with
regard to governance of tenure rights i.e.
■ how to respect peoples’ ‘Tenure rights to land, fisheries and
forest’; and
■ ensure that communities have access to remedies ‘acceptable
to both parties’
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Content
2. Context, Complexities and Challenges
3. Strategic Options and Areas of Intervention
4. Approach
5. Illustration of Approach: Example Questions and Available
Guidance Material
6. For discussion
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2
Context, Complexities and
Challenges
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Tenure
A complex concept with potentially competing interpretations
Access
rights
Other
Easements
Usage
rights
Squatters
Tenure
Tenants
and
Leasing
Customary
rights
Land
acquisition
Ownership
rights
Legally
recognised
rights
5
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State Vs Non-State Actors in VGGT
Human Dignity
State
NonState
• Recognize and respect all legitimate tenure rights
• Safeguard legitimate tenure rights
• Promote and facilitate enjoyment of legitimate
tenure rights
• Provide access to justice to deal with
infringements of legitimate tenure rights
• Prevent tenure disputes, violent conflicts and
corruption.
• Respect human rights and legitimate tenure rights
• Act with due-diligence
• Identify and assess any actual or potential impacts
on human rights and legitimate tenure rights
• To adopt appropriate risk management systems
• Adopt non-judicial mechanism to provide remedy
Principles
Non-Discrimination
Equity and Justice
Gender Equality
Holistic and
Sustainable
Approach
Consultation and
Participation
Rule of Law
Transparency
Accountability
Continuous
Improvement
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Context and Sector Challenges
National
Government
Weak Tenure Governance Mechanism- Poor Record Keeping
Special Challenges of Tenure Governance in Post-Conflict Situations
Weak Judicial Mechanism
Political Stability
Corruption
Industry
Sector
Extractive Sectors such as Mining, Oil & Gas Require Vast Stretches of Land
where Indigenous People dominate
Manufacturing Sector requires productive land which is well connected and
close to Market
Chemical and Pharmaceutical Sector though need less land but their effluent
discharge affects water sources and fishermen
Power and Energy Sector requires a large volume of water which compromises
availability of irrigation water for small-holders
Industrial Agriculture and Plantation Sector requires vast agricultural or cultivable
land where customary ownership of local communities exist
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Themes of Responsibility: State and Non-State Actors
State
Non-State
Home States of TNCs to assist both
TNC and the host states to ensure
that business enterprises are not
involved in abuse of Human Rights
and legitimate tenure rights.
Impact Assessment and Risk
management System
Take steps to protect against
abuses of Human Rights and
legitimate tenure rights by business
enterprises owned and controlled by
State.
Transparency and Prevention of
Corruption
Community Engagement and
Grievance Redress System
Indigenous Peoples and Other
communities with Customary Tenure
Systems
Informal Tenure and Forced Eviction
Responsible Investments
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Complexities
■ Definitions of tenure are not, and are unlikely to be, consistent
■ How to address tenure issues in post-conflict situations and in contexts
where minorities or ‘indigenous’ groups are not recognised
■ VGGT encourages governments to recognise tenure rights currently
not recognised under existing national frameworks – what does this
mean for the private sector in the meantime?
■ Best practice requires investment at early stages – how to overcome
(perceived or real?) potential misalignment between early investment of
capital and safeguarding commercial interests
■ Who is responsible for indirect land use change?
■ How to define respect / success? Following best practice is not a
guarantee of a smooth process or recognition from civil society
■ Complexities and challenges vary from country to country and sector to
sector – what guidance can support all?
9
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Existing Codes of Practice and Guidance Literature
•
•
There are 10s of guidance documents in topics related to private sector ‘themes of
responsibility’
Capacity building and training of the executing/implementing staff is a crucial need
for effective execution of these codes or protocols
Multiple Codes of Practice and Guidance Literature exists for Themes of
responsibilities recognized in VGGT for non-state actors.
Some of these Guidance and Codes of Practice are Sector Specific while
others are General Guidelines.
