EXECUTIVE SUMMARY
How can transparency improve the governance and accountability of “land investments,” such as agriculture, forestry, wind and solar energy, and similar projects? Land investments have long been characterized by poor governance and accountability, which is often exacerbated by inadequate information sharing and the exclusion of communities from decisions that will affect them. The Covid-19 crisis amplified these challenges. Governments fast tracked project approvals to the exclusion of communities and intensified criminalization and persecution of rights defenders. Reductions in government monitoring of investments were accompanied by opportunistic regulatory rollbacks. Opaque actions taken during the fog of the pandemic will have long-term implications, including an increased risk of social conflict, imperiling recovery efforts and even increasing the risk of governmental collapse.
Transparency is often seen as a means of improving governance and accountability. But its transformative potential can be hindered by vagueness concerning how “transparency” is defined and who it is intended to serve. Transparency is too often used interchangeably—and erroneously—with “disclosure,” effectively protecting powerful actors from changes in the status quo. Existing transparency and governance initiatives also fall short on meeting communities’ transparency needs, precisely because such initiatives focus on other beneficiaries, such as commodity buyers or international civil society actors. This report seeks to re-orient conceptions of transparency in ways that can lead to more transformative impacts— particularly for local rights holders—in the governance of land. Reorienting understandings of what land investment transparency means can also benefit governments, companies, and other actors by enabling them to more effectively manage operational risk linked to social conflict and community opposition.
THE DEFINITION
“Land investment transparency” (LIT) is public disclosure of relevant land investment-related information, as well as the ability of people to access, understand, and use that information. LIT entails an ecosystem of open systems and processes, in which project-affected community members can participate and influence decisions that will affect them. These elements can support community members in exercising their rights, anticipating and avoiding negative impacts, resolving grievances, seeking redress, and driving their own development. Governments have a legal duty to ensure land investment transparency, which is based in the binding norms of international human rights law. In addition, companies and investors have responsibilities to respect human rights, which means that they, too, must work proactively to advance the components of LIT within their control.
RELEVANT ACTORS This report divides the actors relevant to land investment transparency into two groups:
1. Project-affected communities and the actors who support them. This group is often sidelined from investment-related decision-making. It includes all community members, not only leaders, and allies such as Indigenous and peasant organizations, civil society organizations, and paralegals and other experts supporting communities
2. “Gatekeepers.” These actors control access to relevant information and how policy and decision-making processes around land investments function. Gatekeepers include host governments, companies carrying out land investments, as well as lenders, equity investors, and other actors in the investment chain.
CHALLENGES EXPERIENCED BY COMMUNITIES AND THEIR ALLIES
Communities, their allies, and other actors experience a range of challenges, which diminish land investment transparency. Disclosures fall short. Information is usually not disclosed early enough, and some information and documents are never disclosed. A lack of proactive disclosure puts the burden on communities to track down information, exposing them to additional risks and costs. Disclosed information can also be inaccurate, used by gatekeepers as part of “information wars.” Communities struggle to access information. Information, when disclosed by gatekeepers, often does not reach communities. Instead it can remain inaccessible in faraway government buildings or online. Gatekeepers, too, are often inaccessible for community members, limiting communities’ ability to obtain key information.
More is needed to enable communities to understand available information. Communities often start with a low understanding of their rights and other technical issues, which can impair their ability to obtain and understand information about proposed projects. When technical information is disclosed, it can remain incomprehensible unless gatekeepers or others take the time to summarize, translate, and convert it into a form that can be understood by community members.
Communities face barriers to using information and to participating in open decision-making processes. One limiting factor to communities’ use of information is that investment related decisions are often made behind closed doors, without community participation. In addition, the ability of communities to use information to influence decision-making is regularly undermined by their lack of leverage. This is linked to governments’ reluctance to recognize community land rights or their rights to free, prior and informed consent, which would enable communities to influence or control whether or not projects take place and on what terms. Communities are regularly faced with governments that rely on company information to the detriment of community perspectives, and with regulators that often neglect their mandates, thus undermining accountability. Although good faith regulators and other “reformers” within government can help to bolster community participation in decision-making, those government actors are also frequently undermined by more powerful actors. Less obviously, communities seeking to use information to influence decisions may find that gatekeepers may sometimes cede to community requests for information and participation merely as a strategy to dampen pressure for deeper systemic changes.
RECOMMENDATIONS
The big picture Donors, global policy makers, and civil society organizations should:
• Conceive of transparency as extending beyond disclosure, to include community access, comprehension, and use of information in open decision-making processes and governance systems.
• Ground transparency efforts in the needs of communities and other local actors.
• Support or implement transparency efforts that seek to navigate, change, or circumvent political barriers.
• Strategically support or implement transparency programming when it is needed to complement—or to fill voids created by the blockage of—more transformational frameworks for improving the governance and accountability of land investments, such as human rights, access to justice, and the protection of legitimate tenure rights.
Source: Columbia