Concluding LAP’s Series of Land Rights Open Meetings: Some Reflections from the Group Lead, Kinnari Bhatt:
Over the last 6 months, Lawyers Against Poverty hosted 7 open meetings on the topic of land rights.
We had the pleasure of hearing from:
- Kinnari Bhatt, lawyer, academic and Founder of Surya Advisory;
- Lucy Claridge, Senior Counsel at the Forest Peoples Programme;
- Alexandra Xanthaki, professor of Law at Brunel University and appointed in October 2021 as UN Special Rapporteur in the field of cultural rights;
- Nonette Royo, lawyer and Executive Director at the Tenure Facility;
- Joan Carling, an indigenous human rights activist and Global Director of Indigenous Peoples Rights International;
- Colin Samson, professor of Sociology at the University of Essex; and
- Elisa Scalise, gender and land tenure lawyer and Executive Director at Resource Equity.
Our speakers kindly shared their work and passion for land rights. These spaces are so prescient as securing land rights is now more important than ever.
Let’s start with some extraordinary facts and figures on land tenure.
Despite occupying only 25% of the Earth’s surface, 80% of the world’s remaining biodiversity is stewarded by Indigenous peoples, yet they legally own just 10%. UN reports tell us that Indigenous peoples are the best guardians of Latin America’s forests leading to two to three times less deforestation, increased levels of biodiversity and reduced emissions. Consensus is also growing on the positive links between land rights and global health. A Lancet publication sets out the link between securing land rights and the prevention of future global health crises. Indigenous Peoples and local communities play an enormously outsized role in protecting nature and forests: far more than ‘protected’ conservation zones. Essentially, by fighting for their lands Indigenous peoples are fighting to save the planet.
Yet, despite their critical role in ensuring a resilient and healthy planet for people and nature, there is very little acknowledgment of, or support for, their efforts. On the contrary, local communities and Indigenous peoples continue to live under threat from biodiversity and land conservation projects, agribusiness, extractive companies, climate finance initiatives and the banks which finance these projects. Protecting forests and customary land rights is often a deadly risk for Indigenous peoples and local communities resulting in criminalisation and death. Scaling-up efforts to secure community land rights perhaps represents the world’s single greatest opportunity to simultaneously increase carbon stores, restore degraded land, reduce emissions, improve food security, diminish the likelihood of conflict, and enhance ecosystem resilience on the basis of equity, and all in the context of sustainable development, just transition and efforts to eradicate poverty. And this is an issue that lawyers can help to shape – as land rights work is about legal entitlements. Public and private funds are also being allocated towards this objective, for instance, TED Audacious and the UK’s International Climate Finance.
How lawyers can help fix the problem
Lawyers are often regarded as part of the problem when it comes to land rights issues, especially those acting for large corporations and investors. The overriding mission of these open meetings was to start a conversation about how lawyers from all disciplines can play a role in furthering efforts to protect land rights. The vision of the sessions was to skill up lawyers on the issue of land rights generally, to shine light on the numerous legal and policy fields with which land rights work intersects (readers may be surprised to see that even the burgeoning field of climate finance creates tensions) and to illustrate how lawyers can use their unique skills to become part of the opportunity for land rights protection. As someone who has spent much of her career working at the intersections of law and development, there is, I think, a real need for lawyer to think about how their work enables certain models of development and disenables others.
In my opening session I talked about how our regulatory associations are urging us to take a more climate conscious approach. The International Bar Association, Law Society of England and Wales and the American Bar Association are encouraging lawyers to be more climate aware. This goes beyond doing pro bono matters, or having an office net zero goal, to making climate informed choices about the work that they spend most time on – matter work. Some big city law firms are taking steps in this regard as highlighted by an IBA piece which talks about how lawyers do not have to be neutral service providers. This is a unique moment for lawyers to take an ethical approach to land rights within their work. Moving forward from these meetings we plan to liaise with LAP members to ascertain if and how they would like to get involved in a land rights related initiative. This can also be done collaboratively with LAP’s other thematic groups such as ethical business and women’s rights.
Four Crucial Points on Land Rights
In this context, all of the speakers brought home what I see as four crucial points.
First, land rights is a complex intersectional issue. Second, the need for what I would call a more contextual or ethical practice to land rights (more on this below). Third, the need for more spaces in which people working in this field can exchange information and learnings with each other, and fourth, that lawyers (from human rights to finance contracts and compliance) can contribute.
Overview of the Talks
Below is a whistlestop tour of the key messages from our speakers with some personal reflections.
