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FAO/UNEP/UN-Energy Bioenergy Decision Support Tool -
MODULE 6: People and Processes
Box 1: Land Rights in Mozambique
Under Mozambique’s Land Act, community consultation must be undertaken regardless of whether the land has been registered.
The consultation process is required before land use rights are allocated to investors; the specifc purpose of this consultation is to
ascertain that the land area is “free” and “has no occupants” The mandatory community consultation process is meant to pave the
way for the negotiation of beneft-sharing agreements between local groups and the investor applying for land.
While this model looks interesting, some shortcomings in the design and implementation of the community consultation process
have been identifed. The system is centred on a one-off consultation between the investor and the community. This is at odds
with the long-term duration of land allocations and forest concessions. In practice, several agreements between communities and
investors emphasise one-off compensation for loss of land rights rather than long-term beneft sharing; such compensation may be
small compared to the value of the forest concessions acquired by the investor. In addition, there are no established mechanisms to
monitor compliance with the agreement on the part of the investor. No effective sanctions exist in case of non-compliance.
Moreover, the implementation of these provisions has been beset with diffculties. In many cases, consultation processes only involve
a few community members, usually customary chiefs and local elites who may monopolize the benefts. In some cases, the consulta-
tion did not take place at all – or at least there was no record of it. Even where consultation takes place as required, communities
generally lack the bargaining power and technical skills to negotiate with foreign investors on an equal footing.
Government authorities have taken steps in some cases to reduce what are perceived to be constraints on investors’ access to land.
In October 2002 a government decree set a 90-day time limit for the processing of investor land applications (including community
consultations). The tightening of the legal regime around local consultation processes is putting pressure on the quality of these
processes. Although the period of 90 days may seem suffcient, the signifcant power asymmetries between private companies and
local groups suggests the need for sustained investment in time and effort in order to build local capacity to engage in consultations
and negotiations.
Government interventions to ease the requirements and reduce the time set aside for community consultation came partly from the
assertion that such requirements impose an excessive burden on investors and may therefore discourage frms from investing in
Mozambique. However, much of the burden perceived by investors appears to be linked to bureaucratic requirements imposed by
government agencies rather than by local consultations per se. The effectiveness of Mozambique’s legislation in securing land access
for poorer rural groups when areas are allocated for biofuels plantations remains to be seen (Cotula et al, 2008).
Source: Cotula et al, 2008
LAND RIGHTS AND ACCESS
A signifcant concern with bioenergy projects and programmes is
the assurance of existing land rights and access to land for small
farmers. Since many regions operate under both customary and
formal systems, there can be ambiguity in the allocation of land
rights when competing claims arise, and the economic weight of
large domestic or foreign investors complicates the preservation
of local residents’ rights. More secure land rights can be accom-
plished through various means, such as a land registry, formal
mechanisms for grievances and disputes and improvements in
the legal status and recognition for customary land access rights.
Even where rights may be formally granted, there can be differ-
ences and disputes as to how the state interprets whether land is
idle or the meeting of any specifed “productive use” requirement
(Cotula et al, 2008). In some cases, the existence of a land
registry and related mechanisms does not necessarily provide
an easily implementable solution; an example if Mozambique
suggests that more clarifcation in procedures is required (Box
1). Clearer defnitions of concepts of idle, under-utilised, barren,
unproductive, degraded, abandoned and marginal lands
(depending on the country context) are required to avoid alloca-
tion of lands on which local user groups depend for livelihoods
(Nhantumbo et al, 2010). Similarly, productive use requirements
in countries in which security of land tenure depends on active
use (mise en valeur) need to be clarifed so as to minimise abuse
(Palmer, 2010).
RELATION TO OTHER SECTORS
The role of governance in supporting greater sustainability in
developing and managing large-scale modern bioenergy systems
is only starting to emerge since only a few countries have had
large-scale bioenergy programmes (again, Brazil is an exception).
In some cases they will be similar to those in the agriculture or
forestry sector, although there are additional dynamics involved as
energy policy issues enter the equation. Some evidence suggests
that the addition of bioenergy options can in some cases force
a greater level of accountability on the part of investors and
resource owners compared to typical experience in the agriculture
and forestry sectors (CIFOR, 2010). The additional scrutiny when
international investors are involved and the development of
international commodity markets rather than domestic markets
appears to be a factor.