Landportal.info | 23 June 2016
How far have we got since the great land rights debates five years ago?
This blog was written as a contribution to the Mekong Regional Land Forum that took place from June 21-23 in Hanoi, Vietnam. Duncan Pruett was a keynote speaker at this event.
By Duncan Pruett, Program Policy Advisor for Oxfam in Myanmar
I was asked to reflect on foreign investments in agriculture in the Mekong this week at the Regional Land Forum here in Hanoi, and it led me to think back over what we’ve been through over the last 5 years at Oxfam, advocating on the issues of land rights. It’s a good moment for me to reflect personally. From 2010 till the end of last month, I was helping lead Oxfam’s global land policy and programme work, based out of Oxfam Novib in The Hague. But as of last week, I’ve relocated to Yangon, Myanmar for 2 years to set up a new programme for Oxfam on land and forests. What better moment to ask how all of the progress we and others claim to have made in our international campaigns will translate into the inevitably messy reality on the ground in this region, where land is such a hot topic.
In 2011, Oxfam prioritised land as an issue of international concern, after a flood of “land grabbing” cases came to light, including some in the Mekong region. Even those companies with high principles and standards were finding themselves involved in land disputes and scandals, often unaware of how to rectify things when they went wrong. Even big development finance institutions (DFIs), like the World Bank Group, were found to be failing to address land issues in a satisfactory way, in spite of having some fairly cutting edge policies. There was abundant evidence that poor and marginalized rural women and men were being treated as an obstacle to be swept aside to make way for economic development, rather than as important rights holders who should be beneficiaries of the development coming to their countries. Even so, back in 2010 companies and governments were denying that there was a serious land grabbing problem that required stricter rules.
That was then. And this is now. So what happened next?
Many high profile land cases were taken up with support from NGOs, where companies found themselves in a conflict with local communities. In some cases credible steps were taken to remedy things. But often there was no remedy, or disputes dragged on for years. There is no shortage of new cases today, or, as Global Witness confirmed this week, no shortage of new victims when voices are raised in protest.
Oxfam and our allies pushed the DFIs to address land more credibly – as development lenders they should be the most responsible. The IFC for instance needed to address loopholes in lending through financial intermediaries, and the World Bank has been under pressure to adopt stronger safeguards on land. There has been positive movement but many, including Oxfam, are still pushing hard to get the Bank to take things further.
A range of sectoral company roundtables, like the Roundtable on Sustainable Palm Oil and the sugar sector’s Bonsucro have also developed ambitious principles, guidelines and certification schemes to steer their members on land issues. Attacking the issue by sector helps ensure a critical mass moves forward together. But these efforts face challenges too. Land issues are hard to address through certification audits, roundtable complaints mechanisms tend to be under-resourced and flooded with complaints, and the roundtables mainly attract relatively responsible consumer-facing companies (so called “frontrunners”) and their suppliers, but not other companies (and their clients) who are not yet responsive to consumer or customer pressure and may undercut companies which do follow international standards. Such companies operate throughout the Mekong, frustrating efforts to raise the bar on company behaviour.
Some big individual companies have extra influence over what happens on the ground: Consumer-facing food and beverage companies, commercial banks, pension funds etc. Efforts have been made to convince these that they will lose business if their customers find them to be complicit in abuses of land rights, or in not respecting the rights of local communities. There is also a growing public demand, on social media and elsewhere, for companies to be more responsible. Many of those companies have certainly listened, and have started taking steps to be more transparent, accountable and to address land issues more systematically…. Oxfam has helped persuade Coca Cola, Pepsi, Nestle, and Unilever to require suppliers to address land issues properly through its Behind the Brands campaign. And after lots of campaigning, several investors, such as some Dutch and Australian banks, have committed to stricter policies on land also. But it gets more difficult when companies have to implement their commitments, and not just say the right thing to their critics` or even put in place a good policy… It’s true that efforts are increasing and there is some leadership, but companies still have a long way to go.,. And more companies need to follow suit.
