"How does a company respect human rights when attempting to acquire land for infrastructure projects or mineral exploration in countries where national law permits expropriation by the government seeking to attract the company's operations, even if landowners have not agreed that the compensation offered for their land is adequate or where land rights might be uncertain?"

The dilemma for responsible businesses is how they can successfully pursue projects involving land acquisitions and community relocations without abusing the rights of communities. The dilemma is particularly relevant in the extractive and infrastructure industries, but may also involve the tourism industry or the agricultural sector.

Conflicts involving community relocation are prominently featured in the media and highly sensitised as they often involve most vulnerable groups, for example indigenous peoples. Businesses thus face a range of risks associated with the failure to fulfil the responsibility to respect the rights of local communities with respect to relocation.

The scope and impact of community relocation

Community relocation is often a consequence when mining or infrastructure projects necessitate the acquisition of land which will impact local communities in a way that remaining on the respective land will be implausible or impossible for those communities. Such resettlements deeply impact local communities and thus need to be approached with adequate sensitivity.

Community relocation may impact positively and negatively on the right to property, the right to self-determination, the right to health, the right to housing, the right to water, and the right to food.

Resettling communities means that residents may lose land on which their families and ancestors have lived for centuries. It is land which has provided the conditions to support the residents' livelihoods for many years. Their social life is situated among their neighbours. Children have grown up to go to the community school. Some groups, particularly indigenous groups, may attach spiritual or religious meaning to the land. Resettlement means more than the loss of the home to the local communities and thus financial compensation is not always a straightforward solution.

Voluntary and involuntary resettlement

Resettlement may be voluntary or involuntary. Involuntary resettlement has a double impact on communities: they lose their land and livelihood and their leaving the land is involuntary. Local laws may allow for expropriation but fail to provide for adequate resettlement and compensation systems. While businesses have to respect local law, the failure to live up to their corporate responsibility to protect the human rights of local communities in the case of relocation and resettlement, will result in serious other legal, reputation, operational, financial and other risks and consequences.

In the case of voluntary and particularly involuntary resettlement, responsible MNCs have to be diligent in avoiding conflict with local communities when community relocation is necessary. Community opposition has brought to a halt many extractive projects and cost companies their investments. Additionally, MNCs may face costs related to work delays and lost working time, but also costs and negative impacts related to the destruction of property during community protest, security forces employment and the risk of use of excessive force against protestors.

Companies can reduce the impact of these serious risks to the community and to business continuity, as well as to corporate reputation, by implementing adequate community engagement strategies from the very start, even before the acquisition of land.

Community resettlement means physical displacement as well as economic displacement and subsequent risk of loss of livelihood. Physical displacement is the actual relocation and the loss of previous shelter. Economic displacement refers to the loss of assets or access to assets leading to loss of income sources or means of livelihood.1

Voluntary resettlement concerns situations where the seller is not obliged to sell and the buyer may not resort to expropriation of land or other compulsory measures should negotiations with the seller fail.2

Involuntary resettlement takes place when communities do not have the right to reject land acquisition and resettlement. Involuntary resettlements occur in the case of:

• Land expropriations based on the principle of eminent domain
• Negotiated settlements when the buyer may expropriate or restrict access on land use if previous negotiations have failed

In these cases, the seller(s) do not have the option to refuse selling the land which leads to an imbalance in the negotiation powers. For example, in the past, sellers often accepted inadequate compensation for fear of losing even more when expropriation procedures are commenced. Communities may also lack access to information on market prices which puts them in a weaker position vis-à-vis the buyer.3 More seriously, local communities, especially indigenous communities, may not possess formal entitlement to land, therefore making proof of eligibility for compensation difficult or, worse, impossible in law.

Without proper management of community relations and subsequent relocation, re-settlement, particularly when it is involuntary, may have long term effects on the community including impoverishment, environmental damage and social stress. It is thus imperative to minimise and mitigate the risks of such results and human rights abuses. According to the IFC it may be advisable to avoid involuntary resettlement procedures.4

Real-world examples

Authorities in DRC order community to relocate closer to a minefield to make way for investor plans

In the beginning of March 2011, municipal authorities in DRC ordered a community of more than 1,000 people in eastern DRC to move toward a suspected minefield because authorities want to make room for investors to build hotels, shops and restaurants. Authorities told the community to move away from the said land within 30 days and began demolishing shacks and makeshift homes in mid-March. The dimensions of the suspected minefield are unclear. Handicap International Belgium and UNMAC were to clear the minefield over the next couple of months, but with their houses destroyed within a short amount of time, villagers will be at risk of falling victim to land mines when building their new homes.5

SA Human Rights Commission deems community relocation as adversely affecting community

The South African Human Rights Commission (SAHRC) commenced an investigation into the relocation of a community inhabiting areas surrounding the Potgietersrus platinum mine in Mokopane, Limpopo province, by Anglo Platinum (Angloplat). The SAHRC deems the relocation to adversely affect human rights but does not state whether human rights abuses were committed by Angloplat.6 The investigation had been triggered by the report "Precious Metal" published by the NGO ActionAid in 2008. The report alleges, for example, that the communities were offered inadequate compensation and lost farm land which had been the source of their livelihoods without adequate replacement. According to the report, villagers refusing to relocate had electricity and water cut off and alleged company responsibility. Additionally, water in the local river is alleged to have been contaminated by mine waste.7 Angloplat rejected the allegations made in the report by ActionAid but welcomed the SAHRC report which produced recommendations about mitigating the risk of human rights violations in the course of community relocations.

Violence erupts over community relocation in Guatemala

In September 2009, a teacher was killed over talks to arrange a community's relocation in El Estor, Guatemala, in an area surrounding a large nickel reserve to be developed by Canada's HudBay Minerals Company. The violence erupted when security guards hired by HudBay's Guatemala unit, CGN, clashed with residents. Community members claimed that land occupied by the company had once belonged to their ancestors and refused to leave. The security guards allegedly opened fire against the community members leaving a number of persons wounded. HudBay stated that most local residents have complied with the resettlement agreement but some remained on the site illegally.8

Investors including World Bank consider financing controversial Mongolian mining project

In September 2012, the Board of Directors of the World Bank announced it would consider helping fund a copper and gold mining project in Mongolia, despite its own acknowledgement of potential adverse effects. Rio Tinto's Oyu Tolgoi (OT) mine has faced severe local resistance, particularly in regards to the damage it may cause to both the fragile South Gobi ecosystem and the traditional way of life of nomadic herders in the region. The company has released an Environmental and Social Impact Assessment (ESIA), but this has been criticised for merely covering the project's construction phase, which is already 94% complete. It is suggested that potential investors, who also include the European Bank for Reconstruction and Development, The US Export Bank, and BNP Paribas, should not consider financing the project until the ESIA has been expanded to include all key stages, including operations and decommissioning. According to OT Watch, an organisation working with affected herders, consultation with the nomads has been ‘deeply flawed and inaccessible', with insufficient notice given for meetings, and a dearth of available Mongolian translations of the ESIA. Among the unaddressed concerns over the project are the effects of a company-owned international airport near to the herders' reserve pasture, and the 450 megawatt coal-fired power plant that will be built to help power the development.9

Relocation by mining company of South African communities disrupted by poor stakeholder communication

In 2007, after a long period of planning beginning in the late 1990s, the process began of resettling 957 households close to Anglo American's Mogalakwena platinum mine in Limpopo Province, South Africa. The site of the two villages concerned had been identified as the only viable location for the dumping of waste rock. While, by the end of 2008, nearly 900 households had been successfully relocated, around 60 had refused to move. In addition, a considerable number of adolescents did not move with their families, instead choosing to establish new households on the old site. The stand-off that ensued between Anglo American and the remaining households caused both delays to mining operations and the attraction of a significant amount of negative press coverage, damaging the company's reputation. In particular, because not all of the households relocated, those that had did not receive certain benefits promised to them. In 2012, the company was still negotiating with the remaining villagers over their relocation. Review of the relocation planning process has shown an ineffective management of stakeholder relations, including the exclusion of local adolescents from decision-making, and the lack of a robust grievance mechanism. In addition, ad hoc monitoring and the inconsistent implementation of corrective action are seen to have exacerbated the situation.

