Back to the tyranny of the majority in Bolivia’s TIPNIS dispute

by Rhodri C. Williams

After much equivocation, President Evo Morales of Bolivia has returned to his original position that the population of both departments abutting the Isiboro Secure Indigenous Territory and National Park (‘TIPNIS’ in Spanish) – rather than the residents of the Park themselves – should decide on his long-running ambition to build a road directly through its center:

… Morales said on Tuesday that it made sense for everyone in Beni and Cochabamba to vote on the road because the residents of these two departments would be the ultimate “beneficiaries.”  In contrast, according to Evo, polling the residents of TIPNIS would potentially allow “small groups” of opponents to veto the desires of the majority (perhaps not within the park itself, but within the two departments that would be connected by the road).

Nicholas Fromherz reflects on this news from a procedural justice perspective at South American Law, pointing out that President Morales’ repeated failure to respect the rules on consultation he himself gave constitutional status represents a fundamental injustice.

Granted, the millions who live in Cochabamba and Beni would, as Morales indicates, be the prime beneficiaries of this project.  But would they also suffer the severest of its consequences?  When deciding who should have a say in the matter, we would presumably agree that it would be improper to hand the decision over to the potential “winners” while muzzling the “losers.”

One of my current academic works focuses on this very topic.  Like all big public projects, environmentally-sensitive projects – roads, dams, power plants, etc. – imply winners and losers.  It is my contention that the upsides of these projects are often quite diffuse, inuring to the benefit of large regions or even entire nations.  The downsides, in contrast, are often concentrated in relatively small areas.

This analysis links what have been two of the core concerns discussed in this blog in relation to disputes over land and territory. First, there is the principle, widely accepted in theory and almost as widely flouted in practice, that those forced to bear the direct burden of development projects should end up in in no less favorable a position then they would have been had the project not been carried out.  As Natalie Bugalski observed in these pages, in relation to the Asian Development Bank’s involuntary resettlement policy, fifteen years of practice has brought limited progress:

The rationale behind the policy was a shift away from the perception that development-induced displacement and attendant harms suffered by those physically and economically displaced is a “sacrifice” some people have to make for the larger good. It is apparent, however, that despite the adoption of increasingly progressive and rights-oriented policies, the utilitarian view of development-induced displacement continues to dominate the culture and individual staff views of the ADB and many other aid and development institutions.

Second, the stakes in such controversies are even higher when the parties at the business end of development projects constitute minority groups, and particularly indigenous peoples. In such cases, the failure to give special weight to the concern of such groups can lead not only to the destruction of their livelihoods, but also the loss of their identity. The idea that indigenous peoples whose territory has been incorporated into larger states should be permitted to defend it against the whims of a political community they did not choose to be part of is integral to texts such as the UN Declaration on the Rights of Indigenous Peoples. As I noted in my own first stab at analyzing the TIPNIS imbroglio, resort to majority rule may be tantamount to revoking TIPNIS’ status:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

The controversy will no doubt rumble on, particularly given that the plight of the indigenous minorities resident in TIPNIS appear to have captured the sympathy of the broader public. However, the abandonment of progressive principles by a President elected on the strength of his commitment to equitable development and accountability through consultation indicates just how much work remains to be done.

New RRI report (and upcoming guest post) on community land rights in tropical forests

by Rhodri C. Williams

The Rights and Resources Initiative (RRI) just released a new report indicating that forest peoples have “quietly gained unprecedented legal rights to the land and resources owned under customary law” over the last twenty years. However, the authors also express concerns about legal obstacles to the exercise of such rights and the risk of their rollback by elite groups seeking to facilitate international land and natural resource deals. According to RRI’s press release:

“Forest peoples are caught between the forces of a drive for environmental sustainability and the intense pressure of economic development”, said Jeffrey Hatcher, Director of Global Programs for RRI, and one of the authors of the new report. “Despite tremendous progress in establishing legal tenure regimes, a lack of political will and bureaucratic obstacles make it a struggle to implement any real action in most forest-rich developing nations. ….”

