Free, Prior and Informed Consent: Addressing Political Realities to Improve Impact

Indigenous and Tribal peoples’ right to free, prior and informed consent (FPIC) has transformative potential. Yet, there is a considerable gap between the theory and what happens in practice. Global actors supporting recognition of FPIC and effective prior consultation processes usually focus on normative standards and best practices. They concentrate much less on addressing the political challenges and opportunities that shape how these processes unfold. With funding from the Ford Foundation, we looked at the politics of FPIC in Latin America, analyzing how the power and interests of the key players–across governments, companies and indigenous peoples–can determine the fate of FPIC and consultation processes in practice. This research focused on Brazil, Colombia, and Peru, and provides practical options to address key political challenges in hopes of improving outcomes for indigenous and tribal peoples. In addition, we are partnering with Dejusticia and the multi-stakeholder Dialogue Group for Mining in Colombia (GDIAM) to explore further the political impediments to meaningful mining consultation processes in that country, and to field ideas for navigating these more effectively in the future

A Review of Sierra Leone's Mines and Minerals Act

With the support of Oxfam, the Columbia Center on Sustainable Investment reviewed select provisions in the Mines and Minerals Act 2009 and corresponding policy statements from the Minerals Policy 2018 to provide recommendations for how to best align the anticipated new mining law with international best practice. The 2009 law was reviewed with a focus on the following topics: • Fiscal regime; • Climate change; • Access to and use of land; • Community consultations and participation; • Human rights; and • Community development agreements. The policy brief aims to support the Government of Sierra Leone in the ongoing law reform process

Advocates Say ISDS Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims and Decisions Don’t Reveal Systemic Failings

Proponents of including investor-state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims

New Producer Contract Terms and Uncertainty: Lessons From the Recent Past

The petroleum industry is volatile, and governments in “new producer” countries have operated at a significant information disadvantage when negotiating with international oil companies. This challenge is growing today; new producer countries face intensifying questions around whether to offer fiscal incentives to maintain investment in the face of 1) the pandemic-induced volatility in oil prices and 2) long-term questions about the future of the industry in the face of the climate crisis and the global energy transition. This confluence of short-term and long-term uncertainty is prompting a reexamination of the narrative that once took hold in many new producer countries. The traditional story was one of linear progression from being non-producers to small levels of production to ultimately having oil and gas become a major economic contributor over the long term. This notion of progression was associated with a commonly held theory: After a country’s first major discovery, the geological risk that wells will be dry was expected to decrease. Countries could therefore shift from a position of having to grant tax breaks (and other concessions) to international investors, to taking a tougher stance in laws and negotiations for new projects going forward. In this paper, co-authored with NRGI we examine whether this theory has been borne out in practice and make recommendations to support new producers in their navigation of the uncertainty associated with the energy transition

COVID-19 and Land-based Investment: Changing Landscapes

Building on earlier work by IIED and CCSI, this report reflects on select COVID-related developments that may result in longer-term shifts relevant to land-based investments in Sub-Saharan Africa and Southeast Asia. Our objectives are two-fold. In the short term, monitoring developments can support more effective interventions that anticipate and respond to impacts on the governance of land-based investments. In the medium to longer term, analyzing developments can inform efforts to support inclusive post-COVID-19 economic recovery strategies in low- and middle-income countries. The report draws on our efforts to monitor developments that affect the governance of land-based investments in the context of the COVID-19 pandemic. Building on a conceptual framework, we tracked developments at three broad levels: • changes in the overall political economy context, • changes in governance systems and regulatory frameworks related to land-based investments, and • developments related to specific land-based investments

Transparency for Whom? Grounding Land Investment Transparency in the Needs of Local Actors

Transparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors. In a new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict. Troublingly, the report finds that: - Disclosures around land investments continue to fall short - Communities struggle to access disclosed information - More action is needed to enable communities to understand available information; and - Communities face barriers to using information and to participating in open decision-making processes. Taking a politically informed approach that considers the incentives of powerful actors, the report proposes seven strategies to advance land investment transparency: 1. Driving agendas with community-led processes, such as protocols, bylaws, and development plans 2. Increasing technical support for communities 3. Empowering good faith regulators 4. Implementing multi-stakeholder and participatory processes, when appropriate 5. Factoring community-generated information into investment-related decisions 6. Initiating domestic mechanisms to increase public access to information 7. Extending community participation beyond individual projects to the policy level

Advocates Say ISDS Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims and Decisions Don’t Reveal Systemic Failing

Proponents of including investor–state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims

Equipping the Nigerian National Petroleum Corporation for the Low-Carbon Transition: How Are Other National Oil Companies Adapting?

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders. Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone reforms of various aspects of their corporate governance. Even if not always sufficient, these reforms position them to be players of the energy transition. The current crisis provides a unique opportunity and political momentum for the Nigerian government and legislature to reconsider NNPC’s role in the context of the energy transition and implement profound reform of the company. While it is an incredible policy and political challenge, other NOCs are showing the way, and policy guidance is already out there to guide countries and companies

Community-Investor Negotiation Guide 1: Preparing in Advance for Potential Investors

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water sources. Investment projects may even violate community members’ human rights, or result in communities completely losing their lands. Given these challenges, CCSI partnered with Namati, a legal empowerment organization, to produce two guides aimed at supporting communities and their advisors in their interactions with land-based investors. This Guide (Guide 1) sets out practical guidance to help communities and their advisors to prepare before potential investors arrive, and after an investor has approached a community. It covers topics and activities such as visioning a community’s desired future, understanding how valuable the land is for the community, and ensuring the inclusion of all voices within community decision-making, as well as pointers on meaningful consultation, information access, and knowing the community’s rights. A related publication, Guide 2, provides practical guidance on the issues to consider when a community has decided to negotiate a contract with an investor. Using example clauses, and guidance boxes for community discussion and seeking legal advice, it describes all of the various sections and clauses that should be in a contract, advises what protective language to try to include in the contract to make it enforceable, and warns against types of problematic contractual language that should be avoided. The guides are designed to apply to agriculture and forestry projects, although may have some applicability to agreements reached in other contexts, such as around mining or renewable energy projects

Five Years After the Adoption of the Paris Agreement, Are Climate Change Considerations Reflected in Mining Contracts?

Domestic laws are the ideal legal instrument to regulate the mining sector’s contribution to climate change mitigation and adaptation. Even so, as a stop-gap-measure, governments may consider updating model mining development agreements (MMDAs) or negotiating climate­-related contractual provisions. This CCSI paper explores whether governments are using, and how they can use, investor–state mining contracts to advance climate goals. We synthesize our findings and recommendations for six categories of provisions: integrating renewable energy into mining products, reducing deforestation, requiring a climate risk assessment and community vulnerability assessment, regulating water use, requiring tailings dam design justifications, and integrating climate risks into closure plans