Tenure considerations

Tenure cuts across many economic and social issues. Here we present a few of the key considerations that a company should internalize in order to act consistently with the intent of the VGGT.

(Relevant VGGT articles)

Human Rightsa (3.2, 4.8, 12.4)

“Whereas international legal instruments have not adequately considered the considerable role that land plays in the international human rights framework it is clear with even a brief analysis that land is a fundamental element in access to numerous international human rights.” b

Despite the importance of the VGGT and other international agreements related to land and forest rights – such as the UN Declaration on the Rights of Indigenous Peoples and ILO 169 – there is no international human right to land. c Nonetheless, understanding the links between tenure rights and human rights is vital for a company operating in the developing world. Tenure rights are often the most important asset held by a community or household. Very importantly, depriving a community or household of their right to access land and forests can deprive them of their livelihood, as well as access to food and shelter. It can also deprive them of access to clean water for consumption or sanitation.

Free, prior and informed consent d
(3B.6, 9.9, 12.7)

Free, prior and informed consent (FPIC) is the backbone of many policies guiding how businesses interact with host communities. Originally developed to guide consultation processes with Indigenous Peoples, FPIC is becoming a useful tool to guide development projects and investments in developing countries more broadly. Following FPIC principles will ensure host communities have the opportunity “to make decisions through their own freely chosen representatives and customary or other institutions and to give or withhold their consent prior to the approval by government, industry or other outside party of any project that may affect the lands, territories and resources that they customarily own, occupy or otherwise use.” e

Free means that there was no coercion or intimidation as part of the consultation.
Prior means consent for the land acquisition is sought well in advance of any deal closure or operations.
Informed means that all information relating to the deal or operations is provided and the information is objective, accurate, and presented in a manner or form that is understandable to local communities.
Consent means that the local communities have agreed to the deal or operations proceeding on lands where they hold legitimate tenure rights.
(Adapted from FAO 2014.)

Women’s rights to land and forests f
(3B.4, 5.4, 7.1)

The VGGT highlight gender equality:
“Ensure the equal right of women and men to the enjoyment of all human rights, while acknowledging differences between women and men and taking specific measures aimed at accelerating de facto equality when necessary. States should ensure that women and girls have equal tenure rights and access to land, fisheries and forests independent of their civil and marital status.” (3B.4)

Smallholders and food security g

n most of the developing world, smallholders play a vital role in providing food security for their families and communities. In Africa and Asia, smallholders provide up to 80 percent of the food supply with approximately 1.5 billion people living in smallholder households. h Companies interested in acting consistently with the VGGT and improving local land and forest tenure governance can play an important role in ensuring local food security by supporting smallholder farmers.

In order for these families to provide food for their communities, they will require continued access to land and forests. When a company is considering a project (or procuring products) that might displace communities, it must understand the impacts it will have on local food security. In many cases, there are alternatives to outright displacement. Supply chains that incorporate smallholder production and assist them with increasing yields can both help communities and provide a company with the raw materials needed at competitive costs (see Outgrower schemes below). i As a company performs its due diligence on new suppliers and acquisitions, it has an opportunity to consider the role of smallholders as part of its business model.

Outgrower schemes (contract farming) j

The VGGT are explicit in their support for smallholder farming as a means to ensure local food security. Companies in the agribusiness and plantation forestry sectors have a special responsibility to support local smallholders, because many large-scale plantation projects can displace local food production. Outgrower schemes – also known as contract farming – are methods to integrate smallholder production into larger production models.

Developing robust outgrower schemes is one way a company can secure its raw materials without acquiring or leasing the land. In order to act in a manner consistent with the VGGT, the company should ensure that the smallholders forming part of its production model have the required access to inputs, credit, and land. Producers using outgrower models will want to ensure that tenure rights of the local communities are secure in order to avoid disruptions and conflict in their supply chain.

Forced evictions versus expropriation for According to the VGGT, a company has a responsibility to respect all human public purpose k
rights. If the company’s planned operations or investments are likely to cause (3.1, 4.4, 16.3, 16.6, 16.7)

According to the VGGT, a company has a responsibility to respect all human rights. If the company’s planned operations or investments are likely to cause the forced evictions of any community or individual, the company may be contributing to or inflicting human rights abuses. The company is required to do sufficient due diligence to detect and address any risk of or actual forced evictions.

Indigenous Peoples must not be forcibly evicted from their lands or territories. l They may be resettled in accordance with the law and compensated, but only if their Free, Prior and Informed Consent has been obtained. Among other forms, the compensation may include cash, rights to alternative areas, or a combination.