The report is described as providing “the most comprehensive global legal analysis to date of the status of forest tenure rights held by Indigenous Peoples and other local communities in more than two-dozen developing countries”, which together account for “approximately 75 percent of the forests of the developing world, home to some 2.2 billion people.” It was released together with a separate study on the positive development effects of recognizing customary forest tenure. Both reports taken together constitute the results of an analysis undertaken by RRI on the twentieth anniversary of the 1992 Earth Summit in Rio de Janeiro, in order to inform the upcoming Rio+20 Conference on June 20-22.

I am very pleased to announce that Fernanda Almeida, the lead author of the report, will be guest-writing on TN next week in order to provide further analysis of the results of RRI’s research and insights on how these findings may be of practical assistance in efforts to secure the tenure rights of forest peoples.

Fernanda’s guest-posting can now be read at the following link:

- What Rights? Comparing developing countries’ national legislation on community forest tenure rights (11 June 2012)

 

 

Cambodian mothers and grandmothers behind bars after facing off the most powerful men in the region: Will the World Bank stand by them?

by Natalie Bugalski and David Pred

David Pred and Natalie Bugalski are co-founders of Inclusive Development International. They co-authored the complaint to the World Bank Inspection Panel on behalf of the Boeung Kak community.

Last week thirteen Cambodian women representatives of the Boeung Kak Lake community were sentenced up to two-and-a-half years in prison after a summary trial. The women, including a 72-year old grandmother, were arrested on May 22 whilst singing at a peaceful protest to support 18 families whose homes had been buried in sand by a private developer (view the video). The arrest, trial and sentencing took place within 48 hours, with no time for the women’s lawyers to prepare a defense. During their trial, the police arrested two more community representatives who were waiting outside the courthouse prepared to testify as witnesses for the 13 women on trial.

Photograph: Housing Rights Task Force

The women, who call themselves the League of Boeung Kak Women Struggling for Housing Rights, have waged a multi-year battle to defend their homes and land in the bustling center of Phnom Penh. Their campaign has included everything from publicly burning effigies to rid the city’s authorities of evil spirits to baring their breasts at demonstrations to display their desperation. It has also involved a sophisticated legal advocacy strategy, including the submission of a complaint to the World Bank’s Inspection Panel, an internal watchdog mandated to investigate alleged violations of the Bank’s operational policies.

The women’s family homes were being threatened by one of the wealthiest and most powerful Cambodian tycoons, who is also a ruling party Senator, backed by China’s Inner Mongolia Erdos Hongjun Investment Corporation. In early 2007, Senator Lao Meng Khin was granted a 99 year lease over 133 hectares in central Phnom Penh, which covered Boeung Kak lake and its surrounding villages, home to some 20,000 people. The lease was granted for a mere $79 million US dollars, a fraction of the estimated $2 billion value of the property. Soon afterwards, the company began filling in the lake and coercing its denizens to leave the area for a measly sum in compensation.  Attempts by the community and civil society advocates at persuading the Senator’s company and the government to stop the mass forced eviction appeared futile. They remained impervious to the outcry against what threatened to be the biggest single mass displacement of Cambodians since the Khmer Rouge emptied the cities in 1975.

Online books on land law in Africa

Just a brief announcement regarding a pair of very interesting online books from last year that are available for free download from the website of the Pretoria University Law Press. Both are edited by Robert Home and address the theme of African Land Law.

The first is a series of case-studies. While most take up development themes, the first two, by Patrick McAuslan and Geoffrey Payne, focus on post-conflict issues. In the case of McAuslan in particular, the analysis appears to further unpack development-based critiques of the Pinheiro Principles of the sort initially raised by the Overseas Development Institute.

The second book features a series of essays, including a discussion of the influence of Islamic Land Law in Africa by Siraj Sait, and several pieces on the trend toward recognition of indigenous peoples’ land rights, in contradiction to the post-colonial impulse to treat untitled land as the property of the state.

The need to move from recognition of such rights to implementation was recently highlighted by a report on Kenya by the Working Group on Indigenous Populations in Africa. According to reports earlier this month by the Nation and the Star, the report highlights not only Kenya’s failure to implement the findings of the African Commission of Human and People’s Rights in the Endorois case, but also ongoing land depredations that continue to threaten other minority groups in Kenya (as reported on earlier in TN here).

