"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 transnationalcorporations (TNCs). The talk will cover a wide range of issues raisedby negotiations. It is based on the experiences of communities aroundthe world facing the common challenge of exercising some kind ofcontrol over their environment. The talk will focus three themes: 1.negotiating strategies; 2. the substance of an agreement; and, 3. ajust negotiating process. It will also include a mention of some lawsand institutions from other countries that have served communities intheir relations with TNCs.
It's important not to view this talk as an endorsement ofnegotiations. Rather, it is intended as much to raise questions aboutthe value of negotiations as to familiarize you with the process andstrategies. In this regard, you have to recognize that the ???science??? ofnegotiating 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 TNCsare eager to avoid conflicts and are wary of their public image, makingit important to them that they reach an agreement with localcommunities. This is one of the few strengths that communities haveagainst TNCs and each meeting and eachagreement that they appear to be on good terms with communities, sothat it is of much importance to them to be on good terms withcommunniOne of the most important things for companies today is theirability to demonstrate that they are on good terms with localcommunities. It's one of the few powers held by communities and eachmeeting and each agreement they are putting this power in the hand ofthe companies. Negotiations legitimize companies and their plans. Eachcommunit that signs an agreement with a company is facilitating theindustry generall - they are creating a precedent and each precedentmakes it more difficult for the community or for other communities tooppose development.
The companies favor decentralized negotiations because it is verydifficult for an individual community to oppose a company. Therefore,it is critical to have a united indigenous strategy to confront theindustry. In this manner it would be possible to address some of thefundamental problems and obstacles relating to development in place ofsimply accepting minor concessions from each company. Negotiations haveto be viewed as one more option or piece of a much broader strategy.
II. Strategy:
Given the complexity of negotiating, it is essential thatcommunities don't rush and that they seek out reliable assistance. Thefollowing are some of the important aspects relating to each of threestages of negotiations:
A. Before deciding to n 1. Be active: there is much that one can andshould do before even being contacted by companies 2. Get information:it's critical to have sufficient information before making anydecision, including information about: a. the company: i. its recordwith regard to the environment, community relations, and negotiationsii. its strengths and weakness' iii. its plans and interests regardingenviornment in the region iv. its best alternative to an agreement(BATNA): how important is the project for the company b. the governmenti. interests and plans ii. allies/opponents: divisions between thevarious political sectors c. other communities in the area of theproject: their interests and conflicts d. rights: national andinternational laws, treaties, and principles that support communitiesand their environment e. support: local, national, and internationalgroups, institutions, and resources that can be utilized to oppose ornegotiate 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 evennegotiate) d. what are the reasons and justifications for thecommunity's position
B. Before negotiating 1. With the community, discuss and develop thefollowing: a. a strategy for communcations and negotiations with the TNC b.a consultation process between the community negotiators and thecommunity: its important that the community is en fluid contact withthe negoiators c. a ratification process for the agreement: thenegotiators have to understand what issues need to be approved by thecommunity 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 ofthe negotiating b. experts: including a lawyer and an environmentalscientist c. overver: somewone to observe and take notes about thenegotiations 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 companyrepresentatives 2. Be proactive regarding the agenda of thenegotiations (what's to be negotiated) 3. Discuss the negotiatingprocess 4. Be aware of common bad practices, including a. deception:e.g. false facts, intentions, authority) b. psycological: e.g. creatingstress, personal attacks, threats) c. positional: e.g. extreme demands,rising demand, rigid demands 5. avoid public conflicts between membersof the community negotiating team 6. question the reasons behind theintentions and positions of the company 7. Be sure of the viability andsecurity of an agreement 8. Be sure that the agreement also covers theacts of sub-contractors
III. Substance
There are various common pieces of agreements and it is important tounderstand them, first to be sure that the agreement is complete, andsecond to take advantage of the pieces. The pieces will not necessarilyappear in this order and it may be reasons to exclude some of these orinclude others.
A. The preface: At the beginning there is a chance to explain thebackground to the agreement. Insofar as an agreement can be animportant public document and as the preface can have much influenceover the interpretation of the agreement, it is essential that thepreface reflects the background of the agreeemnt from the community'sperspective. For example, that it describes the importance of the land,the enfvironment, the culture, etc. and concerns about the the harmthat development can cause. It is also important to recognize all ofthe irghts that communities enjoy, including rights to their culture,health, participation, a healthy environment, etc.