These available guidelines and codes of conducts can be divided into four
categories:
I.
Corporate Code of Conduct;
II.
Industry Self-regulation;
III.
Multi-lateral regulations;
IV.
Civil Society regulations;
V.
Multi-stakeholder Initiatives.
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Typical Business Stages and Decision Making Process
Gaps in Guidance on business
stages
Feasibility
Detailed
Planning
Closure
Typical
Business
Stages
Establishment
Expansion
Operation
• Feasibility Stage
• Monitoring and Evaluation
during establishment and
into operation
• Addressing cumulative
impacts
• Good examples of closure
planning and long-term land
use planning
• Guidance for investors in
operating assets
What are the additional challenges managing this from a supply chain
perspective?
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3
Strategic Options and Areas for
Intervention
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Strategic Options
Option-1
Create a broad generalized
Guidance Note on VGGT
Option-2
Create a broad generalized
Guidance Note on VGGT
+
Sign-posting to existing relevant
guidance
+
Supplementary Guidance or Best
Practices in core areas- FPIC,
Access to Remedies, Transparency
and Prevention of Corruption
Advantages
Advantages
• A single source for reference
• Self-guidance on general issues.
• Focus and hand-holding on weak
areas of implementation
Limitations
Limitations
• General Coverage
• Sectoral and geographical
Specificities not covered
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Potential Areas of Intervention
Themes for Corporate
Responsibility in VGGT
Intervention Activity for discussion
Relevant Implementation
Principles in VGGT
Impact Assessment and
Risk Management System

Equity and justice,
Holistic and sustainable
approach, Transparency,
Accountability,
Continuous improvement.


Community Engagement
and Grievance Redress
System

Transparency and
Prevention of Corruption

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Environment and Social Impact
Assessment (adequate coverage on tenure
rights, livelihood, food security, human
rights)
Gap Assessment of ESIA/EIA and ESMP
Regional strategic land use planning
including support to early consideration of
cumulative impacts and closure planning
Stakeholder Engagement and Grievance
Redress System and Process Audit/
Certification
Land Procurement System and Process
Audit/ Certification
Transparency,
Accountability,
Consultation and participation,
Gender equality,
Human dignity,
Non-discrimination.
Transparency,
Equity and justice,
Rule of law,
Transparency,
Accountability,
Continuous improvement.
Potential Areas of Intervention
Themes for Corporate Intervention Activity for discussion
Responsibility in VGGT
Indigenous Peoples and  FPIC process
Communities with
 Tenure Rights and Livelihood
Customary Rights
Resilience Due Diligence
 Human Rights Due-Diligence
with IP focus
Relevant Implementation
Principles in VGGT
Consultation and
participation, Holistic and
sustainable approach,
Gender equality,
Equity and justice,
Non-discrimination,
Human dignity.
Informal Tenure and
Forced Evictions


Human Rights Due Diligence
Land Procurement System and
Process Audit/ Certification
Human dignity,
Equity and justice,
Rule of law.
Responsible
Investments

Tenure Rights and Livelihood
Resilience Due Diligence
FPIC Process Due Diligence
Land Procurement System and
Process Audit/ Certification
Transparency,
Accountability,
Equity and justice,
Human dignity.