The World Bank on ‘sleaze timber’

by Rhodri C. Williams

The BBC reported today on a new World Bank analysis of the scope and detrimental effects of illegal logging worldwide. There is of course no shortage of commentary on the challenges facing global forestry management and the consequences of failure to improve our performance. Just last month for instance, TN covered the latest report on the topic by Rights and Resources Initiative, which linked the failure to protect local forestry rights to the broader vulnerability of marginal communities to global patterns of large-scale investment in land and natural resources.

Nevertheless, the World Bank report does a neat job emphasizing the ties between illegal logging, corruption and chronic patterns of weak governance. In other words, the analysis supports a broadening in focus from the ‘blood diamond’ problem of natural resources supporting active conflict to a ‘sleaze timber’ (you read it first here!) emphasis on how natural resources can undermine the conditions for sustainable and equitable development. The report also does a good job foregrounding some fairly shocking statistics:

Every two seconds, an area of forest the size of a football field is clear-cut by illegal loggers around the globe.

The World Bank estimates that illegal logging in some countries accounts for as much as 90 percent of all logging and generates approximately US$10–15 billion annually in criminal proceeds.

Mostly controlled by organized crime, this money is untaxed and is used to pay corrupt government officials at all levels.

The report focuses on criminal justice means to track the income generated by illegal logging and prosecute those responsible. While such approaches are important in terms of both returning ill-gotten revenues and preventing further cutting, they are unlikely in the short term to be able to address the social and cultural devastation wrought where past cutting has erased the spiritual homes and economic resource base of indigenous peoples and subsistence farmers. While it would be good to see more serious efforts to end the enormous damage caused by illegal logging, it is not at all clear how much of it can actually be undone.

FAO Voluntary Guidelines on land, fisheries and forestry governance near approval

by Rhodri C. Williams

The Food and Agricultural Organization (FAO) has announced the recent conclusion of a lengthy negotiation process to shape a set of Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. The resulting final draft will soon be published and is meant to be adopted at a special session of the body’s Committee on World Food Security (CFS) in mid-May. Afterwards, it is expected that the document will provide authoritative guidance to governments in drafting laws and policies in this area, with its legitimacy derived from the inclusiveness and extensiveness of the three year drafting process.

The scope of the voluntary guidelines is broad, and includes “promoting equal rights for women in securing title to land, creating transparent record-keeping systems that are accessible to the rural poor, and how to recognize and protect informal, traditional rights to land, forests and fisheries.” While numerous recent cases of abuse of state prerogatives over customarily held land demonstrate the needs for such guidelines, the experience of actors such as the International Development Law Organization (IDLO) counsels a degree of caution. As noted by the IDLO’s Erica Harper in these pages, prescriptive approaches to customary systems have tended to be counterproductive in the absence of an intimate understanding of local context:

…what works in a given country context is situation-specific and contingent upon a variety of factors, including inter alia, social norms, the presence and strength of a rule of law culture, socio-economic realities, and national and regional geopolitics. In order to make strategic decisions on what is likely to yield sustainable and positive impact, development practitioners need to possess in-depth knowledge of the target country, its people and its customary legal systems, as well as the theories and practicalities pertaining to legal development and customary justice programming.

At the same time, the scope of the new guidelines is limited in certain interesting respects. For instance, the FAO PR notes that they “come within the context of intensifying competition for land and other natural resources resulting from a variety of factors, including population growth, urbanization and large-scale purchases of farmland in the developing world by both overseas interests and domestic investors.” However, unlike the FAO, IFAD, UNCTAD and World Bank Principles for Agricultural Investment, the new guidelines provide only indirect guidance on addressing the ‘global land-rush‘.

In fact, the FAO has a separate drafting process underway to address large-scale land investment. As reported in TN last January, the FAO commissioned a project team to examine the issue of land tenure in the context of international investments in agriculture, developing recommendations for the High Level Panel of Experts on Food Security and Nutrition (HLPE) of the CFS. The issue had been discussed at a policy roundtable at the CFS’ 2010 session (contrast the erudite overview provided by ILC with the Quatar National Food Security Program’s impenetrable defense of responsible investment). With the issuance of a July 2011 report and further side-event discussion at the October 2011 CFS session, the process seems to be underway.

