Workshop on Oil, the Envrionment, and Human Rights
This workshop was given by Chris Jochnick, a CESR co-founder, in Lima, Peru from November 15-17, 1996.
"Negotiations and the Right to Participate"
I. Introduction
This talk is aimed at indigenous communities (and support groups) facing the complicated challenge of negotiating with transnational corporations (TNCs). The talk will cover a wide range of issues raised by negotiations. It is based on the experiences of communities around the world facing the common challenge of exercising some kind of control over their environment. The talk will focus three themes: 1. negotiating strategies; 2. the substance of an agreement; and, 3. a just negotiating process. It will also include a mention of some laws and institutions from other countries that have served communities in their relations with TNCs.
It's important not to view this talk as an endorsement of negotiations. Rather, it is intended as much to raise questions about the value of negotiations as to familiarize you with the process and strategies. In this regard, you have to recognize that the “science” of negotiating has become an industry and that the TNCs that you are likely to face have all the advantages in terms of information, experience, and expert assistance.
Before starting a relationship with a company, you should consider what’s at stake. Most TNCs are eager to avoid conflicts and are wary of their public image, making it important to them that they reach an agreement with local communities. This is one of the few strengths that communities have against TNCs and each meeting and each agreement that they appear to be on good terms with communities, so that it is of much importance to them to be on good terms with communniOne of the most important things for companies today is their ability to demonstrate that they are on good terms with local communities. It's one of the few powers held by communities and each meeting and each agreement they are putting this power in the hand of the companies. Negotiations legitimize companies and their plans. Each communit that signs an agreement with a company is facilitating the industry generall - they are creating a precedent and each precedent makes it more difficult for the community or for other communities to oppose development.
The companies favor decentralized negotiations because it is very difficult for an individual community to oppose a company. Therefore, it is critical to have a united indigenous strategy to confront the industry. In this manner it would be possible to address some of the fundamental problems and obstacles relating to development in place of simply accepting minor concessions from each company. Negotiations have to be viewed as one more option or piece of a much broader strategy.
II. Strategy:
Given the complexity of negotiating, it is essential that communities don't rush and that they seek out reliable assistance. The following are some of the important aspects relating to each of three stages of negotiations:
A. Before deciding to n 1. Be active: there is much that one can and should do before even being contacted by companies 2. Get information: it's critical to have sufficient information before making any decision, including information about: a. the company: i. its record with regard to the environment, community relations, and negotiations ii. its strengths and weakness' iii. its plans and interests regarding enviornment in the region iv. its best alternative to an agreement (BATNA): how important is the project for the company b. the government i. interests and plans ii. allies/opponents: divisions between the various political sectors c. other communities in the area of the project: their interests and conflicts d. rights: national and international laws, treaties, and principles that support communities and their environment e. support: local, national, and international groups, institutions, and resources that can be utilized to oppose or negotiate with a company
3. With the community, discuss and develop the BATNA a. what are the options for the community b. what are the maximum desires c. what is the BATNA: a whate point woiuld it be better not to sign an agreement (or to even negotiate) d. what are the reasons and justifications for the community's position
B. Before negotiating 1. With the community, discuss and develop the following: a. a strategy for communcations and negotiations with the TNC b. a consultation process between the community negotiators and the community: its important that the community is en fluid contact with the negoiators c. a ratification process for the agreement: the negotiators have to understand what issues need to be approved by the community before an agreement is signed
2. Choose a negotiating team: various roles should be considered: a. a leader: someone to communicate the community's postion and do most of the negotiating b. experts: including a lawyer and an environmental scientist c. overver: somewone to observe and take notes about the negotiations d. sceptic: someone to ask lots of questions
3. practice with the community and as a team
C. negotiations 1. Be sure of the authority of the company representatives 2. Be proactive regarding the agenda of the negotiations (what's to be negotiated) 3. Discuss the negotiating process 4. Be aware of common bad practices, including a. deception: e.g. false facts, intentions, authority) b. psycological: e.g. creating stress, personal attacks, threats) c. positional: e.g. extreme demands, rising demand, rigid demands 5. avoid public conflicts between members of the community negotiating team 6. question the reasons behind the intentions and positions of the company 7. Be sure of the viability and security of an agreement 8. Be sure that the agreement also covers the acts of sub-contractors
III. Substance
There are various common pieces of agreements and it is important to understand them, first to be sure that the agreement is complete, and second to take advantage of the pieces. The pieces will not necessarily appear in this order and it may be reasons to exclude some of these or include others.
A. The preface: At the beginning there is a chance to explain the background to the agreement. Insofar as an agreement can be an important public document and as the preface can have much influence over the interpretation of the agreement, it is essential that the preface reflects the background of the agreeemnt from the community's perspective. For example, that it describes the importance of the land, the enfvironment, the culture, etc. and concerns about the the harm that development can cause. It is also important to recognize all of the irghts that communities enjoy, including rights to their culture, health, participation, a healthy environment, etc.
