Our Land Thoughts – The ‘DOS’ and ‘DON’TS’ of the land acquisition processes: navigating a just path to sustainable investments

INTRODUCTION

National development agendas usually commit to the building of new infrastructure at a significant scale – promising upgraded or new roads, ports, airports, rail and energy infrastructure, housing, or urban development. With these commitments inevitably comes a demand for land. Although the land requirements for such investments will usually be context-specific, we know certain types of investments have enormous land requirements regardless of location. Utility scale solar or wind farms, for example, necessitate large surface areas to produce energy, particularly vis-à-vis traditional energy sources such as coal. Given the finite character of land, and the growing competition for different land uses, public land that is readily available for such investments is in diminishing supply.

To access land for new infrastructure, governments must often resort to one of their most fundamental property right powers – that of land acquisition. Broadly, land acquisition is composed of three ‘macro-processes’: (i) affected parties are identified; (ii) a fair process by which stakeholders are notified of the acquisition and are given a chance to voice their views and object is followed; and (iii) an acceptable compensation is developed and distributed.[1] In an era of privatisation, the private sector is increasingly assuming the lead in land acquisition, sometimes even in the absence of government approvals.[2]

Historically, land acquisition has been heavily criticised due to its negative outcomes for those living on or earning their livelihoods from forcibly procured land. Especially in lower-to-middle income countries, compensation and consultation have been non-existent or inadequate, the rights of informal occupants ignored, and the position of the weaker or more vulnerable members of society disregarded, especially women, minority ethnic or indigenous groups and the disabled. More broadly, land acquisition laws have been plagued with defects both in their content and in their implementation, resulting in high levels of dissatisfaction from those whose land is procured. In some cases, the process of identifying landowners leads to protracted disputes and significantly slows down the investment.

Despite its dubious reputation, knowledge around how to do land acquisition ‘well’ has grown in recent decades. The establishment of specific standards for land acquisition and resettlement in multilateral development bank (MDB) financing instruments, beginning with the International Finance Corporation (IFC) Performance Standard (PS) 5, Land Acquisition and Involuntary Resettlement,[3] developed in 2006 and revised in 2012, has been instrumental in swinging the pendulum favourably towards populations affected by an acquisition. IFC PS 5 seeks to minimise adverse social and economic impacts from land acquisition or restrictions on land use by (i) encouraging negotiated settlements rather than acquisition without consent; (ii) providing compensation for loss of assets at replacement cost to help affected populations improve or restore their standards of living or livelihoods, in a transparent and consistent manner;[4] and (iii) ensuring that resettlement activities are implemented with appropriate disclosure of information, consultation, and the informed participation of those affected. The guidelines also highlight the need for a grievance mechanism that can resolve disputes around resettlement or compensation in an impartial manner.

Safeguarding and land acquisitions are a regular feature in the land reform and regularisation work that LEI has been involved in over the years. Given the ever-increasing pressures on land, LEI are increasingly consulting on issue concerning access to land and tenure arrangements. For instance, LEI is involved in a project concerning access to land for renewable energy in Bangladesh, which involved a rapid review of the country’s land acquisition procedures. LEI is also advising the Government of Nauru to improve land and affordable housing options for relocation to higher ground to combat sea level rise, as well as supporting the Australian Department of Foreign Affairs and Trade (DFAT) on the integration of gender equality in its programming through the SURGE facility.

QN 1: Racheal, based on your experience, what are the most important ingredients for a just and equitable land acquisition process?

Thanks Renée. From my perspective working on land acquisition in the private sector, there are three standout factors critical to an effective, by which I mean fair and just, land acquisition process.

First, thorough navigation of legislative requirements for land acquisition.

Adhering to the legal and regulatory frameworks of the country is of course a requirement of all land acquisition processes. While this may seem obvious, national legal frameworks are not always straightforward – they can be contradictory and confusing. You therefore need to develop a deep familiarity with what is often a very complex legal environment, as well as the relevant international standards so that these can be readily applied as the project progresses. In my experience, project teams usually undertake a thorough analysis of the legal framework governing land acquisition in the jurisdiction at a very early point in the process, seeking the advice of national legal experts when necessary. This prevents project delays and setbacks resulting from non-compliance with the legal framework. This review also identifies where gaps may exist as it concerns applicable international standards and forces a discussion on how gaps between existing regulations and international standards can be bridged.