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Overview of Potential Areas of Intervention
Strengthening of Existing System and Process
• Coverage or gap assessment of ESIA/EIA/ESMP (adequate coverage on tenure
rights, livelihood, food security, human rights)
• FPIC process Implementation/Due Diligence
• Human Rights Due-Diligence (with IP& Tenure Rights and Forced Eviction focus)
• Stakeholder Engagement and Grievance Redress System and Process Audit/
Certification
• Address closure at the early stages of planning and development
• Assessment and management of cumulative impacts including indirect changes
in land use
Introducing New System and Process
• Multi-stakeholder approaches to regional land use planning
• Tenure Rights and Livelihood Resilience Due Diligence
• Land Procurement System and Process Audit/ Certification (with focus on
Forced Eviction, Informal Tenure, Customary Rights and anti-corruption)
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4
Approach
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Areas of Intervention across the Business Cycle
Merger &
Acquisition/
Investment
Feasibility
• Tenure
Rights and
Livelihood
Resilience
Due
Diligence
Detailed
Planning
Establishment
/ Construction
• ESIA/EIA/
ESMP Impact
Assessment
Process
(Mandatory
Coverage of
Tenure Rights,
Livelihood
Resilience Food
Security and
Human Rights)
• FPIC Process
Implementation
• ESMP
Monitoring
and Reporting
• Stakeholder
Engagement
and
Grievance
Redress
System
• Land
Procurement
System and
Process Audit
Operation
Expansion
Closure
• ESMP
Monitoring
and
Reporting
• Stakeholder
Engagemen
t and
Grievance
Redress
System
• Tenure Rights
and Livelihood
Resilience Due
Diligence.
• Impact
Assessment
• FPIC Process
Implementation
• Stakeholder
Engagement
and Grievance
Redress
• Land
Procurement
System and
Process Audit
• Impact
Assessment
(Mandatory
Coverage of
Tenure
Rights,
Livelihood
Resilience
Food
Security and
Human
Rights)
Do we agree on what good practice looks like?
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• Gap
assessment
Impact
Assessment
(Mandatory
Coverage of
Tenure Rights,
Livelihood
Resilience
Food Security
and Human
Rights)
• Human Rights
Due Diligence
(Mandatory
Coverage of
IPs and
Tenure
Rights)
• Land
Procurement
System and
Process Audit
5
Illustration of the approach:
Key Questions and Guidance
Material
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Feasibility Stage: Tenure Rights and Livelihood Resilience
Due Diligence
Example questions
Existing Codes/
Protocols/ Guidance
Material
Commentary
on Guidance
Is there an effective and efficient land administration?
Is there a due process in law for local communities to
document or formalise their tenure rights?
Does the project area comes under any regulated
land-use zone? Specifically as farming or pasture
areas.
If Government or Local Business Partner is providing
the access to land, are they committed to respect and
protect human rights including rights to tenure?
Is the project area inhabited by communities whose
livelihood is based on natural resources- land,
fisheries and forest?
What are the existing risks to these livelihoods and
how would the proposed project contribute to it?
What is the public opinion on transforming the local
economy?
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The Feasibility Stage Due
Diligence is mostly
technical and financial.
Additional Screening
Checklist with open ended
questions can be helpful.
To be
completed if
approach is
agreed
Detailed Planning: ESIA/EIA/ESMP Impact Assessment Process
Example questions
Existing Codes/ Protocols/
Guidance Material
Commentary
on guidance
Will the project require ESIA/EIA study to
meet regulatory or international
requirement? Does the Terms of Reference
cover loss of tenure rights, livelihood
resilience, food security and other human
rights issues?
•
To be
completed if
approach is
agreed
Is the proposed disposal of the industrial
waste safe? What is the potential impact
on the natural resources and livelihood of
the community dependent on them?
Does the sourcing of raw-materials
required for construction and operation
have potential impacts on tenure or
ecosystem services?
Was there a rigorous assessment of
minimum requirement of land and best
use of land?
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•
•
•
•
•
International Principles of Social
Impact Assessment, IAIA.
Participatory Impact
Assessment- A Guide for
Practitioners- Tufts University.
UNEP Training Manual on
Integrated Environment
Assessment and Reporting- 2011
European Commission Impact
Assessment Guidelines- 2009
Environmental Assessment
Source Book, World Bank- 1999
and updates
The Livelihood Assessment Toolkit: Analysing and responding to
the impact of disasters on the
livelihoods of people. By FAO
2008.
Detailed Planning: FPIC Process Implementation
Example questions
Existing Codes/ Protocols/ Guidance
Material
Who are the potential
stakeholders to contribute
in evaluation of project
alternatives?