However, the foreword to the July 2011 report clarifies that the issue is to be handled in a separate standard-setting process, resulting in “the elaboration of principles for responsible investments in agriculture with due consideration to the framework of the Voluntary guidelines on the tenure of land, fisheries and forests.” Muddying the waters slightly, the FAO also cooperated with Transparency International to develop a December 2011 working paper on how corruption in the context of weak governance undermines both land access and development. As reported here in TN, pervasive corruption in transnational land investment may be the crucial damning factor that has swung development opinion against the practice in recent months. In its press release, however, FAO referenced the forthcoming voluntary guidelines as its response to bad governance practices without mentioning the expert group on international investments.

More broadly, the new FAO guidelines will provide new material for the ongoing debate over corporate social responsibility approaches to land and natural resource exploitation, as well as non-state actor abuses more broadly. Two years ago, Chris Huggins posed the basic question of whether the lengthy and uncertain route of punitive enforcement measures should be chosen over the more forthcoming but less tested route of voluntary compliance. This question arguably remains as debated today as it was then. However, it is worth noting that Peter Spiro recently waxed optimistic in Opinio Juris, raising the possibility that Apple’s recent accession to the Fair Labor Association standards and auditing process could be “the biggest thing ever to happen in the world of private, rights-related codes of conduct” and “a major test case for the efficacy and legitimacy of non-governmental rights regimes.” So, onward FAO, and let a thousand voluntary standards bloom!

The ADB involuntary resettlement policy: Fifteen years on, the poorest still bear the brunt of development

by Natalie Bugalski

It has been more than 15 years since the Asian Development Bank (ADB) adopted a policy on involuntary resettlement with the objective of ensuring that “displaced people are at least as well-off as they would have been in the absence of the [ADB-financed] project.” The rationale behind the policy was a shift away from the perception that development-induced displacement and attendant harms suffered by those physically and economically displaced is a “sacrifice” some people have to make for the larger good. It is apparent, however, that despite the adoption of increasingly progressive and rights-oriented policies, the utilitarian view of development-induced displacement continues to dominate the culture and individual staff views of the ADB and many other aid and development institutions.

The report Derailed released by Bridges Across Borders Cambodia (BABC) this month (which I co-authored with Jocelyn Medallo) describes the policy and international human rights law obligations meant to protect the rights of resettled families and provides evidence of how these obligations continue to be flouted in practice. The Rehabilitation of the Railway in Cambodia Project, principally financed by an ADB concessional loan and an ADB-administered grant from the Australian Government, is affecting over 4,000 households that are being involuntarily resettled or must move back out of the railway’s “corridor of impact” (COI) into the residual right of way (ROW).

Despite decades of global evidence of the necessity of injecting sufficient financial and technical resources into resettlement planning and processes as an integral part of the infrastructure project itself, resettlement under the railways project has been treated as peripheral and has been left almost entirely in the hands of the Cambodian Government. Rather than internalizing the costs of resettlement into the project’s budgets from the start and ensuring that the full costs of policy and legal compliance are covered including though ADB and AusAID contributions, the Cambodian Government is responsible for footing the bill.

Given the well-known poor track record of the Government on forced evictions coupled with the incentive to reduce costs, the alarming result – as recorded in the BABC report – was blatantly foreseeable at the time of the project’s inception. Competent planning and sufficient resourcing from the beginning could have avoided and mitigated the hardships resettled families are now experiencing. Key findings of the report  include the following (a fuller list of the findings is appended to the end of this post): 

Waking from a dream in Bolivia: The TIPNIS victory that never was

by Nicholas A. Fromherz

Caption: Highlands indigenous leaders prepare for a hunger strike in Cochabamba, showing their support for the lowland tribes fighting against the road through TIPNIS. Photo credit: Nicholas A. Fromherz

On October 24, 2011, Bolivians breathed a collective sigh of relief.  After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”

The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory.  The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents.  He even said so himself:  “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”

Or so we thought.  Though many were probably skeptical from the start, many others—myself included—thought the case was closed.  The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park.  That, not prohibition of a road altogether, had always been the goal.