Second, proactive government engagement and collaboration.

Early identification, usually through a mapping process, of the main government interlocutors is another important ingredient for success. The most frequent authorities I have dealt with in my career are the land ministry, local (as in municipal) planning departments, national environmental agencies and local (municipal) government representatives. Once the relevant agencies were identified, we (by that I mean the project team) introduced ourselves officially and set-up introductory meetings. These meetings usually began with an overview of project goals and timelines. Regular engagement with these stakeholders helped to facilitate the necessary permits and approvals, including environmental assessments.

I believe that working with the government is not just about holding separate meetings but about trying to bring the government with you on the journey and engender a common vision for the investment. Across the projects I worked on we always aimed for a collaborative approach to government stakeholders – to both bring them together and to streamline the engagement of various agencies who are usually operating at different levels (national v. district), locations (capital city v. site of investment) and with different mandates. While it wasn’t always successful, when it was, we found that the government helped to make our project and investment more appropriate and suitable to the operating environment. Their inputs and engagement tended to highlight national development priorities and concerns – for example, in relation to forest preservation, development of a job market in a specific area or protection of specific agricultural industries – adapting the investment opportunity to suit these focus areas.

Third, but definitely not last, is deep and continuous community consultation.

The importance of quality community engagement in the land acquisition process cannot be overstated. My professional journey has consistently reinforced this view. Land acquisition should be consultative because in the end, it is about people, their livelihoods and home. The best mode of land acquisition is a negotiated, rather than forced acquisition – forced acquisitions should be avoided at all costs. For negotiations to start and to be accepted you need good and transparent communications with affected communities. Consultation must be a two-way street that entails actively involving and discussing with affected communities throughout the entire process. For me, consultation must extend beyond mere compliance or token one-off meetings. Instead it must encompass a genuine commitment to understand the needs, concerns, and aspirations of the communities and how these can be integrated into the project.

Practically, consultations usually involve applying the standard mechanisms – public meetings, focus group discussions, and the provision of informational materials in local languages. In some cases, the legal framework will dictate how consultations should be conducted.

As with many things, the devil is in the detail, and particularly in the commitment of the company to these public events. Companies that understand the value of consultations recognise that significant and early outreach and information about the forthcoming consultation is key to ensuring attendance – and that there may need to be several events at different times to ensure information reaches different people and they know their options. Further the structure of the consultation itself should not be rigid and timebound. Nor should it consist of simply a long project presentation – it is far more important that sufficient time is reserved to answer all questions posed by the audience and to initiate a genuine dialogue on the investment.

Of course, there is no doubt that consultations and negotiations take a long time and usually require a huge amount of patience and persistence to ensure affected persons are ultimately voluntarily relinquishing their land with full and promptly paid compensation rather than being compelled to relinquish their land. I strongly believe, however, that good consultation is always well-worth the time and human resources effort. First – because consultations smooth the path for the project moving forward, including by helping to dispel any lingering myths about the project. Second – because consultations allow the community to provide direct inputs into how they believe the project should contribute to the community.

QN 2: You have mentioned a couple of times international standards for land acquisition – what are these? Are they binding? How were they applied in your work with the private sector?

International standards for land acquisition have been established through guidelines and principles developed by international organizations and MDBs. These standards are not legally binding in that they are not enforced through international law (although they may sometimes be translated into national law). Nonetheless they serve as widely accepted norms and best practices that governments and private sector entities are encouraged to adhere to in the context of a land-based investment – and that must be complied with when the project is funded by MDBs, and increasingly, government development funders. The key international standards and guidelines related to land acquisition are set out below.

