Q&A: helping communities protect their land rights
Pressures on land and natural resources are growing, and many communities affected by land rights violations struggle to assert their rights. In this interview Rachael Knight talks about how IIED’s legal tools team supports grassroots advocates and communities impacted by large-scale land acquisitions.
Land tenure security expert Rachael Knight (RK), a lawyer by training and member of IIED’s legal tools team, brings diverse experiences to IIED – from working with grassroots land rights activists to crafting land tenure legislation.
Rachael founded the Community Land Protection Initiative (CLPI) – an annual peer learning programme that brings together grassroots organisations from around the world to share their most successful strategies for supporting communities to protect their land rights.
Q: What can communities affected by large-scale land investment do to assert and protect their land rights?
RK: There are three separate ’moments’ when communities can actively work to strengthen their tenure security and protect their rights in the face of potential external investment. First, communities should proactively ensure their lands and natural resources are protected through strong local land management rules and structures before an investor arrives.
Communities can do this by drafting bylaws that support good governance, sustainable natural resources management and downwardly accountable leadership, and by mapping their lands and documenting their boundaries by planting boundary trees, taking photos and GPS coordinates, and signing boundary agreements with neighbours.
They should also ensure they are fully familiar with their land rights under law, understand land markets, and have a clear vision for how they want their community to prosper and grow. I describe these procedures in two guides: the 'Community Land Protection facilitators' guide' and the 'Community-investor negotiation guide 1: preparing in advance for potential investors'.
Second, if a potential investor has arrived, communities should seek legal support immediately. They should demand that investors provide the community with all relevant legal and technical information relating to the proposed investment, and that a proper ‘community consultation’ is held, after which they can either reject the investment or give their free, prior, informed consent.
If the community does decide to lease its land to an investor, it should work with legal advocates to negotiate a formal contract – enforceable in a court of law – to safeguard their interests. For more details, see the 'Community-investor negotiation guide 2: negotiating contracts with investors'.
Third, once the investment is under way, community members should monitor impacts on their land and natural resources, health and welfare. IIED recently produced a video about how communities and civil society advocates can engage with large international investors. This includes ‘mapping the investment chain’ to understand which actors are behind an investment.
Communities should also keep a close eye on the investor to ensure it respects all legal obligations. If problems arise, community members should raise their concerns directly with the investor and through government complaints processes.
If the investor refuses to resolve the issue, community members can seek redress from government, or report the investor to the investments’ financial backers, commodity oversight boards, and other stakeholders who can put pressure on the investor. IIED is working on a number of initiatives to support redress for victims of land rights violations.
Q: What was the thinking behind the idea to convene grassroots land rights organisations?
RK: After years of working with community land protection advocates across the world, I began to see that each organisation was reinventing the wheel in their own context, as advocates rarely have time to share our strategies in the detail necessary to replicate them.
This was especially true cross-regionally. I saw so many 10-minute presentations given at conferences, but they never got into the nitty-gritty details. I wanted to know: what strategies did you use to get such great outcomes? How exactly did you tackle challenges? How, specifically, did you increase women’s participation? I wanted to create a space where advocates could share 'what works' – and how, and why.
So, I teamed up with International Land Coalition (ILC) and IIED to create an annual ‘Community Land Protection Co-Learning Initiative’ that brings together NGOs to teach each other their most effective strategies.
The initiative focuses on peer-to-peer learning, rather than expert-led training; each participating NGO is allocated time to teach their most successful practices to the group. We emphasise role plays, exercises, and other non-lecture formats so the group can get a ‘felt sense’ of the fieldwork.
Then, each participating NGO makes a workplan for the year, and ILC provides each organisation with a small grant to try out the new strategies they’ve learnt from their peers. The learning doesn’t stop there: as the fieldwork progresses, we meet in quarterly video conferences and online to keep teaching one another.
Q: Two years into the CLPI project, what results are you seeing?
RK: The second year’s cohort is just getting started, but they have already produced video toolkits to share their work with peers across the globe. The first cohort of NGOs was incredibly successful: they strengthened the tenure security of more than 14,000 people on roughly 69,000 hectares of land.
Some organisations had real breakthroughs in their fieldwork as a result of trying out each others’ strategies, and have now integrated these new practices into their standard community land protection work.
