Paving a path towards redressing grievances and holding investors accountable
How can remote communities with little formal education hold investors to account and seek redress when their rights to land and resources are threatened? An IIED webinar examined the role of grievance mechanisms.
More than one billion people worldwide live on less than $1.25 USD a day, and depend on agriculture for their livelihoods. Many have been badly affected by the 'land rush' that has led investors, private companies and foreign governments to lease or acquire vast areas of land in Africa, South East Asia and Latin America. It's had "far-reaching implications for human rights", including their rights to their land, food and water.
Large-scale land deals have led local communities to lose land, sacred forests and other important resources that their families have managed and farmed for generations. In many cases they are not adequately consulted about these changes to their livelihoods and their free and prior informed consent (FPIC) has not been sought. In these instances, how can local communities seek redress and hold investors to account?
One approach is for them to bring claims before their national courts, but it is often difficult for marginalised groups in many countries to access and engage with the local justice system.
Non-judicial grievance mechanisms
Communities can also often pursue other non-judicial options in parallel by lodging a complaint against a company if there are mechanisms in place, established by international bodies, investors and companies or industry platforms for instance.
The Committee on World Food Security has endorsed voluntary guidelines to promote secure tenure rights and equitable access to land and natural resources. There has also been a proliferation of 'standards' from financial institutions, such as the International Finance Corporation's (IFC) Environmental and Social Performance Standards, which define IFC clients' responsibilities for managing environmental and social risks.
The voluntary guidelines and these standards provide, among other things, that:
- Affected populations should be given access to the means necessary in order to effectively resolve disputes in relation to their rights; and
- The use of effective grievance mechanisms should be supported so that local communities that have been harmed can seek redress and hold investors accountable.
Where, for example, a project receives IFC financing, communities can bring their complaints to the IFC compliance advisor ombudsman. Likewise, commodity-based multi-stakeholder platforms, such as the Roundtable on Sustainable Palm Oil (RSPO), provide grievance mechanisms. The Organisation for Economic Cop-operation and Development (OECD) has established National Contact Points (NCPs) to ensure multinational enterprises promote and implement OECD guidelines in countries that have adhered to them. Companies also frequently have their own internal grievance mechanisms.
But how effective are these mechanisms for ensuring harms are remedied and that accountability is established?
In November, an IIED Legal Tools webinar discussed 'Making use of grievance mechanisms for redress and accountability in agricultural and other natural resource investments'. The presentation can be viewed below and on IIED's SlideShare site.
The two panellists, Eang Vuthy, executive director at Equitable Cambodia, and Tom Lomax, a lawyer at Forest Peoples Programme, shared their experiences of using the IFC compliance advisor ombudsman and RSPO mechanisms in relation to large plantations in South East Asia and Africa respectively.
An audio recording of the entire webinar (in three parts) plus a summary is available below and on IIED's AudioBoom platform.
So what has been the experience so far?
Civil society organisations: important partners
Local communities are frequently based in remote areas. Generally, only a few of members of the community are likely to be literate and they are unlikely to be aware of the existence of such grievance mechanisms, let alone how to use them to their benefit.
When they are affected by a project, communities often turn to civil society organisations (CSOs) that can inform them about their options. CSOs are sometimes being accused of 'stirring up' complaints, but the reality is that by the time CSOs engage with local communities, the issues have already arisen.
Once local communities have decided to make a complaint, the CSOs can also help them decide what their objectives are. Are they hoping to have their land returned, jobs created or compensation, for example? The CSOs then assist with the collection of evidence, draft the complaint, file it on behalf of the communities and liaise with the relevant body to make sure the complaint is given due consideration.
CSOs need legitimacy
A key issue that the panellists discussed was the CSO' legitimacy when representing communities. Much of the CSO' time and effort goes into working with communities, rather than going through the formal stages of the complaints procedure, to ensure that communities 'drive' the process.
CSOs in particular need to test the FPIC approach themselves to ensure the communities properly consent to be represented by CSOs.
The cases we examined during the webinar are still pending, but some success has already been achieved. The relevant companies have effectively recognised the existence of a grievance and engaged in a dialogue with the local communities. They have also agreed to stop the projects while the relevant bodies are dealing with the complaints. These are key steps forward.
Many problems remain, however. To avoid any risk of intimidation, complainants often need to remain anonymous (local communities can receive a lot of pressure from the company and local authorities to drop their demands). It is also sometimes necessary to ask the relevant body and/or government to step in to make the company and/or local authorities cooperate.
Tactics are sometimes adopted to create divisions within local communities. For example, jobs are offered to some of their members, as those people with job offers are less likely to support a complaint. Furthermore, certain local chiefs are 'co-opted' by local governments and risk losing their jobs if they support the complaint.
It is important that CSOs resist those tactics by ensuring they have the proper legitimacy to represent the communities, but also that the process is inclusive, reaching diverse groups within them.
A lack of access to technology is also a big issue. For instance, for RSPO-certified projects, new oil palm plantings must comply with RSPO's New Planting Procedure. This includes carrying out an impact assessment, preparing an implementation plan and notifying the public (via the RSPO website) for 30 days.
Crucially, if no comments are received on the website, the company can proceed with new plantings. The panellists explained that most communities would not even be aware of the 30-day deadline. CSOs can play an important role in closely monitoring and informing affected communities about such notifications, so they can respond in time if need be.
Communities also need to pursue other options
Perhaps the biggest challenge with grievance mechanisms is their limited scope. They are only applicable in relation to, for instance, commodity-certified projects, where a lender requiring compliance with specific standards is involved, or where the Guidelines for Multinational Enterprises from the OECD apply.
Communities therefore need to pursue other advocacy tools alongside any grievance mechanisms to seek redress from investors and hold them accountable. The panellists said they shouldn't ignore local courts, despite concerns related to access, the local court's lack of independence and slow judicial processes. Local courts will not 'improve' if they are not being used.
Getting communities mobilised and outspoken, contacting the media, targeting the parent company and engaging with governments and international institutions could also be effective tools.
Thierry Berger (firstname.lastname@example.org), a qualified solicitor and Legal Tools consultant at IIED focusing on law and sustainable development, co-organised the webinar and wrote up this summary with input from Lorenzo Cotula and Emily Polack.