• See dilemma analysis on Indigenous peoples for further information about how to fulfil the responsibility to respect indigenous rights.
  
  

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Resettlement of local communities profoundly impacts the livelihoods of community members. Conflicts with local communities can arise during all stages of the relocation process. Many conflicts and dilemmas result from a lack of adequate engagement, management and planning before the project is to be launched. Often, community members are not adequately consulted or not consulted at all. According the World Resources Institute's report "Development Without Conflict", effects of project decisions on communities are often life changing. Any of those decisions can have profound and long-term impacts on the lives, livelihoods, and development of those communities, both in a positive or negative way.10

Community relocation and the extractive sector

Extractive industries, particularly in emerging or developing countries, can be one of the most important sources of national income. Where revenues are fairly distributed and reinvested in education and health infrastructure, they provide important avenues for the development of disadvantaged or poor communities. Development opportunities include the provision of infrastructure and employment for often disadvantaged and/or isolated communities.

Projects in the extractive sector often require the resettlement of communities due to their scale and inherently disruptive impacts on surrounding communities and land – for example, in respect of dust, noise and water. However, resource-rich developing countries do not yet have in place adequate legal mechanisms and governance systems to address resettlement issues.

Many companies in the extractive sector still fail to mitigate harm resulting from the adverse impacts of their operations on local communities. Affected communities, among them vulnerable indigenous groups, may oppose such projects from the very beginning if they fear negative impacts. Community protests may result in violent and sometimes fatal clashes with company security personnel, perhaps inadequately trained to prevent tension. Road blocks may prevent companies from entering the extractive site or bringing in equipment and pose risks to business continuity.

These negative outcomes and impacts often result from a lack of implementation of effective community engagement programs from the outset. The exploration permit issued by local authorities provides companies with the legal license to operate on community land, but not necessarily a "social license to operate".

In some instances, for example in the Philippines, obtaining the free, prior and informed consent of indigenous communities actually amounts to a legal prerequisite in order to obtain an exploration permit.11

In its study, "Breaking Ground: Engaging Communities in Extractive and Infrastructure Projects", the World Resources Institute states that community engagement often falls short due to the "failure to understand local political and community dynamics, or a failure to fully engage all local stakeholders affected by a project."12

Large scale land acquisition in the agricultural sector

A renewed interest of businesses in large-scale acquisitions of agricultural land, particularly in sub-Saharan Africa, stirs concerns about possible infringements of the rights of local communities, including indigenous peoples.

According to a new report "Foreign Land Deals and Human Rights" supporting the mandate of the UN Special Rapporteur on the Right to Food published recently in 2010 by the Center of Human Rights and Global Justice at New York University School of Law, interest in agricultural land stems from a variety of factors, but is predominantly led by demand to produce food overseas due to food price volatility, scarcity of resources and fast-growing populations. Another factor is an interest in biofuel production.

Large-scale land investments can have positive effects on local communities. According to the World Bank report "Rising global Interest in Farmland", demand for agricultural produce can foster social and economic development. Local communities can benefit from those investments through partnerships with investors and employment generation.13

However, the report Foreign Land Deals and Human Rights highlights that "[l]arge-scale land investments can negatively affect many human rights, including, but not limited to: the right to water; the right to participation; the rights of indigenous persons; the right to adequate housing, including the right to not be forcibly evicted from one's home; the right to an adequate standard of living; the right to non-discrimination and equality; the right to self-determination; the right to development; and the right to adequate remedy."

Hydropower projects

The construction of hydropower projects like dams is a major source of displacement. Dams provide much needed electricity for countries to provide to their own populations as well as export opportunities. For example, dams ensure energy proficiency in regions in Africa cursed by chronic power shortages. The much criticised Gibe III dam in Ethiopia could nearly double Ethiopia's electric capacity. The NGO No Water No Life (NWNL) estimates that in the long-term, the dam may contribute to food security by making flooding more controllable. The NGO suggests that infrastructure projects associated with the dam such as storage facilities and new roads for food and water distribution could alleviate problems of rain-dependency in agriculture which currently contribute to a lack of food and to poverty in the region.14

However, the immediate environmental and social impacts of dam construction on the surrounding land and communities are significant. Natural flooding is deterred so that existing farm land becomes unsuitable and harvests are destroyed. Factory waste and flooding may impact the surrounding land and communities. These farmlands often provide the livelihoods and secure income for local communities. By interfering with these lands, communities may be forced to relocate to find other sources for their livelihoods. This may include lands which communities have occupied and cultivated for generations.

Dam construction and maintenance projects in emerging or developing economies are often undertakings supported through international development aid and involve foreign governments, host state-owned enterprises, various companies including construction, energy and electro- and hydro-mechanical businesses as well as banks providing for loans. Projects involving a variety of actors raise the need for companies to ensure that stringent risk management systems are in place to mitigate human rights risks which may originate from e.g. business partners, suppliers and governments.

Resettlement of indigenous groups

When dealing with land inhabited by indigenous peoples, companies encounter higher and stricter standards which they have to meet before entering into such land. Indigenous standards and practices may be unknown or foreign to company staff and conflicts may result from a lack of understanding and communication.

The land indigenous peoples have traditionally owned, occupied or otherwise used is extremely significant; it can aptly be described as a physical representation of their culture, spirituality and identity. Moreover, the land often represents the source of food, medicine, clothing and shelter and provides the basis for self-government and economic viability. Spiritual attachment and a sense of collective belonging to land – including in relation to burial rituals – is an especially salient issue for indigenous peoples.15

Commercial activities ranging from natural resource extraction, ranching, infrastructure projects, tourism and bio-prospecting can put immense pressure on land held by indigenous groups. This can be compounded by unclear property rights arrangements which are a vital issue for businesses to consider prior to investment.

