Community Protocols: Can They Be a Tool for More Balanced, Interest-Based Negotiation Between Companies, Communities, and Governments?

Given our recent work to better understand how greater transparency around extractives revenues might affect Indigenous Peoples, and CBI’s body of work in company-community consensus building, we were invited to attend an international symposium on community protocols, hosted by Natural Justice, and the Henrich Boell Foundation.

Eighty-five (85) participants from NGOs, academic institutions and foundations from all over the world gathered at the Heinrich Boll Foundation headquarters in Berlin on April 14th to discuss findings from a recent project on community protocols: Community Protocols and the Extractive Sector. Two years into the project, the symposium aimed to discuss the project’s findings with a global group of experts and organizations with experience in community engagement with industry. This exchange will be used to inform a final publication about the project, highlighting good practices and challenges for community protocols for extractive industries.

Through participating at the symposium, I wanted to explore whether community protocols could be used to help bridge the gap between community members, government agencies and extractive companies.

In many developing regions of the world, significant natural resource wealth rests with Indigenous and Tribal communities. And yet, Indigenous Peoples have suffered disproportionately from negative impacts of extractive activities in their territories: lack of consent, control, recognition, and benefit, and even outright theft and violence.

Community protocols are one response to the barriers many communities face in engaging in fair and effective decision making about extractive industries on their territories. The protocols articulate customary rules and procedures that regulate interactions between the communities and external parties. Those rules and procedures may not be known or understood outside the community - a written protocol provides a means to formalize and make explicit these norms. Communities might also include other information, including their vision for the future and information about their territories. The protocol can also be a tool to build consensus and address disagreements within the community. The protocol is a way to link customary approaches to managing resources with national or international legislation.

Natural Justice, collaborating with local partner organizations, piloted the development of community protocols with four communities affected by the extractive industries in Argentina, India, Kenya and Zimbabwe. The use of the protocol is determined by the community that develops it. The symposium included sessions lead by project leaders from each community highlighting their experiences.

Participants at the symposium were also provided with a beautifully designed “Community Protocols Toolbox” containing five guides that were developed from the project:

• Considerations for facilitators
• Methodology and tools
• Process to develop and use community protocols
• Community protocols and the extractive industries
• Legal elements of community protocols

Observations on the Natural Justice project

The four communities’ work on the development of community protocols was impressive. In the Lamu region of Kenya, a community is developing its protocol to address a new transport corridor, in addition to coal and natural gas development. This resulted in the creation of a new civil society umbrella organization. This organization helped communities affected by the project to better understand and use existing laws in Kenya on environmental assessment.

In a community affected by Zimbabwe’s diamond mining fields, the committee overseeing and facilitating the community protocol was made up of equal numbers of men and women to ensure women’s interests were well represented. Traditional male leaders also participated. Previously, the government had been appointing their own traditional leader to consult. The work of the committee resulted in a shift: government began consulting through a traditional leadership structure. The committee also worked to engage the government on the issue of displaced homeless women and their urgent need for housing. The Zimbabwean experience echoed CBI’s finding in the Philippines, from our inquiry on the extractive industries transparency initiative (EITI). In the Compostela Valley, traditional decision-makers were included in determining who would represent Indigenous communities in the EITI multi-stakeholder group (MSG) for the region. This helped foster legitimacy and recognition for the MSG among local people and government.

Some communities saw value in developing negotiation skills: the group in Zimbabwe identified a need for, and intensively participated in interest-based negotiation training. However, the project-affected community in Zimbabwe explained that currently, there is far too much distrust and impunity around previous allegations of human rights violations to have tripartite engagement with government and companies.

How will the protocols be used?

There are two ways to understand what difference a community protocol can make: what happens through the process of creating a protocol, and how the outcomes of the protocol are used. Through the process, community members’ capacity was increased, wider networks were built, particularly where “community” spread over remote landscapes, and community members developed better understandings of existing laws in that jurisdiction.

Developing the protocols helped project-affected communities to level out the playing field. For example, in Lamu, prior to the community agreement, community members found out about the proposed industrial development and extractive projects through the media rather than a consultation process.

Symposium participants debated whether using community protocols to negotiate with companies was a desired or constructive outcome. Many participants expressed frustration that there is no existing pathway to “no” for a community, particularly in environments with weak government institutions, or countries with ineffective or inaccessible legal systems. Several participants voiced concerns that if the protocols were shared, it could then facilitate companies realizing their project aims with or without the consent of communities. There was broad agreement that the development of protocols enabled community members to be informed and better able to participate in decision making with other community members. The protocols helped information to flow in two directions: information about proposed extractive projects was provided to project affected people, and community members provided information gathered through the protocol to government or private sector actors. The aim was to produce a strategic tool for the community to develop their own criteria for giving or withholding consent for an extractive project.

Can community protocols strengthen the capacity of communities to negotiate with companies and governments?

Private sector and government representatives were not invited to participate in this event. The symposium organizers’ view was that the protocols provide a vehicle for community driven advocacy strategies, strengthening rights based approaches thorough litigation and advocacy. The organizers noted that the protocols lead to community members’ increasing awareness of their legal rights. It would be interesting to understand how the protocols could provide a channel for community driven, interest-based negotiation strategies. If the community protocol is to be understood, respected and places expectations for action on governments and companies, shouldn’t government and private sector actors also learn about the protocols? This could enable the protocols to inform more thorough company-community engagement, better mitigate disputes and allow private sector and government to better understand the needs, interests and hopes of the community.

The project currently frames community protocols as a legal empowerment process – a way to plan a vision for the future involving increased regulatory authority through monitoring. While monitoring locally and gathering high quality data is an important step to asserting community voices, community protocols could also be used to strengthen a community’s capacity for negotiation with extractive companies and government. If community members are trained in problem solving techniques, without giving up their interests and priorities, community institutions will be strengthened. This can help communities to build up stronger units of governance, and be better positioned to engage the private sector and government as a means to create better outcomes when communities are affected by extractive industries.

When community rights holders and stakeholders learn new problem solving techniques, communities find ways to be better represented in their engagement with external actors. Beyond building stronger units of governance, this can allow community members to participate in decision making shaping their development concerns.