•
How to determine if an
FPIC process is required?
•
•
•
•
•
Is the valuation of the land
and livelihood loss realistic
and in alignment with
stakeholder expectations?
Who to identify and agree
the people that represents
the IP community and can
negotiate an FPIC?
•
•
•
•
•
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Engaging with Free, Prior and Informed Consent 2012 by
Business Social Responsibility (BSR)
Implementing a Corporate Free, Prior and Informed Consent
Policy: Benefits and Challenges 2010 Foley Hoag
Guidelines on Free, Prior and Informed Consent 2013
Legal Companion to the UN-REDD Programme Guideline on
Free, Prior, and Informed Consent 2013
Training Manual on Free, Prior and Informed Consent for
Indigenous Peoples 2012 by UN-REDD Programme
Indigenous Peoples Guidebook on Free Prior Informed
Consent and Corporate Standards by First Peoples Worldwide
FSC Guidelines for the implementation of the Right to Free,
Prior & Informed Consent 2012, Forest Stewardship Council
Guide to Free Prior and Informed Consent 2010 by Oxfam
Indigenous Peoples Rights and the Role of Free, Prior and
Informed Consent: A Good Practice Note Prepared by Amy K
Lehr 2014 by Global Compact
Respecting Free, Prior and Informed Consent: Practical
Guidance for Governments, Companies, NGOs, Indigenous
Peoples and Local Communities in Relation to Land
Acquisition- FAO Governance of Tenure Technical Guide.
RSB Guidelines for Land Rights: Respecting Rights, Identifying
Risks, Avoiding Disputes and Resolving Existing Ones and
Acquiring Lands through Free, Prior and Informed Consent
2012 by Roundtable on Sustainable Biofuels
Commentary
on Guidance
Establishment/Construction: ESMP Monitoring, Evaluation and
Reporting
Example questions
Existing Codes/ Protocols/
Guidance Material
What are the indicators for impact
on access to livelihood resources
and livelihood resilience?
To be confirmed
Is the baseline or pre-project value
or description of these indicators
available and appropriate?
What is the appropriate frequency
of such monitoring?
Who is accountable for
monitoring? What is the plan for
disclosing the findings from
monitoring?
Is there a possibility to undertake
participatory monitoring?
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Commentary
on guidance
Stakeholder Engagement and Grievance Redress System
Example questions
Existing Codes/ Protocols/ Guidance
Material
When does stakeholder
engagement need to take place?
•
How to identify stakeholders and
vulnerable groups?
•
What information needs to be
disclosed?
•
What are appropriate ways to
engage stakeholders especially
vulnerable groups?
•
How to establish and implement a •
grievance mechanism that meets
international standards?
•
How to ensure learning from
stakeholder engagement
incorporated in project operation? •
How to track changing dynamics of •
project context and stakeholder
relationships?
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Asian Development Bank (ADB): Strengthening
Participation for Development Results: A Staff Guide
to Consultation and Participation- 2006
African Development Bank (AfDB): Handbook on
Stakeholder Consultation and Participation in AfDB
Operations- 2001
EBRD PR-10: Information Disclosure and Stakeholder
Engagement
International Finance Corporation (IFC): Stakeholder
Engagement: A Good Practice Handbook for
Companies Doing Business in Emerging Markets- 2007
AccountAbility: AA1000 Stakeholder Engagement
Standard 2011
Business Social Responsibility (BSR): Back to Basics:
How to make Stakeholder Engagement Meaningful for
your Company- 2012
A Guide to Designing and Implementing Grievance
Mechanisms for Development Projects- CAO Advisory
Note 2008.
Better Practice Guide to Complaint Handling,
Commonwealth Ombudsman, Australia, 2009.
Commentary
on Guidance
Land Procurement System and Process Audit (Internal)
Example questions
Existing Codes/ Protocols/
Guidance Material
Does the business enterprise have a policy or
standard operating procedure for land
procurement systems?