As the last few weeks have shown, however, the victory dance was premature.  On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS.  Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?

Nicholas Fromherz to guest post on the Bolivia TIPNIS debate

by Rhodri C. Williams

Land issues in Bolivia made their debut on TN last Fall, when a dispute over President Evo Morales’ plan to run a road straight through the center of the the  Isiboro-Secure Indigenous Territory and National Park (TIPNIS in Spanish) came to light. Commentators fastened on the seeming irony of Bolivia’s first emphatically indigenous head of state’s decision to compromise the integrity of indigenous land without even observing the constitutional necessity of prior consultation. At the time, I contrasted the problem of lack of democratic accountability in simultaneous land riots in China with the problem of overreliance on majority rule in Bolivia:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

 As subsequent analysis would in fact demonstrate, “indigenous peoples” are no more a monolithic category in Bolivia than minority groups are anywhere, and many of the key backers of the road were also indigenous groups with diverging economic agendas and political links to the President. Accordingly, even as protesters forced the government to negotiations by October, the outcome of the issue remained uncertain. At that point, I quoted an interesting commentary in Foreign Affairs chronicling the “tremendous damage” the mishandling of the TIPNIS issue had done to President Morales’ credibility. Unbeknownst to me, the author, Nicholas Fromherz, was a fellow blogger at South American Law & Policy. When Nicholas later picked up on a TN piece on Colombia, I began to realize how much good, locally informed analysis is out there on the TIPNIS controversy.

As a result, I am very grateful to Nicholas for agreeing to post on TN with an update on TIPNIS that will pull together some of the threads from the various media and blogosphere sources Nicholas covers. To update the story a little since TN’s last coverage, South American Law has chronicled the progress of the protesters, their arrival in La Paz, Morales’ initial acquiescence to their demands, and the adoption of a bill in late October quashing the road project. However, by December proponents of the road had organized, leading to legislative reconsideration of the TIPNIS bill and a decision by Morales to revisit the issue in consultation with all affected parties. Nicholas also provided an analysis of the requirement to consult in the Bolivian Constitution, linking it with broader research he is undertaking on whether resettlement standards should require actors to merely seek or actually secure informed consent.UPDATE: Please see Nicholas’ guest-posting here.

New report on railway rehabilitation and displacement in Cambodia – Natalie Bugalski to guest-post

by Rhodri C. Williams

Bridges Across Borders Cambodia (BAB-C) released a new report this week on displacement in Cambodia caused by donor-funded rehabilitation of the country’s railway system (the PR is reprinted after the jump, below).

The findings are consistent with bad practice in development-induced displacement everywhere – poor planning, little consultation, thinly-veiled coercion, badly located and serviced resettlement sites, resulting in precisely the type of impoverishment risks that the standards long espoused by donors such as the World Bank and (more to the point in this case) the Asian Development Bank (ADB) are meant to prevent.

However, the report also reflects a particularly Cambodian failure to act on decades of advice and occasional pressure to comply with standards that would allow the country – at relatively little cost – to be seen to live up to its international commitments and to avoid the human tragedy and bad optics associated with forced evictions. After all, it is only six months since the Cambodian Government appeared to make tactical concessions in a standoff with the World Bank over evictions in Phnom Penh, but subsequent events indicate a reversion to form.

In this case, it is also over a year since early research on the very project criticized in the BAB-C’s new report forecast the problems that the latter now documents. For instance, Natalie Bugalski guest-posted at the time on the tragic drowning death of two children sent to fetch water because water sources available at the resettlement site where they lived were “polluted by chemicals used for rice growing and … caused skin diseases and other illnesses.”

Natalie will shortly be providing TN readers with another guest-posting with observations on BAB-C’s new report. As is often the case in Cambodia, all of this will make awkward reading not only for the Cambodian government, but also for international donors (in this case the ADB and AusAid) that are responsible for ensuring that the Cambodian Government accepts their resettlement standards along with their funding. For the time being, acceptance of this principle remains elusive.

UPDATE: read Natalie’s guest-posting here:  The ADB involuntary resettlement policy: Fifteen years on, the poorest still bear the brunt of development (23 February 2012)