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This chapter provides further context to the impact of project finance mechanisms by examining the Ugandan Bujagali Hydroelectric Power Project referred to in the Preface. This case study is different from the others. It focusses on the interface of contractual and policy instruments with indigenous peoples’ rights to land and then casts the net wider to examine how complex pricing terms and the inequitable negotiation of concessionary power purchase agreements (PPA), in which the government is the end buyer, will have implications for overall vulnerability; for example, by locking governments into an overall bad deal in which all the risk is passed onto the state which has little control over spiralling electricity costs. Thinking about these debt contract–community linkages and what might be done within the context of an important negotiated contract such as the PPA is crucial for two reasons: that of the spread of supposedly cleaner and greener hydroelectric projects worldwide to meet energy demand and the growth of the ‘people first’ trend in public-private partnerships in the quest to mobilise the private sector towards the Sustainable Development Goals.
This chapter gives more clarity on indigenous peoples as communities that, given their special social and cultural connection with land and natural resources, are inherently vulnerable to the global spread of projects that necessitate significant, and often irreparable, land disturbance and the transnational legal dynamics and behaviours that facilitate that disturbance. Far greater effort is needed to think about the indigenous movement in a more pluralistic framework: as specifically vulnerable to development projects in a much broader outlook, that is, beyond settler-colonial geographical area and one in which private concessionaires and financiers are, through contractual and policy mechanisms, shaping the movement with significant impacts for rights recognition and implementation. This chapter also defines the specific characteristics of modern development projects that matter for indigenous land rights issues, including the diminished role of the state in these projects and the implementation gaps that appear in development finance mechanisms for resettlement. The chapter concludes by examining the private legal nature of the plural contracts that secure a development project.
Having defined the field, Chapter 3 critically analyses the surrounding contemporary formal legal framework for indigenous peoples’ land rights that speak to development projects. This chapter examines jurisprudential strands and structural gaps such as poor accountability of private actors and the fragmented due diligence in this field. Emerging from this analysis are identifiable themes that matter for rights in development project contexts. The point is to assess the existing coping strategies of formal law in this setting, to give hard law context to the private mechanisms explored and to appreciate judicial and non-judicial mechanisms as part of an ecosystem of remedies in this field. The chapter asks why, despite the array of indigenous rights cases and legal declarations, international and domestic norms rarely pierce the highly regulated veil of private mechanisms that secure a transnational development project – failing to work as a legal threat. Whilst later chapters illustrate other reasons such as power and short-term behaviour that contribute to law’s overshadowing, my aim here is to show how the law endogenously contributes to insecurity for indigenous communities in development contexts.
This chapter concludes and provides recommendations for the better integration of the judicial and private mechanisms discussed in previous chapters so that they deliver fairer, clearer, more predictable and UNDRIP-compliant outcomes for indigenous communities. National laws must recognise the special vulnerability of land-connected people to development projects and impose a moratorium on land disturbance until a developer has undertaken a preventative conflict assessment. That assessment must take no longer than state divestment of land and must necessitate a mediation process which interfaces with the layers of race, ethnicity, legacy and postcolonial histories that can relate to land. This chapter considers what this process entails (including the requirement for the legal ability of communities to say no at this point) and methods for dealing with the cost and independence of such a process (blind trusts). Aspects of this assessment could, through a code of practice, then feed into project governance much further upstream and tighten existing documentation at the specific points at which indigenous vulnerability to dispossession is high, as detailed. Other suggestions on institutional culture are made.
This chapter extends examples of the second field of private mechanism: direct mediated agreement-making between concessionaires and indigenous groups. Through transnational examples from plural contexts in Russia, Suriname, Australia and Mongolia, I illustrate how concessionaires can plug and also worsen the lacunas in formal law through agreement-making, with mixed outcomes for indigenous communities. The findings suggest a link between the level of recognition afforded to groups in an underlying formal legal regime and the quality of agreement-making. In some cases, private mechanisms when integrated with the domestic legal framework, might address some of the problems that exist within the contemporary legal framework for development projects in Chapter 3, and provide clearer and fairer outcomes for communities. Other cases reveal negative practices around corporatised arm’s-length methods, behaviours and conditionalities through which integration is conducted. The debates in this chapter signal a new species of specialised commercial contract that merit regulation for their ability to speak to formal laws and principles of (un)fairness whilst sitting on the private plane.
This chapter contextualises how project finance mechanisms interface with indigenous land rights recognition and implementation, and the effects of that convergence for communities in Mongolia and Panama. I analyse how, in two cases, lender safeguarding policies are prioritised through the ordinary and mechanical stream of lender decision-making and the contractual networks that operationalise those policies, questioning the effectiveness of those policies to deliver fair, rights-compliant outcomes. I examine how private environmental and social experts, hired by the borrower, will sort and (de)prioritise local and international norms on indigenous rights and decide which social safeguard policies a borrower should comply with, and how. This provides insights into the operation of law and power in this field: specifically, the fragmented, de-prioritised and powerless nature of different sources of formal indigenous rights norms as they sit against contractual and policy norms. A larger question is of an over-reliance on private experts, the lack of transparency around their decision-making and a deficiency in independent regulatory oversight over these routinely delegated processes.
Chapter 4 analyses whether private mechanisms for implementing land rights in development projects can fill the gaps within the formal legal framework allowing communities to leapfrog those gaps to negotiate with power-holding concessionaires and financiers? This chapter introduces the devices for analysing this question: project finance mechanisms and company agreement-making. Focusing on project finance mechanisms requires understanding the private legal rules that bring life and value to the project’s assets. These forgotten elephants in the room are the devices within private contracts and policies and behaviours around which they are implemented, all of which matter for the recognising and implementing of indigenous peoples’ rights to land. Evidencing these interfaces means looking at the ordering of a project financing to see how it inherently treats indigenous rights issues within contractual mechanisms that operationalise lender safeguarding policies. Referring to sample clauses, I provide an overview of documentary interfaces between project finance devices and land rights issues where vulnerability to dispossesion is high and private discretion and priority is elevated.
This chapter provides some economic, social, legal and technical context to development projects and their interfaces with indigenous peoples’ rights to land and the focus of this book. Situating development projects within historical precedents from colonial times, it identifies some important new features of the modern development project landscape. These include the increasing proximity of international economic arrangements and transnational financial transactions such as project finance and its underlying documentary network with issues of indigenous land connection, survival and precarity. Against this background, the book’s objective is to consider how, under the conditions of a development project and its contractual framework and safeguarding policy architecture, private entities and judicial and non-judicial mechanisms frame, conflict with and informally delegate out the recognition and implementation of rights to land for indigenous people. In responding to this objective, I lay out the core themes that repeat throughout: fragmentation, invisibility, power(lessness), priority, delegation, (un)predictability and the integration of public and private remedies.
Unrelenting demands for energy, infrastructure and natural resources, and the need for developing states to augment income and signal an 'enterprise-ready' attitude mean that transnational development projects remain a common tool for economic development. Yet little is known about the fragmented legal framework of private financial mechanisms, contractual clauses and discretionary behaviours that shape modern development projects. How do gaps and biases in formal laws cope with the might of concessionaires and financiers and their algorithmic contractual and policy technicalities negotiated in private offices? What impacts do private legal devices have for the visibility and implementation of Indigenous peoples' rights to land? This original perspective on transnational development projects explains how the patterns of poor rights recognition and implementation, power(lessness), vulnerability and, ultimately, conflict routinely seen in development projects will only be fully appreciated by acknowledging and remedying the pivotal role and priority enjoyed by private mechanisms, documentation and expertise.
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