• See dilemma analysis and case studies on Indigenous peoples

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Examples of scenarios companies might face when operating in emerging economies include:

Brazil: As part of the "Accelerated Growth Programme", the government recently allowed the construction the Belo Monte dam on the Xingu River in the Amazon, which would be the world's third largest dam.16 Survival International contends that as a result large areas of land would be flooded, parts of the Xingu River would dry out, large parts of the rainforest may be destroyed and fish stocks may be reduced impacting on the rights and livelihoods of the local peoples, including tribal communities. 17 An estimated 20,000 people are expected to be displaced and approximately 50,000 will be negatively affected by the dam. Construction of the dam has been met with criticism and legal action in the past. The Brazilian Federal Public Prosecutors Office, for example, objected to the project. Many local communities are protesting against the construction.18 On 3 September 2012, the Para state federal prosecutors filed an appeal to the Brazilian Supreme Court to halt construction of the dam until consultations are held with affected indigenous peoples, claiming that under the democratic principles of due legislative process and self-determination, as guaranteed by the Brazilian Constitution, Congress cannot allow the project to go ahead without giving a voice to those it will most adversely affect.19

China: According to the NGO International Rivers, the world's largest hydropower project, the Three Gorges Dam inChina, has displaced 1.2 million people and has a notorious reputation for resettlement issues and human rights violations in addition to corruption.20 After hailing the dam as an important national accomplishment, the Chinese government, in 2007, acknowledged the disastrous social and environmental effects on surrounding land and populations.21 According to the Chinese government, problems include resettlement of population and environmental protection.22 There have also been recent reports of protests against government land-grabs, in the south-western province of Yunnan, in April 2012,23 in the southern province of Guangdong, in September 2011,24 and in the north-eastern province of Liaoning, in September 2012.25 Many plots of land are being seized illegally with little or no compensation for their occupants, and riots which have flared up as a result have turned violent.

India: The country holds one-eighth of the world's bauxite reserves, most of which lie in Orissa, an indebted state with high levels of poverty. Orissa is highly dependent on the revenues generated by the mining industry. According to Amnesty international (AI), the state remains one of India's poorest states despite significant investments in the extractive sector. AI alleges that communities, many of them indigenous peoples, in the area have been effectively excluded from the decision-making process as to their land. In July 2011, the Orissa high court upheld a rejection of a bid by Vedanta Aluminium to expand is refinery in Lanjigarh, concurring with findings by AI that this would violate the local community's rights to water, health, and a healthy environment.26 However, India's constitution and the 1996 Panchayats Act require authorities to consult village councils before acquiring land for development projects on indigenous peoples' land.27 Indian law also provides for a Rehabilitation and Resettlement Bill (2009). The policy covers rehabilitation and resettlement of displaced persons in all cases of land acquisition and in other cases of involuntary displacement. It requires a social impact assessment and provides for grievance mechanisms including the Land Acquisition Compensation Dispute Settlement Authority.28 Nevertheless, the Adivasi and other marginalised communities have complained that recent protective legislation is not being properly implemented, allowing unfair challenges to their traditional land rights for the purpose of, among others, corporate extractive and irrigation projects.29

Pakistan: According to the Human Rights Commission of Pakistan's, ‘Status of Human Rights in 2011' report, encroachment on public and private land continued during the year, highlighting the case of two Pakistan Fisherfolk Forum activists murdered after garnering support to save mangroves from land grabbers. Commercial use of residential areas also continued in 2011, often leading to rising rent prices, and the subsequent displacement of residents no longer able to afford the cost of housing. Government action against illegal land grabs has often proved inadequate due to political party involvement in the activity. This led the director of general planning at the Capital Development Authority to state that his department could not launch an operation against the ‘influential people' involved in the encroachment of over 1,000 square feet of land in Islamabad.30

Philippines: Extractive companies in the Philippines have to acquire a certificate confirming the free, prior and informed consent (FPIC) of indigenous peoples in order to obtain an exploration permit on ancestral lands in accordance with the Indigenous Peoples Rights Act (IPRA, 1997). The rights granted to indigenous peoples and indigenous cultural communities include territorial domain, self-determination, and the right to practice customary laws, cultural integrity, and property, as well as the right to consent to development projects in their communities. The National Commission on Indigenous Peoples (NCIP) enforces this requirement. Any project to be conducted on indigenous land has to go through a process of Certification Precondition/Free and Prior Informed Consent including consultation and negotiation with the concerned communities and review by the NCIP.31 From January to August 2011, the NCIP awarded Certificates of Ancestral Land, and Ancestral Domain Titles claimed by indigenous people, to stop the sale of such lands by tribal leaders. However, similar approvals for ‘ancestral sea' claims have been limited, with continuing conflict, poverty and lack of access to seas causing the displacement of a large number of the Sama-Bajau tribe, in western Mindanao.32

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Legal risks

Companies are exposed to myriad legal requirements on the international and domestic level when having to relocate communities. Community relocation can infringe a number of human rights enshrined in the International Bill of Human Rights which includes the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights.

If not carried out properly, community relocation can impact the right to self-determination, the principle of equality and non-discrimination, the right to religious freedom, the right to freedom of movement, the rights to access to food and water. Stemming from the right to self-determination, the UN Declaration on the Rights of Indigenous Peoples33 and the ILO Indigenous and Tribal Peoples Convention C169 require the free, prior and informed consent when resettling indigenous peoples.

Community opposition may result in protests countered with violence from public or private security employed by the company to protect its assets. The Voluntary Principles on Security and Human Rights require participants to ensure the security of the local communities they are operating in. Companies are to conduct risk assessments so as to understand and mitigate human rights and security risks resulting from the employment of security forces. Improper management of relations to security personnel may not only result in the violation of the Principles but also in complicity in crimes.

In addition to international requirements, many countries have domestic laws in place to protect the rights of local communities including indigenous groups. In the Philippines, for example, exploration permits on indigenous land are only issued when free, prior and informed consent is certified by the National Commission for Indigenous Peoples. The cases below illustrate how the failure to adequately consult and engage with communities with respect to resettlement requirements, may result in negative consequences including the revocation of exploration permits.

National Human Rights Commission alleges community relocation abuses by OceanaGold Philippines

On the basis of alleged violations of the rights of indigenous people, the national Commission on Human Rights of the Philippines (CHR) issued a resolution recommending that the provincial administration of Aquino revoke the Financial and Technical Assistance Agreement (FTAA) which had been issued to OceanaGold Philippines Inc. CHR alleges that some indigenous inhabitants of the land adjacent to the Didipio mine in Northern Luzon, Philippines, exploited for gold by the company, had been forcefully evicted. In a complaint filed with CHR in June 2008 residents accuse OceanaGold of setting on fire and bulldozing off cliffs 187 houses without a valid court order and without providing adequate relocation as required by Philippine law.34 In a statement released by OceanaGold, the company rejected the claims and insists it has met "the human rights of the local community".35

Orissa bauxite mining project temporarily barred by Indian Supreme Court

Mining company Vedenta had its plans to extract bauxite in Orissa, India, rejected by the government based on forced evictions, breaches of environmental laws and other concerns for the rights of local tribes. The Dongria Kondh indigenous tribe said that the mining project would have destroyed a sacred hill which provides their source of livelihood.36 The Indian government also plans legal action against the company following a report commissioned by the Ministry of Environment and Forests alleging violations of forest and environmental regulations. Survival International ran campaign against the mining project and brought a complaint under the OECD Guidelines in the UK. The OECD UK National Contact Point found that Vedenta had failed to engage in adequate consultation with the Dongria Kondh indigenous tribe. Prior to the government rejection, the Indian Supreme Court had suspended the project in 2007 and required a fund set up by the Vedenta and the state-owned Orissa Mining Corporation to set aside 5% of its profits before tax to reinvest in the local community.37 Over the course of the project and allegations of violations of human rights and environmental law violations, the Norwegian government pension fund divested its US$15 million shares in the company in 2007.38 In 2010, the Church of England also sold its shares after pressure from campaigners including Christian groups.39

Reputational risk

Involuntary resettlement in particular also brings with it high risks for the company's reputation which is exacerbated by the instantaneous spread of news across the world via the internet. IFC Guidance Note 5 alerts that a lack of proper planning and management may lead to negative consequences which in turn may affect the company's reputation.40

Community relocation often affects the most vulnerable populations, including indigenous groups. NGOs and representatives working on the community's behalf closely monitor company behaviour and make extensive use of the media to publish any infringements. Often, communities affected by the extractive or infrastructure sectors are very well organised and represented and have the capacity to mobilise quickly to start protest or campaigns advocating against certain projects.