B. Environmental obligations of the company: the agreement must clearly explain, in detail, how the company will avoid harming the environmetn and the communities. Many of these obligations are already part of the national laws, but it is better if they are also included in the agreement, and, given the many shortcomings of the laws, that other obligations are added to them. The following obligations are the norm in Northern countries (like the U.S.) and are reinforced by international treaties; there is no justification for the TNCs to operate en another manner in Southern countries: 1. Impact and management studies: a. coverage: they should include all environmental, social, and cultural aspects that may be endangered b. time: they should be completed sufficiently far in advance of any activities that the government, the public, and the affected communities have tie to analyze them c. transparency: they should be easily accessible (e.g. in terms of access, language and terminology) to the public and communities d. participation: the communities should have a role in the preparation of the studies
2. Audits a. audits (investigations/monitoring) should be carried out regularly in each stage of the operations b. the coverage, time, and transparencie of the audits/investigations should be the same as the impact studies c. participation: communities should be directly involved in the audits. This can mean such things as: i. a right to enter and inspect the facilities, speak with the employees, and revise the relevant documents ii. having representatives from the community be part of the official audit team iii. having the company finance an independant team to do an audit (the team could be selected with the participation of the community to assure its independance)
3. Gauranties: fines and compensation should be established for any harm done to the community or enviornment or for other violations of the company's obligations
C. Community obligations: (they should be limited)
D. Benefits for the community: the benefits should cover the long term, e.g. a percentage of revenues or a fixed sum over the course of operations
E. Ratification: the community ratification process which must be followed for the agreement to be valid
F. Conflicts: some mechanism should be established for resolving conflicts. It may be better if it's not simply the court system where communities are likely to be at a great disadvantage. Conflict mechanism may be linked to guarantee (see below)
G. Gaurantees: there are various ways to try to ensure that the agreement is honored. All of them have their weaknesses and should be carefully considered. They include: 1. fines 2. insurance or a separate fund for damages 3. recourse litigation or arbitration 4. link the agreement to a licencing procedure
IV. A just process
A. Information: the community should have access to and the capacity to understand all of the relevant company documents
B. Time: there should be sufficient time for the community to analyze the information, discuss their desires and options, and build capacity (if so desired) for the communications/negotiations
C. Resources: the community should have access to resources for logisitics. training, information, and consultants to participate fully in negotiations
D. Consultants: the community should have access to independent consultants
E. Logistics: the site and language should be neutral or favor the community, e.g. the negotiations/conversations should be held in the community and in a language well understood by community members
F. Agenda: the community should be involved in the development and control of the negotiating agenda
G. Transparency: to the extent possible, the negotiations should be open and accessible to outsiders
H. Particpants: all of the affected communities should be involved at some level in the negotiations
I. Collective bargaining: the companies should only negotiate with the legitimate representatives of the community and negotiating should be collective (united) to the extent possible
J. Oversight: there should be some neutral institution or panel to ensure a fair process (take notes, transcribe the agreement, oversee complaince)
K. Consultation process: there should be sufficient resources and time for the community negotitiating team to consult frequently with the community during the negotiations to keep the community informed and to ensure its approval of the most important agreement items
L. Ratification process: there should be sufficient resources and time for the community to familiarize itself with and ratify the agreement (ratification should be a pre-condition of the agreement coming into force)
M. Arbitration or Gaurantees: there should be an neutral and accessible mechanism by which the community can resolve conflicts with the company regarding the agreement and ensure compliance
V. Model Laws and institutions
A. Rights: towards the end of adding substance to international and constitutions rights, laws may serve to give communities a true role in the development and conservation process: 1. adminstrative suits: individuals or groups may sue public agencies for failing to regulate or control private companies 2. lawsuits: facilitate lawsuits against companies by affected individuals and classes 3. information: provide broad access to all relevant information for affected communities and the public 4. participation: facilitate the direct participation of affected communities in decisions relating to the development of local areas and in the monitoring of development activities 5. land/resources: strengthen community title to land and resources to ensure their control/influence over local development
B. Development Commissions: in countries like Canada and Colombia development activities in indigenous territories must be approved by commissions that include indigenous representatives
C. Monitoring Commissions: local communities may be involved in commissions to oversee dangerous activities
D. Technical resources: in some countries, there are funds for communities to help prepare them for negotiations and oversight of development activities E. Negotiations: in Canada, there are laws governing negotiations between indigenous communities and companies to compenate for power imbalances
F. Arbitration: in many countries, there are arbitration institutions that are more accessible and often more fair than courts.