Colin Samson reminded us that land means different things to different people and that lawyers have a core set of beliefs on land, property rights and development. Whether lawyers realise it or not, our current beliefs are rooted in historical colonial legal principles and practices that were designed to externalise social and environmental issues from law and agreements. Through numerous examples Colin showed us the ways in which outright extinguishment of indigenous ownership was achieved through supposedly arm’s length contracts, treaties and policies. The social and policy reasons which supported that legal machinery (and which the law continues through its structures) likened Indigenous stewardship of land as ‘primitive’ and ‘underdeveloped’ as compared to management of land through systems of exclusive western property rights. For lawyers educated in the common law system, Colin reminded us of the formative property writings of Sir William Blackstone when he describes the nature of land and property as one, which exists ‘in total exclusion of the right of any other individual in the universe’. Crucially Colin reminded us that this historical legal approach continues to shape our modern cannon of market focused property rights, providing the legal tools to uphold mainstream approaches to development as largely growth and economic focused.
For me, Samson ‘s talk provided unique sociological evidence for what I would call an ethical or sacred practice to law which can be kept in mind when drafting contracts and advising clients on transactions which have land rights implications. Such a practice requires coherent thinking by lawyers around the impact of investments on land rights issues and an appreciation that there may be important third party legacies and rights that sit behind investment contracts and financing documents which do not just disappear as they are not included in a commercial contracts for instance.
Even a client with a well-meaning corporate policy on land rights can run into difficulties because there is a lack of coherence between policy and contractual implementation: which lawyers are ultimately responsible for in their drafting and legal structuring. This can have severe reputational risks for clients if due diligence is not undertaken or performed without a holistic view of the issues at stake, with potential reputational blow back for their legal advisors. I provide some examples below of how lawyers can use tools like due diligence checklists to include land rights related specifics. Ultimately lawyers use contracts as they are excellent tools for externalising risks and for passing risks onto other parties. An ethical approach urges lawyers to think creatively about the contractual matrix. This approach can be applied to include land rights issues and human rights based approaches to drafting.
Lucy Claridge talked about her work at the Forest Peoples Programme and on the threats to land rights from conservation projects, agribusiness and new climate finance regimes. She asked us to question whether regimes such as carbon credit projects and REDD + are part of the greenwashing phenomenon in climate. Neatly following on from this, Nonette Royo talked about the complexity of land rights work and the need for a layered legal approach which brings together constitutional rights, human rights, free, prior and informed consent rights, women’s land rights and historical colonial legacies in conversation with different types of investment models based on co-management and which involve unusual actors/partners. Nonette mentioned the need for compliance policies and procedures that ensure new private sector and philanthropic funds channelled into investor coalitions for land rights and forest protection are human rights and FPIC compliant. Reflecting on this there is, I think, also a need to ensure that any contracts mediated with local communities are also entrenched in these principle and are community led. Such a careful and coherent approach could go far in preventing the type of greenwashing that Lucy spoke about.
Joan Carling displayed her immense passion and energy for her work defending Indigenous peoples’ land rights in a fascinating talk which focused on a few key points. First, that Indigenous rights to land are basic human rights to dignity, equality, non-discrimination and access to justice. This is an important point to make in the context of the growing ESG movement and overall consensus on the lack of understanding and need to boost understanding on the ‘S’ or the ‘Social’ in ESG: see Financial Times 2022 essential topics for ESG. I have heard some say that we need ESG’I’ – I don’t agree. What we do need though is far more focused knowledge and spaces of information exchange of the importance and opportunity of secure land rights as part of the ESG ‘S’.
Joan also drew attention to the various business impacts on land rights drawing from examples in renewable energy projects. She highlighted that many Indigenous people are not anti-development but want to share in the benefits and have their human rights respected throughout the development process. My own book reveals the design and coherence problems within financial and commercial legal and regulatory frameworks which work to routinely displace land rights. I offer best practice solutions on how to address these gaps from early project design stage which I think speak directly to Joan’s point. Third, Joan talked us through the various litigation mechanisms that lawyers can use to raise awareness and take action at the UN and EU Commission level. Pursuing a strategic action might be one area of interest for LAP members.
Alexandra Xanthaki talked about her work connecting land and cultural rights of Indigenous peoples and local communities. She spoke about how much of the world’s land is held communally by Indigenous peoples and other communities under systems of traditional and collective ownership, yet these rights are often not recognised. The issue of poor implementation was reiterated by many of our speakers who shared experiences about how wining legal cases, for instance at the Inter-American Court of Human Rights, does not translate into implementation at the national level, often as a result of economic and political pressure.
There is an important message and practical angle for lawyers here. In general it would be useful for lawyers to think coherently about how their overall advice, contracts, due diligence processes and checklists can better assist in ensuring that their business clients ‘do no harm’ as required under the UN Guiding Principles on Business and Human Rights. For instance, advising clients to not only look at state level commercial laws when conducting legal due diligence but strongly advising clients to think more broadly and coherently about the wider legal framework that applies to projects. This means that early project design and checklists should require identification of constitutional, international/regional human rights laws and customary laws, land truthing requirements, local land specific legal opinions. Finally, a requirement that none of these conditions can be waived if it is not possible to provide them. Lawyers can also be advising and identifying on best practice human rights based approaches for heads of terms on land access and benefit sharing agreements. I have started this in my own work but there is much more to be done.
Videos of the meetings can be found here. We look forward to staying in touch.