Opening up land contracts
Many land deals are still kept secret. Will a new online resource change the game?
Land has important social, cultural and spiritual as well as economic value in many societies. It is inherently political, and often emotive. Yet many of the investment deals affecting land use are kept hidden from public view, leaving communities in the dark about decisions that can so profoundly affect them.
A new online resource is seeking to change this by making contracts for land deals available.
IIED has previously scrutinised the land deals between states and investors. Our report revealed how little information was available. Most contracts were hidden from public view. We could only access 12 incomplete contracts, mainly disclosed by NGO websites. It seemed that lack of transparency was worse in agriculture than in the extractive industries.
This lack of transparency causes a number of problems. It is difficult to know the reality of the situation (or do research) without access to data.
But more importantly, the contracts typically raise policy issues warranting effective public scrutiny. Citizens have the right to know how their representatives manage public lands.
This is particularly pressing where investor-state contracts regulate matters that one would expect to be governed by national law – such as taxation or environmental standards, as this report (PDF) on the extractive industries has argued eloquently.
There is now growing support for the presumption that, in principle, contracts should be disclosed. International guidance, including the UN Principles for Responsible Contracts (PDF), calls for the disclosure of contract terms unless compelling reasons require otherwise. Several countries have published their extractive industry contracts, showing that disclosure is possible.
A new international resource
OpenLandContracts – an international repository of land deals – creates a new international reference point to advance this agenda. Freely accessible online, it provides publicly available contracts in a central searchable repository.
The contracts are annotated to help users navigate each contract. If more contracts are added, OpenLandContracts could be a game changer – for advocates, governments and researchers.
By accessing the contracts, advocates working at local and national levels can better assess the implications of land deals. For example, they can scrutinise whether public promises made about jobs and revenues are reflected in the contracts. Ultimately, it is in the interest of the government and the company that people have a realistic understanding of the expected costs and benefits.
Advocates can also use the contracts to monitor compliance when the project is being implemented – again, a role that is in the public interest, especially where limited resources make government monitoring more difficult.
Contract disclosure can also benefit governments, facilitating information sharing between departments and government agencies. Environmental protection agencies, for example, often have no access to contracts.
Governments can also learn about relevant contractual practice by accessing OpenLandContracts. While contexts differ, no contract is perfect and the underlying policy choices may vary, governments dealing with contract negotiations would be able to see how other contracts have addressed similar issues.
Research can provide a vehicle for identifying good practice and disseminating lessons from experience. OpenLandContracts provides researchers with a credible source. One problem with leaked contracts is that it can be difficult to determine whether a document is what it purports to be.
Pushing the boundaries
So we should celebrate the launch of OpenLandContracts. But this new advance also creates new opportunities to push the boundaries even further.
Contract disclosure can only make a difference if citizens are able to use the information effectively. Agribusiness investment contracts can be complex technical documents. The information needs to be made accessible. So the summaries and annotations provided in OpenLandContracts are very important.
More work is needed to develop tools to enable informed discussion of contract issues at the national and even grassroots levels. Robust monitoring and evaluation systems are needed that can track data users and uses, and help us to assess whether increased transparency translates into better sustainable development outcomes.
In addition, there are issues to consider in relation to the wider legal and policy frameworks. Three issues immediately spring to mind.
The first concerns making disclosure systemic. As governments and companies have little incentive to make contracts from very bad deals publicly available, I suspect it will prove more difficult to ensure they are disclosed. Yet these arguably deserve particularly attentive public scrutiny.
One solution is to give disclosure requirements legal bite through national legislation, as in Liberia, or by exploring the options to make the protection provided by international investment treaties conditional on compliance with specific transparency requirements.
In this video by the Columbia Centre for Sustainable Investment (also below), Cotula speaks at the launch of the new OpenLandContracts database.
The second concerns shifting the emphasis from the contract to the process of contracting. This means promoting transparency not only after a deal has been signed but throughout the contracting process, particularly when all options are still open.
This raises questions about who should disclose, what information and documents should be disclosed, and who it should be disclosed to, when and where.
The third policy issue is about broadening the agenda. Transparency is important, but transparent land deals can still dispossess people and deliver poor results.
There is a need to promote bottom-up deliberation on the fundamental policy choices – for example, what types of agricultural investments should be promoted, where and how, and which overarching legal frameworks should be used to facilitate investments including policy choices on national legislation and international investment treaties.
The name – OpenLandContracts – evokes an ideal as well as a description. I hope that, looking back in five years' time, we will be celebrating the important contribution that OpenLandContracts will have made not only through the information it disseminates but also by having catalysed new momentum for more bottom-up decision making in investment processes.
OpenLandContracts – online repository of publicly available contracts for large-scale land, agriculture, and forestry projects
Land rights and investment treaties: exploring the interface, Lorenzo Cotula (2015), IIED report/paper
Democratising international investment law: recent trends and lessons from experience, Lorenzo Cotula (2015), IIED report/paper