Principles for large-scale land
acquisition and leases by UN
Special Rapporteur on the
Right to Food in 2009.
What alternatives were considered?
Was the land procurement process
undertaken in a transparent manner and
were all stakeholders engaged at appropriate
times?
Is there effort to protect the rights vulnerable
groups?
Does the process of land procurement
adhere to the principle of respect to human
rights?
Was the land procurement process open to
non-judicial measures for conflict resolution?
Were community members provided with
assistance to understand protect their rights?
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Practical Guidelines for
Businesses to Acquire and
Use Land, by Institute of
Human Rights and Business
(IHRB)
Commentary on
guidance
Merger & Acquisition/ Investment: Land Procurement System and
Process Audit (Third Party)
Example questions
Existing Codes/ Protocols/
Guidance Material
• International Chamber of Commerce (ICC)
Does the land procurement
Rule for Combating Corruption 2011
process comply with ethical and
anti-corruption guidelines? Is there • ICC Fighting Corruption Handbook 2008
• ICC Ethics and Compliance Training
adequate documentation of past
Handbook 2013
monitoring and findings?
• ICC Guidelines on Gifts and Hospitality 2014
• International Chamber of Commerce (ICC):
ICC Guidelines on Agents, Intermediaries
and Other Third Parties
• Overseas Private Investment Corporation
(OPIC): Anti-corruption Policies and
If the project is located in a weak
Strategies Handbook
governance zone, are the risks of
• International Corporate Governance
corruption or unethical practices in
Network: ICGN Global Governance Principles
land procurement process
2014
recognized and addressed?
• OECD: Good Practice Guidance on Internal
What is the stakeholder
Controls, Ethics, and Compliance 2010
perception of the land
• OECD Risk Awareness Tool for Multinational
procurement process by the
Enterprises in Weak Governance Zones 2006
If Agents, Intermediaries or third
parties were involved in land
procurement, do they comply to
the ethical and anti-corruption
standards?
business enterprise?
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Comment on
Guidance
Expansion: Tenure Rights and Livelihood Resilience Due
Diligence
These are in addition to the Questions in Tenure Rights and Livelihood
Resilience Due Diligence in Feasibility Stage
Example questions
Existing Codes/ Protocols/ Guidance
Material
Have alternatives been
adequately considered?
•
What would be the
cumulative impacts due to
the additional land
requirement?
•
Has the cumulative impact
of the project (both direct
and indirect) got the
potential to affect the
resilience of any livelihood
practices of the local
community?
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•
•
•
The Livelihood Assessment Toolkit: Analysing
and Responding to the impacts of disasters on
the livelihood of people, FAO 2008
Roots of Resilience: Growing the Wealth of
the Poor, World Resources Report 2008.
Increasing the contribution of small-scale
fisheries to Poverty Alleviation and Food
Security, FAO 2006
Assessing the Environmental, Forest and
Other Natural Resource: Aspects of the
Development Policy Lending, A World Bank
Toolkit, 2008.
Banking on Nature’s Assets: How Multilateral
Development Banks can Strengthen
Development by Using Eco-system Services ,
World Resource Institute 2009
Comment on
Guidance
Closure: To be addressed at early stages and considered
during Impact Assessment
Example questions
Existing Codes/ Protocols/
Guidance Material
Which stakeholders need to be
involved in mine closure planning?
• Planning for Integrated Mine
Closure Toolkit, ICMM, 2008.
• Mine Closure and Completion,
Commonwealth of Australia
2006.
When should closure planning take
place?
How to screen the impact of the
closure on livelihoods and
ecosystem services?
What are the predictable impacts of
the mine closure on the livelihood
and food security of the adjacent
communities?
Can the approach to acquisition of
access to land facilitate a process to
return land to those that previous
help ownership and tenure rights?
