Land Acquisition and Resettlement - Mining and the Environment: From Ore to Metal - page 591

14.5 LAND ACQUISITION AND RELATED ISSUES

Not surprisingly, land conl icts are often related to land acquisition and compensation. No
mining company will object to land compensation, especially compensation for privately
owned land. However, there are two challenges. The i rst challenge is to ascertain the sta-
tus of land ownership land use and land rights; the second challenge is to agree on the
form and magnitude of compensation for resettlement losses.

The Complexity of Traditional Land Rights

International law (especially ILO Convention 169) requires equal respect of traditional
property rights and titled lands. Formal land titles, common as they may be in the west,
are seldom found elsewhere. Most Indigenous Peoples and many non-indigenous poor do
not possess paper land titles to the lands they have used for generations; they may even
wish to avoid land ownership in the conventional western sense.
In addition, in the context of land acquisition and compensation, the broader concept of
'Rights to Land' is perhaps more useful than 'Land ownership', especially in developing
countries. In each of the following categories, those rights might be legally recognized or
recognizable, or not recognized by law: (1) ancestral lands; (2) usufruct rights (such as to
grazing lands, hayi elds, forest lands, etc); and (3) customary use (herders, i shing families,
hunters, gathers).
There may be particular difi culties associated with valuing or replacing such rights.
Those reliant on natural resources are often amongst the most vulnerable and least l exible
in terms of being able to adjust to new livelihoods. However, they are often not opposed to
mine development or the benei ts it might bring to them.
Various approaches may be used in order to protect these rights, including:

International law requires equal
respect of traditional property
rights and titled lands.

●

very careful socio-economic and anthropological assessment to provide a full under-
standing of the dimensions of losses traditional or customary users might experience,
and how these might be managed;

●

extensive and culturally appropriate consultations and participative decision-making;

●

concept of free informed prior consent (or consultation) as the case may be;

●

royalties to traditional owners as are applicable in some jurisdictions;

●

negotiating offsetting benei ts; and

●

additional requirements where Indigenous Peoples are involved.

That said, mining companies often i nd it difi cult for many reasons to deal with trad-
itional rights to land. As stated previously, land rights are not necessarily limited to own-
ership of agricultural land or to other economic land uses. Communities often consider
themselves as the guardians of the forests, lakes, rivers, mountains and other natural fea-
tures within certain geographical boundaries. The geographic boundaries themselves are
dei ned by the communities; each land area belongs to a certain community. It is also com-
mon for a mining project to span more than one cultural area, and traditional rules and
tolerance of land use are likely to differ from community to community.
Traditional land rights, however, are not necessarily an obstacle to mine development.
In traditional law, land is commonly believed to be inherited by the community to sustain
community life from one generation to another. Recognizing a land use such as mining
in the context of collective community interests opens avenues to mine development that
paper titles do not offer.

Mining companies often fi nd it
diffi cult to deal with traditional
rights to land.

Traditional land rights are not
necessarily an obstacle to mine
development.