The transition to a carbon-neutral economy will bring profound shifts to diverse economic sectors. This transformation will generate increasing demands for land for renewable energy generation and the minerals needed for clean energy technologies.

These economic impacts also will create social impacts. Dramatic increases in demand for land and minerals threaten to aggravate existing tensions and generate new conflicts between those seeking resources and those who live on the land.

As a continent rich in raw materials and wrought with historical resource conflicts, Africa is particularly susceptible to these potential “green resource” conflicts. Despite the potential for disputes, a new review of the existing legal structures in Africa to address such conflicts by the Environmental Law Institute (ELI), in partnership with the Peace Research Institute Oslo, indicates that there also is cause for hope in preventing a green resource curse.

Our study found that many countries across sub-Saharan Africa have already started to address land grabbing and contestation over minerals, establishing many necessary protections in their legal codes and regulations. Often, these measures were created in response to previous disputes. Many nations also have governmental authorities in place to implement and enforce relevant provisions.

A literature review of specific legal approaches associated with reducing mining and land conflicts helped establish a template that guided an intricate country-by-country review of relevant laws, regulations, and constitutions of countries in sub-Saharan Africa.

This work confirmed that African countries already have numerous legal mechanisms in place to prevent and peacefully resolve conflicts among landowners, developers, and governments. And while a detailed analysis of the implementation and enforcement of these laws was beyond the scope of this review, the study does offer an opportunity to reflect on the current state of play in those key areas, as well as implications for what protections do exist.

Ensuring Land and Resource Rights

Renewable energy requires land. Yet the demand for land to accommodate solar, wind, biofuels, and hydropower project can jeopardize natural resources central to livelihoods and land held by individuals and groups under customary land tenure. Under these traditional tenure systems, many people and communities in sub-Saharan Africa do not hold statutory or “legal” title to the lands they own or occupy.

Similarly, certain resource rights—like use of forest resources, pastoralist grazing, or artisanal mining—are often tied to traditional systems of usage and not statutory ownership, even though these resources form the basis of many livelihoods and lifestyles.

Failure to recognize customary land and resource rights has a long history of causing displacement and loss of livelihoods—two potential drivers of conflict. Protecting these rights under the law—particularly customary tenure rights—is critical to preventing and resolving disputes, as well as addressing more frequent substantive concerns about human rights and community empowerment.

Our research found that the overwhelming majority of sub-Saharan countries surveyed currently recognize customary land rights under constitutional or statutory law. These rights are explicitly recognized on an equal basis as statutory tenure or recognized but held to be secondary to statutory tenure. Most countries also explicitly recognize the rights of artisanal and small-scale miners through formalized permitting systems that protect their livelihoods by putting them on more equal legal footing with large-scale mining interests.

Reducing Environmental and Social Impacts

A longstanding problem with development is its impacts on the environment and local communities. Adverse environmental and social impacts, including land and water pollution, habitat destruction, water stressors, loss of food security, and other health and safety hazards, have long created conflict with local communities. There is no reason to expect that green energy-driven resource development will yield a different result.

It is encouraging that the vast majority of sub-Saharan African countries surveyed have enacted increasingly strong environmental and social standards in permitting processes and regulation. Most of these countries require environmental impact assessments as part of the licensing process for both mining and electricity generation. Some legal requirements even demand analysis of the development’s impact on neighboring countries, as well as potential climate impacts, and effects on local communities, jobs, and food security. Some nations in the region require developers to issue ongoing environmental management reports and to provide periodic assessments and audits.

The vast majority of countries reviewed provide substantive worker safety requirements under mining laws. Several nations even have laws requiring health and safety insurance for workers— and empower the government to terminate licenses and impose sanctions on companies for violations.

Compensation and Benefit Sharing

Where governments do authorize the displacement of landowners in the “public interest” to allow for mining or renewable energy installations, inadequate compensation for these measures can drive conflict. New mines or installations can also disrupt local communities through the loss of existing jobs, an influx of nonlocal workers, loss of access to natural resources, or other unwelcome developments.

