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Background for Understanding the VGGT

What is tenure?

Tenure is the over-arching term used to describe the rules that regulate how people, communities and others gain rights to land, water, fisheries, and forests. These rights can include access rights, management rights, and alienation rights, among others. Tenure systems determine who can use which resources, for how long and under what conditions. The systems may be based on written policies and laws, as well as on unwritten customs and practices.

The VGGT state that “...business enterprises have a responsibility to respect human rights and legitimate tenure rights.” (Article 3.2)

In many places, tenure rights are regulated by customary or informal systems that often remain undocumented but are widely recognized as legitimate. Customary tenure systems can be complex and difficult to understand for non-community members. They may reflect cultural beliefs, result from historic conflict resolution, or even map seasonal weather patterns in a given area. Legitimate tenure rights to land or forests held by settled or nomadic communities can include seasonal access to water, fodder, forest products, and food sources.

Legally, the responsibility of registering land claims and maintaining good land administration lies with governmental authorities. But in practice, national institutions often do not dedicate the financial and human resources required to provide high quality land administration, while local judiciaries are not able to effectively adjudicate competing claims.

Unfortunately, when companies express an interest to acquire long-term use or ownership rights over land and forests (or when a government solicits investments from companies in its country), they frequently negotiate and agree to terms with the same governmental agencies while overlooking the rights of local land users and owners. The communities that use land and forests are often left out of the negotiations between companies and the government, thus laying the basis for conflicts between communities and companies. In many cases, pre-existing grievances between communities or between the government and communities are re-ignited by the introduction of a new plantation or mine on their land.

In countries with weak national governance and poor land administration, companies are in- creasingly expected to hold themselves to the highest international standards in their operations. As governments move to implement the VGGT, companies can expect their existing land holdings to be subject to review by civil society organizations and national authorities. In some countries or regions where a “governance vacuum” exists, a company will be expected to hold itself to the highest international standards despite the lack of local or national government oversight in the area. The VGGT provide companies with a reference point to help guide decision-making regarding the company’s impact on tenure rights.

Current Tenure Realities

  • There is almost no uninhabited land in developing economies. Failing to recognize this can lead a company to misjudge the feasibility of their projects.
  • Frequently, customary tenure systems are more widely understood than the statutory (or formal) tenure systems in countries.
  • Developing countries often have a multitude of customary tenure systems, with some legal systems recognizing customary tenure systems as legally valid.
  • Rural communities, often with the help of watchdog NGOs, are asserting more control over natural resources and are likely to demand higher compensation for the use of their lands than in the past.
  • In many developing countries, laws on land acquisition typically preserve strong state authority and leave little room for community and household rights to rural lands.
  • Land administrations in developing countries are often corrupt or mismanaged due in part to a lack of financial resources to reliably maintain and formalize land registries.
  • Governments expropriating lands for private purposes often do so without the knowledge or consent of the people who live or depend on that land.
  • In many places, poor communities and households are unable to legally register their tenure rights due to high costs or bureau- cratic obstacles.
  • Land and forests in developing countries is often subject to a combination of individual and collective ownership and use rights.
  • Women’s tenure rights are crucial for local food security, but are often the most vulnerable and least visible.
  • Rural communities use multiple livelihood strategies and often rely on a set of seasonal use rights.
  • Indigenous Peoples benefit from strong international legal protection for their territorial rights and a growing body of prac- tice on Free, Prior and Informed Consent can guide companies engaging with Indigenous Peoples.
  • In post-conflict situations, the identification of the tenure rights of displaced populations poses challenges due to lack of documentation and counter-claims made by multiple parties.
  • Sources: TMP 2014; ERM 2014 (unpublished); and Transparency International 2011