B. Environmental obligations of the company: the agreement mustclearly explain, in detail, how the company will avoid harming theenvironmetn and the communities. Many of these obligations are alreadypart of the national laws, but it is better if they are also includedin the agreement, and, given the many shortcomings of the laws, thatother obligations are added to them. The following obligations are thenorm in Northern countries (like the U.S.) and are reinforced by international treaties; there is no justification for the TNCsto operate en another manner in Southern countries: 1. Impact andmanagement studies: a. coverage: they should include all environmental,social, and cultural aspects that may be endangered b. time: theyshould be completed sufficiently far in advance of any activities thatthe government, the public, and the affected communities have tie toanalyze them c. transparency: they should be easily accessible (e.g. interms of access, language and terminology) to the public andcommunities d. participation: the communities should have a role in thepreparation of the studies
2. Audits a. audits (investigations/monitoring) should be carriedout regularly in each stage of the operations b. the coverage, time,and transparencie of the audits/investigations should be the same asthe impact studies c. participation: communities should be directlyinvolved in the audits. This can mean such things as: i. a right toenter and inspect the facilities, speak with the employees, and revisethe relevant documents ii. having representatives from the community bepart of the official audit team iii. having the company finance anindependant team to do an audit (the team could be selected with theparticipation of the community to assure its independance)
3. Gauranties: fines and compensation should be established for anyharm done to the community or enviornment or for other violations ofthe company's obligations
C. Community obligations: (they should be limited)
D. Benefits for the community: the benefits should cover the longterm, e.g. a percentage of revenues or a fixed sum over the course ofoperations
E. Ratification: the community ratification process which must be followed for the agreement to be valid
F. Conflicts: some mechanism should be established for resolvingconflicts. It may be better if it's not simply the court system wherecommunities are likely to be at a great disadvantage. Conflictmechanism may be linked to guarantee (see below)
G. Gaurantees: there are various ways to try to ensure that theagreement is honored. All of them have their weaknesses and should becarefully considered. They include: 1. fines 2. insurance or a separatefund for damages 3. recourse litigation or arbitration 4. link theagreement 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 toanalyze the information, discuss their desires and options, and buildcapacity (if so desired) for the communications/negotiations
C. Resources: the community should have access to resources forlogisitics. training, information, and consultants to participate fullyin negotiations
D. Consultants: the community should have access to independent consultants
E. Logistics: the site and language should be neutral or favor thecommunity, e.g. the negotiations/conversations should be held in thecommunity 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 withthe legitimate representatives of the community and negotiating shouldbe collective (united) to the extent possible
J. Oversight: there should be some neutral institution or panel toensure a fair process (take notes, transcribe the agreement, overseecomplaince)
K. Consultation process: there should be sufficient resources andtime for the community negotitiating team to consult frequently withthe community during the negotiations to keep the community informedand to ensure its approval of the most important agreement items
L. Ratification process: there should be sufficient resources andtime for the community to familiarize itself with and ratify theagreement (ratification should be a pre-condition of the agreementcoming into force)
M. Arbitration or Gaurantees: there should be an neutral andaccessible mechanism by which the community can resolve conflicts withthe company regarding the agreement and ensure compliance
V. Model Laws and institutions
A. Rights: towards the end of adding substance to international andconstitutions rights, laws may serve to give communities a true role inthe development and conservation process: 1. adminstrative suits:individuals or groups may sue public agencies for failing to regulateor control private companies 2. lawsuits: facilitate lawsuits againstcompanies by affected individuals and classes 3. information: providebroad access to all relevant information for affected communities andthe public 4. participation: facilitate the direct participation ofaffected communities in decisions relating to the development of localareas and in the monitoring of development activities 5.land/resources: strengthen community title to land and resources toensure their control/influence over local development
B. Development Commissions: in countries like Canada and Colombiadevelopment activities in indigenous territories must be approved bycommissions 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 forcommunities to help prepare them for negotiations and oversight ofdevelopment activities E. Negotiations: in Canada, there are lawsgoverning negotiations between indigenous communities and companies tocompenate for power imbalances
F. Arbitration: in many countries, there are arbitration institutions that are more accessible and often more fair than courts.