Campaign launched to stop the construction of Gibe III dam in Ethiopia signalling reputational risk

In 2010, International Rivers and other environmental and human rights organisations launched a campaign to stop the construction of the Gibe III Dam in Ethiopia. The organisations allege that the dam threatens the land and livelihoods of 500,000 indigenous people in Southern Ethiopia and bordering Northern Kenya.41 They argue that the dam is the most destructive dam in Africa and will destroy harvests and grazing lands as well as fisheries in the area surrounding the world's largest desert lake, Lake Turkana, in the Omo Valley, a UNESCO World Heritage site. International Rivers alleges that the project violates the right of indigenous peoples to free, prior and informed consent and the right to determine the use of their land as provided for in the UN Declaration on the Rights of Indigenous Peoples.42 According to the organisations, local people were not adequately informed nor were they able to express their opinions. The NGOs warned that the construction of the dam could fuel conflict.43 International Rivers claims that the loan given by Industrial and Commercial Bank of China (ICBC) to Chinese state-owned company Dongfang Electric Corporation for electro- and hydro-mechanical works will damage ICBC's reputation "as a diligent, environmentally responsible bank."44

Operational risks

Legal action arising from the inadequate planning and implementation of community relocation may see the company have its license to operate revoked via preliminary injunctions.

Operational risks may also arise from community protests directly. Cases of community opposition and protests have disrupted work for days and weeks, involving, for example, the blockage of mines and vital roads and infrastructure. Construction may be delayed or disrupted. Protests may be violent and impact on the health and safety of company staff perpetuating work delays in construction and operations. Company facilities, machinery, housing and other assets may be damaged and rendered unusable.

• For example, communities protested Newmont's second stage of expanding its Yanacocha gold mine in Peru and obtained an ordinance protecting a sacred mountain and major source of water from Newmont's interference.45
• Similarly, Barrick Gold's operations in its Cortez Gold Mine in Nevada were halted due to a preliminary injunction issued by the US Court of Appeals for the Ninth Circuit after the US Western Shoshone tribes had filed an appeal.46

Financial risks

The IFC, for example, finances projects which aim to improve the well-being of host communities in member countries, including mining and infrastructure projects involving community relocation. IFC experts appraise projects in accordance with the IFC performances standards. Any of the projects financed by the IFC which involve involuntary community relocation must meet the requirements set out in the IFC Performance Standard 5 and be consistent with the policies in IFC Handbook for Preparing a Resettlement Action Plan. While the IFC recognises that many resettlements will be carried out by the host governments, IFC clients are required to ensure that the outcome of any resettlement is consistent with the IFC's standards and policies.47

• Legal, reputational and operational risks may also lead other investors to back out of the project. For example, the Norwegian Pension Fund ejected Rio Tinto from its pension portfolio due to "grossly unethical conduct" in its involvement with the world's largest gold mine, the Grasberg mine in Indonesia. A report, Fanning the Flames, published by War on Want, had previously alleged serious human rights and environmental abuses.

Company protests have even led companies to shut down mines and abandon projects altogether resulting in the loss of large sums of investment money.

Moreover, costs may arise from legal action or disruptions in operations and work delays. Additional costs may be incurred when violent protests require companies to employ security forces whose actions may result in physical harm or even deaths of company staff and community members which require payment of health related costs and damages. Company assets including equipment, facilities and machinery may have to be replaced resulting in further costs.

Risks to community development

Negative impacts of land acquisition and community relocation may pose a risk to community development. Improper management of community relocation may result in long-term hardship, impoverishment, environmental damage and social stress within the community. Involuntary displacement results in, among other things, the loss of shelter, income, land, livelihoods, assets, access to resources and services.48

When community relocation is properly managed community members can benefit from the project and improve their living conditions, including enhanced access to schools, water supplies and health services. In turn, thoughtful community relocation may enhance community support for the project and boost company reputation.49

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The business and human rights framework

According to the UN "Protect, Respect and Remedy" policy framework50 as recently updated and elaborated in the Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework51 business has a responsibility to respect all human rights. To fulfil the responsibility to respect human rights, the "Protect, Respect and Remedy" framework notes that a responsible company should avoid the infringement of the rights of others and address adverse impacts that may result from its operations. This includes that businesses engage in human rights due diligence52 to the level commensurate with the risk of infringements posed by the country context in which a company operates, its own business activities and the relationships associated with those activities.53

The Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework aim to provide "concrete and practical recommendations" about how businesses can operationalise their responsibility to respect human rights. According to the Guiding Principles, the responsibility to respect human rights requires responsible companies to:

• Implement a human rights policy
• Apply human rights due diligence
• Provide for remediation54

The framework, as clarified by the draft Guiding Principles document specifies the main components of human rights due diligence:

• A statement of policy articulating the company's commitment to respect human rights and providing guidance as to the specific actions to be taken to give this commitment meaning: This policy should be informed by appropriate internal and external expertise and identify what the company expects of its personnel and business partners. The policy should be approved at the most senior level and communicated internally and externally to all personnel, business partners and relevant stakeholders. In addition, it should be reflected in appropriate operational policies and procedures
• Periodic assessment of actual and potential human rights impacts of company activities and relationships: Human rights due diligence will vary in scope and complexity according to the size of a company, the severity of its human rights risks and the context of its operations. Impact assessment must be continuous, recognising that human rights risks may change over time as companies' operations and operating contexts evolve. The process should draw on internal and external human rights experts and resources. Furthermore, it should involve meaningful engagement with potentially affected individuals and groups, as well as other relevant stakeholders
• Integration of these commitments into internal control and oversight systems: Effective integration requires responsibility for addressing such impacts to be assigned to the appropriate level and function. It also requires appropriate internal decision-making mechanisms, budget allocation and oversight processes
• Tracking of performance: Tracking of performance should be based on appropriate qualitative and quantitative metrics and should draw on feedback from both internal and external stakeholders. In addition, it should inform and support continuous improvement
• Public and regular reporting on performance: When reporting, companies should take into account the risks the communication of certain information may pose to stakeholders themselves, or to company personnel. In addition the content of the reports should be subject to the legitimate requirements of commercial confidentiality
• Remediation: Where business enterprises identify responsibility for adverse impacts, they should provide for or cooperate in their remediation through legitimate processes

The following suggestions have been adapted from the business and human rights framework as laid out in the Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework to facilitate the protection of local communities in the case of resettlement.

Human rights and resettlement policy

Companies should have in place a human rights policy affirming their respect for human rights, particularly in those areas where their operations, supply chains or distribution networks may have an impact on human rights.

In addition, companies operating in business sectors that often require the resettlement of local communities should have in place a resettlement policy in accordance with human rights standards as enshrined in the International Bill of Rights.