• UN Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests (VGGTs): These guidelines, developed by the United Nations Food and Agriculture Organization and endorsed by states at the Committee on World Food Security, provide a framework for responsible land governance. While voluntary, they outline principles for protecting the rights of landholders and affected communities in the context of land acquisition.[5]
• IFC Performance Standards on Environmental and Social Sustainability: The IFC has a set of performance standards (PS) that financial institutions and companies must adopt as part of their environmental and social risk management. PS 5 specifically addresses land acquisition and involuntary resettlement, providing guidelines for responsible practices in this area. PS 5 stresses the need to ensure that affected individuals and communities are fairly compensated, taking into account the replacement value of their assets, livelihoods, and access to housing or land. In practice, this translates to compensating individuals at a level that allows them to acquire similar assets in the local market, supporting them in restoring their livelihoods, providing access to alternative housing or land of comparable quality, and actively involving affected parties in compensation decisions. MDBs such as the World Bank (see ESS5 Land Acquisition, Restrictions on Land Use and Voluntary Resettlement), the Asian and African development banks and the recently created Asian Investment Infrastructure Bank have all developed standards that to a large extent replicate PS 5.
• Equator Principles: These are a set of voluntary standards for financial institutions to assess and manage environmental and social risks in project financing. They include specific criteria related to land acquisition, such as obtaining Free, Prior, and Informed Consent (FPIC) from affected communities for certain projects.[6]
• Guiding Principles on Large Scale Land Based Investments in Africa: The African Union and others have developed principles on land scale land based investments. These emphasize transparency, equity, and consultation in land acquisition processes.[7]

The applicability of these standards will depend on which entity is funding the investment. If it is a MDB than the standards applicable to that Bank will apply – for example, ESS5 for World Bank funded-projects. Where the project is multi-donor funded and partly privately funded, different standards may apply in parallel, or donors could come to agreement as to which standards are applicable. In some cases, MDB standards are also integrated into, or replicated in the standards applied by donor countries when funding a specific investment.

In my work with the private sector, international standards often serve as reference points for responsible land acquisition and resettlement, recognizing the importance of adhering to these standards to mitigate risks, ensure social responsibility, and to maintain their international and national reputation. Application of guidelines and standards often influence the design and implementation of grievance mechanisms and community engagement strategies and reinforce national compliance.

Overall, however, adherence to international standards by companies do vary. While many businesses strive to align their practices with these standards to uphold ethical and sustainable operations, there is not always a direct translation. Some companies face challenges in fully implementing international standards and practices due to cost considerations, time constraints, and lack of adequate knowledge around how to implement them. Cultural and language barriers, high community expectations of engagement that are not adequately resourced, and an inability to resolve historical grievances can lead to companies taking shortcuts and not adhering to these standards.

There are some good practices – including the example of a project undertaken by Bamburi Cement in Kenya, where a commitment to upholding livelihoods could be seen from the start to the end of the land acquisition and resettlement process for establishing a mine. Some critical initiatives taking by the company in the Bamburi Cement investment in Kenya included (i) the involvement of the Kenyan National Land Commission overseeing the land acquisition and compensation process; (ii) proactive measures to inform the community about the project’s details and compensation terms to prevent future conflicts, and; (iii) the engagement of the Kenyan National Human Rights Commission to mediate disputes arising through the acquisition process. These actions ensured a fair and transparent process underscoring the company’s commitment to safeguarding community rights and resolving disputes before they arise.

QN 3: You mentioned that there are gaps between national and international standards. What can be done to close this gap?

This is a good and very hard question! To close the gap and ensure better alignment with international standards, I believe that both public and private sector entities have distinct roles and responsibilities.

Relevant government institutions should do a wholesale review of their legal and policy framework, updating existing laws and regulations concerning land acquisition to ensure alignment with international standards. The requirement of transparency in the acquisition process should be strengthened, with public accessibility regarding information on acquisitions and compensation calculations, including a clear valuation framework and process, along with mechanisms to hold officials accountable for any deviations. The framework should also make sure that public consultation processes are a binding legal obligation and supported by implementing regulations addressing minimum requirements for conducting the consultations.