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Comments on
Guidance
Merger & Acquisition/ Investment:
Human Rights Due Diligence (Mandatory Coverage of IPs and Tenure Rights)
Example questions
Existing Codes/ Protocols/ Guidance Material Comment on
guidance
• ICMM: Integrating Human Rights Due Diligence into
What is the reputation of
Corporate Risk Management Process 2012
the business enterprise in
• Special Representative of the Secretary General on
social performance in
the Issue of Human Rights and Transnational
general and respecting
Corporations and other business enterprises, John
human rights in particular?
What were the potential
•
social impacts of the
business enterprise/project •
since its inception? Is there
adequate information on
their successful mitigation? •
Was there any human
rights impact study
conducted for the business •
enterprise?
•
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Ruggie, 2005-2011
United Nations: The Corporate Responsibility to
Respect Human Rights: An Interpretative Guide 2012
United Nations: Guiding Principles on Business and
Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework 2011
ICMM, ICRC, IFC, IPIECA: Voluntary Principles on
Security and Human Rights: Implementation Guidance
Tools 2011
IFC: Guide to Human Rights Impact Assessment and
Management (HRIAM) 2010
European Commission: Oil and Gas Sector Guide on
Implementing the UN Guiding Principles on Business
and Human Rights 2011
Merger & Acquisition/ Investment:
Human Rights Due Diligence (Mandatory Coverage of IPs and Tenure Rights)
Example questions
Existing Codes/ Protocols/ Guidance Material
• UK Trade and Investment Department, DFID: Business
and Human Rights Toolkit: How UK overseas missions
can promote good conduct by UK companies
• ILO: ILO Tripartite Declaration f Principles concerning
Multinational Enterprises and Social Policy
• Extractive Industries Transparency Initiative (EITI):
Voluntary Principles on Security and Human Rights
Did the business enterprise
follow any voluntary
• United Nations High Commissioner for Human Rights
disclosure or reporting on
and Global Compact: Human Rights Translated: A
human rights and social
Business Reference Guide 2008
performance. What is the • United Nations High Commissioner for Human Rights
trend?
and Global Compact: Embedding Human Rights in
Are there Indigenous
Business Practice 2007
People in the Project area? • IPIECA: Human Rights Due Diligence Process: A
Is there sufficient
Practical Guide to Implementation for Oil and Gas
information to infer that
Companies 2012
their special rights were
• IPIECA: Integrating Human Rights into Environmental,
respected?
Social and Health Impact Assessments: A Practical
Guide for the Oil and Gas Industry
Was the human rights and
tenure rights impacts
covered in Impact
Assessment for the
Project?
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Comment on
Guidance
6
For discussion
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Potential areas for discussion
■ Feedback on Approach
■ Recommendations on good guidelines that are out there
■ Do we agree on what good / success looks like?
■ Agreement on gaps in available guidance
■ Agreement ways to address gaps
■ Reminder:
Potential Strengthening of Existing Systems and Process
• Coverage or gap assessment of ESIA/EIA/ESMP (adequate coverage on tenure rights, livelihood, food security, human
rights)
• FPIC process Implementation/Due Diligence
• Human Rights Due-Diligence (with IP& Tenure Rights and Forced Eviction focus)
• Stakeholder Engagement and Grievance Redress System and Process Audit/ Certification
• Address closure at the early stages of planning and development
• Assessment and management of cumulative impacts including indirect changes in land use
Potential Introduction of New Processes
32
• Multi-stakeholder approaches to regional land use planning
• Tenure Rights and Livelihood Resilience Due Diligence
• Land Procurement System and Process Audit/ Certification (with focus on Forced Eviction, Informal Tenure, Customary
Rights and anti-corruption)
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Additional Slides
Initiatives for Implementing VGGT
Recognition of Right to Tenure as a Human Right
Governance of Tenure: an issue for growth
Complexities in successful implementation of corporate
management themes
Existing Codes of Practice and Guidance Literature
Salient points on which the approach is based
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Initiatives for Implementing VGGT
Parties
Initiatives
State Parties
G-8 Summit
Launched Land Transparency Initiative (LTI) with country pilot
partnerships in 7 developing countries to implement VGGT
EU
To provide financing for capacity building and promoting policy
dialogue around VGGT
USAID
in the process of preparing operating guidelines for large scale
land-based investment based on VGGT and RAI (Responsible
Agriculture Investments
FAO
Working with UNECA through Land Policy Initiative and NEPAD to
promote integration of VGGT in National Policies in Africa.