The World Bank Operational Manual 4.12 details requirements for a resettlement policy and framework. In addition and in accordance with IFC Performance Standard 5, a resettlement action plan should be developed for each project. For example, in line with the Asian Development Bank's Involuntary Resettlement Safeguards, policy objectives can include:

• To avoid involuntary resettlement wherever possible;
• To minimize involuntary resettlement by exploring project and design alternatives;
• To enhance, or at least restore, the livelihoods of all displaced persons in real terms relative to the pre-project levels; and
• To improve the standards of living of the displaced poor and other vulnerable groups55

Community engagement

Build trust with local communities from the outset

Often, conflicts with local communities may arise before resettlement becomes an issue. It is essential that meaningful engagement with local communities is carefully planned from the very beginning so as to avoid any conflicts which may later impact on resettlement planning and implementation, e.g. in the form of community protests which bear high operational and reputational risks for the company. For example, the lack of indigenous community trust may subsequently impact on the capacity to obtain free, prior and informed consent (FPIC) in relation to land acquisition and use, which is a domestic legal requirement in some jurisdictions.

Building community trust should be prioritised as soon as the company decides to invest in a project which may involve community relocation. Companies will benefit significantly from early community engagement processes:

• Building community trust and avoiding conflicts will positively impact on the human rights performance of the company. Community engagement can enhance the quality of risk assessments, contribute to a more complete understanding of local conditions and prevent conflict
• Community engagement enables companies to identify issues, including human rights issues, at an early stage. This allows for early implementation of risk mitigation strategies to avoid conflict and human rights violations and abuses
• Avoiding conflict with local communities will cut costs which may result from work delays and lost earnings as well as reputational costs due to community protests

• For example, costs for community engagement during the development of the Malampaya natural gas project in the Philippines, were estimated at approximately US$6 million with a total project costs of US$ 4.5 billion. Through this investment, the company was able to save an estimated US$50-72 million in work delays. As a comparison, a lack of adequate investment in community engagement for the proposed expansion of the Yanacocha gold mine in Peru cost US$1.69 billion in project delays.56

Have in place effective community engagement processes

Community engagement is at the heart of ensuring fair and adequate handling of community relocation as part of the process to obtain the social license to operate, i.e. to gain the support for a project from the affected communities and stakeholders above simply complying with legal requirements. Often, in a decision to block a project, conflicts with communities may "tip the balance against the companies".57

MNCs should resort to a consultation process in order to mitigate the risks of negative impacts on the community and of subsequent community opposition to the project. IFC Performance Standard 5 requires community and stakeholder consultation processes. This should involve the facilitation of participation of the displaced and of host communities in the decision-making process concerning the relocation. Consultations shall specifically cover the periods of implementation, monitoring, and evaluation of compensation payments and relocation.58

Companies should ensure that those consultations are carried out throughout the project's life-cycle. Communities should be consulted and engaged with on an ongoing basis, particularly when the project involves major changes at a later stage.

The IFC's Good Practice Handbook on Stakeholder Engagement will give important insights on the realities of meaningful consultation and engagement with external stakeholders including affected communities. It is recommended that companies

• Engage with stakeholders at an early stage, i.e. before operations commence. This may mitigate the risk of conflict and improves the probability of amicably resolving challenges when they arise
• Think long term and ensure continuous good relations with stakeholders
• Develop an effective mechanism of stakeholder engagement which is tailored to the project's requirements and impacts.
• Have in place effective systems and processes to manage stakeholder relations like business functions including a well-defined strategy, objective, timetable, budget and allocation of responsibilities.59

Multi-stakeholder panels as facilitators

Often stakeholder engagement processes are not connected to business strategy development and fail to effectively help both stakeholders and companies to assess risks and opportunities.60 The process of assessing community interests and grievances may be facilitated by the implementation of a local multi-stakeholder panel specifically engaging local stakeholders (potentially) affected by community relocation. Such panels often provide commentary or advice on the assessment and improvement of a company's human rights impact in local communities to which the company has committed to respond.

Advantages and benefits of a multi-stakeholder panel include the following:

• Better understanding of the business impact on stakeholders. Local stakeholders have information companies lack in addition to perspectives that companies may not fully appreciate or understand, including a better understanding of the human rights legacy of the business partner or previous operations.
• Informing stakeholders about the reality of business operations. By engaging with the company, stakeholders may obtain insights into the realities of business operations and may thus gain a better understanding of the dilemmas companies face. This helps to reduce stakeholder and community skepticism toward the company.
• Building empathy and trust. If it amounts to an open, authentic, and honest engagement, with both company and stakeholders sharing expertise and speaking freely, a multi-stakeholder panel not only provides networking opportunities but can help build empathy and trust between the company and the stakeholders. This is important because stakeholders also have roles as providers of the social license to operate or as consumers.
• Mitigating risks. As a means of risk management and sustainable business, therefore, multi-stakeholder panels are a proactive approach to reputational concerns and ongoing competitive and business challenges. Dynamic but risk-prone emerging markets provide some of the most attractive business opportunities, while reports on human rights allegations are quickly distributed worldwide over the internet, global media, and social networking sites.
• Preventing disputes. Engaging with stakeholders via a stakeholder panel is especially important with regard to local communities in order to avoid conflicts before they ripen into disputes. While stakeholder panels are distinct from grievance procedures, they promote understanding and contribute to preventing disputes which may be resolved through grievance mechanisms. Panels also allow stakeholder input into how remediation might be designed or implemented.
• Adding value to the business. Engaging a multi-stakeholder panel to advise the company demonstrates the business' commitment to corporate responsibility to respect human rights, thereby advancing the company's credibility and legitimacy both within the local community and abroad.61

A study by the Harvard Corporate Social Responsibility Initiative, The Mechanics of Accountability – Ad Hoc time-specific stakeholder panels, finds that stakeholder panels have emerged at the local level particularly in the extractive industry which often operates in remote areas of the developing world. For example, Newmont Mining Corporation and Cerrejon Coal have employed such panels on the local level involving international stakeholders.62 Another model is a local panel only involving local stakeholders in order to address issues ranging from legacy issues to resettlement.

• AngloGold Ashanti has established a Joint Investigative Group (JIG) with WACAM (the Wassa Association of Communities Affected by Mining), in order to address issues of legacy and current issues at the AngloGold Ashanti Obuasi mine in Ghana. After a 16-months process of meetings and interactions, the two parties held an inaugural meeting in 2007. The JIG is comprised of six representatives, three each from AngloGold Ashanti and WACAM. The group's focus is on human rights, environmental issues, and issues relating to land and post-mining rehabilitation. The group conducted a fact-finding mission, visiting a number of Obuasi communities in 2007 and preparing a formal memorandum of understanding, setting out the group's terms of reference and programme. Additionally, AngloGold Ashanti set up a Monitoring Advisory Group which meets biannually and includes local chiefs, WACAM, Food First Information and Action Network (FIAN) and elected municipal representatives, led by an independent chair.

Settle land disputes with local communities as early as possible

Land disputes are a significant source of conflict with local communities and should be addressed and dealt with as early as possible to avoid exacerbating the conflict potential. For example, while companies may have received title to the land from the government, community members may claim to have paid taxes on the land they occupy and dispute the legitimacy of the land title.

Companies should avoid any conflicts with those claiming title and attempt to amicable settle any remaining disputes. For example, they should plan for and implement a pre-project land consolidation programme. Settling land disputes at this stage of the project will allow for a more streamlined planning and will minimise the potential for conflict at a later stage.