Further, to address concerns of unfair contribution and inequitable distribution, governments should ensure that individuals have access to an impartial judicial process – in both law and in practice. This may involve establishing specialized land tribunals with specially trained judges given the complexity of land acquisition disputes in most countries.

Lastly, to bridge the gap, there should be a greater focus on capacity building and resources for monitoring within governments. This includes investing in the training of government officials involved in land acquisition to ensure they understand and adhere to international standards around provision of information including information regarding risks to communities, as well as monitoring the compliance of the private sector with their commitments to communities in the context of a given investment.

Now what about the role of companies? In my mind this means better pursuit of the three ingredients I mentioned earlier that are key to effective and fair land acquisition: (i) proactive efforts to ensure legislative compliance, (ii) meaningful government engagement, and (iii) improved community consultation. Overall these three ingredients will result in better compliance with international guidelines and principles pertaining to corporate responsibilities. Companies embracing these standards enjoy enhanced reputation, reduced risks, and better stakeholder relations. They also avoid protracted litigation if land disputes result around the process, and access to compensation.

Let me take as an example my experience working with a major infrastructure project in 2017 in Kenya. We were working on expanding the electricity distribution network, and it was a big deal. We needed to acquire land for new substations and power lines in both urban areas and rural areas. To make it all happen, we teamed up with legal officers, community leaders, and government officers. Kenya’s rules and regulations can be quite complex, but we found our way through. But, you know, it wasn’t just about following the law. We wanted to respect local customs and traditions. That meant recognizing customary land rights, honouring cultural sites and practices, and using local ways to sort out disagreements alongside the official legal channels. We hired workers from each community and embraced their unique approaches, site-specific knowledge and engagement skills. The result of this consultation was a project roadmap that aligned with national laws and reflected a genuine commitment to ethical engagement.

“Transparent communication in the end almost always results in a fairer and more ethical land acquisition practices.”

Transparency was also a big part of our strategy. We actively engaged with the affected communities through a comprehensive approach that involved a range of methods. We held village meetings where participants asked questions and raised concerns directly with us. We also held focus group discussions to understand the needs of specific groups. We put together materials in local languages to explain what we were up to and how it could benefit everyone. We addressed the risks and concerns continuously. This approach fostered a shared understanding of the project’s benefits and helped to address potential conflicts as the project progressed.

QN4: Can we unpack further the challenges of government engagement? Why is this important and what can be done by the private sector to engage better with governments?

The acquisition of land involves several distinct stages, each critical to the overall success of the process. It all starts with government approval of the investment, which is an essential prerequisite for any compulsory acquisition to proceed. At this initial stage, the government takes an active role, ensuring that the proposed land acquisition aligns with national objectives and requirements. As the process advances, the government’s role often shifts to a more supportive one, but its involvement remains integral to the overall success of the project. Continuous engagement with the government throughout various stages is crucial for the projects’ credibility, investor confidence, and overall efficiency in securing project approvals.

Specifically, land institutions are crucial at all stages of the acquisition process. Land institutions provide information about land ownership and validate ownership documents presented by landowners. They also undertake the valuation of the land, ensuring a fair and transparent assessment for compensation. Finally they ensure the eventual transfer of land to acquiring private companies, its consolidation and eventual registration.

Resolving land rights issues can be a major stumbling block in land acquisition projects. Disputes over land ownership, conflicting land rights, and the absence of robust legal safeguards in place to protect the rights and interests of vulnerable communities can disrupt projects. Early engagement and capacity building with such institutions, as well as establishing a fast-track dispute resolution process outside of the courts is key to ensuring disputes are resolved.

More broadly, we all know that in practice government engagement can be very challenging. Government officials may not always be readily available, and the physical distance between project sites and government offices can also lead to delays. In all countries where I have worked government processes tend to be slow, complex, and bureaucratic, with a strong potential to delay project approval and implementation. Navigating through layers of administrative procedures can be time-consuming. Overcoming this challenge often requires proactive and patient engagement, and early initiation of approval procedures, – as well as ongoing chasing and in some cases, repeated knocking on doors! In a few of the projects I have worked on, it took several months for our company to obtain even the initial approvals – for instance, approvals of framework agreements. These delays heavily impacted on the planned project schedule, affected community expectations, and increased project costs.