Consider, for instance, the resolution of land conflicts. Even when companies have been comprehensively exposed as having made mistakes, they have often tended to walk away from their responsibilities to put things right voluntarily, by pulling out of projects. This “cut and run” behavior is not responsible or fair, and sends a very unfortunate message to other businesses – “if you get it wrong, don’t worry –you can cut your losses and leave others to pay the bill…”. More importantly, nothing changes for communities. We’re seeing some of companies that have made public land commitments stick with cases and engage their suppliers on how to resolve the conflicts. But land conflicts are complicated to resolve and it can take a long time. So we keep up the pressure on these companies to use and increase their leverage, to ensure communities receive the remedy they seek. They should only be pulling out as a last resort, or when that is the action that communities are asking them to take. A voluntary approach can start to create change, help shake up a system, and create space for new laws and regulations, but such an approach has limitations too. That’s why we need to push to get those adopting voluntary commitments to push for systemic change too.
Speaking of “voluntary”, there is a lot to say about the Voluntary Guidelines on Governance of Tenure. The UN process leading to the adoption of the first global norm on land tenure underlined a growing consensus among governments, donors, business organisations and civil society that investors had to start addressing land issues more seriously in their operations. Just endorsing the guidelines isn’t enough though. They need to be implemented.
It’s not a surprise then that many governments in countries whose investors are often investing abroad, including France, Germany, Vietnam and the US, have started to look more closely at ways to regulate the practices of their companies across borders. This is a very positive step. Particularly when their companies might find themselves involved in practices abroad that are not allowed at home, such as acquiring large land concessions, logging, and displacing local communities. In Vietnam, for example, Oxfam is working with the Vietnamese Chamber of Commerce and Industry and the NGO PanNature to develop similar guidelines. But for the most part the emphasis is mainly on guidance, and not on regulation. Is this enough?
In ASEAN, where agricultural FDI nearly doubled from 2013 to 2014, at a time when global FDI declined 16%, there have been efforts to have a discussion about how some steps can be taken at regional level to promote more responsible agricultural investments.So far economic integration has focused more on liberalising trade, and protecting investors, with things like the ASEAN Comprehensive Investment Agreement, than on protecting local populations from the negative impacts of unregulated agricultural investments. But this debate has not ended, and it will continue.
So, what’s my verdict? The world sat up and took notice of the scandal of land grabbing. The World Bank Group, the UN, the big companies, sectoral bodies, and home governments of investors started to respond by taking various actions, and making a range of commitments. Alongside this, companies have gained a better understanding of how reputational and operational risks associated with land-based investments are routinely underestimated. It’s clear that there is a lot happening to start to address the problems linked with large scale land-based investments. But the steady flow of cases, and persistent killings of activists signal that progress on the ground is still quite limited. The problems have not gone away, and mistakes get made over and over again. As I start in my new role in Myanmar, I suppose the challenges we encounter may be similar.
There’s a massive implementation challenge for all those companies and DFIs who should be living up to their policies and commitments even as new cases continue to be uncovered, particularly those involving financial intermediary lending that lacks transparency. Furthermore, there’s yet another massive challenge in moving from the soft (or voluntary) commitments of individual companies to a much preferred rules-based system at regional and country levels. Such a system, in which people’s rights are recognised and respected, and voluntary commitments become laws and regulations –is the only way in which the practices of non-compliant companies will be addressed. There’s no point making more recommendations here though – you can read these elsewhere – the amount of do’s and don’ts guidance which has been produced recently is impressive if not also a bit excessive.
On top of the need to reform corporate behaviour, of course, participants at this regional forum are rightly underlining the need for land governance to become more equitable, for ill-conceived and out of date land policies to be overturned, and for the land and forest rights of communities to be recognised – here civil society must demand change, and a seat at the table in change processes. And that’s happening - there’s clearly no break in the momentum of those fighting for land rights. I was pleased to see delegates this week sporting “#LandRightsNow” buttons. Under this Global Call to Action, there are hundreds of communities and CSOs across the world (100 in South East Asia alone!) pushing to double the global area of land legally recognized as owned or controlled by Indigenous Peoples and local communities by 2020.
It’s clear to me that there has been a change, and there is a readiness to address the complex challenges related to land grabbing and to ensuring full respect for land rights, particularly of the most vulnerable. Let’s keep working to ensure that the increasingly integrated economies of the Mekong evolve in a way that helps rural women, men and communities thrive and survive, while keeping full access to their lands and forests.