Brasil, Sierra Leone,
Guatemala and
Philippines
re-oriented their land reform program to match expectations in
VGGT
Non State Parties
A Global Donor Working
Group on Land has been
formed
In the process of developing a database and interactive mapping
tool which covers 220 projects and programs linked to the
implementation of VGGT spread across 103 countries
Coca-cola, Nestle
Extended their support to VGGT
IFC and Global Compacts Actively promoting VGGT in Private Sector Initiatives
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Recognition of Right to Tenure as a Human Right
The CFS VGGT of Land, Fisheries
and Forests adopted in 2012 is
connected to:
■ UN’s Guiding Principles (Protect,
Respect and Remedy framework) on
Business and Human Rights;
■ FAO’s Voluntary Guidelines to support
progressive realization of the right to
adequate food in the context of
national food security adopted in 2004.
Protect
Human
Rights
Right to
Food
Right to
Tenure of
Land,
Fisheries &
Forest
Respect
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Remedy
Governance of Tenure: an issue for growth
The way impacts and issues have
shaped up
Outcomes
Vulnerable communities deprived of
access to productive resources on which
their livelihood depends
• Wide-spread community
protests and civil society vigil
Lack of proper redressal of issues ( Land,
CPR rights etc.) by Corporates and
investors
• legal actions, costly delays and
reputational harm.
Natural resources (land, fisheries and
forest) are adversely affected due to
industrialization, urbanization, extraction of
natural resources, and industrialization of
food production.
• Adversely affecting growing
number of people and
communities whose traditional
livelihoods depended on these
natural resources
Several Studies have showed that there is
inextricable links between ‘extreme
poverty’ and ‘peoples’ access to land,
fisheries and forest’.
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• Increased poverty and
vulnerability of the affected
communities
Complexities in Regulations and Practices in Themes of
Responsibilities
Impact
Assessment
and
Management
Programs
Most of the Countries have Environment Impact
Assessment (EIA) Process which focuses on Environment
aspects more than socio-economic aspects.
Quality of the Impact Assessment Studies varies and do
not adhere to IAIA principles of purposiveness, rigor,
relevancy, practicality, focused, participative, integrated,
interdisciplinary, systematic and credible.
Actual impacts may not necessarily correspond to what
was predicted in EIA stage. Hence, the management
measures are not always effective.
The regulatory process of monitoring and enforcement is
often found inadequate.
Credibility of the facts and evidences in EIA reports is low
in countries with high rate of corruption.
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Complexities in Regulations and Practices in Themes of
Responsibilities
Stakeholder
Engagement
and
Grievance
Redress
System
Participation of local communities and affected population
in Environment Impact Assessment Process is limited.
The consultations held with local communities and affected
persons do not adhere to the principles of Prior Informed
Consent or informed Consultations
The processes for Free Prior and Informed Consent (FPIC)
where applicable are neither well laid out in most of the
regulatory regimes nor are they implemented with
earnestness it deserves.
The access to the remedy to the affected population is
most of the time complicated and not suitable to the skills
and knowledge of the affected population
Conflict resolutions are mostly done through country’s legal
system, which is time consuming and costly. Hence,
remedies from violations of the human rights is rarely
available.
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Complexities in Regulations and Practices in Themes of
Responsibilities
Corporate
Governance
and AntiCorruption
Measures
There is a significant variation in the codes for corporate governance
and anti-corruption. There is a lack of basic consensus on what the
scope of bribery commitment, or the definition of bribery and
corruption should be.