Strategies to address this challenge include planning well in advance, early engagement and utilising local intermediaries when necessary. For a project in Cameroon we were able to ensure government officials were engaged with the project by subsidising the costs to undertake site visits. We also held virtual monthly meetings to ensure government officers participated from wherever they were based.

To a certain degree delays can also be avoided with good project management structures. In a solar project in Kenya we worked with the government to form a project committee, comprising of the project team leader from the Ministry of Energy, officers from government institutions and our company. This set-up enhanced communication and helped to resolve issues that arose frequently. Similarly, in the Cameroon project, the government formed a commission comprising of officers from the Ministry of Energy, Ministry of Lands, representatives from the investing company, representatives from the local administration and community leaders to undertake the expropriation.

In some regions, we all know corruption is a real risk and possibility. In my projects transparent record-keeping and working with in-country partners well-versed in navigating such environments and risks proved invaluable to ensuring all our projects were conducted with integrity. In all the projects I worked on, I had to sign anti-bribery and corruption forms and committed not to engage in any form of corruption during the project. I think this helps in setting the framework for engagement.

QN5: There are often tensions between project timelines and the time commitment involved in effective consultations. What are the common challenges? What can we learn about this based on your engagement with the community?

Ensuring community engagement is essential to any land acquisition and land-based investment process. Community consultation, as per the World Bank Environmental and Social Standard 10 ‘Stakeholder Engagement and Information Disclosure’ (ESS10) is a critical element in safeguarding the rights and interests of individuals directly affected by land acquisition projects, including those related to compensation and resettlement. We know that communities hold invaluable knowledge of their environment, cultural heritage, and livelihoods and are well-placed to provide inputs on how to mitigate risk and increase the social value of a given investment. Therefore early and meaningful engagement in the project’s initial stage fosters trust, clarity, and transparency, and significantly reduces the potential for misunderstandings and conflicts, thereby averting protracted and costly litigation.

The challenges you ask? Several come to mind – but there are perhaps more than these: –

• A breakdown in communication can occur when there are language differences between project proponents and communities. This can encompass both the actual spoken language and the potential lack of understanding of the messages conveyed by the organization regarding land acquisition. Language barriers can lead to misinterpretation, misinformation, and mistrust, hindering effective communication and consultation.
• The cultural, social, and economic viewpoints within local communities may not align with project developers’ perspectives, necessitating a sensitive and open-minded approach to understanding diverse viewpoints.
• Socioeconomic disparities and information access imbalances can create feelings of marginalisation within communities, fostering resistance and opposition to projects due to perceived lack of consideration.
• Previous disputes or failed development projects can lead to scepticism during community consultations. Addressing historical grievances is vital to establishing a foundation of trust.
• Ensuring meaningful involvement of all community members, including marginalized groups and women, can be complex and sensitive. Excluding stakeholders leads to incomplete information and skewed decision-making.
• Conveying intricate technical and legal concepts to local communities in an understandable manner presents challenges. Miscommunication can lead to misunderstandings and misinformation.
• Poorly planned and executed community consultation processes result in confusion and frustration among stakeholders, potentially causing delays, conflicts, and harm to the project’s reputation.
• In urban areas, the complexity of land tenure and property ownership present a significant hurdle. Coordinating with numerous property owners, addressing diverse interests, and navigating legal requirements can complicate community consultations and require intricate negotiation processes.
• In rural areas, challenges often revolve around limited access to resources and information. Socioeconomic disparities may be more pronounced, making it crucial to bridge the information gap. Ensuring that all community members, especially marginalized groups, have equal opportunities for meaningful participation in consultations is a fundamental challenge.