For example, both the Tanzania Natural Resource Forum and Community Assistance In Development (Cameroon) have adapted Namati’s bylaws drafting process to their local contexts and made it part of their core fieldwork. And, because a final requirement of the initiative is to ‘pay it forward’ by teaching other national land rights NGOs what they learned over the course of the year, these 'new' strategies are now spreading to other organisations, too.
Q: In the workshops, you train participating NGOs on how to support communities to draft bylaws. What are by-laws and what benefits do they bring to land governance?
RK: Bylaws are community-made local rules that, in this context, dictate how the community will govern and manage its lands and natural resources. The bylaws drafting process, which I co-created with brilliant land rights advocates from across Africa, includes three steps:
- A community first ‘shouts out’ and records all of its existing customary rules for land governance and natural resource management, as well as good rules their ancestors followed in the past
- After learning about relevant national and international laws, the community then modifies any rules that need updating, adds new rules necessary for their current reality, and deletes obsolete rules that no longer serve, and
- Once a lawyer has reviewed the draft rules to ensure they do not contradict national and human rights laws, the community convenes a huge bylaws adoption ceremony and votes their rules into force.
Q: Can you give an overview of what the bylaws cover? Why are they important, in a practical sense?
RK: Generally, community bylaws have three sections: 1) rules about leadership and land governance; 2) rules about the use and management of common pool natural resources; and 3) cultural and social rules.
Bylaws are important because unless community land documentation efforts establish good governance over communities’ lands and natural resources, they can create more harm than good: a corrupt leader with a map and a title but with no downward accountability can sell or transact community land much more easily than when the land is not documented.
Land documentation initiatives that do not support communities to establish systems for transparent, just, and equitable land governance may invite or worsen mismanagement, corruption, and capture by local elites. They may also weaken the land rights of women or minorities by entrenching discriminatory practices that exclude them from land governance and community decision-making.
However, a well-facilitated and participatory process of drafting and adopting community rules for local land and natural resource management can bring hugely positive outcomes, including:
- Good governance and increased downward accountability of leaders
- Stronger rights for women, youth, and members of minority groups
- Improved conservation, use and management of natural resources, as well as ecosystem regeneration
- Alignment of community rules with national laws
- Increased community capacity to vision, plan for and actualise community-defined local development, and
- Strengthened community capacity to negotiate for and actualise equal, prosperous partnerships with outside investors, among other outcomes.
People now use the community land to graze their animals without the hindrance of encroachers. Most importantly, after one year of following the bylaws, there is clear evidence of ecosystem restoration: fish are back in swamp and people are doing simple fishing this dry season – yet before the Community Land Protection Programme, the swamp had been encroached and dried up as a result of people dividing up the water into channels towards their rice gardens... Grazing land leaders no longer have personal enemies because the encroachers have withdrawn and are respecting community rules for protecting land. – community leader in Barodir, Uganda
Q: How else does IIED provide support to communities affected by large-scale land acquisitions?
RK: IIED’s legal tools team has been using a variety of approaches to support grassroots advocates and communities impacted by large-scale land acquisitions. Recent work has focused on three modalities:
- We conduct legal analysis and promote dialogue between communities and governments. For example, along with the Tanzania Natural Resource Forum and the International Land Coalition, we convened dialogue sessions between the government of Tanzania and four villages whose land had been allocated to a now-failed biofuel project in Tanzania’s Kilwa District. See this briefing note for more information.
- We provide policy support to national civil society on compulsory land acquisition. For example:
• In Guinea, where the government is preparing a new regulation on land acquisition for private investment, we are providing technical input to a national coalition of civil society organisations with the goal of strengthening the rights of communities.
• In Cameroon, where large-scale land acquisitions have been a source of conflict, we are developing law reform proposals through the LandCam project on how the country should adapt its compulsory land acquisition framework.
- We develop toolkits and guides to assist civil society organisations working on socio-legal empowerment. For example, we’ve developed the concept of ‘investment chains’, and the ‘pressure points’ they offer for holding companies to account. In collaboration with Inclusive Development International we’ve developed a guide with details about how to ‘map’ investments.
We’ve just launched a new resource to centralise information about these initiatives.