This blog was originally written as a contribution to the Land Portal’s ongoing debate on land valuation and fair compensation.
By Sam Szoke-Burke
Government expropriation of community lands for the purposes of large land-based investments, such as agricultural or forestry concessions, has recently been the subject of increasing attention and debate, and for good reason. While there may be cases where a government considers that a community’s lands can generate greater public benefits if used as the site of a large-scale project, such considerations need to be balanced with the high likelihood that community members who have historically resided on, or otherwise accessed resources from, the land in question stand to extensively suffer adverse impacts and human rights violations if their access to the land is taken away.
This post considers these issues through the lens of human rights law, as well as considering practical implications for different stakeholders, and draws in particular on the Columbia Center on Sustainable Investment’s research and 2016 report entitled “Land Deal Dilemmas: Grievances, Human Rights and Investor Protections,” which I co-authored with Kaitlin Cordes and Lise Johnson.
Risks associated with expropriation of land
An “expropriate and compensate” approach can create different types of risks for host governments and other stakeholders and lead to an array of negative outcomes, and as such should be considered with great caution. Specifically, such an approach:
- Will risk violating a government’s obligations under international human rights law, including obligations to respect, protect, and fulfill rights to food, water and health; for indigenous peoples and other minority groups, community rights to free, prior, and informed consent, self-determination, and enjoyment of culture. (Whether such an approach also falls foul of domestic law will depend on the laws in place in the specific country in which the expropriation occurs.)
- May lead to greater demands on public resources. As Cernea notes (at p. 16), compensation is generally incapable of fully replenishing what a community loses when it is resettled, and is instead likely to entrench the impoverishment of the community. Increased poverty can lead to lower socioeconomic indicators and greater demand for public services and development programs, requiring significant financial resources to address.
- Can inflame community discontent, leading to demonstrations or conflict. This can increase the risk of property damage and the disruption of investment projects taking place on the land in question. The rights of protestors may also be further undermined by security personnel charged with protecting the investment.
Can create reputational risks for governments, as resulting conflicts can create the impression of an unstable business environment, and of a government that does not prioritize the protection of human rights within its borders.
When is expropriation acceptable?
The legality of expropriating community lands for the purposes of an investment will vary depending on domestic laws in force; in addition, whether expropriation for the purposes of facilitating a land-based investment is consistent with international human rights law is debatable. For instance, the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security exhort governments to “clearly define the concept of public purpose in law, in order to allow for judicial review” while also ensuring that “all actions are consistent with their national law as well as their existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments” (para. 16.1).
While projects requiring land for the construction of public amenities and services may well fall within the public interest, it may be more difficult to invoke the public interest where land is taken to enable an investor to carry out a land-based investment. The benefits of such investments are said to lie primarily in their potential for employment creation, leveraged infrastructure, and increased public revenue; however, such potential is often difficult to realize, which may reduce the chances an investment will constitute a public purpose.
Courts in different jurisdictions have expressed divergent opinions on whether the taking of land for a private investment can constitute a public purpose. The Supreme Court of Canada noted in Tsilhqot’in Nation v. British Columbia that a logging concession could be considered to be a public interest objective that could override Aboriginal title, while also noting that logging is a “serious infringement [of Aboriginal title] that will not lightly be justified” (para. 127). In that case, the Court ultimately held that logging in the area in question was not in the public interest, as it was not economically viable, and had an impact on the plaintiff’s Aboriginal title that was disproportionate to the economic benefits that would accrue to the State, or Canadian society generally (para. 1107). However, in the Sawhoyamaxa Indigenous Community v. Paraguay case, the Inter-American Court of Human Rights rejected an argument that the allocation of indigenous land for the purposes of investment constituted a public purpose (para. 137). It held that such an argument approached indigenous claims to land title “from the standpoint of land productivity and agrarian law,” which was “insufficient” because it failed to address “the distinctive characteristics of such peoples” (para. 139).
Consultation and consent
Where a government contemplates expropriation of community lands for the purpose of facilitating a land-based investment, it should immediately take steps to engage the affected community regarding the project. Where indigenous and tribal communities are involved, the government must establish a process for obtaining the community’s free, prior, and informed consent (“FPIC”), as required by international law. For other communities, it is also preferable to obtain FPIC prior to any expropriation (and indeed, some companies and commodity groups now have requirements that FPIC be obtained from all local communities, and not just indigenous ones). Failing that, any consultation process should be implemented consistently with the principles that underlie FPIC: pressure and undue influence should not be exerted on the community; the consultation should take place sufficiently prior to any decision regarding the expropriation to allow for the community’s perspective to be incorporated into decision-making; and sufficient and accessible information about the proposed expropriation and investment project should be provided to the community, along with adequate time and resources for the community to build its capacity, and properly understand and deliberate on the proposal. Such consultation or consent processes should also form a key basis for determining the contours of any expropriation, resettlement and compensation that may follow. Specifically, to ensure meaningful community participation and consultation, the government must provide opportunities for the community to contribute to the design of the project, the resettlement plan, and any related compensation packages.
Determining the amount of compensation
The United Nations Basic Principles and Guidelines on Development-Based Evictions and Displacement (the “Basic Principles”) provide vital guidance on determining the amount of compensation that should accompany expropriation of land. Communities and individuals who are resettled should be compensated with land commensurate in quality, size, and value, or better (Basic Principles, para. 60). Such land should be accompanied by security of tenure, as well as adequate housing and access to necessary services (Basic Principles, para. 55). The Basic Principles also set out (at para. 52) that, at a minimum, a government must provide those displaced with “safe and secure access to:
(a) essential food, potable water and sanitation;
(b) basic shelter and housing;
(c) appropriate clothing;
(d) essential medical services;
(e) livelihood sources;
(f) fodder for livestock and access to common property resources previously depended upon; and
(g) education for children and childcare facilities.”
A government providing cash compensation should ensure the amount awarded is appropriate. Leading practices seek to place those affected in a position that is as favorable as, or better than, the position they were in before the land was taken. In addition to incorporating objective valuations of the market value of the land, improvements, and any lost personal property, this may require economic analyses of land-derived income, and articulation of the cultural, economic, and other benefits provided by the land (see German et. al.). Unfortunately, many domestic laws regarding compensation for resettlement fall short of this standard, and compensate only for the market value of lost assets.
The loss of land is not the only loss caused by an expropriation. Compensation must also be paid for any other economically assessable damage, which, as noted by the Basic Principles, may include “loss of life or limb; physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services” (para. 60). Calculation of fair compensation for these losses should include a gender-specific analysis.
After compensation is paid
Any compensation paid must then be monitored and evaluated to track its impact (Basic Principles, paras. 69 and 70), as well as to ensure it is granted in its entirety in a timely manner (Basic Principles, para. 59). This can be done by independent state institutions, such as human rights commissions or land boards. As Cotula notes (at p. 100), government decisions regarding compensation should also be subject to judicial review, ensuring that decisions are reasonable and accountable. For communities and individuals lacking easy access to judicial institutions, other government- or investor-operated grievance mechanisms whose procedures are tailored to community contexts may also be needed. Such procedures are especially important where the entity (the government or the investor) determining the amount of compensation is also the entity paying that compensation, as it otherwise may be incentivized to reduce the amount of compensation payable.