Addressing these challenges requires a comprehensive and culturally sensitive approach. Organising public meetings at the outset where community members can openly discuss their concerns is key – but it is also important to conduct regular site visits later to provide updates and address new questions. Equally useful is to collaborate with local leaders and community representatives to mobilize community members to actually participate during these meetings – with these representatives serving as intermediaries with their grasp on the local languages and culturally appropriate communication methods. As I mentioned earlier, engaging skilled local facilitators or interpreters who understand the local context can help to ensure productive and meaningful discussions rather than us simply presenting information. To encourage women’s participation and that of minority groups, we also needed to adopt specific strategies. One approach to this was to collaborate with local women’s organizations and civil society organizations that focus on women or other vulnerable groups. These organizations provide valuable insights, facilitate communication, and assist in reaching out to vulnerable communities. We also made sure we had channels for feedback that allowed women and vulnerable groups to express their concerns or provide input outside of formal meetings without fear.

Overall in my opinion, transparency, openness, and a commitment to understanding historical context are crucial in building trust and ensuring that consultation processes are productive and beneficial for all parties involved.

Now what not to do?! A commonly cited example of inadequate community engagement is the renowned Lake Turkana Wind Power Project in Northern Kenya which has encountered significant issues in its community engagement process.[8] Reports by human rights groups and court cases filed against the company indicate that the project faces a number of issues including – inadequate consultation with the communities, the acquisition process not complying with the law, failure to recognize some communities as indigenous and therefore the communities were not compensated according to the international standards. The project failed to apply IFC PS 7 on Indigenous Peoples, which emphasises the importance of obtaining FPIC before initiating projects that may affect indigenous communities. This requires meaningful engagement with indigenous peoples and local communities to ensure that they have an opportunity to provide or withhold their consent regarding projects that may affect their lands.

Lake Turkana wind power project, Kenya

As a result, the project has faced prolonged court cases – with a recent ruling finding in favour of the community. In this judgment the project was given one year to rectify the land acquisition process as per the laws and constitution of Kenya – specifically it was required to undertake community engagement, obtain the required consent and ensure full compensation for the affected communities.

Overall, in my experience, it is possible for projects to not only be legally sound but also ethically and economically viable. By adhering to these “dos”, and avoiding the corresponding
“don’ts”, while governments and investors have room for growth, we can ensure that land acquisition becomes a path built with legal integrity, ethical considerations, and inclusive growth and opportunity for affected communities.

Thanks so much Racheal for sharing your insights. Wishing you all the best in your next steps! We will be following your updates closely.

[1] ‘Comparative Evaluation of Land Acquisition and Compensation Processes across the World’ Economic and Political Weekly, Vol. 46, No. 32 (August, 2011) p.98.

[2] See examples in Laura German, George Schoneveld and Esther Mwangi Land Acquisition in Practice: Contemporary Processes of Large-Scale Land Acquisition by Investors: Case Studies from sub-Saharan Africa, CIFOR (2011).

[3] According to the IFC, involuntary resettlement refers to situations where ‘affected persons or communities do not have the right to refuse land acquisition or restrictions on land use that result in physical or economic displacement. This occurs in cases of (i) lawful expropriation or temporary or permanent restrictions on land use; and (ii) negotiated settlements in which the buyer can resort to expropriation or impose legal restrictions on land use if negotiations with the seller fail.’

[4] PS 5 considers both direct and indirect forms of compensation, with the ‘sponsoring agency’ expected to play an active role in the rehabilitation process for resettled populations, beyond merely providing a financial package.

[5] See for example, in the 2022 revised version, para 12.9. and para 12.10.

[6] See Principle 5 concerning stakeholder consultation. Since January 2012 IFC PS 5 on Land Acquisition and Involuntary Settlement is applicable to projects in ‘non-designated countries’ as per Principle 3 “Applicable Environmental and Social Standards”. An Environmental and Social Consultant is therefore required to review and evaluate how a project meets PS 5 (amongst other IFC Standards set out) as part of project due diligence.

[7]See, for example, Fundamental Principle 3 “Decisions on LSLBI and their implementation are based on good governance, including transparency, subsidiarity, inclusiveness, prior informed participation and social acceptance of affected communities.”

[8] Lake Turkana Wind Power Court Case: Business & Human Rights Resource Centre Report on LTWP.