4 - Bridging the Gap through the Elephant in the Room?

Summary

Chapter 4 analyses whether private mechanisms for implementing land rights in development projects can fill the gaps within the formal legal framework allowing communities to leapfrog those gaps to negotiate with power-holding concessionaires and financiers? This chapter introduces the devices for analysing this question: project finance mechanisms and company agreement-making. Focusing on project finance mechanisms requires understanding the private legal rules that bring life and value to the project’s assets. These forgotten elephants in the room are the devices within private contracts and policies and behaviours around which they are implemented, all of which matter for the recognising and implementing of indigenous peoples’ rights to land. Evidencing these interfaces means looking at the ordering of a project financing to see how it inherently treats indigenous rights issues within contractual mechanisms that operationalise lender safeguarding policies. Referring to sample clauses, I provide an overview of documentary interfaces between project finance devices and land rights issues where vulnerability to dispossesion is high and private discretion and priority is elevated.