There are only few country specific legislations that hold the
corporates registered within their country responsible for their corrupt
practices in other countries.
The OECD Guidelines for Multinational Enterprises, and International
Corporate Governance Network (ICGN) which are used by Investors
do not help specifically to probe into unethical practices in land
procurement (acquisition, lease or purchase) processes.
Transparency
in Disclosure
and Reporting
Sharing of information and effective communication with stakeholders
is not achieved because of lack of commitment and poor preparation.
Insufficient understanding of the community in terms of its power
imbalances, customs and past experiences affects the disclosure
process.
There are multiple reporting protocols that covers human rights and
social performance. Most prominent are Global Compact, Global
Reporting Initiative, ISO 26000, International Integrated Reporting
Council
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Complexities in Regulations and Practices in Themes of
Responsibilities
Indigenous
People and
Communities
with
Customary
Rights
There is variation in definition and identification of Indigenous Peoples
in different countries. Hence, country legal systems do not provide
uniform treatment.
The customary ownership of the land and natural resources is also
prevalent in many communities which do not come under the
Indigenous People category.
The implementation of FPIC process with respect to Indigenous
Peoples is hardly done with full disclosure of relevant information and
lack of knowledge and capacity of IPs is a big impediment.
Forced
Eviction and
Informal
Tenure
Most of the country legislations dealing with land rights or land
acquisition process do not recognize informal tenure holders. Hence,
forced eviction of these sections is a reality in many parts of the world.
Business enterprises gaining access to land through State acquisition
of land do not take responsibilities in the event of forced eviction or
remain complicit during such processes.
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Complexities in Regulations & Practices in Themes of
Responsibilities
Responsible
Investment
The performance standards and codes of practices adopted by
Investors have achieved great levels of sophistication over the years.
However, there are challenges in their application.
The decision making for responsible investment bids depends on the
existing database and environment and social impact assessments
conducted during earlier stages. The inadequacies of the country
system thus has a bearing on the efficacy of the screening process
adopted by Investors.
The monitoring and disclosure of the social performances by Financial
Investors is proved inadequate.
When Investors enter into the scene where decisions on land
procurement process has been completed, there are limitations to
identify legacy issues and provide suitable remedial measures.
The remedial measures adopted rarely consider the restoration of
tenure rights and in most cases are based on mutual consent.
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Existing Codes of Practice and Guidance Literature
■ Corporate or Industry self-regulation codes are monitored internally
and disclosure of information varies.
■ The multi-lateral regulations, civil society regulations and multistakeholder initiatives involve third party monitoring and reports are
disclosed.
■ Some of the multi-stakeholder initiatives involve Certification. The
certification process provides better monitoring and reporting
mechanism, improved accountability, transparency and reliability.
■ Most of the Certification programs involve ‘products’ and ‘process’
certification is rare.
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Existing Codes of Practice and Guidance Literature
■ The Civil Society Groups and Multi-Stakeholder Initiatives and Multilateral agencies have developed capacities and working relationship with
corporates in the past decade, which can be used.
■ There is a significant gap in skill level and clarity at corporate and project
levels.
■ Similarly, the knowledge and understanding of the NGOs at International,
National and Local level on scope and coverage is widespread.
■ The Private Sector has created structures and processes that needs
better integration into the core business functions. Hence, an integrated
approach for business responsibilities would be more sustainable.
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Salient points on which this Approach is based:
■ The requirement of land and impacts of a business on land, fisheries
and forest undergoes changes in different stages of business lifecycle
■ Our priority should be addressing land tenure issues at the right time
to prevent or to plan for managing them effectively
■ It may not be feasible to intervene at the right time in all occasions. In
such cases, we engage in a gap assessment process and through a
robust stakeholder engagement process arrive at mutually agreed
road-map for restitution or redress of such impacts
■ Should design a suitable Monitoring and Reporting Process that is
transparent, accountable, reliable and continuously evolves to
integrate the learning or respond to the changing contexts
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