Our study discovered that the vast majority of countries surveyed do provide constitutional and/or statutory protections that require compensation for landowners displaced by such development—including compensation for the value of dispossessed land, improvements made to the land, and, to a lesser degree, loss of use of resources on the land. Numerous countries also have enacted laws that require project developers to pay compensation for damage caused from environmental contamination.

Nations in sub-Saharan Africa are also establishing a growing legal trend to provide for benefit sharing from development. These measures include revenue sharing and enforceable community development plans for local communities, such as commitments to local jobs and training, or investments in schools, hospitals, and infrastructure. All of these efforts promote collaboration and sharing of development benefits as a means to prevent and resolve conflict.

Guaranteeing Access to Information and Participation

Potential conflict and distrust also arise when communities impacted by development do not have a voice in decision-making.  National laws that recognize some form of access to information and participatory rights not only increase transparency and accountability; they also reduce corruption and elevate local engagement and facilitate ownership of decisions impacting the community. Community buy-in and the creation of a more level playing field can defuse conflict.

The recent trends on access to information in sub-Saharan Africa are promising. The vast majority of countries studied provide strong access to information laws. Broad access to information acts that cover important regulatory decisions on siting, licensing, and operations are now fairly standard. And to prevent a repeat of past abuses that occurred with obscure disclosure requirements, many countries now have mining laws requiring disclosure of revenues and other information.

Legal rights to participation are generally more limited, however. Despite international standards recognizing the importance of free, prior and informed consent (FPIC), relatively few countries in sub-Saharan Africa have actually incorporated this legal standard into their national laws.

Many countries do require participation and consultation in the context of environmental impact assessments. In some instances, an impacted community’s involvement at hearings is guaranteed.  And a less common example of participation in the region is also worthy of note: several countries now require developers to work with local communities to craft community development plans. This requirement elevates a community’s role in the negotiating process and guarantees local benefits from development.

A Path to Legal Recourse

All of the legal measures described above provide protections that can help reduce conflict. But they require one other provision to be effective: the ability for people to access courts or administrative bodies to enforce their rights and other legal protections.

Our survey suggests that the vast majority of countries do provide for access to justice to assert basic land rights, including opposition to  dispossession or obtaining just compensation. But fewer countries provide standing or legal recourse to enforce other requirements, including those related to benefit sharing. Many countries provide citizens with the more limited recourse of ministries established to enforce regulatory requirements, including EIAs, permits, and community development plans, but these protections are only as strong and equitable as those leading the ministries.

One notable exception, however, is the growing legal trend to provide individual standing to enforce a broad range of environmental protections in court. This is sometimes granted through national constitutions, or, in other instances, provided through framework environmental statutes.

Future Challenges

The transition to a green economy will bring major changes to society, especially in developing countries poised to experience both growing energy demands and competing foreign investment in natural resources.

There is hope in the trends our study has uncovered. As a result of past challenges, many countries throughout Africa have adopted numerous broadly recognized legal approaches that may help reduce the historical drivers of conflict.

These positive trends in African nations are not enough, however, especially when there is limited political will to implement and enforce the laws on the books. In response to this all-too-common dynamic, the UN Environment Programme and others have advanced the environmental rule of law as the next generation of environmental law.

Environmental rule of law recognizes that adopting necessary rules and regulations is only a first step. Effective implementation and enforcement also depends on effective institutions, civic engagement, environmental rights, and access to justice—on the books and in practice.

Over the past thirty years, the history of environmental law in Africa often reveals a lag between the adoption of the laws and their implementation and enforcement. Public interest litigation and civil society advocacy are often necessary, including to mobilize political will. In a growing number of instances, innovative and courageous government officials and judges have been critical to the success of first measures to implement and enforce the provisions.

Metrics to track environmental rule of law are still in their infancy, and the data required for these metrics are often difficult to secure. But professional experience and preliminary analysis show that even if laws may be not effectively enforced (or implemented) at one particular moment,  innovative lawyers and committed governments use them to protect rights to land and other resources as the need arises. 

Any review of existing laws and regulations not only helps to identify where certain provisions exist, but also where further development of these legal tools is needed.  The arc of history convinces us that if the capacity and will of government institutions, civil society, and communities to enact and enforce these provisions is strengthened, a green resource curse is not inevitable.