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Land and resource investment consultations in the time of COVID-19: The hazards of pressing on

by Sam Szoke-Burke | @samszokeburke | Columbia Center on Sustainable Investment
Sunday, 24 May 2020 09:50 GMT

* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Companies are seeking to press ahead with investments on community lands or even take advantage of the pandemic to avoid the usual authorization requirements

Sam Szoke-Burke is a Senior Legal Researcher at the Columbia Center on Sustainable Investment, a joint center of Columbia Law School and the Earth Institute

Communities in countries as diverse as the Philippines, Liberia, and Colombia are experiencing increased pressures on their lands and resources. Pressure is coming from governments desperate for future economic drivers once the COVID-19 crisis subsides. Companies and connected elites are also seeking to forge ahead with investments on community lands or even take advantage of the pandemic to avoid the usual authorization requirements.

Meaningful community consultations - a crucial step in investment planning - will often be impossible to achieve during lockdowns. Where the crisis stops communities from safely having a say about any proposed investments that will affect them, governments should halt authorization processes. Public and private actors that force action on investments during the pandemic may find resistance, conflict and operational risk instead of economic relief. 

We’ve seen this type of pressure before. In 2015, Global Witness reported investment-related opportunism in Liberia during the Ebola crisis. In that case, an agribusiness forged ahead with community negotiations despite a climate of fear. Unsurprisingly, the resulting community agreements were tilted in favor of the company: “[f]or non-employees the most tangible negotiated benefits Global Witness could find evidence of were six toilets.” 

Governments “pressing on”

Some governments are seeking to sidestep interruptions to investment approvals. They likely hope to secure investment-related revenues and other rents, in particular to mitigate future periods of economic decline and recession. 

Colombia, for example, has announced a plan to use digital technology for community consultations on extractive industry projects. This despite indications from Colombian civil society that 90% of Indigenous lands in the country lack internet access. 

The challenges aren’t only about access to technology. Even where digital tools can function, they likely will not enable communities in confinement to adequately prepare and participate. 

The Inter-American Commission on Human Rights recognizes the problems with this approach. It has noted the “impossibility” of obtaining community consent in line with international standards during the pandemic and urged governments to suspend procedures for authorizing resource investments in or around Indigenous territories. 

Governments’ perseverance with investment approval also dangerously conflicts with their COVID-19-related suspension of in-person forest monitoring. If governments are forbidding their staff and civil society to visit forests and rural communities during the crisis, surely they should do the same for companies. 

Conflict on the horizon

Companies that try to force through community consultation processes during the global pandemic may be stacking their books with liabilities. Research continues to reveal the costs and operational risks to companies whose failure to take community engagement seriously causes local conflicts. 

Mining companies continuing operations are experiencing strong community resistance, which can quickly erode local officials’ support for the project. They may also risk future liability for exposing employees to unnecessary risks or breaching quarantine laws. 

Digital consultations: Serving whose agenda?

Each context is different. But it is hard to think of a scenario in a rural area in the global south where technology can replace the hard work of in-person consultation and collaboration. Communities need to organize, deliberate, access legal empowerment and technical support, and make their voice heard despite power imbalances. Technology imposed and controlled by government or companies seems unlikely to address such challenges. It may even exacerbate them, introduce security risks, and intensify gender inequality, all while increasing pressure on the community to acquiesce. 

Can an app reach every member of every household and enable them to meaningfully participate without significant in-person support beforehand? Who controls the mute button? What may work in Salt Lake City or California may not work in Sierra Leone or Cambodia. 

Even before the pandemic, carrying out consultations that complied with international standards was difficult and required scrupulous attention to process and power dynamics. At a recent workshop on the politics and practice of free, prior and informed consent, Indigenous representatives expressed distrust in pre-COVID-19 consultations. One participant noted that in her country the government oversees consultations “knowing that it will be done in bad faith. ... The state says these communities have been consulted, but the communities think they have been fooled.” Imagine digital consultations in such a context of distrust. 

Of course, technology can be crucial for monitoring and empowerment efforts, including during this crisis. Communities and civil society have long used technology to overcome issues of geography and scale, and to access areas cut off by repressive regimes. 

But to resort to digital consultations when the stakes are as high as signing away lands and resources that community members rely on for their survival is simply too precarious. 

While we should explore how technology can help, we must also be clear-eyed about its limitations. 

Forging ahead without community participation not the answer

“Pressing on” without regard for the safety and rights of community members is self-defeating. Lapses in transparency and inclusiveness will only serve the interests of well-positioned elites—not those of the country, affected communities, or even proponent companies in the medium to long term. 

Governments should find ways to effectively and responsibly regulate the management of natural resources during the pandemic. Now is also time to explore how technology can empower communities and reduce existing forms of exclusion. 

But forging ahead with investment approvals without regard for community rights and wellbeing is not the answer.