Most countries grant the power of eminent domain to state authorities. This gives them the ability to expropriate lands for public purpose (also known as compulsory acquisition). Each country will define public purpose according to their national laws and priorities. A company’s project might be deemed to have a public purpose for which expropriation can be permitted. Nonetheless, the company must ensure that the process is handled according to the law and does not infringe on the human rights of those affected. Compensation is due to those that have been displaced.

  1. For more on Land Rights and Human Rights see: Institute for Human Rights and Business. http://www.ihrb.org/publications/ reports/preventing-conflicts-over-land.html; OHCHR. 2014. Report of the United Nations High Commissioner for Human RightsE/2014/86. http://www.un.org/Docs/journal/asp/ws.asp?m=E/2014/86; http://www.ihrb.org/pdf/Land_Rights_Issues_in_International_HRL.pdf; http://www.ihrb.org/pdf/Preventing_Conflicts_over_Land-Draft_Position_Paper_Nov09.pdf.
  2. b. Wickeri and Kalhan. 2010. Land Rights Issues in International Human Rights Law. Malaysian Journal on Human Rights, Vol. 4, No. 10, 2010. http://ssrn.com/abstract=1921447.
  3. See Annex 2.
  4. See also: IFC. 2012. Guidance Note 7: Indigenous Peoples. http://www.ifc.org/wps/wcm/connect/50eed180498009f9a89bfa336b93d75f/Updated_GN7-2012.pdf?MOD=AJPERES.
  5. FAO. 2014. Respecting Free, Prior and Informed Consent: Practical guidance for governments, companies, NGOs, indigenous peoples and local communities in relation to land acquisition. http://www.fao.org/3/a-i3496e.pdf.
  6. For more on women’s rights to land see: FAO. 2013. Governing land for women and men: A technical guide to support the achievement of responsible gender-equitable governance of land tenure. http://www.fao.org/docrep/017/i3114e/i3114e.pdf; Landesa Center for Women’s Land Rights. http://www.landesa.org/women-and-land; The FAO Gender and Land Rights Database. http://www.fao.org/gender-landrights-database/en; and UN Women & OHCR. 2013. Realizing Women’s Rights to Land and other Pro- ductive Resources. http://www.ohchr.org/Documents/Publications/RealizingWomensRightstoLand.pdf.
  7. For more on smallholders and food security see: IFPRI. 2013. From Subsistence to Profit Transforming Smallholder Farms. http://www.ifpri.org/sites/default/files/publications/pr26.pdf and Oxfam’s Smallholder Supply Chain initiative. http://policy-practice.oxfam.org.uk/our-work/private-sector-markets/smallholder-supply-chains.
  8. FAO. 2012. Smallholders and Family Farmers Factsheet. http://www.fao.org/fileadmin/templates/nr/sustainability_pathways/docs/Factsheet_SMALLHOLDERS.pdf.
  9. Oxfam. 2010. Think big. Go small. Adapting business models to incorporate smallholders into supply chains. Briefings for Business No. 6. http://oxfamilibrary.openrepository.com/oxfam/bitstream/10546/114051/1/bfb06-think-big-go-small-010510-en.pdf.
  10. For more information on outgrower production and resources a company can use to design outgrower schemes see: FAO’s Contract Farming Resources Center. http://www.fao.org/ag/ags/contract-farming/index-cf/en/. To ensure a company’s outgrower schemes are up to international standards see FAO. 2012. Guiding Principles for Responsible Contract Farming. http://www.fao.org/docrep/016/i2858e/i2858e.pdf.
  11. For more on forced evictions and expropriation for public purpose see: UN-OHCHR. Basic Principles and Guidelines on Devel- opment-based Evictions And Displacement: Annex 1 of the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living A/HRC/4/18. http://www.ohchr.org/Documents/Issues/Housing/Guidelines_en.pdf; IFC Performance Standards; International Bar Association. 2014. Business and Human Rights Guidance for Bar Associations. http://www.ibanet.org/Article/Detail.aspx?ArticleUid=c9bd50c6-c2b3-455b-b086-a7efbfe1f6a5; FAO. 2008. Land Tenure Study 10: Compulsory Acquisition of Land and Compensation. ftp://ftp.fao.org/docrep/fao/011/i0506e/i0506e00.pdf.
  12. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 2008. http://www.un.org/esa/socdev/unpfii/docu- ments/DRIPS_en.pdf.