5 - Discretion, Delegation, Fragmentation and Opacity

Summary

This chapter contextualises how project finance mechanisms interface with indigenous land rights recognition and implementation, and the effects of that convergence for communities in Mongolia and Panama. I analyse how, in two cases, lender safeguarding policies are prioritised through the ordinary and mechanical stream of lender decision-making and the contractual networks that operationalise those policies, questioning the effectiveness of those policies to deliver fair, rights-compliant outcomes. I examine how private environmental and social experts, hired by the borrower, will sort and (de)prioritise local and international norms on indigenous rights and decide which social safeguard policies a borrower should comply with, and how. This provides insights into the operation of law and power in this field: specifically, the fragmented, de-prioritised and powerless nature of different sources of formal indigenous rights norms as they sit against contractual and policy norms. A larger question is of an over-reliance on private experts, the lack of transparency around their decision-making and a deficiency in independent regulatory oversight over these routinely delegated processes.