Human rights impact assessment

In order to mitigate and minimise the risks posed by company operations to the rights of local communities, human rights impact assessments are imperative and will provide important guidance on how best to mitigate risks and monitor performance.

Human rights impact assessments63serve to identify and assess the actual or potential human rights impacts of companies' activities and associated relationships prior to and during business activities. The assessment involves:

• Identification of impacted people
• Identification of human rights issues and standards
• Projection of adverse impact on human rights
• Consultations with potentially affected groups

Businesses can mitigate human rights risks when they are fully aware of the potential and actual impacts of their activities on human rights. The human rights impact assessment as proposed by the UN Special Representative serves to understand the impact business activities may have on the human rights of those individuals affected by the company's business activities and to assess how the legal, economic and cultural environment impacts human rights.

The company can then make an informed decision about how to mitigate those impacts by developing mechanisms, procedures and systems integrating human rights into internal strategies and procedures, hence "operationalising" human rights. TheGuide to Human Rights Impact Assessment and Management(HRIAM) is a tool businesses can use to conduct such assessments.64The Guide also provides information on management processes and systems.

Impact assessments in relation to community relocation deserve the highest degree of scrutiny taking into account the life-changing effects resettlement has on the community. For example, IFC Performance Standard 5, detailing requirements for community resettlement, obliges businesses to conduct a "Social and Environmental Assessment" as provided for in IFC Performance Standard 1.

Avoid involuntary resettlement where possible

IFC Performance Standard 5 and World Bank Operational Manual 4.12 both recommend avoiding involuntary resettlement and forced evictions65 where possible and exploring alternative project designs. In the Guidance Note 5 corresponding to IFC Performance Standard 5, the IFC encourages its clients to shun land acquisition resulting in community displacement.66

Prepare a resettlement plan

IFC Performance Standard 5 requires companies to put together a resettlement action plan addressing the impacts of a project. The plan shall mitigate the negative impacts, offer avenues for development and establish the entitlements for the different groups affected by the displacement.

In accordance with IFC Performance Standard 5, a resettlement plan for involuntary resettlement involving the physical displacement of people shall be based on the results of the Social and Environmental Impact Assessment as required of IFC clients in IFC Performance Standard 1 and shall be designed to "mitigate the negative impacts of displacement, identify development opportunities, and establish the entitlements of all categories of affected persons".67

The IFC Handbook for Preparing a Resettlement Action Plan 68 outlines the basic requirements for the involuntary relocation of local communities. It provides helpful guidance as to which factors need consideration and the recommendations may be adapted to different project requirements.

Identify the relevant stakeholders

Companies, before commencing operations possibly requiring community relocation, should get a clear picture of the impact company activities will have on communities. Companies should be sure to assess the structure, constituencies and representation of the community to be able to understand their concerns in relation to the project. The identification of the relevant stakeholders provides the requisite baseline for the social and environmental impact assessment which in turn will serve to establish an efficient resettlement plan.

Companies should conduct a careful assessment so as to have a complete understanding as to who the relevant stakeholders are. They should keep in mind that communities may be fragmented or involve complex structures. Stakeholder identification and analysis provides baseline information which helps companies understand impacts and prepare resettlement and compensation plans.

In accordance with AccountAbility's AA1000 Standard, stakeholders are those individuals or groups that affect or could be affected by an organisation's activities, products or services and associated performance.69 In line with IFC Performance Standard 1 and the accompanying IFC Guidance Note 1, stakeholder identification is an important process involving:

• The identification of individuals, groups or local communities that may be affected by the project, positively or negatively and directly or indirectly, i.e. the displaced communities and the host community receiving community members after the displacement70;
• The identification of broader stakeholders who may be able to influence the outcome of the project due to their knowledge of or political influence over affected communities;
• The identification of legitimate stakeholder representatives including officials, community leaders, and elders.

The IFC Handbook for Preparing a Resettlement Action Plan recommends identifying affected populations through:

• Thematic mapping to identify settlements, infrastructure, soil composition, vegetation, water resources and land use patterns
• A census enumerating and registering affected people
• An inventory of affected assets
• Socioeconomic surveys and studies
• Analysis of surveys and studies, and
• Consultations with the affected populations71

Census and asset inventory

Conducting a census and inventorying affected assets are key components of the human rights and resettlement impact assessment. The census primarily serves to collect information about the affected communities and to establish the beneficiaries of a resettlement plan. It also helps to identify the scope of compensation, income restoration and development opportunities.72

With an asset inventory, companies will get a detailed picture as to which assets are expected to be lost for each household including loss of physical assets, income, income-generating resources. The loss of collectively held assets such as water, grazing areas, irrigation systems and community structures should be accounted for separately. This process should be based on a consultative process with the affected communities to establish a consensus as to the valuation of those assets. Further socioeconomic studies will help identify the implications of such losses to the different groups of community members.73

Vulnerable community members

Particular attention shall be paid to the poor and vulnerable members of the community who may be impacted disproportionately by the relocation. Companies may have to consider different measures to counter imbalances arising from a disadvantaged status due to, for example, race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other issues.74

Eligibility and cut-off date for compensation

In order to develop an appropriate relocation plan, the company should map the impact zones relating to their stakeholders.75 The process of identifying the impacts the project may have on stakeholders involves the gathering of sufficient data, preferably primary data collected during visits to the site and community lands.76

In the case of involuntary resettlement, IFC Performance Standard 5 provides that a census is carried out to identify the persons who will be displaced by the project in order to determine eligibility for compensation. This process also aims to daunt efforts by those who are ineligible to benefit from the compensation scheme. In order to avoid delays and in the absence of adequate government procedures, the company may determine a cut-off period and set a final date to submit claims of eligibility. The company has to ensure that the cut-off period is clearly communicated to the community members. This may entail reaching out to community members who live in remote areas.

Disclose all relevant information

In order for local communities to understand the risks and impacts as well as the opportunities associated with a project possibly involving community relocation, companies should disclose all relevant information and ensure that it is properly communicated to community members in helpful and clear ways in order that local communities can engage with the company in an informed way. This will provide the basis of the relationship with the community involving consultation and participation in the process of relocation.77

Disclosure of information should be timely. This means that companies should make an effort to make such information available to the communities from the very beginning of the planning of the project. This means that companies should disclose such information prior to commencing any activity on the inhabited land.

Aware that education may be a pre requisite to understanding the information provided by companies to local communities, the former should include information about:

• Purpose, nature and scale of the project;
• Duration of the project activities;
• Risks and potential impacts on communities78

Honour the principle of free, prior and informed consent

As involuntary resettlement shall be avoided where possible by exploring alternative project designs, voluntary resettlement will benefit from obtaining the communities' free, prior and informed consent and will minimise and mitigate the risk of complicity in human right abuses as well as the risk of community opposition.

However, in accordance with IFC Performance Standard 5, any involuntary resettlement process should involve an informed consultation and participation process.79 The provisions require including the views of the affected communities in decision-making processes related to resettlement and livelihood restoration, including options and alternatives. Consultation and participation of the communities should continue during planning, implementation, monitoring and evaluation payments.

When resettlement is involuntary, a consultation process based on the concept of free, prior and informed consent will minimise the risk of community opposition to the project and to maximise the enjoyment of the community members' rights.

