1. World Bank Land and Poverty Conference Mar 21, 2017
Mechanisms for Consultation and FPIC in the Negotiation of Investment Contracts
Sam Szoke-Burke
World Bank Land and Poverty Conference Mar 21, 2017

2. Introduction
Natural resource investments  impacts on land and human rights
International law and best practices require consultation and FPIC
What should this look like at the investment contract negotiation stage?

3. How is land allocated for investment projects?
Investor-state contracts (land access in exchange for rent / benefits)
Community leaders / local authorities can demise communal lands in some contexts
Community members and perspectives often not adequately considered

4. Why the contract negotiation stage?
Investment contracts are commonly used
Investment contracts should be adapted to human rights standards like FPIC while they are used
Proviso #1: We do not endorse ISCs as the optimal means of regulating resource investments
Proviso #2: Consultation and FPIC must take place prior to authorization, but also should be ongoing and iterative

5. Consultation and FPIC Ensuring the community has a say
Meaningful consultation: Timely and accessible information; Opportunities to participate; ability to influence decision-making
FPIC, at its essence, is about indigenous (and other) communities deciding for themselves how lands and resources are used
Status quo: inadequate consultation and FPIC at contract negotiation stage

6. Will communities even want to be involved?
Community benefits may be negotiated between investor and community directly, but investment contracts cover other issues pertinent to local communities
Expectation setting: community will remain involved in decision-making
Time and resources needed: capacity building, internal deliberations, technical support

7. Factors affecting increased community involvement in negotiations
Political and economic context
Investor motivations for social license
Domestic legal framework

8. Options for community involvement
Option #1: Periodic consultations during negotiations
Option #2: Community participation in negotiations, as a non-party
Option #3: Including the community as a party / Tripartite investment contracts

9. 1. Periodic consultations during negotiations
Negotiations in “rounds,” with consultations in between
Use of online contract repositories to share draft agreements?
Governments / companies may be receptive, given similarity to other consultation practices
Reliant on governments / companies to report back to community and incorporate community perspectives

10. 2. Community participation in negotiations, as a non-party
Presence in the room entails increased access to information, and greater potential to influence negotiations
Being a non-party, community’s perspective can be easily ignored
Overall: an improved form of consultation; will struggle to meet FPIC standard

11. 3. Including the community as a party Tripartite investment contracts
Community is a party to negotiations, and to the contract
Greater participation and ability to influence
Enforceable contractual rights for community — not just for benefit sharing; also for env and human rights protections
Similar challenges with regard to capacity, power imbalances, time

12. Conclusion
Governments have binding international legal obligations to ensure meaningful consultation and, where relevant, FPIC
Contract negotiations are one stage of the investment where these standards apply
The focus should be on communities accessing information, participating, and influencing decision-making
Existing examples may come from unique circumstances, but contribute to momentum and provide lessons
Potential for improved relations, empowered communities, mechanisms to hold the government and company to account; and investments that are better adapted to local context

13. Thank you
Sam Szoke-Burke