The concept of free, prior and informed consent

Free, prior and informed consent is the principle whereby host communities have the power to decide whether a project may be carried out on their lands prior to operations, but also includes an ongoing process of community engagement and consultation. Originally, the principle of free, prior and informed consent aimed to protect the rights of indigenous peoples, but is now increasingly seen as a key component to protect the rights of all host communities. It is a collectively held right and may not be exercised by individuals alone, i.e. it does not give individuals veto power.80

The concept of FPIC stems from the right to self-determination of peoples as provided for in the International Bill of Human Rights. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights state in their Article 1 paragraph 2 that "[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence."

Article 10 of the UN Declaration on the Rights of Indigenous Peoples states that "[n]o relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned..." Redress and compensation has to be provided when indigenous property was taken without the FPIC of the community. Additionally, states have to ensure that hazardous materials shall not be stored or disposed of on indigenous land without the free, prior and informed consent of the group.81

The ILO Indigenous and Tribal Peoples Convention C169 states in its Article 16 that relocation shall only take place with the indigenous peoples free and informed consent. Where consent may not be obtained, relocation shall follow appropriate national legal procedures. According to Article 7 of the Convention this implies that indigenous and tribal peoples "have the right to decide their own priorities for the process of development" and shall "exercise control, to the extent possible, over their own economic, social and cultural development".82

The impact of community consent

While eminent domain may still be evoked in order to claim land rights for a project, obtaining consent will save the company from conflicts which may arise when the local community feels excluded from the process. Eminent domain shall be used as a last resort, for example when consent cannot be obtained from a small number of community members while the rest of the community has provided consent. 83 One author argues that FPIC balances national interests with community rights. Accordingly, it would not be in the national interest when a lucrative mine "was held hostage by on absentee family with a house on the lode" and thus eminent domain could be invoked.84

While international or domestic standards generally only require free, prior and informed consent when resettlement involves indigenous groups, there is a strong business case to apply the principle with respect to all impacted communities.

The World Resources Institute has examined the business case for community consent in its publication Development without Conflict – The Business Case for Community Consent and provides the following examples of the advantages and benefits for companies ensuring community consent:

• Business risks can be better mitigated and viability of the project can be secured
• Community opposition can be avoided
• Companies will save costs which they would otherwise incur in responding to community opposition
• Adverse effects on the interests of other stakeholders including shareholders, financiers and host governments can be minimised
• Achieving consent may resolve community reasons for opposition more fully whereas consultations will not ensure assurance against conflict85

In the case of current and ongoing projects, free, prior and informed consent should be ensured for future projects and local communities shall be consulted and engaged at any stage of the projects' life cycle. Sometimes, it may be advisable to ask for FPIC again when the project later involves major changes unforeseen when the project commenced.

• For more information about the requirement to obtain free, prior and informed consent see the dilemma analysis and case studies on Indigenous peoples

Provide for adequate compensation

The provision of adequate compensation is a key issue when communities are relocated. Companies will have to ensure to carefully and diligently restore the livelihoods of community members at a different location. When providing for compensation, companies should provide compensation of at least equal but preferably higher value. In accordance with the IFC Guidance Note 5, this requires compensation for land and assets to be calculated at the market value plus transaction costs to restore assets. This includes:

• Agricultural land—the market value of land of equal productive use or potential located in the vicinity of the affected land, plus the cost of preparation to levels similar to or better than those of the affected land, and transaction costs such as registration and transfer taxes.
• Land in urban areas—the market value of land of equivalent area and use, with similar or improved infrastructure and services preferably located in the vicinity of the affected land, plus transaction costs such as registration and transfer taxes.
• Houses and other structures—the cost of purchasing or building a new structure, with an area and quality similar to or better than those of the affected structure, or of repairing a partially affected structure, including labour and contractors' fees and transaction costs such as registration and transfer taxes." 86

Sometimes, even if the compensation requirements of, for example, the IFC standards are met, communities reject compensation offers. In order to mitigate the risk of rejection, companies will need to ensure that they are sufficiently informed about what constitutes adequate compensation taking into account the specificities of a particular community.

In the case where communities reject compensation offers, companies may have to resort to legal procedures, including land expropriation, which may lead to conflicts with communities and tensions that are disruptive to production. In any event, companies should aim for a reconciliatory approach; they should collaborate with the responsible government agency and take active part in the relocation planning, implementation and monitoring87 so as to be able to directly address issues which may negatively impact on the community.

Physical displacement

In order to provide for adequate compensation in the case of physical displacement, IFC Performance Standard 5 requires companies to offer displaced persons the choice as to what the best resettlement option is. This may include the choice between replacement housing and cash compensation. Additionally, companies should provide relocation assistance. Housing or cash compensation have to be made available before the relocation takes places.

New settlement sites provided for by the company should improve the living conditions of the displaced community. When the local community either has a formal legal entitlement or a claim to the land which is recognisable under domestic law, the replacement housing should be of equal or higher value and shall be located in an area with equivalent or better characteristics. Cash compensation offered should be at full replacement value.88

When communities occupy land without any recognisable title or claim, the company is required to offer the community to be relocated options for housing with secure tenure. Community members must be fully compensated in kind or in cash for the loss of any dwellings or structures previously owned. Relocation assistance shall be provided with the aim to aid communities restore their livelihoods.89

The relocation of indigenous peoples requires companies to apply a heightened standard of care, as, for example, provided for in IFC Performance Standard 7.

• See dilemma analysis and case studies on Indigenous peoples

Economic displacement

Compensation and assistance has to be provided when economic displacement occurs, namely when communities are faced with the loss of assets or access to assets leading to loss of income sources or means of livelihood.90 Entitlements for all categories of affected persons shall be provided for in a transparent, consistent and equitable way.91

The loss of income and livelihood due to land acquisition independent of the actual physical displacement requires companies to fully compensate communities for loss of assets or access to assets.92 This includes:

• Compensation of business owners for commercial structures
• Lost assets other than land including crops, irrigation infrastructure, and other improvements made to the land
• The provision of targeted assistance and opportunities to, at a minimum, restore income-earning capacity, production levels and standards of living
• The provision of support to community members during the time of transition to restore livelihoods93

Housing

In accordance with IFC Guidance Note 5, adequate housing is to be measured by quality, safety, affordability, habitability, cultural appropriateness, accessibility, and characteristics of location. Adequate replacement housing shall enable access to employment, markets, infrastructure and services including water, electricity, sanitation, health care and education. Security of tenure is a very important component of adequate housing and means that habitants are free from the threat of forced evictions.94

• See dilemma analysis and case studies on Housing

Cash compensation

Cash compensation as opposed to compensation in kind may be appropriate in a certain scenarios as outlined in the IFC Guidance Note 5:

• Livelihoods are not land-based
• The land taken for the project is a small fraction of the land and residual land is economically viable
• Replacement land or housing of equivalent quality is not available locally
• Sufficient supply of land, housing and labour is available locally
• Community members prefer cash compensation over compensation in kind

Sums paid should suffice to replace lost land or lost access to land and other assets at the cost of full replacement in local markets.95

Aim to improve livelihoods and create development opportunities

In line with the objectives of IFC Performance Standard 5, companies shall at least restore, but rather improve the standard of living for the affected communities. Compensation alone may not guarantee that the aims of restoring and improving economic conditions of the local communities are met. Particularly rural resettlements may pose major challenges for companies, particularly when having to restore income opportunities which were originally based on land or natural resources. In urban resettlements, companies may face difficulties to restore livelihoods which are based on income tied to a specific location.96

IFC Guidance Note 5 distinguishes between three different livelihood types and recommends the following:

• Land-based livelihoods – Assistance in acquiring or accessing replacement land, including access to grazing land, forest and water resources; physical preparation of farm land (e.g., clearing, levelling, access routes and soil stabilization); fencing for pasture or cropland; agricultural inputs (e.g., seeds, seedlings, fertilizer, irrigation); veterinary care; small-scale credit, including rice banks, cattle banks and cash loans; and access to markets.
• Wage-based livelihoods – Skills training and job placement, provisions made in contracts with project subcontractors for employment of qualified local workers, and small-scale credit to finance start-up enterprises.
• Enterprise-based livelihoods – Credit or training (e.g., business planning, marketing, inventory and quality control) to expand their business and generate local employment. Clients can promote local enterprise by procuring goods and services for their projects from local suppliers.97

When compensating the local community members, companies should keep in mind long-term development opportunities and benefits. The IFC Handbook for Preparing a Resettlement Action Plan suggests identifying development opportunities and realising them in close collaboration with the affected community. Such development intervention could include production enhancements through the extension of agriculture, construction of storage facilities, support for small-scale credit, formation of cooperatives and marketing strategies, the promotion of new commodities and enterprises.98For example, a company may opt to improve the livelihoods of communities living in squatter housing by providing planned and fully serviced housing.

Additionally, companies may engage in strategic community investment which the IFC describes as "[v]oluntary contributions or actions by companies to help communities in their areas of operation address their development priorities, and take advantage of opportunities created by private investment—in ways that are sustainable and support business objectives".99 In addition to development opportunities offered by the mere presence of business operation in a given community, i.e. employment and payment of taxes, voluntary company investments add further value to the community, i.e. company strategic investment can also yield capacity building, access to social and health services, infrastructure and other benefits.

The World Bank Tool Kit for Community Development provides guidance as to how mining companies can meaningfully contribute to sustainable development of the communities they are operating in.100 The guidance aims to equip companies with the means to ensure independent development of those communities once the company leaves.

Collaborate with host governments to ensure consistency with relocation requirements

Often, land acquisition and relocation are carried out by the host government. However, the responsibility of companies to respect the rights of communities extends to these processes as well. Companies should aim to ensure that the process adequately protects the rights of local communities. Where government action is limited, the company shall be active in relocation planning, implementation and monitoring. In line with IFC Performance Standard 5, companies complement compensation and assistance provided for by the government in order to meet the requirements of the standard.

Tracking performance and public reporting

The implementation of a resettlement plan shall be continuously monitored, evaluated. Meticulous documentation is crucial to achieving the goals of the plan. In accordance with the updated version of IFC Performance Standard 5, this may require external auditing in order to ensure compliance.101If necessary, the plan may have to be adapted to unforeseen circumstances to better mitigate negative impacts on communities.102

IFC requires the resettlement plan to be publicly disclosed. Copies of the plan and documentation relating to project planning and implementation must be submitted to the IFC which makes the documents publicly available.103 Companies have to ensure to comply with host country disclosure requirements and make the materials available to the communities in local languages.

It is imperative to uphold a continuous information disclosure process, particularly when there are changes to the initial project plan. Companies should continuously report back to communities about the project and relocation plan and implementation, consultation outcomes and issues addressed through grievance mechanisms.104

Grievance mechanisms

Where businesses identify responsibility for adverse impacts, they should provide for or cooperate in their remediation and offer routes to judicial or non-judicial grievance mechanisms. Businesses can provide for operational-level grievance mechanisms as recommended in the Draft Guiding Principles.105 Operational level grievance mechanisms are administered by companies alone or in collaboration with relevant stakeholders and are accessible directly to "individuals and communities who may be adversely impacted by a business enterprise".106

Operational-level grievance mechanisms may help companies to identify human rights impacts and grievances and make it possible to address such grievances and remediate human rights impacts at an early stage. The online platform BASESwiki107 provides a vast array of information and the opportunity to share information about a number of dispute resolution mechanisms between business and society at the global and local levels.

IFC clients are required to put in place grievance mechanisms tailored to the respective project to promptly address any concerns in a transparent and understandable manner.108 The mechanism should be available throughout the project's lifecycle. Access to judicial and administrative grievance mechanisms available in the country should never be obstructed. Any mechanism should have processes in place to receive, address and record grievances by local communities. A collaborative approach involving community members can facilitate the solution finding process. Any decision taken should be reported back to the community.

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Human rights impact of community relocation

Community relocation is related to and impacts on many human rights including the overarching fundamental principle of non-discrimination. When community relocation is inadequately carried out, businesses risk complicity in human rights abuses, including abuses of the following rights:

Right to self-determination: Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) state in their Article 1 paragraph 2 that "[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence." Companies may be found complicit in violations of this right when community relocation is carried out without the communities' participation or with only inadequate means for participation.

Right to participation: The right is implicit in the International Covenant on Civil and Political Rights, namely in the Articles 8 (on freedom of association), 13 (on education), and 15 (on cultural life) as well as in the UN Declaration on the Right to Development. The right includes participation of individuals, groups and communities in decision-making, planning and implementation processes affecting their rights as well as the right to information enabling meaningful participation.

Right to non-discrimination and equality: As an overarching fundamental principle of human rights law, the right is enshrined in Articles 2, 3, 14, 26 ICCPR and provides the basis for many rights embedded in the ICESCR and the UDHR. Businesses can be found complicit when community relocation leads to disadvantages of certain groups involved, e.g. minorities and indigenous groups. However, often, if community relocation does not adequately provide for compensation in the case of economic displacement, women are at risk of being disproportionately disadvantaged.

Right to free, prior and informed consent (FPIC): The right to self-determination and the right to participation provide the basis for the concept of free, prior and informed consent. Originally, the principle of free, prior and informed consent aimed to protect the rights of indigenous peoples, but is now increasingly seen as a key component to protect the rights of all host communities. It is a collectively held right and may not be exercised by individuals alone. Article 10 of the UN Declaration on the Rights of Indigenous Peoples states that "[n]o relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned..." Redress and compensation has to be provided when indigenous property was taken without the FPIC of the community. Additionally, states have to ensure that hazardous materials shall not be stored or disposed of on indigenous land without the free, prior and informed consent of the group.109 The ILO Indigenous and Tribal Peoples Convention C169 states in its Article 16 that relocation shall only take place with the indigenous peoples free and informed consent. Where consent may not be obtained, relocation shall follow appropriate national legal procedures. According to Article 7 of the Convention this implies that indigenous and tribal peoples "have the right to decide their own priorities for the process of development" and shall "exercise control, to the extent possible, over their own economic, social and cultural development".110

Right to property: The right to property is enshrined in Article 17 of the Universal Declaration of Human Rights according to which (1) everyone has the right to own property alone as well as in association with others, and (2) no one shall be arbitrarily deprived of his property. Land expropriations for the purpose of involuntary resettlement impact on this right. Companies may be found complicit in violations of this right when they fail to, for example, provide for equivalent replacement land including housing and assets, or compensation.

Right to housing: The provision of inadequate replacement housing may constitute an abuse of the right to housing as stipulated by Article 11 ICESCR.

Right to food: Community relocation may unduly cut off access to food and water impacting on the right to food of community members as enshrined in Article 11 ICESCR.

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